MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 06 2016, 8:49 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Gregory F. Zoeller Leeman Law Offices Attorney General of Indiana Logansport, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Amanda Pearson, January 6, 2016 Appellant-Defendant, Court of Appeals Case No. 09A05-1508-CR-1182 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Rick Maughmer, Appellee-Plaintiff Judge Trial Court Cause No. 09D02-1206-FB-17
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 1 of 13 Case Summary and Issues [1] Amanda Pearson entered a plea of guilty to burglary, a Class B felony, and was
sentenced to 7,300 days of incarceration with 3,650 days suspended to
probation. On appeal, Pearson raises two issues regarding her sentence:
whether the trial court abused its discretion in sentencing her and whether her
sentence is inappropriate in light of the nature of her offense and her character.
The State cross-appeals, contending Pearson entered into a plea agreement
waiving her right to appeal her sentence. Concluding Pearson waived her right
to appeal her sentence, we affirm.
Facts and Procedural History [2] In 2012, Pearson was romantically involved and living with Jeremiah Kelley.
Their relationship was volatile and marked by drug use. In April 2012, Kelley,
his friend, Clifton Stone, and Pearson engaged in a series of residential
burglaries in Carroll, Cass, Howard, and Tipton Counties. In particular, on
April 4, 2012, the trio burglarized a home in Cass County. Pearson acted as
lookout and remained in the car while Kelley and Stone entered the home and
took a television and several items of jewelry. When making entry, they
damaged the door from the garage into the house.
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 2 of 13 [3] The State charged Pearson with burglary, a Class B felony, and theft, a Class D
felony.1 On August 25, 2014, two days before a jury trial was scheduled to
begin, Pearson and the State filed a written plea agreement which provided
Pearson would plead guilty to burglary and the State would dismiss the theft
count. With regard to the sentence, the agreement provided there would be
“[o]pen argument by the parties as to sentence,” and restitution to the victims
would be determined at sentencing. Appellant’s Appendix at 140. As part of
the plea agreement, Pearson acknowledged that she:
(2) has been informed that by his plea he/she waives his/her rights to: *** (e) Waiver of appellate review of this sentence imposed by the court. Defendant acknowledges that he/she has discussed this matter with counsel, and hereby makes a knowing and voluntary waiver of appellate review of the sentence imposed by the trial court. Defendant may appeal any illegal sentence which may be imposed. *** (9) The defendant hereby waives any right to challenge the trial court’s finding on sentencing, including the balancing of mitigating and aggravating factors and further waives his right to have the Indiana Court of Appeals review his sentence under Indiana Appellate Rule 7(B).
Id. at 140-41.
1 Pearson also faced charges for burglaries occurring in the other counties.
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 3 of 13 [4] Also on August 25, 2014, the trial court held a plea hearing:
[Court]: [W]e are here today because there was a plea agreement, proposed plea agreement filed in this cause of action. [Pearson is placed under oath.] *** [Court]: It is my understanding you wish to enter a plea of guilty pursuant to a plea agreement that you have negotiated with the Prosecutor, is that correct? [Pearson]: Yes. *** [Court]: I have before [me] here what purports to be a plea agreement with your signature on it. Did you sign this? [Pearson]: Yes, I did. [Court]: Did you read it before you signed it? [Pearson]: Yes, I did. [Court]: Did you discuss it with your Attorney . . . before you signed it? [Pearson]: Yes, we did. [Court]: I think it just simply says that your [sic] pleading guilty straight up to count one (1), the class B felony, six (6) to twenty (20) years, and a fine of nothing up to ten (10) thousand dollars, and the State is going to dismiss count two (2). Parties are free to argue in sentencing and if I do accept, the plea agreement there will be a no contact order with the alleged victims and restitution to be determined at the sentencing hearing. . . . Is that your agreement? [Pearson]: Yes. *** [Court]: Hum, counsel is that the agreement . . . [State]: Yes. *** [Defense Counsel]: Yes.
Appellee’s App. at 3, 9-10. A factual basis was established and the trial court
took the plea under advisement pending preparation of a pre-sentence Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 4 of 13 investigation report. A sentencing hearing was scheduled for October 13, 2014,
but ultimately was not held until July of 2015.2
[5] The parties appeared in court for a sentencing hearing on July 14, 2015. The
victims had not been properly notified of the date, so the trial court agreed to
start the sentencing hearing but defer ruling so the victims could be notified of
their right to be present and the State could present evidence regarding
restitution at a later date. Pearson testified, as did several witnesses on her
behalf. The court reconvened on July 23, 2015, at which time the victims
appeared and gave testimony regarding their loss. At the conclusion of the
hearing, the trial court sentenced Pearson to 7,300 days, all but 3,650 days
suspended to probation, and ordered her to pay $23,928 in restitution. The trial
court then stated,
I need to advise you of your rights even though this was a plea agreement . . . . Do you understand that if you wish to take an appeal you must file a notice of appeal designating what is to be included in the record on appeal within thirty days after sentencing . . . ? [Pearson]: Yes, Your Honor. *** [Court]: Now the rule says that I inquire of you whether or not you wish to appeal or file a motion to correct error. I don’t know if you waived that in your plea agreement. [State]: There is no plea agreement, Judge, this was just an open ...
2 It appears Pearson’s sentencing was delayed until after Kelley’s case was resolved due to the possibility of her testifying in that case.
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 5 of 13 [Court]: Straight up sentence? No, there is an acknowledgement and waiver of rights filed August 25th. Let’s just go ahead and say that it wasn’t done. All right, do you wish to file an appeal or motion to correct error at this time? If you don’t know, you can talk to counsel. [Defense counsel]: She does, Judge.
Transcript, Volume 2, at 57-59. The trial court appointed counsel for Pearson
and entered a sentencing order which indicated a plea agreement had been
filed, a judgment of conviction for the crime of burglary, a Class B felony, was
entered, and Pearson was sentenced to 7,300 days. See Appellant’s App. at 179.
In addition, the abstract of judgment prepared by the trial court shows Pearson
was charged with burglary and theft, with the disposition being “plea by
agreement” to burglary and dismissal of the theft charge. See id. at 181.
Discussion and Decision [6] Pearson contends the trial court abused its discretion in sentencing her and that
her sentence is inappropriate. The State argues that Pearson waived the right to
appeal her sentence pursuant to her plea agreement. Given the nature of the
State’s argument, we address it first.
[7] The State contends Pearson specifically agreed in her plea agreement not to
appeal her sentence, except for an illegal sentence. As the trial court sentenced
her within the terms of the plea agreement, and neither an abuse of discretion in
sentencing nor an inappropriate sentence constitute an illegal sentence, the
State urges this appeal be dismissed. Pearson acknowledges she signed a
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 6 of 13 document entitled “plea agreement” advising her that if the agreement was
accepted by the trial court, she waived her right to appeal. Appellant’s Brief at
12. She contends, however, that “the parties and the trial court all concede that
Pearson entered a straight guilty plea and received no consideration for her plea
agreement and, therefore, did not waive her right to appeal her sentence.” Id.
In support of this assertion, Pearson notes the trial court did not sign the plea
agreement document and the State said at sentencing there was no plea
agreement. In addition, Pearson interprets the trial court saying, “let’s just go
ahead and say it wasn’t done” to mean that “a waiver of the right to appeal
‘wasn’t done’ in this case.” Id.
[8] In Creech v. State, 887 N.E.2d 73 (Ind. 2008), the defendant’s plea agreement left
his sentence to the trial court’s discretion, and he agreed to waive his right to
appeal the sentence so long as he was sentenced within the terms of his plea
agreement. After the defendant had entered his plea of guilty and been
sentenced, the trial court erroneously advised him that he had the right to
appeal his sentence. Our supreme court held first that provisions waiving the
right to appellate review of a sentence are enforceable as part of a written plea
agreement. Id. at 75. The court further determined that after a defendant
pleads guilty and receives the benefit of the plea bargain, subsequent actions by
the trial court do not affect that waiver, recognizing that “[m]ost waivers are
effective when set out in writing and signed.” Id. at 76-77 (alteration in
original) (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995),
superseded by statute on other grounds). Therefore, the court held the trial court’s
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 7 of 13 erroneous advisement at the conclusion of the sentencing hearing had no effect
on an otherwise knowing, voluntary, and intelligent waiver of the right to
appeal and was not grounds for allowing the defendant to circumvent the terms
of his plea agreement. Id. at 76.
[9] We have since addressed this issue in various iterations. In Brattain v. State, 891
N.E.2d 1055 (Ind. Ct. App. 2008), the trial court appointed appellate counsel
for the defendant at his request more than a week after his sentencing hearing.
We held, based on the reasoning in Creech, that this action did not invalidate the
provision of the defendant’s plea agreement waiving appellate review of his
sentence. Id. at 1057. In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008),
trans. denied, the trial court advised the defendant at his plea hearing that
according to its reading of the plea agreement, the defendant had not waived
the right to appeal his sentence. Neither the State nor the defendant
contradicted or corrected the trial court by drawing its attention to the waiver
provision in the plea agreement. Therefore, we held the waiver provision was a
nullity because “the trial court accepted the plea agreement, and [all parties]
entered into the plea agreement with the understanding that [defendant]
retained the right to appeal his sentence.” Id. at 1094. And in Mechling v. State,
16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, we addressed the defendant’s
argument that the State was estopped from enforcing the waiver provision of a
plea agreement because it did not correct the trial court when the trial court
mistakenly advised him at his sentencing hearing that he had the right to appeal
and offered to appoint appellate counsel. Because the trial court’s misstatement
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 8 of 13 came at the conclusion of the sentencing hearing, we held the State had no duty
“to object to a statement that carried no legal effect” and therefore application
of estoppel was not warranted. Id. at 1017-18. We also noted that if there was
a duty to correct the trial court, as officers of the court, the State and defense
counsel would have an equal duty to do so. Id. at 1018.
[10] Thus, the timing of an advisement or action conflicting with the waiver
provision of a plea agreement is the crucial factor in determining whether it
effectively waived appeal rights. Here, the plea agreement was referenced
repeatedly at the guilty plea hearing, and Pearson acknowledged having read
and signed it. Unlike Ricci, Pearson’s right to appeal was never mentioned at
the guilty plea hearing, and therefore Pearson could not have proceeded with
the understanding that provision of her plea agreement was void.3 Instead, as
in Creech, it was not until the conclusion of Pearson’s sentencing hearing, after
her plea had been accepted and her sentence imposed, that the trial court
advised her an appeal must be initiated within thirty days and asked if she
wished to appeal. It is difficult to know exactly what the trial court was
referring to when it said, “Let’s just go ahead and say that it wasn’t done.” Tr.
Vol. 2 at 59 (emphasis added). However, as the trial court made that statement
after accepting the plea agreement and sentencing Pearson, and as the trial
3 A trial court is not required to inform a defendant of the right to appeal a sentence before accepting a guilty plea. See Ind. Code § 35-35-1-2. Nor is a trial court required to make an express finding about a defendant’s intention to waive appellate rights. Creech, 887 N.E.2d at 77 (“Acceptance of the plea agreement containing the waiver provision is sufficient to indicate that, in the trial court’s view, the defendant knowingly and voluntarily agreed to the waiver.”).
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 9 of 13 court is bound by the terms of a plea agreement once it is accepted, Ind. Code §
35-35-3-3(e), whatever the trial court’s intent, the statement had no legal effect
on the terms of Pearson’s plea.
[11] Finally, the fact the State represented at the conclusion of the sentencing
hearing that there was no plea agreement is of no consequence. First, the trial
court immediately corrected the State and referred to the written plea
agreement filed in August 2014. Second, even if the trial court had not done so,
it is important to note the timing of the State’s representation: it came after
sentence was imposed pursuant to the plea agreement and could not have had
any effect on Pearson’s decision to plead guilty or her understanding of the
terms under which she was pleading guilty. And third, Pearson’s counsel—
who had advised her regarding the plea agreement, signed the agreement, and
represented at the guilty plea hearing that the trial court had accurately
represented the terms of the agreement between the State and Pearson—also
had an obligation to speak up to correct any misstatements or
misunderstandings about the course of the proceedings. See Mechling, 16
N.E.3d at 1018. The nearly one-year delay in sentencing Pearson after her plea
agreement was filed may have contributed to the confusion at the conclusion of
her sentencing hearing. As in Creech, we again “emphasize the importance of
avoiding confusing remarks in a plea colloquy,” 887 N.E.2d at 76, and remind
trial courts they “would be well advised to determine whether such a [waiver]
provision is part of any plea agreement that comes before them[,]” Ricci, 894
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 10 of 13 N.E.2d at 1093 n.7. The plea agreement was clearly part of the trial court’s
record and available for review before and during the sentencing hearing.
[12] Pearson argues she actually received no benefit from the plea agreement
because the dismissed charge was a lesser-included offense and her sentence
was left open to the trial court’s discretion. It is likely the outcome would have
been no different if Pearson had walked into court and said, “I plead guilty,”
without first having any conversations with the State and agreeing to waive
rights over and above those inherently waived by a guilty plea. But the fact of
the matter is, she did have conversations with the State and she did knowingly
and voluntarily sign a plea agreement that included a provision allowing
appellate review only of an illegal sentence. The trial court sentenced her
within the terms of the plea agreement and within the statutory limits. See Ind.
Code § 35-50-2-5. Pearson’s sentence was not illegal and we therefore conclude
Pearson has waived the issues raised in this appeal.
[13] Waiver notwithstanding, Pearson’s challenge to her sentence fails on its merits.
She contends the trial court abused its discretion in sentencing her by failing to
find as mitigating circumstances that her involvement in the crime was less
culpable than her co-defendants and that she was scared and simply following
an abusive boyfriend. The finding of mitigating circumstances is within the
discretion of the trial court, and to prove an abuse of that discretion, the
defendant must show on appeal that the mitigating evidence is significant and
clearly supported by the record. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.
App. 2012), trans. denied. Pearson’s testimony in support of her proffered
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 11 of 13 mitigating circumstances was equivocal. There was evidence of an abusive
relationship with Kelley and that she felt pressured to assist in the crime.
However, Pearson also testified that she was a “somewhat” willing participant
in the burglaries, Tr. Vol. 1 at 25, and that the “biggest part” of why she helped
was to get money for drugs, id. at 43. As to her involvement in the crime, she
did not enter the house but stayed in the car to act as lookout and driver should
they need to leave quickly. She was involved in a string of residential burglaries
across multiple counties, so it was not a one-time event that caught her
unaware. “A trial court does not err in failing to find a mitigating factor where
that claim is highly disputable in nature, weight, or significance.” Healey, 969
N.E.2d at 616.
[14] Finally, as to Pearson’s claim that her twenty-year sentence is inappropriate, we
may revise a sentence “if, after due consideration of the trial court’s decision,
the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). The
principal role of appellate review is to “leaven the outliers, . . . not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Therefore, the question “is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007)
(emphasis in original). This crime was committed as part of a series of similar
crimes, and the damage and loss to the victims exceeded $20,000. Pearson has
a criminal history dating back several years and a history of drug use which at
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 12 of 13 least in part prompted her participation in this crime. We may not have
imposed the same sentence the trial court did, but the sentence is not
inappropriate.
Conclusion [15] Pearson entered into a written plea agreement with a provision waiving her
appellate rights. Although there was a confusing colloquy at her sentencing
hearing, it occurred after her plea agreement was accepted and her sentence was
imposed and thus, none of the statements, misstatements, or omissions had an
effect on her decision to accept the plea agreement’s terms. She has thus
waived her right to appeal her sentence. In any event, her sentence was neither
an abuse of discretion nor inappropriate. We therefore affirm the sentence.
[16] Affirmed.
Barnes, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016 Page 13 of 13