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Justices order resentencing on habitual offender sentences

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The Indiana Supreme Court on Thursday reversed the part of a White Superior Court’s sentencing order that a man who pleaded guilty to theft and being a habitual offender must serve his sentence consecutively with a case out of Tippecanoe County.

“In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence,” Justice Robert Rucker wrote.

In Todd J. Crider v. State of Indiana, 91S05-1206-CR-306, Todd Crider appealed White Superior Judge Robert Mrzlack’s ruling that his three-year sentence for theft, enhanced by three years for the habitual offender adjudication, be served consecutively to the sentence imposed in Tippecanoe County. When Crider entered into his plea agreement in the White County case, he had been convicted in Tippecanoe County of theft, attempted fraud and found to be a habitual offender. He was ordered in that case to serve a partially suspended 545-day sentence.

When Crider entered into the plea agreement in White County, the trial court asked if Crider understood because of the Tippecanoe County convictions, part or all of his sentences may have to be served consecutively. Mrzlack concluded White entered the plea voluntarily and knowingly. The agreement also said Crider waived his right to appeal any sentence imposed within the range set forth in the plea agreement. But on the day of sentencing Crider argued that the habitual offender enhancement in White County couldn’t be ordered to be served consecutively with the habitual offender enhancement in Tippecanoe County. The trial court rejected his argument and ordered him to serve consecutive sentences in the two cases.

The state concedes there is a general rule that a trial court may not impose consecutive habitual offender enhancements, but that doesn’t apply in this case because a defendant may not enter into a plea agreement calling for an illegal sentence, benefit from it, and then complain it was illegal later.

But the plea agreement Crider entered into didn’t provide for an illegal sentence, so he is entitled to presume that the trial court would sentence him in accordance with the law, Rucker wrote.

“Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law,” he wrote. “Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.”

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