BARNES, Judge.
Jesse Puckett appeals the trial court's sentencing decision after he admitted to violating his probation for Class C felony child molesting. We reverse and remand.
The restated issue we address is whether the trial court abused its discretion in requiring Puckett to serve his entire previously-suspended four-year sentence for violating his probation.
On October 14, 2004, the State charged Puckett with two counts of Class B felony child molesting. The information alleged that on two separate dates in April 2004 in Wells County, Puckett had sexual intercourse with R.S. In April 2004, Puckett was eighteen, and R.S. was twelve. In investigating the case, several witnesses came forward to claim that they saw R.S. at a party where she and Puckett allegedly had sex in April 2004, and that R.S. appeared to be at least sixteen years old. Puckett maintained that R.S. had told him she was sixteen or seventeen, and R.S. admitted in a deposition that she might have told Puckett she was fourteen, fifteen, sixteen, or seventeen.
On January 26, 2007, the State filed a petition alleging Puckett had violated his probation by failing to notify the probation department of an intimate relationship, having contact with a person under the age of eighteen, and using a computer with internet access. On February 23, 2007, the State amended this petition to allege that Puckett had been charged in Grant County with Class D felony failure to register as a sex offender. On August 8, 2008, the State filed a second amended petition further alleging that Puckett had used alcohol, slept in a place other than his residence without prior approval, and had been present at a park or school. On August 29, 2008, the State filed a third amended petition further alleging that Puckett had traveled alone after 10:00 p.m. without prior approval, had been present at a park or school, and had been charged in Huntington County with Class A misdemeanor check deception for writing a bad check for $25.60.
On October 24, 2008, before a hearing was held on any of the probation violation petitions, Puckett filed a petition for post-conviction relief, alleging that his plea was not knowingly or intelligently entered into or that he received ineffective assistance of counsel in receiving the advice to plead guilty. On December 22, 2009, the post-conviction court denied Puckett's petition. Puckett did not appeal this denial.
On August 9, 2010, Puckett pled guilty in Grant County to one count of Class D felony failure to register as a sex offender. The time period in which Puckett had failed to register was late 2006 to early 2007. Puckett received a sentence of two years, with one and a half years suspended and six months executed.
On April 8, 2011, the trial court held a hearing on the State's third amended petition to revoke probation. By this date, the trial judge who had originally sentenced Puckett was no longer on the bench and the prosecutor at the time of original sentencing was now the trial judge. Thus, a special judge was appointed to hear the probation revocation matter. At the beginning of the hearing Puckett indicated that he would admit to violating his probation by committing the crime of Class D felony failure to register as a sex offender and the State agreed to dismiss, and not present evidence on, any of the other probation violation allegations.
At the hearing it was revealed that Puckett was now married and had a newborn child. Puckett also presented several letters from friends, family, his wife, and employers, attesting to his positive character. Puckett himself also wrote a lengthy letter, noting among other things the close relationship he enjoyed with his younger brothers. The State presented no evidence but argued that Puckett's conviction for failing to register as a sex offender warranted requiring him to serve the full four years of his previously suspended sentence.
Before imposing sentence on Puckett, the trial court stated that it had reviewed
Tr. pp. 15-18.
After this statement, defense counsel objected that the trial court had improperly relied upon a probable cause affidavit from Grant County and probation violation allegations that the State had agreed to dismiss and not present evidence on. The trial court responded,
Id. at 19. Puckett now appeals.
Puckett solely challenges the sentenced imposed by the trial court after he admitted to violating his probation. If a defendant is found to have violated his or her probation, a trial court may (1) continue the defendant on probation; (2) extend the probationary period for not more than one year beyond the original period; and/or (3) order all or part of a previously suspended sentence to be executed. Ind. Code § 35-38-2-3(g). We review a trial court's sentencing decision in a probation revocation proceeding for an abuse of discretion. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind.Ct.App.2006). "An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court." Id. A defendant cannot collaterally attack the propriety of an original sentence in the context of a probation revocation proceeding. Id. However, a defendant is entitled to challenge the sentence a trial court decides to impose after revoking probation. Id.
A defendant facing revocation of probation is entitled to certain due process rights, including: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of the evidence against him or her; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.App.2005), trans. denied. The written statement requirement is a procedural device aimed at promoting accurate fact finding and ensuring the accurate review of revocation decisions. Hubbard v. State, 683 N.E.2d 618, 620-21 (Ind.Ct.App.1997). A transcript of the evidentiary hearing, although not the preferred way of fulfilling the writing requirement, is sufficient if it contains a clear statement of the trial court's reasons for revoking probation.
Here, the trial court's statement of reasons for entirely revoking Puckett's probation
The trial court indicated that Puckett's original plea agreement was the result of incredible generosity on the State's part and that he in fact should have been convicted of one Class B felony, at least. We note that the plea agreement process is one where discretion, evidence-weighing, and knowledge of local courts and local social mores all come into play. Prosecutors generally "have clearly recognized and very broad discretion in the performance of their duties and, more specifically, in making decisions as to which persons arrested for crimes they will actually . . . prosecute to the fullest extent of the law," subject to constitutional limitations. Mueller v. State, 837 N.E.2d 198, 205 (Ind. Ct.App.2005). We believe it is inappropriate for a judge, several years after the fact, to question a plea that was reviewed and accepted by the then-sitting trial judge.
A plea agreement is a contract that binds the defendant, the State, and the trial court once it is accepted by the court. St. Clair v. State, 901 N.E.2d 490, 492 (Ind.2009). There are a number of cases, arising in the context of original sentencing, holding to the effect that once a trial court accepts a plea agreement, it cannot punish a defendant at sentencing for the State's perceived leniency in reaching the agreement in the first place. See Nybo v. State, 799 N.E.2d 1146, 1152 (Ind.Ct.App.2003); see also Farmer v. State, 772 N.E.2d 1025, 1027 (Ind.Ct.App. 2002) (holding trial court improperly relied upon facts constituting crimes that were dismissed as part of plea agreement in sentencing defendant for crime he actually pled guilty to); Conwell v. State, 542 N.E.2d 1024, 1025 (Ind.Ct.App.1989) (holding that when defendant pleads guilty to a lesser included offense of which he or she was charged, trial court in sentencing defendant cannot rely upon element distinguishing the greater offense from the lesser as an aggravating circumstance). Similarly, in the case of jury trials where a defendant is convicted of a lesser included offense, the trial court cannot use sentencing to express disapproval of the jury's verdict and to impose a harsh sentence to compensate for the perceived erroneous verdict. See Hamman v. State, 504 N.E.2d 276, 278 (Ind.1987).
We conclude that a defendant who enters into a plea agreement is entitled to the benefits of that bargain, even in a later probation revocation proceeding. A trial court's belief that a sentence imposed under such an agreement was "too lenient" is not a proper basis upon which to determine the length of a sentence to be imposed following a revocation of probation. We also hold that it is improper when revoking probation for a trial court to find that the defendant actually committed a more serious crime than the one or ones of which he or she was originally convicted.
The trial judge also engaged in an extended discussion regarding his personal beliefs regarding the importance of the sex offender registry, including noting his personal use of the registry. Again within the context of original sentencing, it is improper for a trial court to impose a harsh sentence on the basis of the trial court's desire to send a personal philosophical message about the general severity of an offense, rather than focusing upon facts that are peculiar to the particular defendant and offense. Scheckel v. State, 655 N.E.2d 506, 510 (Ind.1995). This court does not doubt the importance of the sex offender registry, but the trial court's discussion of that importance fails to reveal anything particularly egregious about Puckett's failure to register. In any event, Puckett was separately punished for that failure to register.
We are cognizant of the broad discretion that a trial court has in revoking probation and determining an appropriate sentence for a probation violation. Such discretion, however, is not boundless and it may be abused. We further acknowledge that we have cited cases addressing improprieties in original sentencing statements; as such, we are not today holding that any one single "error" in a probation revocation statement will warrant reversal of a probation revocation sentence as it possibly could in the original sentencing context. Taken together, however, the trial court's statement of reasons regarding Puckett's revocation of probation leads us to conclude that it abused its discretion by considering improper factors before imposing sentence.
As Puckett acknowledges, because this case arises from a probation revocation proceeding, Indiana Appellate Rule 7(B) does not apply here. See Jones v. State, 885 N.E.2d 1286, 1290 (Ind.2008). As such, we lack the power to revise Puckett's probation revocation sentence, which is the remedy often utilized in original sentencing cases where a trial court has relied upon improper reasons in sentencing a defendant. Thus, we remand for the trial court to conduct another hearing regarding revocation of Puckett's probation and to determine an appropriate sanction for his admitted violation without relying upon the improper factors that we have outlined in this opinion.
The trial court abused its discretion by considering multiple improper factors before requiring Puckett to serve the entirety of his previously-suspended sentence upon his admission to violating probation. We reverse and remand for a new sentencing determination that is consistent with this opinion.
Reversed and remanded.
ROBB, C.J., and BRADFORD, J., concur.
