CAPPS v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Granville Capps appeals the trial court's partial grant of his motion to correct erroneous sentence. We affirm in part, reverse in part, and remand for further proceedings in accord with this decision.

Facts and Procedural History

[2] In December 2023, the State charged Capps with possession of methamphetamine as a Level 6 felony; unlawful possession of a syringe, as a Level 6 felony; possession of paraphernalia as a Class A misdemeanor; and being a habitual offender. Pursuant to the terms of a written plea agreement, Capps pleaded guilty to possession of methamphetamine and admitted to being a habitual offender, and the State dismissed the remaining charges. Capps was sentenced according to the terms of his plea agreement, which provided for a sentence of 365 days suspended to probation on the felony offense and an enhancement of 1,095 days executed in the Department of Correction (DOC) for his adjudication as a habitual offender. The agreement also provided that Capps would serve this sentence consecutively to his sentence in cause 79D01-2102-F5-36 (“F5-36”).

[3] Capps subsequently moved to correct his sentence, arguing that it was erroneous because it should have been ordered to run concurrent with, not consecutive to, his sentence in F5-36. Following a hearing, the court ordered that any habitual offender time in this case shall run concurrently with any revoked habitual offender time in F5-36 but otherwise denied Capps’ motion. This appeal followed.

Discussion and Decision

[4] Capps contends that the court erred by partially granting his motion to correct erroneous sentence and ordering hybrid concurrent sentences on the habitual offender enhancements. The State counters that Capps waived his right to challenge his sentence as erroneous. We begin with the waiver argument.¹

[5] In this case, Capps entered into a plea agreement with the State to dispose of his charges. It is well settled that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Such a waiver can even apply to a sentence that is illegal. Crider v. State, 984 N.E.2d 618, 623-24 (Ind. 2013) (stating that where plea agreement provides for illegality later challenged, valid waiver contained therein will be upheld). See also Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (upholding improper consecutive sentences explicitly provided for in plea agreement and explaining that defendants who plead guilty to achieve favorable outcome give up plethora of substantive claims and procedural rights and that striking favorable bargain that includes consecutive sentence court might otherwise not have ability to impose falls within this category) (citation and quotation omitted). That is, when a defendant, by his plea agreement, both explicitly agrees to a particular sentence or a specific method of imposition of sentences—whether or not the sentence or method is authorized by law—and waives his right to appeal that sentence, he cannot later appeal such sentence on the ground that it is illegal. Crider, 984 N.E.2d at 625.

[6] Here, the court sentenced Capps according to the terms of his plea agreement, which included an enhancement for his admission to being a habitual offender and provided that his sentence in this case would be served consecutively to his sentence in F5-36, which also included a habitual offender enhancement. See Appellant's App. Vol. II, p. 10 (Plea Agreement-Judgment of Conviction-Sentencing Order). By all accounts, the sentence Capps agreed to is contrary to law. See Breaston v. State, 907 N.E.2d 992, 994-95 (Ind. 2009) (holding that generally consecutive habitual offender enhancements are improper whether sentences are imposed in single proceeding or in multiple proceedings). However, Capps also agreed that “[t]o the extent this sentence is deemed to be improper, the Defendant waives any arguments as to placement of his executed sentence ․ Further, the Defendant acknowledges that any subsequent collateral attack regarding said sentence is waived ․” Appellant's App. Vol. II, p. 9 (Plea Agreement-Judgment of Conviction-Sentencing Order). Thus, while Capps’ sentence is contrary to law in that it includes consecutive habitual offender enhancements, he cannot appeal the sentence because he explicitly assented to the imposition of such a sentence in his written plea agreement and further waived his right to appeal that sentence. See Crider, supra. Consequently, he cannot appeal his sentence on this ground.

[7] We pause here to offer clarification and guidance. Capps moved to correct his sentence, arguing it was improper because it contained consecutive habitual offender sentences. See Appellant's App. Vol. II, pp. 53-57 (Motion to Correct Erroneous Sentence and Memorandum). Following a hearing, the trial court granted Capps’ motion in part and ordered that “any Habitual Offender time herein shall run concurrent with any revoked Habitual Offender time under [F5-36]. Otherwise, the Motion to Correct Error [sic] is denied.” Id. at 8 (Order).

[8] The court's reference to “revoked habitual offender time” is erroneous. Indiana Code section 35-50-2-8(i) (2023) governs the sentencing of habitual offenders and provides in part that the additional term imposed as a habitual offender enhancement is nonsuspendible. See Fisel v. State, 198 N.E.3d 696, 699 (Ind. Ct. App. 2022) (discussing fact that enhanced sentence due to habitual offender finding is nonsuspendible pursuant to Section 35-50-2-8(i)). Thus, a term of imprisonment that constitutes a habitual offender enhancement cannot be suspended but must be fully executed. Accordingly, there is no time to be revoked because none was suspended.

[9] Moreover, when Capps committed the instant offenses, he had already completed the executed portion of his sentence in F5-36—both his underlying sentence and his habitual offender enhancement—and was out on probation on the suspended portion of his sentence for the underlying convictions in F5-36. See Tr. Vol. 2, p. 21; see generally Appellant's App. Vol. II, pp. 67-77 (CCS in F5-36). Therefore, to the extent the court revokes Capps’ probation in F5-36 and orders him to execute any of his suspended sentence, the time ordered by the court to be executed due to his violation of probation must be served consecutively to his sentence in this case, as the time assigned to his habitual offender enhancement in F5-36 has already been served in full. See Ind. Code § 35-50-1-2(e)(1) (2020).

Conclusion

[10] In sum, Capps exercised his prerogative to agree to a consecutive sentence that the court might otherwise not have been able to impose and to waive his right to appellate review of that sentence. Thus, it was error for the court to grant Capps’ motion to correct erroneous sentence because he explicitly agreed to that sentence in his plea agreement. Moreover, even absent such an agreement by Capps, the consecutive sentence was of no moment because he had already fully served the sentence for his habitual offender enhancement in F5-36 by the time he was sentenced in this case. Accordingly, to the extent that the trial court granted Capps’ motion to correct erroneous sentence, we reverse and remand for the court to enter an order denying Capps’ motion in its entirety.

[11] Affirmed in part, reversed in part, and remanded for further proceedings in accord with this opinion.

FOOTNOTES

1.   Following the filing of Capps’ notice of appeal, the State moved to dismiss this appeal on the ground that Capps waived his right to appeal his sentence in the plea agreement. Capps filed a response, and our motions panel denied the State's motion to dismiss. It is well established that we may reconsider a ruling by our motions panel. Core v. State, 122 N.E.3d 974, 976 (Ind. Ct. App. 2019) (quoting Treacy v. State, 953 N.E.2d 634, 636 n.2 (Ind. Ct. App. 2011), trans. denied). Though we are reluctant to overrule a decision of our motions panel, we have inherent authority to reconsider the ruling while an appeal remains pending. See Steingart v. Musgrave, 221 N.E.3d 725, 731 (Ind. Ct. App. 2023). Accordingly, we address the State's waiver argument.

Robb, Senior Judge.

May, J., and Kenworthy, J., concur.