Andrew Lamont Swanson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 15, 2016
• Docket: 73A01-1604-CR-967
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 15 2016, 11:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Adam C. James Gregory F. Zoeller Shelbyville, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andrew Lamont Swanson, November 15, 2016 Appellant-Defendant, Court of Appeals Case No. 73A01-1604-CR-967 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable Chris D. Monroe, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 73D02-1603-F6-116

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016 Page 1 of 4 Statement of the Case [1] Andrew Lamont Swanson appeals his sentence following his convictions for

identity deception, as a Level 6 felony, and driving while license suspended, as

a Class A misdemeanor, pursuant to a guilty plea. Swanson presents two issues

for our review, namely, whether his sentence and placement in the Department

of Correction (“DOC”) are inappropriate in light of the nature of the offenses

and his character. We hold that, because Swanson agreed to a two-year

executed sentence in the DOC as part of his plea agreement, Swanson may not

challenge the appropriateness of his sentence or his placement in this direct

appeal. We affirm.

Facts and Procedural History [2] On March 28, 2016, in open court, Swanson pleaded guilty to identity

deception, as a Level 6 felony, and driving while license suspended, as a Class

A misdemeanor.1 In exchange for that plea, the State agreed to an aggregate

sentence of two years executed in the DOC, and the State granted Swanson

“immunity from a further perjury charge.” Appellant’s Br. at 13. Swanson

agreed to those terms, and the trial court entered judgment of conviction and

sentence accordingly. This appeal ensued.

1 A third charge for false informing was dismissed.

Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016 Page 2 of 4 Discussion and Decision [3] Swanson contends that his sentence is inappropriate in light of the nature of the

offenses and his character. However, as our supreme court has held, where a

plea agreement includes a defendant’s agreement to a specific sentence, such

defendant may not challenge the sentence by means of a timely or belated direct

appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). Again, here, in open

court, the State offered Swanson a plea agreement whereby he would be

sentenced to “two years executed at the [DOC],” and Swanson agreed. Tr. at

7. Further, the trial court expressly advised Swanson that “when you accept a

plea offer . . . for a specific executed sentence, you also give up the right to

appeal the sentence itself.” Id. at 15. The trial court asked Swanson whether he

understood that, and Swanson stated that he did. Swanson accepted the plea

agreement, including the two-year executed sentence in the DOC, and,

therefore, “his sentence is not available for Rule 7(B) review.” Hole v. State, 851

N.E.2d 302, 304 (Ind. 2006).2

[4] Finally, Swanson is also precluded from challenging “his placement at the

Indiana Department of Correction [as] inappropriate in light of the nature of

the offense and his character.” Appellant’s Br. at 10. Again, the plea

2 We note that the written sentencing order indicates that Swanson’s plea was “open.” Appellant’s App. at 13. However, because the transcript unambiguously shows that Swanson’s plea agreement was closed in that it provided for an executed two-year sentence in the DOC, the notation in the written sentencing statement is an error. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (holding that, “[r]ather than presuming the superior accuracy of the oral statement, we examine it alongside the written sentencing statement to assess the conclusions of the trial court. This Court has the option of crediting the statement that accurately pronounces the sentence or remanding for resentencing.”).

Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016 Page 3 of 4 agreement here specified Swanson’s placement at the DOC. Tr. at 7.

Accordingly, his placement was not subject to the trial court’s discretion, and

the issue is not available on direct appeal. See Hole, 851 N.E.2d at 304 n.4

(noting that placement is subject to Appellate Rule 7(B) review where plea

agreement gives trial court discretion to sentence defendant to community

corrections program or the Department of Correction).

[5] Affirmed.

Vaidik, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016 Page 4 of 4