Najam, J.
. . . Russell presents a single issue for our review, namely, whether the trial court sentenced Russell as provided in the plea agreement. But our resolution of this issue requires us to address a more fundamental issue sua sponte, namely, whether Russell’s plea agreement is void and unenforceable as a matter of law. [Footnote omitted.]
We hold that the sentencing provision in Russell’s plea agreement is contrary to law, and we reverse and remand with instructions.
Russell and his wife adopted three teenaged children: P.G., B.J., and T.D. (“the children”). Between August 23 and November 23, 2012, Russell engaged in repeated acts of extreme abuse and neglect of the three children. The children lived together in one bedroom, and Russell locked the doors to that bedroom with several padlocks on the outside of the doors. There were no light fixtures in the bedroom, and the windows were covered with plywood. Russell would sometimes lock the children in the bedroom for eighteen to twenty-four hours per day. Russell deprived the children of food and access to a bathroom for extended periods of time. The children devised a way of reaching the kitchen to get food by climbing through a loose panel in the wall and burrowing a tunnel through the inside of the walls and ceiling.
The children would typically urinate in a plastic bottle and store it in a hole in the bedroom wall. When Russell and his wife discovered the bottle of urine, they proceeded to pour the urine over the children’s heads. Russell and his wife also rubbed a product called “Icy Hot” on the children’s genitals and rectums, and they would duct-tape diapers to the children before the children went to bed. Russell also tied the children to the beds with duct tape and rope. Russell waterboarded the children and bound their arms behind their backs with a belt. Finally, when Russell wanted to make certain that the children would stay quiet, he placed a rolled sock in the mouth of each child and secured it with duct tape.
. . . .
. . . On September 25, 2013, Russell pleaded guilty to five counts of neglect of a dependent, as Class C felonies, and two counts of crimiinal confinement, as Class C felonies, pursuant to a plea agreement. In exchange for his plea, the State agreed to dismiss the remaining four counts. The plea agreement left sentencing open to the trial court’s discretion, but capped the sentence at ten years “pursuant to Indiana Code Section 35-50-1-2(c).”
….
In sum, the plea agreement and sentence were based on the faulty premise that Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-1-2(c). Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence, and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee, 816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the following instructions: on remand, Russell shall first have the option to ratify and proceed with the current plea agreement without the illegal sentencing limitation. If he chooses that option and enters an open plea on all five counts, the trial court shall have total discretion in resentencing Russell, and he would face a possible maximum sentence of fifty-six years. If he does not exercise that option within thirty days after this opinion has been certified (unless extended by the trial court), the plea agreement shall be vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind. 2009) (holding that the defendant had the option to keep his plea agreement without an unenforceable provision).
Reversed and remanded with instructions.
VAIDIK, C.J., and BROWN, J., concur.