As noted above, as a term of his plea agreement, Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9. Clearly, whether the sentence in this cause was to be served consecutively or concurrently with the sentence already imposed in Tippecanoe County was a matter within the contemplation of the parties as they negotiated the terms of the plea agreement. Indeed, as originally drafted, the plea agreement provided that the habitual offender enhancements imposed as part of the two sentences would be served concurrently. This provision was crossed out and initialed by Crider and his counsel. Additionally, prior to being sentenced, Crider challenged the trial court’s authority to order the habitual offender enhancements of the two sentences to be served consecutively by submitting a memorandum to the trial court and presenting an argument addressing such issue at the sentencing hearing. Under these circumstances, it is apparent that Crider was well aware that the trial court might order the sentences served consecutively, and yet, Crider moved forward with the plea agreement in its current form, i.e., with no provision regarding the consecutive/concurrent aspect of the sentence in this cause with the sentence already imposed in Tippecanoe County.
Although Crider is not challenging the sentence specified under the terms of the plea agreement as outside the range set forth in the plea agreement, he is alleging the sentence was erroneous in another respect, on grounds at the time he entered the agreement of which he was well aware. Crider “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9.
MATHIAS, J., concurs.
RILEY, J., dissenting:
We acknowledge that our supreme court has upheld illegal sentences where a defendant has entered into a plea agreement calling for an illegal sentence and then benefitted from that sentence. See, e.g., Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004). As the Lee court 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.” id. (quoting Davis v. State, 771 N.E.2d 647, n.4 (Ind. 2002)). The distinguishing factor
between Lee and the instant case is that Crider did not agree to the trial court’s illegal sentence through a plea agreement. As the majority notes, the original draft of the plea agreement provided that the habitual offender enhancements would be served concurrently, yet that provision was crossed out and initialed by Crider and his counsel in the final version. Thus, the plea agreement did not contain any reference to whether the sentence would be served concurrently or consecutively.
The majority argues that because the original draft of the plea contained this provision of concurrent habitual offender enhancements, and because Crider challenged the trial court’s authority to order his sentences to be served consecutively during his sentencing hearing, Crider had knowledge that the trial court might order the sentences served consecutively. However, knowledge is not equivalent to consent, and the evidence of Crider’s arguments illustrates that the opposite is true—Crider did not consent to the illegal sentence. Thus, because Crider did not consent to the illegal sentence in his plea agreement, he cannot be said to have benefitted from that sentence as a result of his agreement. Accordingly, I would remand to the trial court with instructions to modify Crider’s sentence.