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Reversal: Special PCR judge had authority to modify sentence

September 6, 2018

The Indiana Court of Appeals reversed a post-conviction court’s ruling after it found a special judge erred when he granted his own motion to correct error based on his belief he did not have the authority to accept an agreement between the defendant and the state.

In April 2012, Jonathan Hummel pleaded guilty to Class A felony dealing in a narcotic drug, two counts of Class B felony robbery, and Class D felony criminal mischief. In return for his guilty plea, the state dismissed all other pending cases, and Hummel was sentenced 31½ years in prison.

After his petition for post-conviction relief was filed in December 2015, Hummel moved for the judge’s recusal, and was Judge Michael Shurn was appointed a special judge in  Starke Circuit Court. During the evidentiary hearing on Hummel’s petition, both Hummel and the state agreed to modifying Hummel’s sentence to include purposeful incarceration. In exchange, Hummel requested his petition for PCR be dismissed, which the special judge accepted.

However, 45-minutes later, Shurn informed the parties he did not have authority to modify Hummel’s sentence because he was only appointed to preside over the PCR case. The special judge then revoked his approval of the agreement and reinstated Hummel’s PCR case. The special judge later denied Hummel’s motion to correct error.

In his pro se appeal, Hummel argued the special judge had the authority to accept the agreement between him and the State, and requested the appellate court clarify the special judge’s authority to accept such agreements. Hummel further insisted the state be bound by the agreement it made with him.

The State cross-appealed, arguing that the appeal in Jonathan Hummel v. State of Indiana, 75A03-1710-PC-2449, should be dismissed because it is not a final, appealable order. It also contended that Hummel did not follow the correct procedure to proceed with an interlocutory appeal, that he waived the issue by not presenting a cogent argument, and the special judge was ultimately correct in his assertion of lack of authority.

However, the appellate court found that the order from which Hummel appealed is a final appealable order under Indiana Trial Rule 59 and was not subject to dismissal on the state’s asserted ground. 

Additionally, the appellate court relied on Indiana Supreme Court precedent in Johnston v. Dobeski, 739 N.E.2d 121, 123 (Ind. 2000) that stated an agreement between a prisoner and the county prosecutor was valid and the post-conviction court had the authority to accept an agreement that included a sentence different than that imposed at trial and to dismiss the post-conviction petition.

“Despite this precedent in favor of Hummel’s position, the state argues Special Judge Shurn did not have authority to accept the agreement to modify the sentence … but rather only had the authority to grant or deny the relief sought by Hummel in his petition for post-conviction relief,” Judge Melissa May wrote for the court.

“To accept the state’s argument appears to eliminate the possibility that a special judge could ever preside over a PCR action. Our Indiana Supreme Court has held a PCR court has the authority to accept agreements presented to it that modify the sentence in the underlying criminal case and we now hold that the authority vested in the judge presiding over a PCR action must be the same, whether that judge is an elected judge, a judge pro tempore, or a special judge,” May continued.

The appellate court found Shurn erred when he granted his own motion to correct error based on his belief he did not have the authority to accept the agreement reached by the state and Hummel. The COA also also denied the state’s cross-appeal request to dismiss Hummel’s appeal.

The panel remanded for the post-conviction court to re-enter its original order enforcing the parties’ agreement and dismissing Hummel’s PCR petition.

 

 

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