Jonathan Hummel v. State of Indiana , 110 N.E.3d 423 ( 2018 )

FILED
Sep 06 2018, 5:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jonathan Hummel Curtis T. Hill, Jr.
Westville, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathan Hummel, September 6, 2018
Appellant-Defendant, Court of Appeals Case No.
75A03-1710-PC-2449
v. Appeal from the Starke Circuit
Court
State of Indiana, The Honorable Michael A. Shurn,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
75C01-1512-PC-4
May, Judge.
[1] Jonathan Hummel appeals the trial court’s denial of his motion to correct error.
Hummel’s appeal arises after the appointment of a special judge to hear
Hummel’s post-conviction relief (“PCR”) petition. The special judge first
approved an agreement between the State and Hummel that modified
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Hummel’s sentence and called for dismissal of Hummel’s PCR petition.
Approximately forty-five minutes later, the special judge revoked his approval
of the agreement and reinstated Hummel’s PCR petition. Hummel filed a
motion to correct error from the trial court’s reversal of the judgment it had
entered in his favor, which the trial court denied, leading to Hummel’s notice of
appeal.
[2] The State cross-appeals, asserting the denial of Hummel’s motion to correct
error was not a final, appealable order and, as Hummel did not fulfill the
requirements for an interlocutory appeal, this appeal should be dismissed. As
to the merits of Hummel’s appeal, the State counters the special judge was
correct in his determination he did not have the authority to modify the
underlying sentence; thus, the special judge did not err when he denied
Hummel’s motion to correct error.
[3] We reverse and remand.
Facts and Procedural History
[4] On April 23, 2012, Hummel pled guilty pursuant to a plea agreement to Class
A felony dealing in a narcotic drug, 1 two counts of Class B felony robbery, 2 and
1
Ind. Code § 35-48-4-1 (2006).
2
Ind. Code § 35-42-5-1 (1984).
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Class D felony criminal mischief 3 under cause number 75C01-1112-FA-16
(“FA-16”). In return the State dismissed all other pending cases. On May 17,
2012, the trial court sentenced Hummel to thirty-one and one-half years, as
agreed in the plea agreement.
[5] On December 14, 2015, Hummel filed a petition for PCR. 4 On March 23,
2016, Hummel filed a motion for recusal of judge. On June 16, 2016, the trial
court granted that motion and appointed Special Judge Michael Shurn.
[6] On February 24, 2017, at 1:30 p.m., at the evidentiary hearing on Hummel’s
petition, Hummel and the State indicated they had come to an agreement
modifying Hummel’s sentence to include Purposeful Incarceration. 5 In
exchange, Hummel requested his petition for PCR be dismissed. Special Judge
Shurn accepted the agreement and dismissed the PCR. Special Judge Shurn left
the court room. At 2:22 p.m., approximately forty-five minutes later, Special
Judge Shurn returned to the court room. The parties were still present. Special
Judge Shurn informed the parties he had only been appointed to preside over
the PCR case and that he did not have the authority to modify the sentence in
3
Ind. Code § 35-43-1-2 (2006).
4
This petition is not included in the record for review; thus, we do not know the grounds on which
Hummel’s petition asserted he was entitled to relief.
5
Neither the parties nor the record before us indicates whether placement in Purposeful Incarceration was
the basis for Hummel’s petition for post-conviction relief or merely an ancillary negotiation. Additionally,
the transcript for this hearing is not included in the record; thus, we rely on the Chronological Case Summary
(“CCS”) and the parties’ briefs in this recitation of facts. The State and the CCS agree that Purposeful
Incarceration was the substance of the agreement between Hummel and the State. Hummel, himself, does
not elaborate on the terms of the agreement.
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FA-16. Special Judge Shurn then revoked his approval of the agreement and
reinstated Hummel’s PCR case.
[7] On March 20, 2017, Hummel filed a motion to correct error alleging Special
Judge Shurn did have the authority to accept the agreement between him and
the State. In his motion, Hummel argued our Indiana Supreme Court had held
that post-conviction courts had the authority to accept agreements made
between the State and a petitioner. Hummel amended his motion on April 27,
2017, to add citation to a later case wherein the Court of Appeals held post-
conviction courts have discretion to accept or reject an agreement that modifies
the sentence in the underlying cause number.
[8] Special Judge Shurn conducted a hearing on June 28, 2017, and granted
Hummel’s request for ninety more days in which to present additional authority
on his motion. Then, on October 6, 2017, Special Judge Shurn conducted a
hearing on Hummel’s motion to correct error. Hummel was unable to present
any additional authority. Hummel stated he “was just under the impression
that today you were gonna’ go ahead and deny the Motion to Correct Error and
then I was gonna’ – uh – I got my – uh – Notice of Appeal ready to send to the
Court then we were gonna’ move on from there.” (Tr. Vol. II at 5.) Special
Judge Shurn later confirmed, “So, I’m just gonna’ show we had a telephonic
case management conference today and – on the Motion to Correct Errors and
it’s denied and then [Hummel is] gonna’ appeal.” (Id. at 7.)
Discussion and Decision
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[9] Hummel argues Special Judge Shurn had the authority to accept the agreement
between him and the State. Hummel asks this court to clarify the special
judge’s authority to accept such agreements and to insist the State be bound by
the agreement it made with Hummel.
[10] The State cross-appeals and argues this appeal should be dismissed because the
order being appealed is not a final, appealable order and Hummel did not
follow the correct procedure to proceed with an interlocutory appeal. The State
then argues, as to Hummel’s assertions, that Hummel has not presented a
cogent argument for appeal; thus, the issue is waived. Waiver notwithstanding,
the State argues Special Judge Shurn was correct in his assertion he did not
have authority to modify the sentence in FA-16 as his appointment was for only
the PCR case.
State’s Cross-Appeal
[11] As it could be dispositive, we address the State’s cross-appeal first. The State
cross-appeals stating Hummel is not appealing from a final appealable order
and we should dismiss his appeal.
[12] The post-conviction court entered a final appealable order when it accepted the
agreement between the State and Hummel and dismissed Hummel’s PCR
petition. See Ind. Appellate Rule 2(H)(1) (“A judgment is a final judgment if:
(1) it disposes of all claims as to all parties . . . .”). Then, when the special judge
returned to the bench to revoke that acceptance and reinstate the PCR petition,
the court invoked its authority to sua sponte move to correct error. See Ind. Trial
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Rule 59(B) (“The motion to correct error, if any, may be made by the trial
court, or by any party.”). The court’s grant of that motion to correct error was
also an appealable final order. See App. R. 2(H)(4) (“A judgment is final
judgment if . . . it is a ruling on either a mandatory or permissive Motion to
Correct Error which was timely filed under Trial Rule 59 . . . .”); Ind. Trial
Rule 59(F) (“Any modification or setting aside of a final judgment or an
appealable final order following the filing of a Motion to Correct Error shall be
an appealable final judgment or order.”). Thereafter, Hummel filed his own
motion to correct error—which our rules permit him to do in this circumstance.
See Jackson v. Pempleton, 559 N.E.2d 1193, 1193 (Ind. Ct. App. 1990) (When a
“trial court [] alter[s], amend[s], or supplement[s] its findings and/or judgment
in its ruling on the first motion to correct error, the parties would have [] the
discretion to file another motion to correct error directed to the changed
findings and/or judgment.”). Therefore, the order from which Hummel
appeals is a final appealable order and is not subject to dismissal on the State’s
asserted ground.
Hummel’s Appeal
Acceptance of Agreement 6
[13] Hummel appeals the special judge’s determination that the special judge did not
have authority, within a PCR action, to accept an agreement between a
6
While we note the State’s argument that Hummel did not include either his original petition or the
agreement, this does not preclude our review of the merits of this case. The State acknowledges it did make
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petitioner and the State that modified the petitioner’s original sentence.
Hummel argues Indiana Supreme Court precedent gives a PCR court the
authority to accept such agreements between the State and PCR petitioners.
Hummel notes our Indiana Supreme Court explained:
Indiana prosecutors and petitioners for post-conviction relief do
resolve post-conviction relief claims on terms that include a
sentence different than that imposed at trial (1) prior to
adjudication, and (2) after adjudication but prior to resolution on
appeal. There are sound policy reasons that our system should
permit prosecutors and petitioners for post-conviction relief to
agree to resolve post-conviction relief claims, including
facilitating resolution of meritorious, difficult-to-defend, and
otherwise complex post-conviction issues; making efficient use of
limited resources; and promoting judicial economy. To further
these policies, we affirm the authority of prosecutors and
petitioners for post-conviction relief to agree to resolve post-
conviction relief claims on terms that include a sentence different
than that imposed at trial; and we affirm the authority of post-
conviction courts to accept such agreements.
Johnston v. Dobeski, 739 N.E.2d 121, 123 (Ind. 2000) (footnotes omitted),
overruled on other grounds by State v. Hernandez, 910 N.E.2d 213 (Ind. 2009)
(overruling Johnston only “[t]o the extent [it] held that a life sentence was
indeterminate and that a prisoner serving a life sentence was eligible for
consideration for parole”). Based thereon, our Indiana Supreme Court held
an agreement with Hummel, ostensibly regarding Purposeful Incarceration. As such, we will proceed under
the presumption that regardless of the substance of Hummel’s petition, the State and Hummel negotiated a
mutually satisfactory agreement wherein Hummel’s sentence was modified to include the prospect of
Purposeful Incarceration.
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that where “the administrative branch of government acting through the county
prosecutor, as part of an effort to resolve and conclude litigation, sought court
approval of an agreement that, among other things, included a sentence
different than that imposed at trial” the post-conviction court had the authority
to accept that agreement and dismiss the post-conviction petition. Id. at 126.
Nearly a decade later, our Indiana Supreme Court “reaffirm[ed] [its] holding in
Johnston that the agreement between the prisoner and the county prosecutor was
valid.” State v. Hernandez, 910 N.E.2d 213, 221 (Ind. 2009).
[14] In Jackson v. State, 958 N.E.2d 1161 (Ind. Ct. App. 2012), reh’g denied, trans.
denied, Jackson argued post-conviction proceedings are civil in nature and thus
the “post-conviction court had no discretion to deny his proffered agreement[.]”
Id. at 1165. However, a panel of our court held that while a post-conviction
court has the authority to accept such an agreement, “because a post-conviction
proceeding is not the equivalent of a civil proceeding[,]” id. at 1166, the post-
conviction court was not required to accept any agreement.
[15] In light of that precedent, we are constrained to hold that a post-conviction
court has the authority to accept sentence modification agreements reached by
the State and a post-conviction petitioner that call for the dismissal of the post-
conviction petition in exchange for a sentence modification. See Johnston, 739
N.E.2d at 126 (holding it to be “within the judicial power to dismiss the [post-
conviction] litigation” based on the parties’ agreement and “affirming the post-
conviction court’s acceptance of the 1989 agreement between the State and
[petitioner]”).
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[16] In addition, we note that, in Johnston, after the State and Dobeski reached an
agreement that would modify his sentence, the State changed its position and
argued the court had no authority to accept the agreement. In response, the
Supreme Court said:
[T]he State should be held to the agreement it made with
Dobeski in 1989 for the following reasons. First, affirming the
agreement furthers as a general matter the interests identified
above-facilitating resolution of meritorious, difficult-to-defend,
and otherwise complex post-conviction issues; making efficient
use of limited resources; and promoting judicial economy. Some
if not all of these considerations were undoubtedly at work in this
case. Second, as part of the agreement, Dobeski dismissed his
claim for post-conviction relief with prejudice. We see reviving
this claim now, almost a decade later, highly problematic for all
concerned. Third, the original life sentences had been imposed
under an indeterminate sentencing regime that expressly
provided for later review. Fourth, practice under the
indeterminate sentencing system regularly authorized parole
from life sentences after periods of time much less than the
revised sentence in this case. Fifth, the sentence provided for in
the agreement here corresponds to consecutive presumptive
terms under the sentencing regime in effect at the time the
agreement was approved.
Johnston, 739 N.E.2d at 125-26.
[17] Despite this precedent in favor of Hummel’s position, the State argues Special
Judge Shurn did not have authority to accept the agreement to modify the
sentence in FA-16 but rather only had the authority to grant or deny the relief
sought by Hummel in his petition for post-conviction relief. The State’s
assertion is premised on the fact that special judges are appointed to hear a
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single case, not to adjudicate the court’s entire docket. See Skipper v. State, 525
N.E.2d 334, 335 (Ind. 1988) (noting “distinction between a judge pro tempore
and a special judge is that a special judge is appointed for a particular case,
whereas a judge pro tempore is appointed to preside over the entire court for a
span of time”).
[18] However, to accept the State’s argument appears to eliminate the possibility
that a special judge could ever preside over a PCR action. A PCR action, by its
very design, is a collateral attack on the results of a criminal case that arose
under a separate cause number. See Ind. Post-Conviction Rule 1. Thus, the
presiding judge in a PCR action must have authority to act in such a way that
does, in fact, have repercussions for the outcome of a different cause number—
in this case, the underlying criminal proceeding. Whether that judge is a special
judge or a conventional judge ought not impact that authority. Our Indiana
Supreme Court has held a PCR court has the authority to accept agreements
presented to it that modify the sentence in the underlying criminal case, see
Johnston, and we now hold that the authority vested in the judge presiding over
a PCR action must be the same, whether that judge is an elected judge, a judge
pro tempore, or a special judge.
[19] Although Special Judge Shurn was appointed to serve on the PCR action, and
not the FA-16 case, Special Judge Shurn had the authority as the PCR judge to
accept the agreement between the State and Hummel that modified Hummel’s
sentence in FA-16. Additionally, like with plea agreements, once the
agreement was accepted by the court, the parties were bound by the terms of
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their agreement. See, e.g., Brewer v. State, 830 N.E.2d 115, 118 (Ind. Ct. App.
2005) (“A plea agreement is a contract, binding upon both parties when
accepted by the trial court.”), trans. denied; see also Johnston, 739 N.E.2d at 125
(for sound policy reasons, “the State should be held to the agreement it made
with [petitioner]”). Therefore, Special Judge Shurn erred when he sua sponte
granted his own motion to correct error based on his belief he did not have the
authority to accept the agreement reached by the State and Hummel.
Conclusion
[20] As this appeal arose from a final appealable order, we do not grant the State’s
cross-appeal request that we dismiss Hummel’s appeal. Special Judge Shurn
had the authority to accept the agreement between the State and Hummel, and
the State is bound by the terms of that agreement. Therefore, we reverse the
post-conviction court’s revocation of its acceptance of the agreement, which
also called for dismissal of Hummel’s PCR petition. We remand for the post-
conviction court to re-enter its original order enforcing the parties’ agreement
and dismissing Hummel’s PCR petition.
[21] Reversed and remanded.
Riley, J., and Mathias, J., concur.
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