FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

SUSAN K. CARPENTER    JEFFREY A. MODISETT
Public Defender of Indiana    Attorney General of Indiana

CHRIS HITZ-BRADLEY     SARAH E. SCHERRER
Deputy Public Defender    Deputy Attorney General
Indianapolis, Indiana    Indianapolis, Indiana

ORLANDO PAGE,                  )
                                    )
    Appellant-Petitioner,           )
                                    )
        vs.                         )    No. 27A02-9805-PC-465
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Respondent.            )

                                

contravention of his plea agreement, improperly sentenced him to ten years with eight years suspended.
    A post-conviction petition under Ind. Post-Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind. 1985); P-C.R. 1, §5. The judge who presides over a post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. Stewart v. State, 517 N.E.2d 1230, 1231 (Ind. 1988). Therefore, upon review of a denial of post-conviction relief, the appellate court will not set aside the post-conviction court's ruling unless the evidence is without conflict and leads solely to a result different from that reached by the post-conviction court. Id. In making this determination, we consider only the evidence that supports the decision of the post-conviction court together with any reasonable inferences. McCullough v. State, 672 N.E.2d 445, 447 (Ind. Ct. App. 1996).
    A plea agreement is contractual in nature and binds the defendant, the state and the trial court. Pritscher v. State, 675 N.E.2d 727, 732 (Ind. Ct. App. 1996). The trial court is given the discretion to accept or reject a plea agreement, and, if it accepts the agreement, it is strictly bound thereby. Id.; Ind. Code §35-35-3-3(e). In order to avoid mistakes and misrepresentations with regard to such a binding agreement, counsel should reduce to writing all terms of a plea agreement. See Richardson v. State, 456 N.E.2d 1063, 1067 (Ind. Ct. App. 1983).

ORLANDO PAGE,                    )
            )
    Appellant-Defendant,    )
            )
        vs.    )    No. 27A02-9805-PC-465
            )
STATE OF INDIANA,    )
            )
    Appellee-Plaintiff.    )

BROOK, Judge, dissenting

    I respectfully dissent. Upon reviewing the record, I am convinced that Page was neither sufficiently informed of nor understood the sentencing provisions of his plea agreement as determined during both the guilty plea and sentencing hearings. P age argues that the plea agreement had set a six-year sentencing cap and that the trial court violated the terms of this agreement by sentencing him to ten years with eight years suspended.
    It may be fair to assume that Page would never have challenged the validity of his plea agreement had he not violated the terms of his probation and been required to serve the suspended portion of his sentence. Page tested positive on urine screens for cocaine use on three separate occasions in late 1993 and admitted to using cocaine in violation of his

probation conditions. Page's probation officer filed a petition for revocation of his probation on August 24, 1994. On October 24, 1994, the court revoked Page's probation and ordered him to serve the remaining eight years of his original ten-year sentence.
    To address the sentencing issue in sufficient detail, it is necessary to excerpt significant portions of the transcripts from Page's guilty plea and sentencing hearings.See footnote 1 On March 22, 1993, Page appeared with counsel at his guilty plea hearing:
    MR. LOVE [Page's counsel]: Judge, at this time, we would, uh, submit to the Court a plea recommendation which has been negotiated between the defendant and his attorney. Uh, the plea recommendation is signed by Deputy Prosecutor, Mr. Heck, by myself, and by the defendant, Orlando Page. He did have an opportunity to read it. He is aware of all of the contents.

    THE COURT: Okay, Mr. Page, there's been a plea agreement filed here today. It provides you will enter a plea of guilty to Count 1: Dealing in Cocaine, Class B Felony. It provides that the State of Indiana and you agree that the sentence, if this agreement is accepted, shall be left open and to the Court's discretion. It provides you will testify truthfully, if necessary, in [two] Grant County Circuit Court cases [names omitted]. It provides that the charge of Count 2: Conspiracy to Deal in Cocaine, a Class A Felony, will be dismissed. Is that your understanding of the plea agreement?

    THE DEFENDANT [Page]: Yes.

    THE COURT: Did you read the plea agreement?

    THE DEFENDANT: Yes I did.

    THE COURT: Do you have any questions about it?

    THE DEFENDANT: No.

    THE COURT: Attached to it is a page entitled "Defendant's Acceptance of Plea Agreement". Did you read and understand that page?

have to withdraw your plea of guilty and reinstate your previous plea of not guilty?

    THE DEFENDANT: Yes.

    THE COURT: And if I accept the plea agreement I'll be bound by its terms.

    THE DEFENDANT: Yes.

Among the conditions of probation shall be that the defendant undergo drug and alcohol evaluation, that he follow through with all recommendations therein, that he perform 100 hours of community service. Defendant is granted credit for 311 days spent in jail awaiting disposition of this charge. . . .

State, 456 N.E.2d 1063, 1067 (Ind. Ct. App. 1983), quoting Spalding v. State, 165 Ind. App. 64, 70, 330 N.E.2d 774, 778 (Ind. Ct. App. 1975) (failure to reduce an agreement to writing "can lead to misapprehension, mistake, or even calculated misrepresentation"). "[I]n the interests of justice, the terms of such agreements should be placed of record before a sentence is imposed on the one pleading guilty [citation omitted]. It is incumbent on both parties to see that the agreement's terms are recorded accurately." Richardson, 456 N.E.2d at 1067. In the case at bar, it is nearly impossible to determine whether Page, his attorney, and the trial court were of one mind with respect to the ramifications of Page's sentence because the plea agreement submitted to the court contained no reference to the six-year sentencing cap.
    With respect to the confusion perpetuated by both the trial court and counsel during the hearings, it is worth noting that the term "executed" is not defined in any Indiana statute regarding criminal sentencing. "Execution of sentence" may be defined as the "process of performing a judgment or sentence of court." 15A Words and Phrases 206 (West 1998 cumulative pamphlet) (citation omitted). An executed sentence in a criminal case is

understood to require the incarceration of a defendant, with the possibility of his receiving one day of credit time for each day of imprisonment under IND. CODE § 35-50-6-3(a); a defendant may therefore be released from prison after serving three years of a six-year executed sentence.
    In contrast, "a suspended sentence in criminal law means in effect that defendant is not required at the time sentence is imposed to serve the sentence." Black's Law Dictionary 1446 (6th ed. 1990). In the instant case, Page served the duration of his two-year executed sentence (minus 311 days credit for time served awaiting trial) and was then placed on probation pursuant to the trial court's judgment. See generally IND. CODE §§ 35-38-2-1, 35-38-2-2.3, 35-38-2-3 (conditions of probation and violation thereof). Thus, Page's sentence may be classified as a "split" sentence. See Black's Law Dictionary 1401 ("sentence by which the defendant serves some time and the balance of the sentence is suspended").
    Mr. Love, Page's attorney, was the first to mention the possibility of a six-year sentencing cap during the guilty plea hearing, suggesting that Page "may argue for either a time served or a suspended sentence." By not referring to the cap as an executed cap, Love obviously intended to request a six-year total sentence that would include both executed and suspended time. The issue became clouded when the State referred to "the six year portion as represented" by Love but did not use the word "executed." The trial court then confirmed that the parties had agreed to a "six year time cap" and asked the State whether it intended to stand mute at sentencing. After receiving an affirmative reply, the

court then remarked that it would "show the plea agreement, uh, further amended, uh, to provide for an executed cap of six years [emphasis supplied]."
    During the April 19, 1993, sentencing hearing, Love again appeared to be laboring under the impression of a six-year total sentence capSee footnote 3 and requested that the court split Page's sentence "to be time served for the executed portion and then suspend the remainder on probation." The court, obviously laboring under the impression of a six-year executed sentence cap, noted that the pre-sentencing report had recommended six years (executed, of a 10-year total sentence) and mused that it was "thinking more along the lines of two years executed and eight years suspended." This sentence was indeed pronounced by the court, prompting Love to ask whether it had the jurisdiction to sentence Page up to 10 years. The court responded that its recollection was of a 10-year time cap. Love answered, "I'm sorry. Six year time cap." The State, which had agreed to remain mute at sentencing, chimed in, "State's understanding, uh, is that the provision that was included indicated an executed cap of six years." Love then indicated that he had "just wanted to clear it up..[a]nd we're now clear." The dispositive question remains whether Page was in fact clear about his sentence.

with [IND. CODE § 35-35-1-2] is the best way to assure that a defendant's plea is made voluntarily and intelligently." 497 N.E.2d 893, 905 (Ind. 1986). IND. CODE § 35-35-1-2 requires the court to determine that a defendant understands the nature of the charge against him; has been informed that he is waiving fundamental constitutional rights by pleading guilty; has been informed of the maximum and minimum possible sentences for the crime charged; and has been informed that if the court accepts the plea, it shall be bound by the terms of the agreement. A review of the record indicates that the trial court followed these statutory prerequisites to the letter; however, "[d]efendants who can prove that they were actually misled by the judge, the prosecutor, or defense counsel about the choices before them will present colorable claims for relief." White, 497 N.E.2d at 905-906.
    I do not mean to suggest that either the trial court or counsel sought actively to mislead Page in any way as to the ramifications of his sentence. Rather, I am troubled by the confusing manner in which the sentencing provisions were explained to Page and the manner in which the trial court sought to determine Page's understanding of his possible sentence:
    [T]he role of the trial judge is that of an impartial and detached arbiter uniquely qualified not only to impart the requisite solemnity to the proceeding but also to make the required judgments as to the defendant's understanding of the gravity of the rights he is waiving by the plea as well as the consequences of the plea.

Watson v. State, 463 N.E.2d 535, 536 (Ind. Ct. App. 1984), trans. denied. Here, both Page and his attorney were apparently confused by the trial court's use of the word "executed" and

its mistaken recollection of the sentencing cap. Admonitions regarding a defendant's fundamental rights during plea negotiations may also apply to guilty plea hearings:
    Explanations may have been made to the defendant which superficially satisfy his questions. The defendant's agreement rather than his understanding may predominate this meeting [footnote omitted]. Furthermore, the answers given by the defendant to the questions on the printed guilty plea form may be considered by the parties as a formal consummation of their guilty plea agreement. An objective approach to the question of voluntariness may have been blunted by more complicated and detailed parts of the plea negotiations. Only an objective, impartial interrogation of the defendant when he enters his guilty plea can assure that the plea is entered voluntarily.

Ewing, 171 Ind. App. at 604, 458 N.E.2d at 211 (Staton, J., dissenting). Having examined the transcripts of the hearings, I am convinced that Page merely indicated his agreement with the trial court's statements and could not have fully understood the sentencing provisions and their possible consequences before he entered his guilty plea.
    Among the fundamental constitutional rights waived by Page pursuant to his plea agreement are the right to "a public and speedy trial by jury"; the right to "confront and cross-examine the witnesses against him"; the right to "have compulsory process for obtaining witnesses in his favor"; and the right to "require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself." IND. CODE § 35-35-1-2. Before a defendant waives these threshold rights, a court must ensure that the defendant has entered his guilty plea "knowingly, voluntarily and intelligently." See Ewing, 171 Ind. App. at 597, 358 N.E.2d at 207. In the instant case, I cannot agree that Page was intelligently informed about the sentencing provisions that were

offered by the court in exchange for his guilty plea and the consequent waiver of his fundamental rights. The fact that Page failed to challenge his sentence before he violated the terms of his probation should not preclude this Court from vacating his guilty plea. See id., 171 Ind. App. at 599, 358 N.E.2d at 208 (if the post-conviction court "concludes by a simple preponderance of the evidence that the plea was not intelligently and voluntarily given, the plea should be set aside"). Accordingly, I would reverse the judgment of the post- conviction court.

agreement is apparently a photocopy of the original form and contains what Page refers to in his brief as the trial court's handwritten addition to the sentencing provision (shown in brackets below), such that it reads "the sentence, if this agreement is accepted, shall be open and left to the Court's discretion [with executed cap of 6 yrs.]"; this agreement contains the signatures of the deputy prosecutor (dated October 20, 1992), Page's attorney (dated March 22, 1993), and Page himself. Page's signatures on the two documents do appear to differ from each other, indicating that Page signed each form separately. It is important to note, however, that during the guilty plea hearing, Page's attorney submitted the signed plea recommendation form to the court before sentencing was discussed; therefore, I contend that Page did not sign (and thereby signify his understanding and approval of) the plea recommendation form before the court added its handwritten notations regarding sentencing.

the plea agreement merely as a point of reference to determine the defendant's understanding of his sentence.

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