Attorney for Appellant Attorneys for Appellee
Michael J. Spencer Steve Carter
Deputy Public Defender Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Appeal from the Monroe Circuit Court I, No. 53C01-0103-DF-206
The Honorable E. Michael Hoff, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 53A04-0208-CR-388
January 27, 2005
The agreement reached between Debro and the State required Debro to plead guilty
to criminal recklessness and in exchange the State would dismiss the battery charges.
As for sentencing, Debro and the State executed a document in open
court on September 17, 2001, entitled Deferred Sentencing Agreement.
Id. at 14.
Among other things the agreement provided in relevant part that Debro would:
(1) commit no criminal offenses for a period of one year from the
date of the agreement; (2) attend and successfully complete the Batterers Treatment Program;
and (3) not use any illicit, mood altering, or controlled substances and not
use alcohol while enrolled in the Program. The trial court explained to
Debro the consequences of pleading guilty and advised him that under the terms
of the agreement, the Court will not enter a judgment of conviction, and
will not enter a sentence at this time, as long as you comply
with all of the conditions in this Deferred Sentencing Agreement . . .
. If you comply with the Agreement, that will be the end
of it. Id. at 27-28. After making several inquires of the
trial court, Debro pleaded guilty to the amended charge and provided the trial
court with a factual basis for the plea. The trial court accepted
Debros plea of guilty declaring, Im going to find that there is a
basis of fact for the plea, and Im going to withhold the imposition
of judgment on the terms and conditions set out in the Agreed Deferred
Sentencing Agreement. Id. at 35.
Six weeks later Debro was alleged to have again physically assaulted T.M., which
required a visit to the hospital where she was diagnosed as suffering a
left orbital blowout fracture. Id. at 106. As a result, the
State moved to impose judgment on the ground that Debro had violated the
terms of the agreement by committing battery, a criminal offense. After conducting
a hearing, which was continued several times because T.M. failed to appear, the
trial court concluded that the motion to impose the judgment has been proved
by a preponderance of the evidence . . . . Id. at
137. The trial court then sentenced Debro to 180 days in jail,
with 150 days suspended, and placed Debro on probation for one year.
Id. at 143.
Debro appealed raising three issues for review, which we consolidate as two and
restate as follows: (1) whether the trial court erred in enforcing the
plea agreement, and (2) whether the trial court erred in the admission of
hearsay evidence. Addressing the first issue only, a divided panel of the
Court of Appeals reversed the judgment of the trial court on the ground
that Debros plea agreement was void ab initio . . . .
Debro v. State, 784 N.E.2d 1029, 1030 (Ind. Ct. App. 2003). Having
previously granted transfer, we now affirm the judgment of the trial court.
Underlying Lighty as well as the instant case is the general rule that
a plea agreement entered in violation of a statute is void and unenforceable.
See Tolliver v. Mathas, 512 N.E.2d 187, 189 (Ind. Ct. App. 1987),
trans. denied. Indiana Code §
fter a verdict, finding, or
plea of guilty, if a new trial is not granted, the court shall
enter a judgment of conviction. (Emphasis added). Debro acknowledges that the
statute does not explicitly set a time limit. He argues however that
it nonetheless forbids trial courts from withholding judgment. Implicit in Debros argument
is that his plea agreement was in violation of I.C. § 35-38-1-1(a) and
thus is void. The State counters that the statute mandates only the
entry of judgment of conviction, but does not say when judgment must be
entered. Thus, according to the State, there is no specific time limit
within which a trial court is required to enter judgment.
We first observe that although the plea agreement in this case provided for
a deferred sentence as opposed to a withheld judgment the end result is
the same. The judgment of conviction on which the sentence was to
be based was not entered immediately. In fact, the way in which
such agreements are customarily used by trial courts throughout this State, no judgment
of conviction is ever entered pr
ovided the defendant carries his or her end
of the bargain. This is a tremendous benefit to the defendant because,
provided the defendant faithfully observes the terms of the agreement, there is no
conviction on the defendants record. See, e.g., Carter v. State, 750 N.E.2d
778, 780 (Ind. 2001) (A verdict of guilty can certainly be a significant
legal event, but only if a court later enters judgment on it.)
The same was intended here. As the trial court explained,
comply with the Agreement, that will be the end of it. Appellants
App. at 28. In any event the statute is indeed silent on
the question of timing. However that is not to say the statute
anticipates that the entry of judgment of conviction can be withheld indefinitely.
Eight decades ago, addressing a statute similar to I.C. §
35-38-1-1, this Court
[T]he rule is well settled that it is the duty of the court upon a plea of guilty or upon a finding or verdict of guilty, to impose sentence at that time unless there is reasonable excuse for delay . . . and that an indefinite postponement of rendering judgment or pronouncing sentence will deprive the court of jurisdiction of the person of the defendant, from which it follows that a subsequent sentence is void.
Warner v. State, 194 Ind. 426, 143 N.E. 288, 290 (1924) (construing Section 2073, Burns 1914, which provided, If the accused plead guilty, said plea shall be entered on the minutes, and he shall be sentenced, or he may be placed in the custody of the sheriff until sentenced.). In like fashion, addressing a predecessor to I.C. § 35-38-1-1, this Court has held, [C]ourts may defer temporarily final action upon a plea of guilty or upon a conviction to a subsequent day or term, when it appears that the interest of justice demands it or as said for cause shown . . . . Smeltzer v. State, 243 Ind. 437, 185 N.E.2d 428, 431 (1962) (quotation omitted) (construing Section 9-2201, Burns 1956, which provided, After a finding or verdict of guilty, against the defendant, if a new trial be not granted, or the judgment be not arrested, the court must pronounce judgment.).
Generally at issue in these early cases was an alleged untimely sentencing as
opposed to an alleged untimely entry of judgment. And in that regard
there have been various statutory enactments over the years as well as the
adoption of procedural rules that provide further guidance on the trial courts authority
to delay sentence on a plea or verdict of guilty.
I.C. § 35-38-1-2(b) (requiring trial court to set a sentencing date within thirty
days after entering a conviction, unless for good cause shown an extension is
granted); accord Ind. Crim. Rule 11 (requiring trial court to sentence a defendant
within thirty days after entering a conviction, unless an extension for good cause
is shown); I.C. § 35-35-3-3(a) (requiring the trial court to consider presentence report
before accepting a defendants plea agreement); I.C. § 35-38-1-8(a) (requiring the trial court
to consider presentence report before sentencing a defendant convicted of a felony).
Still, neither the current statute nor its predecessors speak to the question of
timing. We are of the view that as slightly modified the rule
long ago expressed is still applicable: the trial court may not withhold judgment
but is required to enter judgment of conviction immediately unless a temporary postponement
is dictated by good cause shown or the interest of justice so requires.
We thus disapprove of language in Lighty declaring that the practice of
withheld judgments finds no sanction in the law and suggesting that a withheld
judgment is a nullity per se. 727 N.E.2d at 1096.
In this case, as we have mentioned, the plea agreement contemplates not a
withheld judgment but that no judgment would ever be entered. If Debro
had fulfilled the terms of his agreement, then the charge to which he
pleaded guilty would have been dismissed. The agreement was thus in clear
violation of I.C. § 35-38-1-1(a). That does not mean however that Debro
is entitled to relief. A plea agreement is contractual in nature, binding
the defendant, the State and the trial court.
Pannarale v. State, 638
N.E.2d 1247, 1248 (Ind. 1994). As we recently explained, [D]efendants who plead
guilty to achieve favorable outcomes give up a plethora of substantive claims and
procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy.
Striking a favorable bargain including a consecutive sentence the court might otherwise
not have the ability to impose falls within this category. Lee v.
State, 816 N.E.2d 35, 40 (Ind. 2004) (quotation omitted). Withheld judgments and
deferred sentences fall into this category as well.
The agreement Debro reached
with the State provided him with a significant benefit: the possibility of no
criminal conviction for his admitted criminal conduct. Having failed to fulfill his
part of the agreement, Debro may not now be heard to complain.
Debros complaint is based on the following facts. On November 9, 2001,
the State sought to impose judgment against Debro by filing a document entitled
Motion To Set For Sentencing. Appellants App. at 15. The
motion alleged that Debro violated the terms of his plea agreement by committing
the offense of battery against T.M. A hearing on the motion was
scheduled for January 31, 2002. On that date the State called as
a witness Officer William Jeffers of the Bloomington Police Department. He testified
without objection that on November 2, 2002, he responded to a dispatch to
proceed to a local nightclub in reference to a female that had been
Id. at 41. According to O
fficer Jeffers, he arrived
on the scene and spoke with a person who identified herself as T.M.
and she was crying, she told the deputies that she had been beaten
Id. When the State sought further inquiry into the details
of the conversation between the officer and T.M., Debro objected on the grounds
of hearsay. After an extended discussion the trial court sustained the objection,
at which time the State moved for a continuance in order to secure
T.M.s presence. The hearing was continued until February 14, 2002.
on that date and two occasions thereafter, the hearing was again continued when
T.M. failed to appear although she was subpoenaed to do so.
A hearing was finally held on May 1 and May 2, 2002, in
T.M.s absence when T.M. once again failed to appear despite being served with
a subpoena. Officer Jeffers continued his testimony from the first hearing and
testified that after arriving at the nightclub he noticed injuries to T.M.s face,
and that [h]er eye was black and it was almost completely shut.
She had blood around her mouth and her nostrils.
Id. at 74.
Debro did not object to this testimony. However, over Debros objection,
the State introduced into evidence hospital records for medical treatment T.M. received on
November 2, 2002. Among other things, the records included a doctors medical
diagnosis that T.M. suffered a left orbital blowout fracture. Id. at 106.
The State also introduced, over Debros objection, a sworn statement T.M. had
given to a victims advocate in the Prosecutors office. The statement, written
in T.M.s own hand, detailed the circumstances surrounding the event of November 2,
2002. Id. at 149. In his own defense, Debro introduced into
evidence two documents also written in T.M.s own hand. Both identify Debro
or Sherman as the person with whom T.M. had been in an altercation
on the night in question. See id. at 151, 153.
Debro argues that the admission of T.M.s hearsay statements offered by the State violated his right to confront witnesses under both the state and federal constitutions. Under our state Constitution the accused must have the opportunity to cross-examine the witness during a face to face confrontation. Ind. Const. art. I, § 13; Pierce v. State, 677 N.E.2d 39, 49 (Ind. 1997). The Sixth Amendment Confrontation Clause provides that, [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI.
Any right of confrontation to which Debro may have been entitled is largely
dependant on the precise nature of these proceedings. Both the State and
the trial court referred to the proceedings as a sentencing hearing. We
have held that the rule against hearsay does not apply to sentencing.
See Dumas v. State, 803 N.E.2d 1113, 1120 (Ind. 2004); Letica v. State,
569 N.E.2d 952, 957 (Ind. 1991). And at least with respect to
the federal constitution, the Seventh Circuit has determined that the Confrontation Clause does
not apply to sentencing proceedings. The Sixth Amendment accords an accused the
right to confront the witnesses against him in a criminal prosecution. A
sentencing hearing, however, is not a criminal prosecution within the meaning of the
Sixth Amendment because its sole purpose is to determine only the appropriate punishment
for the offense, not the accused's guilt. U.S. v. Francis, 39 F.3d
803, 810 (7th Cir. 1994) (citations omitted) (rejecting the defendants claim that the
use of hearsay testimony during his sentencing hearing violated the Confrontation Clause of
the Sixth Amendment).
We need not determine today whether our state constitution affords a defendant a right of confrontation in a sentencing hearing. And that is so because we do not view these proceedings as a sentencing hearing. The purpose of a sentencing is to determine the type and extent of punishment. Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002) (citing Thomas v. State, 562 N.E.2d 43, 47 (Ind. Ct. App. 1990)). Here, it is true the trial court ultimately sentenced Debro after considering the evidence presented. However, imposition of sentence was the result of, not the reason for, the proceedings. Rather, the proceedings were held to determine whether Debro had violated the terms and conditions of his plea agreement, specifically: commit no criminal offenses for a period of one year from the date of the agreement. Although not precisely the same, the evidentiary hearings in this case were more analogous to a probation revocation proceeding than a sentencing hearing. For example, a provision requiring a probationer to engage in no criminal conduct is typically included as a term of probation. See Ind. Code § 35-38-2-1(b). Also, as with a defendant committed to probation, Debro was granted a conditional liberty, contingent upon his compliance with the terms of his agreement. See Rivera v. State, 667 N.E.2d 764, 766 (Ind. Ct. App. 1996) (Probation is conditional liberty dependent upon the observance of the terms of probation.); see also Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999) (Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.). By complying with the conditions of probation and making a sincere effort at rehabilitation, the probationer avoids serving a sentence. Debro is similarly situated. Also, as in a probation revocation proceeding, here the trial court determined the State proved the allegation against Debro by a preponderance of the evidence. See Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999) (A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence.)
Although probationers are not entitled to the full array of constitutional rights afforded
defendants at trial, the Due Process Clause of the Fourteenth Amendment [does] impose
 procedural and substantive limits on the revocation of the conditional liberty created
by probation. Cox, 706 N.E.2d at 549 (Ind. 1999) (citing Black v.
Romano, 471 U.S. 606, 610 (1985)). In the context of a probation
revocation, this Court has said:
There are certain due process rights, of course, which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached hearing body. Indiana code § 35-38-2-3(d) also ensures the probationer the right to confrontation, cross-examination, and representation by counsel.
Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (citations omitted). See footnote We are of the view that these same due pro cess rights inure also to the benefit of a defendant in a proceeding to enforce a deferred sentence or withheld judgment.
In this case the record is clear that Debro had no opportunity to cross-examine T.M. concerning her written statement to the prosecuting attorney. Nor did Debro have the opportunity to test by cross-examination the hearsay within hearsay contained in the hospital medical records. However, even assuming, and without deciding, that the trial court erred by allowing the documents into evidence, we hold the admission was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967) (declaring that a constitutional error may be harmless if it is clear beyond a reasonable doubt). The record shows that the testimony of Officer Jeffers, introduced into evidence without objection, established that T.M. was battered. The same is true for the medical records. T.Ms hearsay statement merely confirmed that fact and included details of the event. Combined with the exhibits Debro introduced on his own behalf, there was sufficient evidence of probative value before the trial court to demonstrate that Debro violated the terms of his plea agreement by committing battery, a criminal offense.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.