SHEPARD, Senior Judge
In Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), the defendant was charged with attempted murder, burglary resulting in bodily injury, intimidation, and resisting law enforcement. He pled guilty to attempted murder, and the State dismissed the remaining charges. In sentencing the defendant, the trial court identified as aggravators that the offense occurred in the victim’s home, that the defendant screamed threats at the victim, and that he disobeyed a police officer’s command to release the victim. Farmer argued on appeal that the court improperly relied on these facts because they supported the burglary, intimidation, and resisting law enforcement charges that were dismissed as a part of his plea agreement. A panel of this Court agreed, stating that if the defendant “were sentenced more harshly in reliance upon these facts, he would not receive the full benefit of his plea agreement.” Id. at 1027.
Whether Farmer represents appropriate practice or not has recently been the subject of disagreement in this Court. In Bethea v. State, 964 N.E.2d 255 (Ind. Ct. App. 2012), trans. granted, the defendant faced multiple charges, including burglary resulting in bodily injury, two counts of robbery, and three counts of confinement. Bethea pled guilty to one count each of robbery and confinement in exchange for dismissal of the other charges. In sentencing Bethea, the trial court noted as an aggravator that one of the victims suffered injury. On appeal, Bethea argued that the court abused its discretion by treating the injury as an aggravator because the injury had been an element of the burglary charge that was dismissed pursuant to his plea agreement. The lead opinion declared that a defendant receives the full benefit of his bargain when multiple charges are dismissed in accordance with the agreement (there having been no provision that the sentencing court could not take into account aspects of the crime that were admitted or established by proper evidence, in Bethea’s case that the victim was injured in the course of the crimes for which Bethea was being sentenced). This observation produced two other opinions, both of which adhered to the view that Farmer and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007), trans. denied,1 correctly prohibited considering such facts. Bethea, 964 N.E.2d at 269 (May, J., concurring in result), 271 (Brown, J., dissenting).
While this author finds himself aligned with the lead opinion in Bethea, two members of this panel joined in Farmer, and we thus hold here that it was an abuse of discretion for the trial court to consider the fact that Sexton shot his victim using a handgun it was illegal for a person with five felony convictions to possess.
NAJAM, J., concurs.
BAILEY, J., concurs with separate opinion:
I fully concur in this opinion but write separately to reaffirm my view that the holding set forth in Farmer v. State is a proper application of the principle expressed in Hammons [v. State, 493 N.E.2d 1250 (Ind. 1986)].
As pointed out, Hammons involved a defendant who was acquitted of murder but found guilty of voluntary manslaughter. The trial court disagreed with the jury’s verdict and imposed the maximum penalty for manslaughter based upon that disagreement. The Supreme Court reversed. Hammons, 493 N.E.2d at 1253. In essence, the defendant had not received the benefit of the acquittal.
Conwell extended Hammons to the guilty plea context. Conwell, 542 N.E.2d at 1025. There, pursuant to a plea agreement, the defendant pled guilty to burglary as a class C felony rather than burglary as a class B felony, as charged. We held that the trial court could not find as an aggravator the fact that the burglary occurred in a residence, as that was the fact distinguishing the class B and C felonies. Id. In essence, the defendant had not received the benefit of having pled guilty to the lesser-included offense.
Here, the prosecutor charged Sexton with eight counts: murder; felony murder; robbery; criminal confinement; two counts of forgery; and unlawful possession of a firearm by a serious violent felon; the State also alleged that Sexton is an habitual offender. Yet, pursuant to a plea agreement, Sexton pled guilty to felony murder and the State dismissed all remaining charges. Nevertheless, when imposing the sentence, the trial court identified as an aggravator facts underlying a dismissed charge, i.e., that Sexton possessed a handgun despite his prior felony convictions. I believe that, by so doing, the court deprived Sexton of the benefit of his bargain, although in this instance the error was harmless.
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When, as here, the defendant is induced to plead guilty by a promise to dismiss charges, the defendant’s reasonable expectation under the contract is that there will be no concomitant penal consequences from those dismissed charges. Likewise, when the prosecutor enters into a plea agreement providing for the dismissal of certain charges, the prosecutor agrees that there will be no conviction or sentence attendant to the dismissed charges. When accepted, the trial court is bound by that agreement. Thus, I must conclude that, in the context of the plea agreement, the trial court should not have identified as an aggravator that Sexton possessed a handgun despite his prior felony convictions, as that charge had been dismissed.
I recognize that, to avoid misunderstandings with regard to such a binding agreement, the better practice is for counsel to reduce to writing all terms of a plea agreement. Griffin, 756 N.E.2d at 574. Thus, if the prosecutor chooses to argue that the trial court should consider evidence of dismissed charges as an aggravator, the plea agreement should provide as much and the defendant could then make an informed decision regarding the benefits of such an agreement. A “meeting of the minds” in this context is not inconsequential. Therefore, absent such a provision, I remain convinced that, in the context of a plea agreement, the trial court abuses its discretion when it uses conduct forming the basis of a dismissed charge to enhance the sentence for the offense to which the defendant pled guilty.