Recommendation of plea document passes ‘duck test’

July 21, 2016

Citing the “duck test” credited to Hoosier poet James Whitcomb Riley, the Indiana Court of Appeals held that a “recommendation of plea” document was a plea agreement the trial judge was free to accept or reject.

William Hunter, designated a serious violent felon in 2004, faced several charges in 2014, including Class B felony possession of a firearm as a SVF stemming from his attempt to pawn stolen shotguns. In exchange for dropping the other charges, including eight felony-level charges for receiving stolen property, theft, burglary and fraud, Hunter and the state filed a “recommendation of plea,” in which he said he would plead to the possession charge.

The trial court accepted the plea and dismissed the remaining charges. The judge sentenced Hunter to 20 years in prison, with five years to be served on in-home detention.

He appealed his sentence, which could have been anywhere from six to 20 years in prison, with an advisory term of 10 years for a Class B felony. The appellate judges affirmed it, noting his character “speaks poorly of him.” He’s been in the criminal system since he was a juvenile and faced multiple other felony charges in conjunction with his attempt to sell the shotguns.

The Court of Appeals also sua sponte addressed “an unusual and concerning fact of this case,” Judge L. Mark Bailey wrote. The trial court believed that the “Recommendation of Plea” it received was something other than a plea agreement and believed it had no discretion over whether to accept or reject Hunter’s plea and the state’s dismissal of the remaining charges in exchange for the plea.

“The Recommendation of Plea document set forth a quid pro quo arrangement whereby Hunter agreed to enter a guilty plea on one charge, with the State agreeing to dismiss other charges ‘in exchange therefor.’ The document went on to recite — as would a plea agreement — the various representations and waivers ordinarily present in a plea agreement. This included the following text: ‘I understand that the Court is not bound by this Recommendation of Plea,’” Bailey wrote.

“James Whitcomb Riley …is widely credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.’” This Recommendation of Plea is a duck—or, caption aside, a plea agreement. Trial courts have discretion to accept or reject plea agreements.”

The case is William Hunter v. State of Indiana, 34A04-1506-CR-751.


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