FRIEDLANDER, Judge.
Todd J. Crider pleaded guilty to theft as a class D felony and admitted to being a Habitual Offender. Pursuant to the terms of a written plea agreement, the trial court sentenced Crider to three years on the theft conviction and enhanced such sentence by three years based on his status as a habitual offender. The trial court ordered that the sentence imposed in this cause be served consecutively to a sentence imposed in a separate cause in Tippecanoe County for an underlying conviction and habitual offender finding. On appeal, Crider challenges his sentence, presenting the following issue for our review: Did the trial court erroneously order the sentence in the instant cause, which includes an enhancement for a habitual offender finding, be served consecutively to the sentence imposed in a separate cause in a different county that also included a habitual offender enhancement?
We dismiss.
On December 1, 2010, the State charged Crider with theft as a class D felony. On February 23, 2011, the State amended the charging information to include a habitual offender allegation. On May 31, 2011, the State and Crider submitted to the court a written plea agreement in which Crider agreed to plead guilty as charged and admit his status as a habitual offender. Under the terms of the plea agreement, Crider was to be sentenced to three years for the class D felony theft conviction and
The final sentence of the plea agreement as originally drafted provided "The sentence in Count II shall be served concurrent with an habitual offender enhancement received in Tippecanoe County." Appellant's Appendix at 9. This line is crossed out and is initialed by both Crider and his counsel. Further, the plea agreement originally called for a sentence of one and one-half years to be enhanced by one and one-half years for the habitual offender determination. Each of these terms is likewise crossed out, replaced with three years, initialed by Crider, his counsel, and the prosecutor. The plea agreement also provided:
Id.
At the guilty plea hearing, the trial court found that a sufficient factual basis existed for Crider's plea and that Crider knowingly and voluntarily entered his plea. The court held a sentencing hearing on July 18, 2011. At the sentencing hearing, Crider filed a sentencing memorandum in which he challenged the legality of serving the sentence called for in the plea agreement consecutively to the sentence already imposed in Tippecanoe County in which he had also been subjected to a habitual offender enhancement. Crider argued to the court:
Transcript at 26.
Citing Ind.Code Ann. § 35-50-2-8 (West, Westlaw current through 2011 1st Regular Sess.), the trial court rejected Crider's challenge to the court's authority to order the sentence in the present case inclusive of the habitual offender enhancement consecutively to the sentence in Tippecanoe County that likewise included a habitual offender enhancement. The trial court then sentenced Crider in accordance with the terms of the plea agreement set out above. The trial court further ordered the sentence in this case be served consecutively to the sentence imposed in Tippecanoe County. Crider now appeals.
Crider is correct that as a general rule, consecutive habitual offender enhancements are not authorized by statute and are therefore improper. See Breaston v. State, 907 N.E.2d 992 (Ind.2009) (citing Starks v. State, 523 N.E.2d 735 (Ind.1988); Smith v. State, 774 N.E.2d 1021 (Ind.Ct.App.2002), trans. denied). We agree with the State, however, that Crider haswaived his right to challenge his sentence as erroneous in this respect.
As noted above, as a term of his plea agreement, Crider agreed that he "knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous." Appellant's Appendix at 9. Clearly, whether the sentence in this cause was to be served consecutively or concurrently with the sentence
Although Crider is not challenging the sentence specified under the terms of the plea agreement as outside the range set forth in the plea agreement, he is alleging the sentence was erroneous in another respect, on grounds at the time he entered the agreement of which he was well aware. Crider "knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous." Appellant's Appendix at 9.
Appeal dismissed.
MATHIAS, J., concurs.
RILEY, J., dissents with separate opinion.
I respectfully disagree with the majority's conclusion that Crider waived his claim that he was illegally sentenced. As the majority notes, consecutive habitual offender enhancements are not authorized by statute and are therefore improper. See Breaston v. State, 907 N.E.2d 992 (Ind.2009). The State argues, and the majority agrees, however, that Crider waived his argument that his sentence was illegal by voluntarily entering into a plea agreement with the knowledge that the trial court could order his habitual offender sentences to run consecutively.
We acknowledge that our supreme court has upheld illegal sentences where a defendant has entered into a plea agreement calling for an illegal sentence and then benefitted from that sentence. See, e.g., Lee v. State, 816 N.E.2d 35, 40 (Ind.2004). As the Lee court explained, "[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category." Id. (quoting Davis v. State, 771 N.E.2d 647, n. 4 (Ind.2002)). The distinguishing factor between Lee and the instant case is that Crider did not agree to the trial court's illegal sentence through a plea agreement. As the majority notes, the original draft of the plea agreement provided that the habitual offender enhancements would be served concurrently, yet that provision was crossed out and initialed by Crider and his counsel in the final version. Thus, the plea agreement did not contain any reference to whether the sentence would be served concurrently or consecutively.