MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 8:56 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jay T. Hirschauer Curtis T. Hill, Jr. Logansport, Indiana Attorney General of Indiana Matthew R. Elliot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald E. Morris, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 91A02-1606-CR-1363 v. Appeal from the White Superior Court State of Indiana, The Honorable Robert B. Mrzlack, Appellee-Plaintiff Judge Trial Court Cause No. 91D01-1403-FA-29
Mathias, Judge.
[1] Donald E. Morris (“Morris”) pleaded guilty in White Superior Court to Class A
felony dealing in methamphetamine. On appeal, White contends that the
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 1 of 5 sentence imposed by the trial court was inappropriate. Concluding that White
waived his right to appeal his sentence, we affirm.
Facts and Procedural History
[2] In June 2014, Morris was a sixty-two-year-old disabled veteran of the Vietnam
War who suffered from post-traumatic stress disorder (“PTSD”). Morris had
been given a 70% disability rating due to his PTSD and still had shrapnel in his
body as a result of his war injuries. Morris was also addicted to
methamphetamine. On June 19, Morris made arrangements with a person with
whom he was acquainted to come to his home and give him pseudoephedrine
pills in exchange for methamphetamine. In fact, this person was a confidential
informant working for the Indiana State Police. The amount of
methamphetamine the informant bought was 3.09 grams.
[3] As a result of this controlled buy, the State charged Morris on March 11, 2014,
with Class A felony dealing in methamphetamine. After bonding out of jail,
Morris sought treatment for his methamphetamine addiction and PTSD at a
facility operated by the U.S. Department of Veterans Affairs. Morris did not do
well in outpatient treatment and attempted to commit suicide. Thereafter, he
was admitted to an inpatient treatment facility and completed the treatment
program successfully.
[4] On July 17, 2015, Morris entered into a plea agreement that called for him to
plead guilty to Class A felony dealing in methamphetamine in exchange for the
minimum twenty-year sentence. In addition, the plea agreement provided that
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 2 of 5 the State would make no recommendation as to sentencing and that the
placement for sentencing would be left to the discretion of the trial court.
Paragraph 4 of the plea provided, “[t]he Defendant waives his right to appeal
any sentence imposed by the trial court that is within the range set forth in the
plea agreement. Further, Defendant knowingly, intelligently and voluntarily
waives his right to challenge the sentence on the basis that it is erroneous.”
Appellant’s App. p. 65.
[5] On May 13, 2016, the trial court accepted the plea and sentenced Morris to the
minimum term of twenty years. The trial court ordered Morris to serve ten
years executed in the Indiana Department of Correction with the remaining ten
years to be served on home detention. Morris now appeals.
Discussion and Decision
[6] Morris claims that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. The State argues that, in his plea
agreement, Morris waived his right to appeal his sentence. We agree with the
State.
[7] Our supreme court has held that a defendant can waive the right to appellate
review of his sentence as a part of a written plea agreement as long as the
waiver is knowingly and voluntarily made. Creech v. State, 887 N.E.2d 73, 75
(Ind. 2008). Here, Morris makes no argument that his plea was not knowingly
and voluntarily made, and if he did, such an argument would be meritless.
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 3 of 5 [8] During the guilty plea hearing, the trial court advised Morris of his rights,
explained the rights he would forfeit by pleading guilty, inquired into Morris’s
mental ability to enter into the plea agreement, and ensured that Morris was
neither threatened nor forced to enter into the plea agreement. Tr. pp. 5-8. The
trial court also explained that by pleading guilty, Morris was admitting to the
facts underlying the charge against him, which Morris acknowledged. When
asked, “Is your plea of guilty your own free and voluntary act,” Morris
responded, “Yes.” Tr. p. 12. When asked, “And by pleading guilty you are
telling the Court that on June 19, 2013, in White County, Indiana, you
knowingly delivered a substance known to you to be methamphetamine in an
amount that weighed more than three grams,” Morris replied, “Yes, sir.” Id.
Thus, there is nothing to suggest that Morris’s decision to plead guilty was
anything other than knowingly and voluntarily made.
[9] Unlike in Creech, here the trial court did not misadvise Morris that, despite the
waiver-of-appeal provision contained in the plea agreement, he nonetheless had
a right to challenge his sentence on appeal. See Creech, 887 N.E.2d at 74.1 This
makes the argument for a valid waiver stronger. See Bowling v. State, 960 N.E.2d
837, 842 (Ind. Ct. App. 2012) (holding that failure of trial court to misadvise
defendant of her right to appeal, notwithstanding a clear waiver of the right to
appeal contained in the written plea agreement, made the case for waiver
1 The court in Creech held that the misadvisement did not render the waiver invalid, noting that the erroneous advisement came at the sentencing hearing which occurred after Creech had already pleaded guilty and received the benefit of his bargain. Id. at 77.
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 4 of 5 stronger, not weaker). We note, however, that a specific dialogue with the trial
court is not a prerequisite to a valid waiver of appeal, so long as there is other
evidence in the record demonstrating a knowing and voluntary waiver. Id. at
483 (citing Creech, 887 N.E.2d at 74).
[10] As noted above, there is nothing in the record before us that would suggest that
Morris’s waiver was anything other than knowingly and voluntarily made. The
language of Paragraph 4 of the plea agreement is clear and unambiguous: by
pleading guilty, Morris waived the right to appeal his sentence so long as the
trial court sentenced him within the terms of the plea agreement. The trial court
here sentenced Morris within the terms of the plea agreement.2 We therefore
conclude that Morris waived his right to appeal his sentence.3
[11] Affirmed.
Baker, J., and Pyle, J., concur.
2 This is distinguishable from the facts in Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App. 2013), clarified on reh’g, 2 N.E.3d 7
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 15 2017, 8:56 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jay T. Hirschauer Curtis T. Hill, Jr. Logansport, Indiana Attorney General of Indiana Matthew R. Elliot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald E. Morris, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 91A02-1606-CR-1363 v. Appeal from the White Superior Court State of Indiana, The Honorable Robert B. Mrzlack, Appellee-Plaintiff Judge Trial Court Cause No. 91D01-1403-FA-29
Mathias, Judge.
[1] Donald E. Morris (“Morris”) pleaded guilty in White Superior Court to Class A
felony dealing in methamphetamine. On appeal, White contends that the
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 1 of 5 sentence imposed by the trial court was inappropriate. Concluding that White
waived his right to appeal his sentence, we affirm.
Facts and Procedural History
[2] In June 2014, Morris was a sixty-two-year-old disabled veteran of the Vietnam
War who suffered from post-traumatic stress disorder (“PTSD”). Morris had
been given a 70% disability rating due to his PTSD and still had shrapnel in his
body as a result of his war injuries. Morris was also addicted to
methamphetamine. On June 19, Morris made arrangements with a person with
whom he was acquainted to come to his home and give him pseudoephedrine
pills in exchange for methamphetamine. In fact, this person was a confidential
informant working for the Indiana State Police. The amount of
methamphetamine the informant bought was 3.09 grams.
[3] As a result of this controlled buy, the State charged Morris on March 11, 2014,
with Class A felony dealing in methamphetamine. After bonding out of jail,
Morris sought treatment for his methamphetamine addiction and PTSD at a
facility operated by the U.S. Department of Veterans Affairs. Morris did not do
well in outpatient treatment and attempted to commit suicide. Thereafter, he
was admitted to an inpatient treatment facility and completed the treatment
program successfully.
[4] On July 17, 2015, Morris entered into a plea agreement that called for him to
plead guilty to Class A felony dealing in methamphetamine in exchange for the
minimum twenty-year sentence. In addition, the plea agreement provided that
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 2 of 5 the State would make no recommendation as to sentencing and that the
placement for sentencing would be left to the discretion of the trial court.
Paragraph 4 of the plea provided, “[t]he Defendant waives his right to appeal
any sentence imposed by the trial court that is within the range set forth in the
plea agreement. Further, Defendant knowingly, intelligently and voluntarily
waives his right to challenge the sentence on the basis that it is erroneous.”
Appellant’s App. p. 65.
[5] On May 13, 2016, the trial court accepted the plea and sentenced Morris to the
minimum term of twenty years. The trial court ordered Morris to serve ten
years executed in the Indiana Department of Correction with the remaining ten
years to be served on home detention. Morris now appeals.
Discussion and Decision
[6] Morris claims that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. The State argues that, in his plea
agreement, Morris waived his right to appeal his sentence. We agree with the
State.
[7] Our supreme court has held that a defendant can waive the right to appellate
review of his sentence as a part of a written plea agreement as long as the
waiver is knowingly and voluntarily made. Creech v. State, 887 N.E.2d 73, 75
(Ind. 2008). Here, Morris makes no argument that his plea was not knowingly
and voluntarily made, and if he did, such an argument would be meritless.
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 3 of 5 [8] During the guilty plea hearing, the trial court advised Morris of his rights,
explained the rights he would forfeit by pleading guilty, inquired into Morris’s
mental ability to enter into the plea agreement, and ensured that Morris was
neither threatened nor forced to enter into the plea agreement. Tr. pp. 5-8. The
trial court also explained that by pleading guilty, Morris was admitting to the
facts underlying the charge against him, which Morris acknowledged. When
asked, “Is your plea of guilty your own free and voluntary act,” Morris
responded, “Yes.” Tr. p. 12. When asked, “And by pleading guilty you are
telling the Court that on June 19, 2013, in White County, Indiana, you
knowingly delivered a substance known to you to be methamphetamine in an
amount that weighed more than three grams,” Morris replied, “Yes, sir.” Id.
Thus, there is nothing to suggest that Morris’s decision to plead guilty was
anything other than knowingly and voluntarily made.
[9] Unlike in Creech, here the trial court did not misadvise Morris that, despite the
waiver-of-appeal provision contained in the plea agreement, he nonetheless had
a right to challenge his sentence on appeal. See Creech, 887 N.E.2d at 74.1 This
makes the argument for a valid waiver stronger. See Bowling v. State, 960 N.E.2d
837, 842 (Ind. Ct. App. 2012) (holding that failure of trial court to misadvise
defendant of her right to appeal, notwithstanding a clear waiver of the right to
appeal contained in the written plea agreement, made the case for waiver
1 The court in Creech held that the misadvisement did not render the waiver invalid, noting that the erroneous advisement came at the sentencing hearing which occurred after Creech had already pleaded guilty and received the benefit of his bargain. Id. at 77.
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 4 of 5 stronger, not weaker). We note, however, that a specific dialogue with the trial
court is not a prerequisite to a valid waiver of appeal, so long as there is other
evidence in the record demonstrating a knowing and voluntary waiver. Id. at
483 (citing Creech, 887 N.E.2d at 74).
[10] As noted above, there is nothing in the record before us that would suggest that
Morris’s waiver was anything other than knowingly and voluntarily made. The
language of Paragraph 4 of the plea agreement is clear and unambiguous: by
pleading guilty, Morris waived the right to appeal his sentence so long as the
trial court sentenced him within the terms of the plea agreement. The trial court
here sentenced Morris within the terms of the plea agreement.2 We therefore
conclude that Morris waived his right to appeal his sentence.3
[11] Affirmed.
Baker, J., and Pyle, J., concur.
2 This is distinguishable from the facts in Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App. 2013), clarified on reh’g, 2 N.E.3d 7, which held that a provision of written plea agreement providing that the defendant waived his right to appeal sentence on basis that it was “erroneous” was ambiguous as to whether he was giving up his right to challenge his sentence as inappropriate under Appellate Rule 7(B), because a non-erroneous sentence may still be considered inappropriate under Rule 7(B). Here, as in Morris, Paragraph 4 does state that Morris waived his right to challenge his sentence as “erroneous.” Unlike Morris, though, it also provides more generally that Morris waived his right to appeal his sentence so long as the trial court sentenced him within the terms of the plea agreement, which the trial court here did. 3 Waiver notwithstanding, we note that Morris received the minimum sentence allowed, and the trial court ordered him to serve only half of this sentence in incarceration. Assuming Morris receives Class 1 credit for his time served, he will spend five years in prison after admitting to a Class A felony. See Ind. Code § 35-50-6- 3. This is a comparatively lenient sentence. Morris also has a criminal history which includes a prior felony conviction for burglary. Thus, even if we reached the merits of Morris’s claim, we would be hard pressed to say that his sentence was inappropriate under Appellate Rule 7(B).
Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017 Page 5 of 5