ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Tracy A. Nelson Eileen Euzen
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
SUPREME COURT OF INDIANA
JOHN B. ELLIS, ) ) Appellant (Defendant Below ), ) ) No. 10S05-0010-PC-593 v. ) in the Supreme Court ) STATE OF INDIANA, ) No. 10A05-9908-PC-343 ) in the Court of Appeals Appellee (Plaintiff Below ). )
March 23, 2001
Appellant John B. Ellis seeks post-conviction relief, claiming that his guilty pleas to four rapes and related crimes were involuntary because the trial judge rejected the initial plea agreement as likely too lenient and indicated during the hearing the minimum sentence he would accept. We grant transfer to clarify the law about a judges proper role in such matters, and affirm the denial of post-conviction relief.
Ellis knew that he faced a potential sentence of over 300 years if
convicted on all counts at trial. He discussed his alternatives with his
Two months later, the parties submitted a new plea agreement that provided for
a twenty-year sentence for all the charges related to Himelick followed by concurrent
twenty-year sentences on all other charges. The aggregate sentence of forty years
was, of course, consistent with what the judge previously said he would accept.
At a hearing on this new agreement, the court fully advised Ellis of
his rights and established a factual basis for the plea. Ellis affirmed
that he understood the plea agreement and that his plea was free and
voluntary. His counsel expressed the opinion that Ellis would gain no advantage
in proceeding to trial because the DNA evidence could not be successfully challenged.
The court approved the agreement and imposed sentence in accordance with it.
Ellis has argued in this post-conviction proceeding that the judges comments in rejecting
the first plea proposal rendered Ellis final plea involuntary. (Appellants Br. at
1.) Ellis asserts that he felt pressured into accepting the judges terms
for fear of receiving a longer sentence if he went to trial and
further believed he could not get a fair trial if he did not
accept the judges terms. (Appellants Br. at 17.)
The post-conviction court denied relief. The Court of Appeals affirmed, holding that Ellis failed to establish his grounds for relief by a preponderance of the evidence. Ellis v. State, 734 N.E.2d 311, 312-14 (Ind. Ct. App. 2000).
A petitioner claiming that his or her guilty plea was involuntary, and appealing
from a denial of post-conviction relief, must show the reviewing court that the
evidence presented during the post-conviction proceedings is without conflict and, as a whole,
leads unerringly and unmistakably to a decision opposite that reached by the post-conviction
court. Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996) (citing Spranger
v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).
This Court took a dim view of the idea that the judge and
the defendant would negotiate a disposition. While concluding that such bargaining did
not render a plea involuntary as a matter of law, we observed that
the analysis of the facts and circumstances of such an event occurs from
the perspective that judicial participation in plea bargaining is highly suspect. Id.
at 587, 335 N.E.2d at 228. A judges primary responsibility is to
maintain the integrity of the legal system by personifying evenhanded justice, recognizing that
the judges considerable sentencing power may strongly influence the accused. Id. (citation
The sentencing judge in this case, of course, was hardly negotiating one-on-one with
the defendant as the trial judge had done in Anderson.
Rather, the court followed a standard path for entertaining a bargain submitted by
the parties. The judge ordered a presentence report and had it before
him on the date set for sentencing. He heard testimony by the
victim, the arguments of counsel, and so on. This was in accordance
with the provisions of our statute governing entry of judgment and sentencing, Ind.
Code Ann. 35-38-1 (West 1998).
See footnote The Code contemplates that the court will
approve the plea agreement and sentence in accordance with it or reject the
agreement and move the case along towards trial or a different proposed agreement.
See, e.g., Ind. Code Ann. § 35-35-3-3 (West 2000).
Cases following Anderson provide insight into when judicial involvement does or does not go too far. In Williams v. State, 449 N.E.2d 1080 (Ind. 1983), after the defendant pled guilty, the court observed that he was fortunate to have worked out an agreement because a jury likely would have convicted him of kidnapping, which would have carried a life sentence. Id. at 1081. The defendant later withdrew his plea with the courts permission but then re-entered it after his co-defendant agreed to testify against him. Id. at 1082. The court again told the defendant how fortunate he was to have avoided almost certain conviction and a life sentence. Id.
In affirming denial of Williams post-conviction voluntariness claim, we distinguished Anderson by noting
that the trial court did not participate in the negotiations. Id. at
1083. Further, the record in Williams command[ed] an inference that the guilty
plea to a lesser offense was based on the strength of the evidence
and not on the judges comments. Id.
By contrast, we concluded that a judge had gone too far in the
very recent case of Garrett v. State, 737 N.E.2d 388 (Ind. 2000).
The trial judge pressed Garrett at length to plead guilty by emphasizing the
potential sentence and ultimately declaring, Im telling you, if its me and you
get found guilty with this record youll get the [maximum] eighty years.
Id. at 389. The judge went on to ask, in a
disparaging manner, what defense Garrett planned to present. Id. We refused
to condone either the query and comments on Garretts defense or the depth
of the courts inquiry regarding Garretts decision to go to trial. Id.
at 391. We also disapproved the courts statement of its sentencing intentions
as clearly inappropriate.
Ellis circumstances are more akin to Williams than to either Anderson or Garrett.
Unlike in Anderson, where the trial court actually took credit for conducting
the negotiation, the court here merely responded to a proposed agreement that had
been previously negotiated by the parties without any involvement by the court.
Unlike Garrett, the court here did not pressure Ellis to enter or even
consider a guilty plea. Indeed, one of the two alternatives the judge
suggested involved trial on one set of charges. Nor did the court
here threaten or otherwise express any intent to impose an especially harsh sentence
if Ellis opted to proceed to trial. In further contrast to Garrett,
the court did not disparage Ellis proposed defense. In fact, the judge
pointed out in Ellis presence that the States case relied on DNA evidence
that might or might not be admissible at trial.
Here, as in Williams, the court reacted to a proposed plea only after
it was negotiated by the parties and presented to the court as a
mutual agreement. The court did not engage in any unnecessary and unwise
editorializing. Williams, 449 N.E.2d at 1083. The parties here proposed an
agreement that the court, exercising its discretion, declined to accept. Rather than
sending the parties away to guess again at what might pass muster in
some judicial version of hide-the-ball, the court indicated that the proposal was too
lenient and offered two alternatives that it would deem acceptable, given the nature
of the charges and what the court already knew from the presentence report
and the hearing.
While judicial involvement in plea negotiations can certainly go too far, a complete
prohibition on judicial comment regarding a proposed plea agreement would create a separate
set of problems. When a court exercises its discretion to reject a
plea agreement, it is in both parties interests that the court explain its
reasons. See United States v. Rodriguez, 197 F.3d 156, 158 (5th Cir.
1999) (noting that federal district courts may express their reasons for rejecting plea
agreements). If a proposal falls outside the range of what the court
regards as reasonable, it will be helpful to the parties to know whether
the court found the proposal too lenient or too harsh, so that they
may re-negotiate if both choose to do so. This Court sometimes follows
such a practice when it sits as a court of first instance in
hearing attorney discipline cases. See, e.g., Matter of Haecker, 664 N.E.2d 1176
(Ind. 1996) (parties informed that bargained sanction was too lenient; later agreement with
greater sanction approved).
While the American Bar Associations Standards for Criminal Justice have changed over time,
Indianas statutory procedure and the sequence of events in this case are largely
congruent with the current version of these standards:
A judge should not ordinarily participate in plea negotiation discussions among the parties. Upon the request of the parties, a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sentence would be imposed. Discussions relating to plea negotiations at which the judge is present need not be recorded verbatim, so long as an appropriate record is made at the earliest opportunity. For good cause, the judge may order the record or transcript of any such discussions to be sealed. See footnote
A.B.A. Standards for Criminal Justice 14-3.3(d) (3d ed. 1997).
As the Standards indicate, a court may offer guidance as to what sentence it might find marginally acceptable, taking into account a presentence report prepared by the probation department. The message must not, of course, carry any express or implied threat that the defendant may be denied a fair trial or punished by a severe sentence if he or she declines to plead guilty. Matter of Cox, 680 N.E.2d 528, 529-30 (Ind. 1997) (judge disciplined for telling defendant that those who demand jury trial and get convicted receive higher sentences).
The trial judges response to the original plea proposal did not
render Ellis eventual guilty plea involuntary. The court did not press Ellis
to plead guilty rather than to proceed to trial. Faced with a
proposed sentence that fell outside the range the court considered reasonable, it merely
advised the parties of the low end of that range, as guidance for
any further negotiations. It did so in a way that carried no
express or implied threat of punishment. The judges agreement to entertain a
request for a change of venue, and his emphasis on the unresolved DNA
admissibility issue, demonstrated that he retained appropriate open-minded impartiality regarding the case.
After his initial plea was rejected, Ellis had two months to consider his
alternatives with the advice of counsel. The court again fully apprised Ellis
of his rights and the consequences of his revised plea. Ellis asserted
on the record that his plea decision was free and voluntary. We
agree that it was.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.