Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Aug 29 2014, 9:28 am 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:
DOUGLAS R. LONG GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CALVIN TURNER, ) ) Appellant-Defendant, ) ) vs. ) No. 48A04-1403-CR-96 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Angela Warner Sims, Judge Cause No. 48C01-1207-FD-1280
August 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge STATEMENT OF THE CASE
Calvin Turner appeals the three-year aggregate sentence the trial court imposed
upon his two convictions of theft, both Class D felonies. We affirm.
ISSUES
Turner raises two issues, which we restate as:
I. Whether the trial court abused its discretion in sentencing him.
II. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
In addition, the State raises a cross-appeal issue: whether Turner waived the right
to appeal his sentence.
FACTS AND PROCEDURAL HISTORY
Turner owned a commercial property and a residential property in Anderson,
Indiana. In 2009, the City of Anderson shut off his electrical service at both properties
due to unpaid debts. Subsequently, an employee in the City’s utilities department learned
that Turner had been telling people “he didn’t have to pay a utility bill.” Tr. p. 14. An
investigation revealed that Turner had tampered with the electrical meters and utility
poles at both of his properties, which had enabled him to receive electricity from the City
for free over a span of almost two years. Turner’s tampering placed people at risk of
electrocution. He received a total of $10,537.10 of free electrical service at the two
properties.
The State charged Turner with two counts of theft, both Class D felonies. In
addition, the State filed a notice of intent to file a habitual offender enhancement.
2 The parties executed a plea agreement. Pursuant to the agreement, Turner
promised to plead guilty to both counts of theft. The parties agreed that the sentence for
each count would be served concurrently, but the term for each sentence, the total length
of the sentence, and the amount of the sentence to be executed would be “open.”
Appellant’s App. p. 42. The agreement further stated:
The Defendant hereby waives the right to appeal any sentence imposed by the Court, including the right to appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the Court sentences the defendant within the terms of this plea agreement. It is further agreed that the sentence recommended and/or imposed is the appropriate sentence to be served pursuant to this agreement and the defendant hereby waives any future request to modify the sentence under I.C. 35-38-1-17.
Id. at 43.
The trial court held a combined guilty plea and sentencing hearing. During the
hearing, Turner stated that he read the plea agreement with his counsel prior to signing it.
Turner also confirmed for the court that he signed it, and identified his signature. The
Court discussed with Turner that “Counts I and II are, would be ordered to run
concurrently.” Tr. p. 6. Otherwise, “sentence would be open . . . to the Court. Meaning
that the Court would make final determination as to your overall sentence in this case.”
Id. Turner stated that he understood those provisions.
Next, the State established a factual basis for the charges, and Turner agreed that
he had committed the crimes as described. After hearing evidence, the court determined
that his criminal history was an aggravating circumstance, and his guilty plea and
remorse were mitigating factors. The court sentenced Turner to an aggregate sentence of
three years, with one year suspended to probation. After announcing the sentence, the
3 court stated, “I do need to advise Mr. Turner that he does have a right to appeal the
Court’s decision as this was an open sentence and the Court exercised its discretion in
determining an appropriate sentence.” Id. at 45. Turner indicated he wanted to appeal,
and the court appointed counsel to represent him. This appeal followed.
DISCUSSION AND DECISION
I. WAIVER OF RIGHT TO APPEAL
The State argues that Turner waived his right to appeal because the parties’ plea
agreement contains a waiver provision. As a general rule, where a plea agreement leaves
sentencing to the trial court’s discretion, a defendant is entitled to contest on direct appeal
the merits of a trial court’s sentencing decision. Edsall v. State, 983 N.E.2d 200, 204
(Ind. Ct. App. 2013). However, a defendant may waive his or her right to appellate
review of the sentence imposed as part of a written plea agreement. Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008). The content and language of the plea agreement, as well as
the sentencing colloquy where necessary, govern the determination of the validity of a
defendant’s waiver. Id. at 76. The record must demonstrate that the guilty plea was
made knowingly and voluntarily. Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App.
2013), clarified on reh’g, 2 N.E.3d 7 (2013).
The waiver provision at issue here is broad, purporting to bar an “appeal [of] any
sentence imposed by the Court.” Appellant’s App. p. 43. However, the waiver provision
is contingent upon the sentence complying with the terms of the plea agreement. The
plea agreement does not cap Turner’s sentences, but holds that his sentences must run
4 concurrently and will otherwise be “open.” Id. at 42. Turner told the trial court at
sentencing that he had agreed to an “open” sentence, to be imposed by the court. Tr. p. 6.
The plea agreement is ambiguous because there is a conflict between the waiver
provision and the parties’ clearly-stated intent to leave sentencing “open.” Ambiguities
in plea agreements are generally construed against the State because the State ordinarily
drafts them. Morris, 985 N.E.2d at 367. We thus construe the plea agreement against the
State and conclude that Turner has not waived appellate review of his sentencing claims.
II. AGGRAVATING AND MITIGATING FACTORS
Sentencing decisions are reviewed for an abuse of discretion. Bethea v. State, 983
N.E.2d 1134, 1139 (Ind. 2013). An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court. Id. A
sentencing court may abuse its discretion by: (1) failing to enter a sentencing statement,
(2) entering a sentencing statement that explains reasons for imposing the sentence but
the record does not support the reasons, (3) omitting reasons that are clearly supported by
the record and advanced for consideration, or (4) stating reasons that are improper as a
matter of law. Kimbrough v.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Aug 29 2014, 9:28 am 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:
DOUGLAS R. LONG GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CALVIN TURNER, ) ) Appellant-Defendant, ) ) vs. ) No. 48A04-1403-CR-96 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Angela Warner Sims, Judge Cause No. 48C01-1207-FD-1280
August 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge STATEMENT OF THE CASE
Calvin Turner appeals the three-year aggregate sentence the trial court imposed
upon his two convictions of theft, both Class D felonies. We affirm.
ISSUES
Turner raises two issues, which we restate as:
I. Whether the trial court abused its discretion in sentencing him.
II. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
In addition, the State raises a cross-appeal issue: whether Turner waived the right
to appeal his sentence.
FACTS AND PROCEDURAL HISTORY
Turner owned a commercial property and a residential property in Anderson,
Indiana. In 2009, the City of Anderson shut off his electrical service at both properties
due to unpaid debts. Subsequently, an employee in the City’s utilities department learned
that Turner had been telling people “he didn’t have to pay a utility bill.” Tr. p. 14. An
investigation revealed that Turner had tampered with the electrical meters and utility
poles at both of his properties, which had enabled him to receive electricity from the City
for free over a span of almost two years. Turner’s tampering placed people at risk of
electrocution. He received a total of $10,537.10 of free electrical service at the two
properties.
The State charged Turner with two counts of theft, both Class D felonies. In
addition, the State filed a notice of intent to file a habitual offender enhancement.
2 The parties executed a plea agreement. Pursuant to the agreement, Turner
promised to plead guilty to both counts of theft. The parties agreed that the sentence for
each count would be served concurrently, but the term for each sentence, the total length
of the sentence, and the amount of the sentence to be executed would be “open.”
Appellant’s App. p. 42. The agreement further stated:
The Defendant hereby waives the right to appeal any sentence imposed by the Court, including the right to appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the Court sentences the defendant within the terms of this plea agreement. It is further agreed that the sentence recommended and/or imposed is the appropriate sentence to be served pursuant to this agreement and the defendant hereby waives any future request to modify the sentence under I.C. 35-38-1-17.
Id. at 43.
The trial court held a combined guilty plea and sentencing hearing. During the
hearing, Turner stated that he read the plea agreement with his counsel prior to signing it.
Turner also confirmed for the court that he signed it, and identified his signature. The
Court discussed with Turner that “Counts I and II are, would be ordered to run
concurrently.” Tr. p. 6. Otherwise, “sentence would be open . . . to the Court. Meaning
that the Court would make final determination as to your overall sentence in this case.”
Id. Turner stated that he understood those provisions.
Next, the State established a factual basis for the charges, and Turner agreed that
he had committed the crimes as described. After hearing evidence, the court determined
that his criminal history was an aggravating circumstance, and his guilty plea and
remorse were mitigating factors. The court sentenced Turner to an aggregate sentence of
three years, with one year suspended to probation. After announcing the sentence, the
3 court stated, “I do need to advise Mr. Turner that he does have a right to appeal the
Court’s decision as this was an open sentence and the Court exercised its discretion in
determining an appropriate sentence.” Id. at 45. Turner indicated he wanted to appeal,
and the court appointed counsel to represent him. This appeal followed.
DISCUSSION AND DECISION
I. WAIVER OF RIGHT TO APPEAL
The State argues that Turner waived his right to appeal because the parties’ plea
agreement contains a waiver provision. As a general rule, where a plea agreement leaves
sentencing to the trial court’s discretion, a defendant is entitled to contest on direct appeal
the merits of a trial court’s sentencing decision. Edsall v. State, 983 N.E.2d 200, 204
(Ind. Ct. App. 2013). However, a defendant may waive his or her right to appellate
review of the sentence imposed as part of a written plea agreement. Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008). The content and language of the plea agreement, as well as
the sentencing colloquy where necessary, govern the determination of the validity of a
defendant’s waiver. Id. at 76. The record must demonstrate that the guilty plea was
made knowingly and voluntarily. Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App.
2013), clarified on reh’g, 2 N.E.3d 7 (2013).
The waiver provision at issue here is broad, purporting to bar an “appeal [of] any
sentence imposed by the Court.” Appellant’s App. p. 43. However, the waiver provision
is contingent upon the sentence complying with the terms of the plea agreement. The
plea agreement does not cap Turner’s sentences, but holds that his sentences must run
4 concurrently and will otherwise be “open.” Id. at 42. Turner told the trial court at
sentencing that he had agreed to an “open” sentence, to be imposed by the court. Tr. p. 6.
The plea agreement is ambiguous because there is a conflict between the waiver
provision and the parties’ clearly-stated intent to leave sentencing “open.” Ambiguities
in plea agreements are generally construed against the State because the State ordinarily
drafts them. Morris, 985 N.E.2d at 367. We thus construe the plea agreement against the
State and conclude that Turner has not waived appellate review of his sentencing claims.
II. AGGRAVATING AND MITIGATING FACTORS
Sentencing decisions are reviewed for an abuse of discretion. Bethea v. State, 983
N.E.2d 1134, 1139 (Ind. 2013). An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court. Id. A
sentencing court may abuse its discretion by: (1) failing to enter a sentencing statement,
(2) entering a sentencing statement that explains reasons for imposing the sentence but
the record does not support the reasons, (3) omitting reasons that are clearly supported by
the record and advanced for consideration, or (4) stating reasons that are improper as a
matter of law. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).
Turner argues that the trial court did not give sufficient weight to his guilty plea
and remorse. Our Supreme Court has held that the trial court has no obligation to weigh
aggravating and mitigating factors against each other. Anglemyer v. State, 868 N.E.2d
482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Further, an appellant
may not argue that the trial court erred by failing to “properly weigh” such factors. Id.
5 Turner next argues the court omitted mitigating factors that were advanced at
sentencing and are clearly supported by the record. A court is not obligated to accept a
defendant’s claim as to what constitutes a mitigating circumstance. Harman v. State, 4
N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. An allegation that the trial court
failed to find a mitigating circumstance requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record. Id.
Turner claims the trial court should have identified his poor health as a mitigating
factor. During sentencing, the court said:
The Court is mindful and it’s unfortunate for you and as your attorney articulates, your health conditions, your financial conditions and we can all understand and give appreciation to that but the fact remains that there’s accountability for this case and for the actions that you undertook knowingly, several years ago and today is about accountability and consequences to those actions.
Tr. pp. 40-41. Thus, the court did not overlook Turner’s poor health, but considered it in
the context of his criminal acts and discounted it as a mitigator. That decision was not an
abuse of discretion.
Turner also asserts that his willingness to make restitution, his generally law-
abiding life, and the fact that his crimes did not endanger persons should have been cited
as mitigating factors. However, Turner concedes that these proposed mitigators “were
not submitted by the parties.” Appellant’s Br. p. 7. Arguments raised for the first time
on appeal are waived. Patton v. State, 990 N.E.2d 511, 514 (Ind. Ct. App. 2013).
Turner has failed to demonstrate that the court abused its sentencing discretion.
6 III. APPROPRIATENESS OF SENTENCE
Article 7, section 4 of the Indiana Constitution authorizes independent appellate
review of sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is
implemented through Appellate Rule 7(B), which states that we may revise a sentence,
even if authorized by statute, if “after due consideration of the trial court’s decision,” the
sentence is inappropriate “in light of the nature of the offense or the character of the
offender.”
The principal role of such review is to attempt to leaven the outliers. Merida v.
State, 987 N.E.2d 1091, 1092 (Ind. 2013). Sentence review under Appellate Rule 7(B) is
very deferential to the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Id.
We first consider the sentence. At the time Turner committed his thefts, the
maximum sentence for a Class D felony was three years, the minimum sentence was six
months, and the advisory sentence was one and a half years. Ind. Code § 35-50-2-7
(2005). The trial court sentenced Turner to three years, with one year suspended to
probation, on each count. The counts are to be served concurrently, for an aggregate
executed term of two years.
Next, we consider the nature of the offense. The City turned off Turner’s
electrical service at two properties after he accrued over $7,000 in unpaid bills. Instead
of addressing his debts, Turner chose to tamper with his electrical boxes and utility poles
to arrange free electricity service. The thefts continued for almost two years at both
7 properties, allowing Turner to obtain $10,537.10 in free electricity. Turner’s tampering
with utility equipment posed a danger of electrocution to others.
Turning to Turner’s character, he has a lengthy criminal record. He was fifty-
three at sentencing, and he had accrued convictions for check deception, a Class A
misdemeanor; criminal recklessness, a Class D felony; battery resulting in bodily injury,
a felony; criminal deviate conduct, a felony; and invasion of privacy, a Class A
misdemeanor. He has been placed on probation twice and violated the terms of probation
both times. Turner argues that he has led a law-abiding life, but his criminal record does
not support his argument. In addition, he stole electricity for almost two years at both of
his properties, which further undermines his argument.
Turner claims that his guilty plea and remorse deserve more consideration.
However, given that the State had filed a notice of intent to seek a habitual offender
enhancement and that the parties agreed to concurrent sentences, his guilty plea could be
construed as pragmatic rather than motivated by true feelings of guilt. See Newkirk v.
State, 898 N.E.2d 473, 479 (Ind. Ct. App. 2008) (guilty plea did not render sentence
inappropriate because the evidence was strong and defendant received a strong benefit by
pleading guilty), trans. denied.
Turner also argues that his poor health renders his sentence inappropriate. The
Department of Correction will provide treatment for his medical conditions. Turner has
failed to carry his burden of demonstrating that his sentence is inappropriate.
8 CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.