Judge believes lack of victim notification of plea supports vacating agreementww.theindianalawyer.com

Jennifer Nelson for www.theindianalawyer.com

A Court of Appeals judge dissented from his colleagues on Tuesday when he voted to support a trial court’s decision to throw out a plea agreement on the day of sentencing. The trial court discovered the victim in the case had not been notified of the plea agreement.

Judges Melissa May and Rudolph Pyle III reversed Marion Superior Judge Lisa Borges’ decision to grant the state’s motion to withdraw the guilty plea it entered into with Bobby Dunn. Dunn agreed to plead guilty to one count of Class D felony theft in exchange for other charges being dropped.

Marion County Deputy Prosecutor Kevin E. Kelly signed the agreement which said the victim in the case had been notified of the plea deal and the court accepted the agreement. But on the day of sentencing, deputy prosecutor Timothy Baldwin moved to withdraw the plea agreement based on a “mistake in fact” because the victim had not been notified, which he asserted is the victim’s constitutional right under Article 1, Section 13(b).

The majority pointed out that the COA at times has allowed for a guilty plea to be vacated after a court has accepted it, such as when the defendant later claims he or she is innocent, but that the circumstances in this case do not warrant vacating the agreement.

“To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’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,” May wrote.

Judge Michael Barnes dissented, pointing to the Indiana Constitution and the victim’s right to be notified of any public hearings regarding prosecution of the accused defendant.

“It is without question that the ultimate decision regarding the course of a prosecution and whether to enter into a plea agreement belongs to the prosecutor and is an inherent part of his or her power and authority,” he wrote. “Although I emphasize that victims do not control the prosecution or plea bargaining processes, they do have the right to have their opinion considered by the prosecuting attorney.”

Barnes also wrote that he believes that withdrawing a guilty plea after accepting it but before sentencing does not negatively impact a defendant’s constitutional rights.

The majority remanded Bobby Dunn v. State of Indiana, 49A02-1407-CR-470, for resentencing.