Word substitution causes trouble, but plea agreement stands

A Fayette County man’s confusion about a state statute complicated by a prosecutor’s poor word choice drew some sympathy from the Indiana Court of Appeals but was not enough to win a reversal.

Brian Kinman tried to withdraw from his guilty plea after first telling the Fayette Circuit Court he was entering the plea on his “own free choice and decision.” Under the deal, he was sentenced to four years for dealing a narcotic drug as a Level 5 felony, four years for a habitual offender enhancement and two-and-a-half years for residential entry as a Level 6 felony.

However, at the sentencing hearing, Kinman told the court he wanted to withdraw his previous plea. In particular, he pointed to the language in the agreement which stated the habitual offender status would be served “consecutive to” the other offenses.

“… Under Indiana Code 35-50-2-8 Section J it states habitual offender status is uh, is a criminal enhancement, it’s not a separate crime,” Kinman told the court. “Therefore it has to be ran concurrent with the charges and my plea agreement, (the prosecutor) has it consecutive.”

The prosecutor countered for the purposes of the plea agreement, “enhanced” and “consecutive” were the same thing.

“I have written it as ‘consecutive’ in the past because I think it’s clearer to say that it’s a consecutive sentence but I think it’s clearer in everybody’s minds it doesn’t run concurrent,” the prosecutor said, acknowledging she has received “maybe 10 letters and motions from defendants at the jail who misunderstand this.”

Kinman pressed, he wanted to toss his plea and proceed to trial.

“The way (the prosecutor’s) interpreting it is mistaken because not only there’s me and there’s 10 other guys on my block and 20 other people before me that have been stroked on this and it’s clearly breaking the law,” he told the court. “If I broke the law, I’m being held responsible so why is she not being held responsible to the law that she’s supposed to represent?”

Kinman eventually filed pro se motions to vacate judgment, withdraw his plea and amend his sentence. The trial court denied the motions.

While the Court of Appeals agreed with Kinman that the state’s language in the plea agreement was incorrect, it affirmed the trial court’s ruling in Brian Kinman v. State of Indiana, 19A-CR-2718.

“The state should have used the language set forth in Indiana Code section 35-50-2-8(j) — the highest felony sentence is to be ‘enhanced’ by the habitual offender adjudication. Using the word ‘consecutive’ unnecessarily confuses the matter, as the statute itself clearly states the habitual offender adjudication is not a separate crime that receives a consecutive sentence,” Judge Melissa May wrote for the court. “…We advise the State to draft plea agreements that do not violate the language of the relevant statute.”

Even so, the appellate panel found the trial court did not abuse its discretion in denying Kinman’s pre-sentence oral motion to withdraw his guilty plea and did not err in denying his post-sentence written motion to vacate judgment and withdraw his guilty plea.

“… Kinman has not suffered a manifest injustice because of this improper wording,” May wrote. “He argues the habitual offender enhancement must be served concurrent to his other sentences, but that is illogical under the plain language of Indiana Code section 35-50-2-8, which authorizes trial courts to sentence habitual offenders to ‘an additional fixed term that is … nonsuspendible.’”

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