Green v. State

Page 977

850 N.E.2d 977

Michael GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 15A01-0508-CR-373.

Court of Appeals of Indiana.

July 20, 2006.

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Lorinda Meier Youngcourt, Huron, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Upon a guilty plea, Appellant, Michael Green, was convicted of Attempted Robbery as a Class A felony¹ (Count I), Conspiracy to Commit Robbery as a Class A felony² (Count II), Burglary as a Class A felony³ (Count III), and Conspiracy to Commit Burglary as a Class A felony⁴ (Count IV). The trial court sentenced him to fifty years for his attempted robbery conviction, fifty years for his burglary conviction, and fifty years for his conspiracy to commit burglary conviction.⁵ The sentences were to be served consecutively. Upon appeal, Green claims that his sentence is in violation of Indiana Code § 35-50-1-2 (Burns Code Ed. Supp.2004), that the factual basis for the plea supports a conviction for conspiracy to commit burglary as a Class B felony rather than as a Class A felony, and that the court used improper aggravators and failed to consider certain mitigators in enhancing his sentence.

We affirm in part, reverse in part, and remand.

In Fields v. State, 825 N.E.2d 841, 843 (Ind.Ct.App.2005), trans. denied, a case involving Green's co-defendant, we dealt with the facts surrounding the case at hand as follows:

"Prior to August 2, 2002, Fields, Michael Green, Nathan Haas, and Brian Allen agreed to steal money they believed they would find in the home of Larry and Judy Pohlgeers. Green and Haas had allegedly burglarized the same house in 2000. On the evening of August 5, 2002, Fields and Green broke into the house while the other two stood watch outside. Fields beat Mr. Pohlgeers with a bicycle seat post and Green beat Mrs. Pohlgeers with a pipe."

The specific factual bases which were entered during Green's plea agreement hearing indicated that, with respect to Count I, attempted robbery, on August 5, 2002, Green aided David Fields, who knowingly attempted to take property from one Larry Pohlgeers by searching his dresser drawer and striking him with a pipe resulting in serious bodily injury to Pohlgeers including pain, lacerations, and contusions. With respect to Count II, conspiracy to commit robbery, the factual basis indicated that on August 5, 2002, Green agreed with Fields and others to commit a robbery and that Fields committed the overt act of searching a dresser drawer and striking Mr. Pohlgeers, resulting in serious bodily injury to Pohlgeers in furtherance of the agreement.⁶ With respect to Count III, burglary, on August 5, 2002, the factual basis stated that Green broke and entered the residence of Judith Pohlgeers with the intent to commit the felony of theft which resulted in the bodily injury of pain, multiple contusions and lacerations to Mrs. Pohlgeers. With respect to Count IV, conspiracy to commit burglary, the factual basis indicated that between August 2 and August 5, 2002, Green agreed with Fields and others to commit the felony of burglary, which resulted in bodily injury, and performed the overt act of "scop[ing]" out the Pohlgeerses' residence on August 2 and August 4, and on August 5, by Fields's bringing a pipe and/or hatchet to the Pohlgeerses' residence and by Green's and Fields's breaking and entering the Pohlgeerses' residence with the intent to commit a theft there which resulted in bodily injury to Mrs. Pohlgeers. Tr. at 12.

On December 16, 2002, Green was charged in an amended information with attempted robbery, conspiracy to commit robbery, burglary, and conspiracy to commit burglary, all as Class A felonies. He was further charged with aggravated battery and battery with a deadly weapon. At a September 25, 2003 guilty plea hearing, Green pleaded guilty to attempted robbery, conspiracy to commit robbery, burglary, and conspiracy to commit burglary, all as Class A felonies.

During a December 19, 2003 sentencing hearing, the trial court found the following as aggravators: the age of the victims; the permanent injuries and disfigurement suffered by the victims; Green's prior criminal record; the risk of Green committing further criminal conduct; Green's lack of remorse; and the facts surrounding the commission of the crime itself, which involved "[p]lanning and scheming, lying in wait," aborting preliminary attempts, using disguises and latex gloves, and preparing weapons. Tr. at 165. In discussing mitigators, the court, in rejecting as a mitigator the claim that Green was high on drugs or alcohol during the commission of the crime, found that the crime was planned over several days. The court found as the only mitigator that there would be hardship for Green and his children. The court concluded that "the aggravators strongly outweigh that single mitigator." Tr. at 166.

In explaining its reasons not to suspend large portions of Green's sentence, the court found that Green had had the opportunity to "back out" of the crime. Tr. at 166. The court noted that Green's group had aborted its first attempt but had come back a few nights later. The court considered, as further reasoning for its decision not to suspend a large part of Green's sentence, the facts that the victims had extended Green mercy in the past and that Green had provided information about where the victims kept their money to the other co-defendants, enabling them to choose these victims for their crime.

In sentencing Green the court determined that Indiana Code § 35-41-5-3 (Burns Code Ed. Repl.2004) applied to the attempted robbery and conspiracy to commit robbery charges, Counts I and II, so he "merged" Count II into Count I for purposes of Green's sentence.⁷ The court further determined that Green's convictions for burglary and conspiracy to commit burglary, Counts III and IV, occurred independently on different dates, and thus were not subject to I.C. § 35-50-1-2. The court then sentenced Green to a fifty-year sentence on Count I, attempted robbery, another fifty-year sentence on Count III, burglary, and a third fifty-year sentence on Count IV, conspiracy to commit burglary. The court suspended fifteen years of each fifty-year sentence. It further ordered that the sentences run consecutively, for an aggregate sentence of 150 years with forty-five years suspended.

On January 6, 2004, Green filed a pro se Motion for Withdrawal of Plea. On July 14, 2005, Green, by counsel, filed a Verified Petition for Permission to File Belated Notice of Appeal. In that petition Green indicated that the court had appointed counsel and granted his motion to dismiss his previous Motion for Withdrawal of Plea. On July 15, 2005, Green filed a belated notice of appeal under Indiana Post-Conviction Rule 2(1).

Upon appeal, Green raises several challenges. He first argues that his sentence violates Indiana Code § 35-50-1-2 because Count I, attempted robbery, and Count IV, conspiracy to commit burglary, were a single episode of criminal conduct and therefore may not result in consecutive sentences. Green concedes that, as our court stated in Fields, Count III, burglary as a Class A or B felony, is a crime of violence which is not subject to the terms of Indiana Code § 35-50-1-2. See 825 N.E.2d at 844.

A person who pleads guilty is not permitted to challenge the propriety of that conviction upon direct appeal. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). A person who pleads guilty may only challenge the conviction through a petition for post-conviction relief. Kling v. State, 837 N.E.2d 502, 504 (Ind.2005). One of the things a person gives up by pleading guilty is the right to a direct appeal. Id. (citing Tumulty v. State, 666 N.E.2d 394, 395 (Ind.1996)). However, a person who pleads guilty is entitled to contest on direct appeal the merits of a trial court's sentencing discretion, i.e., where the sentence is not fixed by the plea agreement. Collins, 817 N.E.2d at 231. If, in a guilty plea situation, there is no agreement between the defendant and the State as to the sentence to be imposed, the sentence may, indeed must, be challenged (if at all) by means of a direct appeal. Kling, 837 N.E.2d at 504. Sentencing is generally left to the discretion of the trial court, but we are duty-bound to correct sentences that violate the trial court's statutory authority. Monyhan v. State, 780 N.E.2d 1187, 1189 (Ind.Ct.App.2003).

Indiana Code § 35-50-1-2, in pertinent part, provides the following:

"The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive[⁸] sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted."

An "episode of criminal conduct" is defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance." I.C. § 35-50-1-2(b). An episode means an occurrence or connected series of occurrences and developments that may be viewed as distinctive and apart although part of a larger or more comprehensive series. Cole v. State, N850 N.E.2d 417 (Ind.Ct.App., 2006) (citing Johnican v. State, 804 N.E.2d 211, 217 (Ind.Ct.App.2004)).

In support of his claim, Green cites to Fields, in which a panel of our court held, with respect to one of Green's co-defendants who had pleaded guilty to the same crimes arising out of the same circumstances, that the conspiracy to commit burglary and the attempted robbery that took place as the conspiracy was carried out amounted to a single episode of...