Justices: Evidence of dismissed crimes allowable for post-conviction relief

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A Delaware County man who pleaded guilty to armed robbery and criminal confinement in a deal that dropped seven other felony counts was not improperly denied post-conviction relief when a judge considered evidence of charges that were dismissed, the Indiana Supreme Court ruled Tuesday.

“Unless the evidence is forbidden by terms of the plea agreement, the trial court judge may consider all evidence properly before him,” Justice Steven David wrote for the unanimous court in Curtis A. Bethea v. State of Indiana, 18S05-1206-PC-304.

Bethea was one of four people charged in connection with the 2005 burglary of a home in which a male resident was pistol-whipped and bound with duct tape and a female resident was pulled from bed and thrown to the floor as the burglars ransacked the home looking for money and drugs.

The trial court weighed aggravating and mitigating factors and sentenced Bethea to 40 years in prision, the maximum allowable penalty for two Class B felony charges. Delaware Circuit Judge Marianne Vorhees denied post-conviction relief, which was affirmed by the Court of Appeals and upheld in Tuesday’s ruling.

Bethea “claims a trial court cannot aggravate a defendant’s sentence with an essential element of a charge that was dismissed pursuant to a plea agreement,” David wrote. “We hold that the trial court finding that the injury suffered by the victim to be an aggravating factor was proper despite the plea agreement that dismissed that count” of Class A felony burglary resulting in bodily injury.

The court’s ruling also sought to clarify the parameters of plea agreements.

“As Senior Judge (Randall) Shepard wrote recently, ‘a defendant receives the full benefit of his bargain when multiple charges are dismissed in accordance with the agreement.’ Sexton v. State, 968 N.E.2d 837, 841 (Ind. Ct. App. 2012). Our opinion today seeks to clarify this issue for trial courts, and to eliminate the application to guilty pleas with plea agreements.

“Our opinion today does not foreclose the possibility of the Defendant bargaining as to what can and cannot be potential aggravating and mitigating factors. It is well within the purview of contract law, and consequentially … the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken. However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.”

In Bethea, justices rejected arguments of ineffective counsel but concluded that the court erred in stating he had been convicted of possession of cocaine with intent to distribute when he had pleaded guilty to the lesser included offense of possession of cocaine. The error was insignificant, though, David wrote, because it “did not change the fact that Bethea had in fact been convicted of a felony for possessing cocaine, which was also part of a pattern of Bethea’s involvement in criminal activity.”



  • Plea agreements,
    This is BS, if it is not in the plea agreement, then it is out of the plea agreement. The court of appeals needs to review past cases, because this is their decision not mine. IC 35-35-3-3(e) states that if the court accepts a plea agreement, that it shall be bound by its terms and is precluded from imposing any other sentence that called for in the plea agreement. Common sense dictates that consideration of dismissed charges cannot be used to enhance a sentence. This is the reason every person arrested needs to demand a jury trial. More than 90% of convictions are by plea agreement that is how often the prosecution doesn't have enough evidence to get a conviction. Do not let prosecutors intimi9date you with threats that they can't back up!

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