COA: Plea agreement doesn’t prevent court from considering certain evidence

July 13, 2016

A Greensburg father who pleaded guilty to felony dangerous control of a child after his young son accidently shot his future stepbrother lost his claim before the Indiana Court of Appeals that the trial court shouldn’t have considered evidence relating to a dismissed charge.

Jason Forshee lived with his fiancée and their two children, 6-year-old A.F. and 7-year-old N.F., and C.R., his fiancee’s 13-year-old son. In March 2014, Forshee had put down his Colt M4 rife that he was cleaning in order to talk to his fiancée. He thought he had unloaded it, but while the two were talking, they heard a gunshot. A.F. had shot C.R., who later died of his injuries.

The state charged Forshee with Class A felony neglect of a dependent and Class C felony dangerous control of a child. He agreed to plead to the Class C felony charge in exchange for dismissal of the Class A felony. Sentencing was left open and the agreement said the state may present evidence.

In sentencing him to four years in prison, the trial court found that Forshee was “in a position of care, custody or control of the victim in this case, with a family relationship that’s been testified about.” Six months of his sentence was suspended to probation.

He filed a motion to correct error, which was denied, leading to this appeal. He argued that the trial court relied on an improper aggravator because the “position of care” finding is a material element of the dismissed charge.

Judge James Kirsch pointed out that Forshee’s argument was expressly addressed and rejected by the Indiana Supreme Court in Bethea v. State, 983 N.E.2d 1134 (Ind. 2013). In that case, the justices concluded it wasn’t improper for the trial court to consider dismissed charges when sentencing Bethea. It reasoned that plea agreements are contracts and the terms of the plea agreement didn’t limit or exclude what may be considered by the trial court.

The same applies in the instant case, the COA held. Forshee’s plea agreement did not contain language preventing the trial court from considering the facts and circumstances relating to the dismissed charge. The agreement said the state “may present sentencing evidence.”

Accordingly, the trial court did not abuse its discretion when it considered as an aggravator that at the time of the incident, Forshee was in a position of care, custody or control of C.R., Kirsch wrote in Jason L. Forshee v. State of Indiana, 16A05-1511-CR-1923.



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