Appellant Pro Se Attorneys for Appellee
William S. Bennett Steve Carter
Carlisle, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indiana Supreme Court
William S. Bennett,
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Harrison Superior Court, No. 31D01-9511-CF-811
The Honorable Roger D. Davis, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 31A01-0209-CR-337
February 5, 2004
William S. Bennett filed his Brief of Appellant after obtaining leave to file
a belated appeal. In response to a motion by the State, the Court
of Appeals dismissed the appeal on grounds of res judicata. We grant Bennetts
petition to transfer and address claims not previously addressed.
Facts and Procedural History
This case has a tortured history. However, for our purposes the relevant
facts are these. In 1995, Bennett pleaded guilty to attempted murder in
Crawford County and was sentenced to a term of forty years. In
that same year, he also pleaded guilty to robbery in an unrelated case
in Harrison County for which he was sentenced to a term of ten
years. The Harrison County trial court ordered the sentence to run consecutively
to the sentence imposed in Crawford County. Bennett filed a Motion to
Correct Erroneous Sentence challenging the trial courts authority to impose consecutive sentences.
In support, he cited Kendrick v. State, 529 N.E.2d 1311 (Ind. 1988) and
other pre-1995 cases. The trial court denied the motion, and Bennett sought
appellate review. However, the Court of Appeals dismissed the attempted appeal because
Bennetts Notice of Appeal was untimely filed. In an order denying transfer,
this Court addressed the merits of Bennetts claim. We noted, the General
Assembly amended the applicable sentencing statute in 1994 to state that [t]he court
may order terms of imprisonment be served consecutively even if the sentences are
not imposed at the same time. Order dated February 15, 2002.
We further explained, [t]his amendment had the effect of overturning the contemporaneousness requirement
of Kendrick. Id.
Thereafter, Bennett sought and was granted leave by the Court of Appeals to
file a belated appeal. In his appellate brief, Bennett devoted the majority
of his argument challenging the trial courts authority to impose consecutive sentences.
In fact in his Statement of the Issues Bennetts sole contention was
whether trial court erred by imposing consecutive sentence. Br. of Appellant at
1. The State responded by filing a motion to dismiss on grounds
of res judicata arguing that this Court previously addressed the merits of the
consecutive sentencing issue in the order denying transfer. The Court of Appeals
agreed and dismissed the appeal. Buried near the end of Bennetts twenty-seven
page handwritten pro se brief, Bennett also contended the trial court erred (1)
in failing to articulate why consecutive sentences were being imposed, (2) in failing
to advise him that consecutive sentences could be imposed, and (3) in failing
to give him full credit for pre-trial confinement. See Br. of Appellant
at 23-26. We grant Bennetts petition to transfer and address these claims.
Bennett entered a plea agreement that provides in relevant part: Sentence: Ten (10)
years at IDC, with all but Five (5) years suspended and Five (5)
years to serve consecutive to Crawford County. Appellants App. at 52.
When a sentencing court exercises its discretion to enhance a presumptive sentence, orders
that sentences be served consecutively, or both, the record must identify relevant factors
which underlie that decision. Saunders v. State, 584 N.E.2d 1087, 1088-89 (Ind.
1992). However, the trial courts discretion is limited where the sentence is
imposed pursuant to a plea agreement. A plea agreement is contractual in
nature, binding the defendant, the State, and the trial court. Pannarale v.
State, 638 N.E.2d 1247, 1248 (Ind. 1994). It is within the trial
courts discretion to accept or reject a plea agreement and the sentencing provisions
therein; however, if the court accepts such an agreement, it is strictly bound
by its sentencing provision and is precluded from imposing any sentence other than
required by the plea agreement. State ex rel. Goldsmith v. Marion County
Superior Court, 275 Ind. 545, 419 N.E.2d 109, 114 (1981).
See footnote In sum,
the trial court is not required to provide specific reasons for imposing a
consecutive sentence when it is imposing sentence pursuant to a plea agre
Silvers v. State, 499 N.E.2d 249, 253 (Ind. 1986). Here, the trial
court accepted the plea agreement entered between Bennett and the State and sentenced
Bennett pursuant to its terms. Bennetts claim that the trial court erred
in failing to articulate its reasons for imposing a consecutive sentence thus fails.
In like fashion Bennetts claim that the trial court erred in failing to
advise him of the possibility of the imposition of consecutive sentences, see Ind.
Code § 35-35-1-2(a)(3), also fails. The recommended sentencing set forth in the plea
agreement called for the sentences to be served consecutively. The trial court
was bound to sentence Bennett accordingly. See Goldsmith, supra.
Finally, the trial court awarded Bennett 230 days of pre-trial credit time.
Bennett contends since the consecutive order in Bennetts sentence is without statutory authority,
Bennett is entitled to receive full credit for all time spent by him
in pretrial confinement awaiting final disposition on the robbery charge. Br. of
Appellant at 25-26. Bennett is incorrect. Again, the trial court did
not err in imposing consecutive sentences. Further, where a defendant is confined
during the same time period for multiple offenses for which he is convicted
and sentenced to consecutive terms, credit time is applied against the aggregate sentence,
not against each individual sentence. Lanham v. State, 540 N.E.2d 612, 613
(Ind. Ct. App. 1989). Bennett cannot prevail on this issue. Conclusion
We grant transfer and affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
Once again Bennett contends the trial court lacked statutory authority to impose
consecutive sentences. We addressed this issue in our order of February 15, 2002
and decline to elaborate further.
Footnote: Of course, even if the product of an agreement, a sentence imposed
contrary to statutory authority would render a plea agreement void and unenforceable.
See Sinn v. State, 609 N.E.2d 434, 436 (Ind. Ct. App. 1993).
In this case there was no statutory impediment to the imposition of Bennetts