May, J.
Bobby Dunn and the State entered into a plea agreement, which the court accepted. Then on the morning of his sentencing hearing, the State moved to withdraw the plea agreement. The court granted the State’s motion.
We reverse and remand for sentencing.
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The State . . . and Dunn presented a plea agreement to the court whereby Dunn would plead guilty to theft and the State would dismiss all other pending charges. The agreement was signed for the State by Deputy Prosecutor Kevin E. Kelly, who also signed an affidavit at the end of the agreement indicating he had
informed the victim and/or the victim’s representative of the fact that the State has entered into discussion with defense counsel concerning this agreement and of the contents of the State’s recommendation, if any; and, that [Deputy Prosecutor Kelly] will notify the victim and his/her representative of the opportunity to be present when the Court considers the recommendation.
(App. at 26.) On the State’s recommendation, the court accepted the plea and found Dunn guilty of theft.
On the day of sentencing, the State, by [a different] Deputy Prosecutor . . . , moved to withdraw the plea agreement due to what he characterized as a “mistake in fact,” (Tr. at 23), which was that the State had not intended to offer a plea agreement . . . [and] that, contrary to Deputy Prosecutor Kelly’s affidavit, the victim was not notified of the plea or the hearings because neither he nor anyone from his office had had any contact with the victim regarding the plea.
. . . Based on the State’s assertion the victim’s constitutional rights [“to be informed of and present during public hearings and to confer with the prosecution” under Ind. Const. art. 1 § 13(b)] had not been protected, the court granted the State’s motion to withdraw the plea.
Discussion and Decision
The trial court erred by granting the State’s motion to withdraw the plea agreement after the court had accepted it….
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. . . While Dunn had no right to be offered a plea agreement and the State could have withdrawn it at any point prior to acceptance by the court, once it was accepted, the court could not revoke or vacate it….
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To the extent the trial court permitted withdrawal based on [the other] Deputy Prosecutor[’s] … assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim….
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Reversed and remanded.
Pyle, J., concurs. Barnes, J., dissents with separate opinion.
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Barnes, Judge, dissenting
I respectfully dissent…. [Article 1, Section 13] gives crime victims the constitutional right “to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.” It clearly and directly gives crime victims the constitutional right to be consulted when a case concerning them is to be disposed of by plea agreement, as well as the right to be notified of and present at any public hearing regarding the plea.
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Here, the victim was neither consulted by the prosecution nor told of the change of plea hearing in violation of the victim’s constitutional rights…. I also believe that withdrawing a plea agreement after acceptance but before sentencing does not impact a defendant in a way that offends his or her constitutional rights.
I do not believe that the prosecutor possessed the authority to waive the victim’s constitutional rights. A prosecutor does not represent the victim of a crime. . . . Here, because the victim never knew of the proposed plea agreement, she could not have intentionally relinquished her constitutional rights to be consulted about the plea and to be present at the change of plea hearing. That the original prosecutor may have misrepresented having consulted with the victim, as found by the trial court, does not change that fact.
In my view, this is a case in which withdrawal of the plea agreement before sentencing was warranted. The trial court did not abuse its discretion in reaching that conclusion. I vote to affirm.