FILED Nov 21 2019, 8:42 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Vickie Yaser Matthew B. MacKenzie Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon L. Johnson, November 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-334 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff. Judge Trial Court Cause No. 59C01-1602-F4-160
Mathias, Judge.
[1] Brandon L. Johnson (“Johnson”) pleaded guilty in Orange Circuit Court to
Level 4 felony possession of methamphetamine and was sentenced to twelve
years of incarceration. Johnson did not file a timely notice of appeal, but he
subsequently filed a petition for permission to file a belated notice of appeal,
which the trial court denied. Johnson appeals and presents two issues, which Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 1 of 19 we restate as: (1) whether the trial court erred by denying Johnson’s motion to
take judicial notice of certain portions of the record in this case, and (2) whether
the trial court abused its discretion by denying Johnson’s petition for permission
to file a belated notice of appeal.
[2] We affirm.
Facts and Procedural History [3] On February 4, 2016, the police pulled over a car in which Johnson, who was
on probation at the time, was a passenger. A subsequent search of the car
revealed methamphetamine, two hypodermic needles, and digital scales.
Johnson later admitted to the police that the scales, the methamphetamine, and
the needles were his. He also admitted that he purchased methamphetamine in
Louisville, Kentucky so that he could sell it in Orange County, Indiana.
[4] On February 8, 2016, the State charged Johnson with Level 4 felony dealing in
methamphetamine, Level 5 felony possession of methamphetamine, and Class
B misdemeanor false informing.1 The State also alleged that Johnson was an
habitual offender. On April 3, 2017, Johnson entered into a plea agreement
with the State in which he agreed to plead guilty to Level 4 felony dealing in
methamphetamine, and the State agreed to dismiss the remaining charges and
the habitual offender allegation. With regard to sentencing, the plea agreement
provided: “OPEN SENTENCING by the Court, Blind Plea.” Appellant’s App.
1 Johnson initially gave the police a false identity.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 2 of 19 Vol. 2, p. 107. Among the terms of the written plea agreement was:
“DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION
RELIEF.” Id. at 108.
[5] At the change-of-plea hearing held that same day, the trial court advised
Johnson of the various rights he would be giving up by pleading guilty,
including the right to a public and speedy trial by jury, the right to confront
witnesses, the right to remain silent, and the right to counsel. Johnson indicated
that he understood he was waiving these rights. With regard to appeal, the trial
court stated:
[Court]: Do you understand that if you were to have a trial and you were found guilty that you would have the right to appeal that conviction and/or sentence –
[Johnson]: Yes.
[Court]: – to the Court of Appeals or Supreme Court, do you understand that?
[Court]: And do you understand that you have the right to be represented by an attorney at all times including your trial, but also, including that Appeal and if you couldn’t afford to pay for an attorney to do your Appeals, the Court would appoint one for you, do you understand that?
[Court]: But, you understand that by pleading guilty here today you’re giving up all those rights when it talks about your Appellate rights?
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 3 of 19 [Johnson]: Yes.
Appellant’s App. Vol. 3, pp. 15–16 (emphases added).2 After some discussion
about whether Johnson retained the right to seek a modification of his sentence,
the trial court accepted the plea agreement.
[6] On May 1, 2017, the trial court held a sentencing hearing. Concluding that the
aggravating factors outweighed the mitigating factors, the trial court sentenced
Johnson to the maximum term of twelve years of incarceration. After imposing
its sentence, the trial court stated:
And because indeed it was made pursuant to a Plea Agreement, the Court, believes in the Plea Agreement itself where it, you waive your right to an Appeal[,] the Court interprets that [as] the right to appeal the Court’s decision has also been waived. I’ll leave that up to Counsel, but, that’s why we’re not going to appoint an Attorney to represent you on Appeal.
Appellant’s App. Vol. 3, p. 82. Not surprisingly, Johnson did not timely file a
notice of appeal.
[7] On November 9, 2017, Johnson filed a pro se request to participate in the
purposeful incarceration program. The trial court denied this request on
November 15, 2017. On May 14, 2018, Johnson filed a pro se request for
appellate counsel. One week later, Johnson filed a pro se petition for post-
conviction relief. On May 29, 2018, in response to these filings, the trial court
2 We have removed verbal hesitation markers such as “um” and “ah” from our quotations of the transcript.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 4 of 19 referred the matter to the Indiana Public Defender’s office. On June 18, 2018,
Johnson filed a pro se motion to correct error. The trial court denied this
untimely motion on June 29, 2018.
[8] On October 3, 2018, Johnson, now represented by counsel, filed a verified
petition for permission to file a belated notice of appeal. In this petition,
Johnson claimed that he was unaware of his right to appeal a sentence
following a plea agreement until he spoke with a fellow inmate in April 2018.
He therefore claimed he was not at fault for failing to timely file a notice of
appeal and that he had been diligent in seeking to appeal.
[9] The trial court held an evidentiary hearing on this petition on January 14, 2019.
At the hearing, Johnson’s counsel asked him, “Did the Plea Agreement that
you signed say anything about you waiving the right to appeal your sentence?”
Tr. pp. 9–10. Johnson replied, “No, the only thing that the Plea Agreement said
was that I waive my right to Appeal and Post-Conviction Relief.” Id. at 10.
Johnson claimed that he was unaware that he could appeal a sentence
following a plea agreement. Johnson’s trial counsel testified that he did not
discuss the waiver of appellate rights with Johnson “other than, you know, the
plea agreement,” because he was also unaware that a defendant could appeal a
sentence following an open plea. Id. at 22–23.
[10] At the conclusion of the hearing, the trial court ruled from the bench as follows:
[The parties] entered into a Plea Agreement that very explicitly stated that they were waiving the right of Appeal. At the taking of the Plea, the Court had not yet accepted that Plea Agreement Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 5 of 19 and become a party to that Plea Agreement. [A]nd in advising the Defendant of his right, very explicitly told him that he would be giving up his right to appeal the sentence, looking at that Plea Agreement. [A]nd the Defendant still did not want to withdraw that Plea Agreement, in fact went in and accepted that Plea Agreement and asked the Court to accept that Plea Agreement[.] So at that Plea Hearing we set the parameters of what the proposed agreement between the Defendant and the State was. [T]he Court accepted that Plea Agreement based upon those parameters. [I]f the Court looking at, looking at Mr. Johnson’s record in determining whether to accept or reject the Plea Agreement and after it was fairly explicitly explained by all parties of what the terms of those Plea Agreements were, namely, that you couldn’t appeal it. The Court accepted it and the Plea Agreement as presented. And again, reiterated in its sentencing that it was the Court’s opinion, based upon the Plea Agreement, that he had not, he had given up in exchange for the Plea Agreement, his right to appeal the sentence. [I]n his testimony he very explicitly acknowledged that that was the term of that agreement. [H]e thought he had given up his right to appeal his sentence and his conviction. [H]e didn’t learn of this Collins case[3] till some jail, he talked to some individual at the jail, so when we look at the Plea Agreement as entered into all the parties, at the time of the plea, thought that they were dismissing certain cases, dismissing enhancement to sentences and permitting the Court then to have a range of a sentence. And whatever sentence that Court delivered would be acceptable. [C]ertainly the Defendant got a benefit out of that bargain, and the State of knowing it, at least what the sentence, sentencing range and that there was a conviction. [S]o, I, I can tell you this much, I accepted it because of that condition, [be]cause I’m not going to accept open-ended pleas pursuant to Plea Agreements if they’re going to Appeal. It, it, we might as well have a trial, we might as well or just dismiss things and have it opened. There’s . . . ways where you certainly can Appeal, sentences, but, what, the reason why the Court accepts Plea Agreements is for
3 Collins v. State, 817 N.E.2d 230 (Ind. 2004), discussed infra.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 6 of 19 some sense of finality, it saves the County some money in not having a trial, but, I can just sort of be honest that a greater cost is Appeals and how far those Appeals can go at County expense. So . . . the reason why this Court accepts Plea Agreements is for some finality and certainly was the reason why the Court accepted this Plea Agreement. And I believe made Mr. Johnson aware of it, because he even acknowledged it that he thought that was the terms and conditions of Plea Agreement. So, since we are here today, on a Request for Belated, filing Belated Notice of Appeal or filing a Belated Appeal the Court is going to deny that request because I don’t believe that Mr. Johnson is, as pointed by [the prosecutor] is entitled to an Appeal. And so that would be the Court’s ruling and I’ll prepare an Order that reflects it[.]
Tr. pp. 29–31 (emphases added).
[11] On January 18, 2019, Johnson filed a motion requesting that the trial court take
judicial notice of the exhibits attached to his petition for permission to file a
belated notice of appeal, but which were not formally admitted into evidence at
the hearing on the petition. The trial court denied this motion on January 24,
2019. Johnson now appeals.
I. Judicial Notice
[12] Johnson first argues that the trial court erred by failing to take judicial notice of
the materials that he failed to formally admit into evidence at the hearing on his
petition for permission to file a belated notice of appeal. As with all evidentiary
questions, we review a trial court’s decision regarding judicial notice for an
abuse of discretion. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016). A trial
court abuses its discretion only if its decision regarding the admission of
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 7 of 19 evidence is clearly against the logic and effect of the facts and circumstances
before it, or if the court has misinterpreted the law. Harrison v. State, 32 N.E.3d
240, 250 (Ind. Ct. App. 2015), trans. denied.
[13] In his motion for judicial notice, Johnson specifically requested that the trial
court take judicial notice of: (1) the terms of the plea agreement; (2) the trial
court’s advisements to Johnson contained in the transcripts; (3) the trial court’s
sentence as evidenced by the sentencing order and abstract of judgment; and (4)
the pre-sentence investigation report. Johnson notes that all of these materials
were already part of the trial court’s record in this case and were attached as
exhibits to his petition for permission to file a belated notice of appeal. 4 Johnson
also claims that both parties relied on these materials in making their argument
to the trial court.
[14] “For years, [Evidence] Rule 201 did not permit a trial court to take judicial
notice of court records, even if they were ‘its own records in another case
previously before the court on a related subject with related parties.’” Horton, 51
N.E.3d at 1160 (quoting Gray v. State, 871 N.E.2d 408, 413 (Ind. Ct. App.
2007), trans. denied). Our supreme court amended Rule 201, effective January 1,
2010, so that it now permits courts to take judicial notice of records of a court of
4 Johnson attached several exhibits to his petition for permission to file a belated notice of appeal, including: the transcript of the April 3, 2017 change-of-plea hearing; the plea agreement; the trial court’s sentencing order; the transcript of the May 1, 2017 sentencing hearing; the abstract of judgment; Johnson’s petition for post-conviction relief; the pre-sentence investigation report; and the initial assessment submitted at the sentencing hearing. Also attached to the petition were Johnson’s affidavit and the affidavit of his trial counsel. However, the motion to take judicial notice specifically excluded the latter two items because both of these individuals testified at the hearing.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 8 of 19 this state. Id. Indiana Evidence Rule 201(a)(2)(C) now provides that a court
may take judicial notice of the “records of a court of this state.” A court may
take judicial notice “at any stage of the proceeding.” Evid. R. 201(d). And Rule
201(c)(2) provides that a court “must take judicial notice if a party requests it
and the court is supplied with the necessary information.” (emphasis added).
[15] Here, Johnson requested that the court take judicial notice of its own records,
which is permissible, and supplied the court with the necessary information.
Thus, Johnson met the requirements of Rule 201(c)(2), and the court should
have taken notice of its own record in the present case. But even if the trial
court did err by denying Johnson’s request to take judicial notice, any resulting
error is harmless.
[16] For one thing, it is clear that the trial court considered its own record in the
present case when ruling on Johnson’s petition; the court referred to the plea
agreement and its advisements to Johnson at the change-of-plea hearing and the
sentencing hearing. In addition, all the materials at issue were already part of
the trial court’s record in the present case. These materials are therefore part of
the record on appeal and available to us on review. See Horton, 51 N.E.3d at
1162 (“Indiana Appellate Rule 27 provides that the Record on Appeal includes
‘all proceedings before the trial court . . ., whether or not . . . transmitted to the
Court on Appeal.’” ). Furthermore, this court itself may also take judicial notice
of the records of a court of this state, and we have therefore taken judicial notice
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 9 of 19 of the relevant materials.5 See Horton, 51 N.E.3d at 1162 (taking judicial notice
of trial court docket in related case showing that defendant had been previously
convicted of Class A misdemeanor battery); Cheng Song v. Iatarola, 120 N.E.3d
1110, 1116 n.2 (Ind. Ct. App. 2019) (taking judicial notice of trial transcript
obtained via Odyssey case-management system), trans. denied. We therefore
turn to the merits of Johnson’s claim that the trial court erred in denying his
petition for permission to file a belated notice of appeal.
II. Belated Notice of Appeal
[17] Johnson’s main argument is that the trial court erred in denying his petition for
permission to file a belated notice of appeal. Indiana Post-Conviction Rule
2(1)(a) provides:
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.
An “eligible defendant” is defined as “a defendant who, but for the defendant’s
failure to do so timely, would have the right to challenge on direct appeal a
5 Johnson filed a motion with this court to take judicial notice, which we have granted by separate order.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 10 of 19 conviction or sentence after a trial or plea of guilty by filing a notice of appeal,
filing a motion to correct error, or pursuing an appeal.” P-C.R. 2.
[18] The trial court here denied Johnson’s petition because it believed that Johnson
had waived his right to appeal his sentence. If Johnson waived his right to
appeal his sentence, then he is not an “eligible defendant” under Indiana Post-
Conviction Rule 2. See Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App.
2012) (holding that whether the defendant waived her right to appeal her
sentence in her plea agreement was relevant to the threshold determination of
whether she was an eligible defendant under Post-Conviction Rule 2), trans.
denied. The State, like the trial court, reads Johnson’s plea agreement as waiving
his right to appeal his sentence and therefore argues that Johnson cannot now
seek to file a belated notice of appeal.
[19] Johnson contends that he did not waive his right to appeal his sentence.
Johnson claims that the trial court misadvised him by telling him that he had
waived his right to appeal his sentence when no such provision was included in
his plea agreement. When Johnson discovered that he might be able to appeal
his sentence notwithstanding his plea of guilty, he began to pursue means of
appealing his sentence. Thus, he claims he was both without fault for failing to
file a timely notice of appeal and was diligent in his efforts to seek permission to
file a belated notice of appeal.
[20] We begin our analysis of this issue by noting several well-settled propositions.
First, a defendant who voluntarily pleads guilty gives up a panoply of rights.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 11 of 19 Mapp v. State, 770 N.E.2d 332, 334–35 (Ind. 2002). Included among the rights
waived by pleading guilty is the right to direct appeal, at least with regard to a
claim attacking the validity of the plea itself. Tumulty v. State, 666 N.E.2d 394,
395 (Ind. 1996) (“One consequence of pleading guilty is restriction of the ability
to challenge the conviction on direct appeal.”).
[21] However, a defendant who pleads guilty is allowed to contest on direct appeal
“the merits of a trial court’s sentencing discretion where the court has exercised
sentencing discretion[.]” Id. at 396. Thus, a defendant who pleads guilty to an
“open plea” where sentencing is left entirely to the discretion of the trial court is
entitled to challenge on direct appeal the propriety of the sentence imposed by
the trial court. Collins v. State, 817 N.E.2d 230, 233 (Ind. 2004). Even when a
defendant agrees to a sentencing cap or range as part of the plea agreement,
such a defendant may still challenge the appropriateness of the sentence on
appeal. Childress v. State, 848 N.E.2d 1073, 1079–80 (Ind. 2006). In contrast, if a
defendant agrees to a particular sentence as part of his plea, and the trial court
has no sentencing discretion, then the defendant may not challenge the
appropriateness of the sentence on appeal. Sholes v. State, 878 N.E.2d 1232,
1235 (Ind. 2008) (holding that a plea agreement calling for a fixed sentence
precludes a defendant from challenging his resulting sentence by direct appeal,
whether timely or belated).
[22] It is also well settled that a defendant may waive the right to appellate review of
his sentence as part of a written plea agreement. Creech v. State, 887 N.E.2d 73,
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 12 of 19 75 (Ind. 2008).6 This is true even if the trial court, after accepting a plea
agreement containing a provision waiving the right to appeal, misadvises the
defendant at sentencing that he does have the right to appeal. 7 Id. at 77.
[23] Although it is clear that the right to challenge one’s sentence may be validly
waived on appeal, the question presented here is whether the terms of
Johnson’s plea agreement constituted such a valid waiver of his appellate rights.
[24] In addressing this claim, we observe that the terms of a plea agreement between
the State and the defendant are contractual in nature. State v. Smith, 71 N.E.3d
368, 370 (Ind. 2017) (citing Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004)). When a
trial court accepts a plea agreement, it too becomes bound by its terms. Id.
(citing Berry v. State, 10 N.E.3d 1243, 1246 (Ind. 2014)). Thus, when
interpreting a plea agreement, we are guided, but not strictly bound, by contract
interpretation principles, beginning with the agreement’s plain language and
determining the intent of the parties at the time the plea was entered. Berry, 10
N.E.3d at 1247.
6 Of course, a defendant who waives the right to appeal his sentence may still argue in a post-conviction proceeding that his plea was coerced or unintelligent. Id. And “[p]rovisions in plea agreements that waive a defendant’s right to seek post-conviction relief remain void and unenforceable.” Id. at 75–76 (citing Majors v. State, 568 N.E.2d 1065, 1067–68 (Ind. Ct. App. 1991), trans. denied). Thus, the provision in Johnson’s plea agreement providing that he waived his right to seek post-conviction relief is void and unenforceable. See id. We find it concerning that such a patently void and unenforceable term is still included in the boilerplate language of the plea agreement used in the present case, especially since our courts have held for almost thirty years that such a term is invalid. 7 If, however, a trial court advises a defendant at the guilty plea hearing, not at sentencing, that he has a right to appeal his sentence, we have held that the defendant does not waive his right to appeal notwithstanding language to the contrary in the plea agreement itself. Ricci v. State, 894 N.E.2d 1089, 1093–94 (Ind. Ct. App. 2008), trans. denied; see also Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 13 of 19 [25] Here, the relevant provision of Johnson’s plea agreement provides that
“DEFENDANT WAIVES RIGHT TO APPEAL[.]” Appellant’s App. Vol. 2,
p. 108. The State argues that this language should be read to mean that Johnson
waived his right to appeal on any grounds, which would necessarily include the
right to appeal his sentence. Johnson contends that, because his plea was open,
he retained his right to appeal his sentence, and the waiver provision of his plea
agreement merely means that he waived his right to challenge the validity of his
plea on direct appeal as explained in Tumulty. Johnson claims that the waiver
provision is, at the very least, ambiguous and misleading and should be
construed against the State.8 Johnson therefore claims that the trial court
misadvised him that, by pleading guilty, he was giving up his right to appeal.
We agree with the State.
[26] By the very act of pleading guilty, Johnson waived his right to appeal his
conviction. See Tumulty, 666 N.E.2d at 395. There is no need for a provision in
a plea agreement stating this. Waiver of the right to challenge a conviction on
direct appeal is simply “one of the consequences of pleading guilty.” Alvey v.
State, 911 N.E.2d 1248, 1249 (Ind. 2009). Even if a plea agreement states that a
defendant may challenge his conviction on appeal, such a provision is
8 As part of this argument, Johnson also contends that he did not knowingly or intelligently waive his right to appeal. The State claims that this is an attack on the validity of Johnson’s guilty plea, which is impermissible on direct appeal. See Creech, 887 N.E.2d at 75 (noting that a defendant who waives the right to appeal in plea agreement may still have his conviction set aside if he can establish in a post-conviction proceeding that his plea was coerced or unintelligent). We take Johnson’s argument to be that he did not knowingly waive his right to appeal and therefore is an eligible defendant to pursue a belated notice of appeal. To the extent that Johnson does attack the voluntariness of his plea, a post-conviction proceeding is the proper avenue of relief. See id.; Tumulty, 666 N.E.2d at 396.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 14 of 19 unenforceable. See id. at 1250 (“A trial court lacks the authority to allow
defendants the right to appeal the denial of a motion to suppress evidence when
a defendant enters a guilty plea, even where a plea agreement maintains that such an
appeal is permitted.”) (emphasis added). Accordingly, to mean anything, the
waiver provision in Johnson’s plea agreement must include wavier of the right
to challenge his sentence on appeal, as his sentence was the only thing that
Johnson could have appealed. And the fact that Johnson accepted the plea
agreement was sufficient for the trial court to find that he knowingly and
voluntarily agreed to the waiver of his appellate rights. Creech, 887 N.E.2d at 77.
[27] We acknowledge that, in other cases in which our courts have upheld a waiver-
of-appeal provision in a plea agreement, the provision was more explicit about
the waiver of the right to appeal the sentence. See, e.g., Creech, 887 N.E.2d at 74
(holding that defendant waived right to appeal sentence where plea agreement
provided, “I hereby waive my right to appeal my sentence so long as the Judge
sentences me within the terms of my plea agreement.”); Starcher v. State, 66
N.E.3d 621, 621 (Ind. Ct. App. 2016) (holding that defendant waived right to
appeal sentence where plea agreement provided “As a condition of entering this
plea agreement, defendant knowingly and voluntarily agrees to waive the right
to appeal the sentence on the basis that it is erroneous or for any other reason so
long as the Judge sentences him/her within the terms of this agreement.”),
trans. denied; Westlake v. State, 987 N.E.2d 170, 174 (Ind. Ct. App. 2013)
(holding that defendant waived his right to appeal his sentence as inappropriate
where his plea agreement stated “you waive your right to have any Court
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 15 of 19 review the reasonableness of the sentence, including but not limited to appeals
under Indiana Rule of Appellate Procedure 7([B]), and you agree and stipulate
that the sentence of the Court is reasonable and appropriate in light of your
nature and character, and the nature and character of the offense.”); Brown v.
State, 970 N.E.2d 791, 791–92 (Ind. Ct. App. 2012) (holding that defendant
waived right to appeal sentence where plea agreement provided “[t]he
Defendant hereby waives his right to appeal his sentence so long as the Judge
sentences him within the terms of the plea agreement. The Defendant further
agrees that any sentence within the range provided in the plea agreement is
reasonable and appropriate, including the maximum sentence, based upon
aggravating circumstances which are hereby stipulated.”); Bowling, 960 N.E.2d
at 838 (holding that defendant waived right to appeal sentence where plea
agreement provided “By pleading guilty you have agreed to waive your right to
appeal your sentence so long as the Judge sentences you within the terms of
your plea agreement.”); Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App.
2008) (holding that defendant waived right to appeal sentence, even though trial
court appointed appellate counsel, where plea agreement provided “Defendant
further waives the right (under Indiana Appellate Rule 7 and I.C. 35-38-1-15 or
otherwise) to review of the sentence imposed.”).
[28] Even though the waiver provision of Johnson’s plea agreement is not as specific
as the waiver provisions in the above-cited cases, we cannot read the language
providing that he “waives his right to appeal” to mean anything other than that
he waived the right to appeal his sentence, as that was the only thing Johnson
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 16 of 19 could have possibly appealed after pleading guilty. Our position is supported by
the fact that, before the trial court accepted the plea, the court explicitly
informed Johnson that he was waiving his right to appeal his sentence. See
Appellant’s App. Vol. 3, pp. 14–15. Nor did the trial court misadvise Johnson
that he had a right to appeal his sentence after the plea was accepted; to the
contrary, the trial court reaffirmed at the sentencing hearing that Johnson had
waived his right to appeal and thus declined to appoint appellate counsel. See
Appellant’s App. Vol. 3, p. 82.
[29] For all of these reasons, we hold that, by the terms of his plea agreement,
Johnson waived his right to appeal, which necessarily included the right to
appeal the sentence imposed by the trial court. Because Johnson waived his
right to appeal his sentence, he is not an “eligible defendant” for purposes of
seeking permission to file a belated notice of appeal under Post-Conviction Rule
2.9 Accordingly, the trial court did not err in denying Johnson’s petition for
permission to file a belated notice of appeal.
[30] We recognize that our holding appears to conflict with the opinion in Morris v.
State, 985 N.E.2d 364 (Ind. Ct. App. 2013), adhered to on reh’g, 2 N.E.3d 7. In
that case, the defendant entered into a plea agreement which provided that he
forfeited “‘all grounds for review of any aspect of this case whether by appeal or
9 Still, we strongly recommend that the Orange County Prosecutor’s office update its outdated plea agreement form so that it more clearly explains the effect of the waiver of the right to appeal and also removes the void and unenforceable language stating that the defendant waives the right to seek post- conviction relief.
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 17 of 19 post-conviction relief’ and that he ‘knowingly, intelligently, and voluntarily
waives her [sic] right to challenge the conviction or sentence on this [sic] basis
that it is erroneous.’” Id. at 366 (record citations omitted). Despite this
language, Morris appealed and claimed that his sentence was inappropriate.
The State argued that Morris had unambiguously waived his right to appeal.
The Morris court acknowledged that the plea agreement contained a general
waiver of appellate review and a more specific waiver of the ability to challenge
an “erroneous” sentence and held that there is a difference between an
erroneous sentence and an inappropriate sentence. Id. The court therefore
concluded that the waiver provision was ambiguous as to whether Morris gave
up his right to challenge his sentence as inappropriate in addition to the right to
challenge it as erroneous and construed this ambiguity against the State, thereby
permitting Morris to challenge the appropriateness of his sentence on direct
appeal. Id. at 367. Here, however, there is no ambiguity in the plea agreement,
which simply provides that Johnson waived his right to appeal. And, as noted
above, if this provision is to mean anything, it must mean that Johnson waived
the right to appeal his sentence, as he waived the right to appeal his conviction
by the very act of pleading guilty.10
10 Cf. Haddock v. State, 112 N.E.3d 763 (Ind. Ct. App. 2018) (holding that, despite language in plea agreement that defendant waived the right to appeal his sentence “so long as the Judge sentences me within the terms of my plea agreement,” defendant was an “eligible defendant” for purposes of pursuing a belated appeal because he claimed his sentence was illegal), trans. denied; Williams v. State, 51 N.E.3d 1205, 1209–10 (Ind. Ct. App. 2016) (holding that defendant did not waive the right to appeal her sentence even though the plea agreement provided that she waived her right to appeal her sentence because her plea was not an open plea when, in fact, her plea was an open plea); Johnson v. State, 903 N.E.2d 472, 475 (Ind. Ct. App. 2009) (holding that defendant was an eligible defendant for purposes of Post-Conviction Rule 2 despite language in his plea
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 18 of 19 Conclusion [31] Even if the trial court should have granted Johnson’s motion to take judicial
notice, any resulting error was harmless because the materials at issue were part
of the record on appeal, the trial court considered them in making its decision,
and we have taken judicial notice of these materials ourselves. We also
conclude that Johnson waived his right to appeal his sentence, and the trial
court therefore properly denied Johnson’s petition for permission to file a
belated notice of appeal. Accordingly, we affirm the judgment of the trial court.
[32] Affirmed.
Robb, J., and Pyle, J., concur.
agreement that stated he was giving up and waiving his right to appeal “any decision made by the Judge,” where defendant was not challenging his sentence or the factual basis for his conviction but instead arguing that the trial court violated the terms of the plea agreement by imposing a conviction for domestic battery whereas defendant agreed to plead guilty to battery); Baysinger v. State, 835 N.E.2d 223, 226 (Ind. Ct. App. 2005) (holding that defendant did not waive his right to appeal where he pleaded guilty in an “open plea” and trial court failed to inform him of his right to appeal his sentence and instead informed him that by pleading guilty he was giving up “most” of his grounds for appeal).
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 19 of 19