Jacob McDaniel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2015
• Docket: 29A04-1412-CR-599
• Status: Published

Opinion

MEMORANDUM DECISION Jul 20 2015, 10:39 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Lawrence M. Hansen Gregory F. Zoeller Hansen Law Firm, LLC Attorney General of Indiana Noblesville, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacob McDaniel, July 20, 2015

Appellant-Defendant/Cross-Appellee, Court of Appeals Case No. 29A04- 1412-CR-599 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Daniel J. Pfleging, Appellee-Plaintiff/Cross-Appellant Judge Case No. 29D02-1312-FC-10137

Crone, Judge.

Case Summary [1] Jacob McDaniel appeals his sixteen-year aggregate sentence imposed following

the trial court’s acceptance of his plea agreement with the State, in which he

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 1 of 9 pled guilty to class C felony reckless homicide and class D felony pointing a

firearm. The State cross-appeals, asserting that pursuant to his plea agreement,

McDaniel waived his right to directly appeal his sentence. McDaniel argues

that he did not knowingly and voluntarily agree to waive his right to appeal his

sentence because the trial court advised him at the sentencing hearing that he

had the right to appeal his sentence. We conclude that McDaniel knowingly

and voluntarily waived his right to appeal his sentence and that the trial court’s

mistaken advisement at the end of the sentencing hearing does not affect the

validity of McDaniel’s waiver. Accordingly, we dismiss.

Facts and Procedural History [2] The factual basis supporting McDaniel’s guilty plea follows. One evening in

December 2013, McDaniel was at his Noblesville home with three friends,

Dajuan Williams, Skylar Gadd, and Aubrey Peters. McDaniel took Williams

and Gadd upstairs to his bedroom where he showed them his father’s handgun

and shotgun. McDaniel took the handgun downstairs to show Peters.

McDaniel thought that the gun was unloaded because he had removed the

magazine. While pointing the gun in Peters’s direction, McDaniel pulled the

trigger and shot her, causing her death. McDaniel told Williams and Gadd to

say that the gun just fell off the table and fired. During the investigation, police

learned that two days before the shooting, McDaniel had pointed a shotgun at

another friend, Haley Graham.

[3] The State charged McDaniel with one count of class C felony reckless

homicide, a firearm sentencing enhancement, and four counts of class D felony Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 2 of 9 pointing a firearm. In September 2014, McDaniel and the State entered into a

plea agreement, wherein McDaniel agreed to plead guilty to class C felony

reckless homicide, the firearm sentencing enhancement, and one count of class

D felony pointing a firearm, and the State agreed to dismiss two counts of

pointing a firearm and all charges in cause number 29D02-1407-F6-5519. 1 The

parties also agreed that McDaniel’s aggregate sentence was to be no less than

five years executed on home detention and no more than fifteen years executed

in the Department of Correction, but otherwise sentencing was left to the

discretion of the trial court. In addition, the plea agreement contains a series of

paragraphs with a blank for McDaniel to initial each paragraph. McDaniel

initialed paragraph 4r, in which he agreed to waive his right to appeal his

sentence.

[4] In September 2014, a plea hearing was held at which McDaniel pled guilty to

class C felony reckless homicide, the firearm sentencing enhancement, and one

count of class D felony pointing a firearm. The trial court advised McDaniel of

his rights and discussed the charges, the penalties, and the terms of the plea

agreement. While under oath, McDaniel specifically told the trial court that he

read the paragraphs that he initialed. Appellee’s App. at 16. 2 He also stated

1 Although the plea agreement calls for the State to dismiss two counts of pointing a firearm, ultimately the trial court dismissed all three of the remaining charges for pointing a firearm. In cause number 29D02-1407- F6-5519, the State charged McDaniel with level 6 felony unlawful possession of a syringe. 2 McDaniel failed to provide us with the transcript of the guilty plea hearing. We thank the State for providing the transcript.

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 3 of 9 that his defense counsel was available to discuss the plea agreement with him

and answer his questions. At no time did the trial court advise McDaniel that

he had the right to appeal his sentence. The trial court took the plea agreement

and the State’s motion to dismiss charges under advisement and ordered the

preparation of a presentence investigation report.

[5] In December 2014, a sentencing hearing was held. The trial court accepted the

plea agreement and entered judgment of conviction for class C felony reckless

homicide and class D felony pointing a firearm. The trial court sentenced

McDaniel to consecutive terms of eight years for reckless homicide plus five

years for the firearm sentencing enhancement, all executed, and three years for

pointing a firearm, with two years served in community corrections and one

year suspended to probation, for an aggregate sentence of sixteen years. After

McDaniel was sentenced, the trial court advised him that he had the right to

appeal his sentence and asked him if he would like to appeal his sentence.

McDaniel’s counsel stated that they wanted to discuss it. The trial court asked

defense counsel whether he could assist McDaniel with an appeal. Defense

counsel replied affirmatively. This appeal ensued.

Discussion and Decision [6] McDaniel argues that the trial court erred in sentencing him. However, we do

not address the sentencing errors he alleges because we conclude that he waived

his right to directly appeal his sentence.

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 4 of 9 [7] Although a “person convicted of, or sentenced for, a crime by a court of this

state has a constitutional right to appeal that conviction or sentence,” Miller v.

State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied (2000), a person who

pleads guilty waives the right to appeal the conviction. Collins v. State, 817

N.E.2d 230, 231 (Ind. 2004). A person may also waive the right to appeal his

or her sentence pursuant to a written plea agreement. Creech v. State, 887

N.E.2d 73, 75 (Ind. 2008). To be valid, such a waiver must be agreed to

knowingly and voluntarily. Id. at 76. “‘[M]ost waivers are effective when set

out in writing and signed.’” Id. (quoting United States v. Wenger, 58 F.3d 280,

282 (7th Cir. 1995)). “‘The content and language of the plea agreement itself,

as well as the colloquy where necessary, govern [the] determination as to the

validity of the waiver.’” Id. (quoting United States v. Williams, 184 F.3d 666,

668 (7th Cir. 1999)) (alteration in Creech).

[8] Here, paragraph 4r of the plea agreement provides that McDaniel,

[u]nless otherwise provided for in this plea agreement, hereby waives his right to appeal any discretionary portion of the sentence entered pursuant to and in accordance with this plea agreement and further acknowledges and affirms that this waiver is knowing and made voluntarily. He understands that he otherwise would have a right to appeal his sentence if there is an open plea. [McDaniel] hereby waives his right to appeal the sentence so long as the Court sentences him within the terms of the plea agreement. He understands and waives his right to appeal the proportionality of the sentence under Article I, Section 16 of the Indiana Constitution. Therefore, he knowingly and voluntarily agrees to waive his right to appeal his sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences him within the terms of this plea agreement.

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 5 of 9 Appellant’s App. at 14.

[9] The language of the plea agreement clearly and unambiguously states that

McDaniel is waiving his right to appeal his sentence as long as he is sentenced

within the terms of the plea agreement. Both McDaniel and his counsel signed

the plea agreement. At the guilty plea hearing, McDaniel told the trial court

that he placed his initials in the blanks next to paragraphs 4a through -u and

that his initials indicated that he “read the paragraphs that came after [his]

initials.” Appellee’s App. at 16. McDaniel also told the court that his counsel

was available to answer the questions he had about the plea agreement. Id.

Defense counsel stated that McDaniel had had several questions over the

course of the proceedings, and McDaniel stated that counsel had answered his

questions to the best of his ability. The trial court asked McDaniel if he

understood the agreement, and McDaniel said that he did. Id. at 18. During

the guilty plea hearing, the trial court did not advise McDaniel that he had the

right to appeal his sentence. Accordingly, we conclude that McDaniel

knowingly and voluntarily waived his right to appeal his sentence.

[10] However, McDaniel argues that the final discussion between the parties and the

trial court at the close of the sentencing hearing shows that he did not

knowingly waive his right to direct appellate review of his sentence. After the

trial court accepted the plea agreement, ordered that judgment of conviction be

entered for reckless homicide and pointing a firearm, and dismissed the

remaining charges, it erroneously advised McDaniel that he had the right to

appeal his sentence. The trial court asked defense counsel whether he could

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 6 of 9 assist McDaniel with an appeal. Defense counsel replied affirmatively. The

trial court stated, “I think you set out legal arguments that would assist him in

that area.” Tr. at 100. The prosecutor then stated that he would like to release

the victim’s personal property to the family “even if it is on appeal, that would

be appealing the sentence.” Id. Defense counsel said, “We would only be

appealing the sentence, so that would be fine,” and the trial court agreed. Id.

McDaniel contends that this conversation shows that the parties to the plea

agreement anticipated that he reserved his right to appeal the sentence. He also

asserts that the prosecutor failed to object and participated in the discussion,

and therefore the State waived any objection to his exercise of his right to

appellate review of his sentence.

[11] These arguments were addressed and rejected in Creech and Mechling v. State, 16

N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied (2015), neither of which

McDaniel acknowledges. In Creech, our supreme court rejected the argument

that Creech’s waiver was not knowing and voluntary because the trial court

advised him at the end of the sentencing hearing that he had the right to appeal

his sentence. 887 N.E.2d at 76. Our supreme court reasoned that the trial

court’s mistaken advisement at the end of sentencing occurred after Creech had

pled guilty and received the benefit of the plea agreement, and therefore the

mistaken advisement presumably had no effect on the transaction. Id. at 77. In

Mechling, another panel of this Court rejected Mechling’s argument that the

State was estopped from enforcing the written waiver of his right to appeal his

sentence by its failure to object or correct the trial court’s mistaken advisement

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 7 of 9 at the end of the sentencing hearing. 16 N.E.3d 1017-18. The Mechling court

concluded that “[w]hile some sort of objection or correction from the State is

undoubtedly ideal, we do not believe a duty to speak existed here such that

application of estoppel is warranted.” Id. Cf. Holloway v. State, 950 N.E.2d 803,

806 (Ind. Ct. App. 2011) (concluding that Holloway’s waiver of right to appeal

sentence was not knowing and voluntary where trial court stated at least twice

at combined guilty plea and sentencing hearing that defendant could appeal

sentence, before defendant had received benefit of his plea bargain); Bonilla v.

State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009) (concluding that Bonilla did

not waive right to appeal sentence where trial court advised him at guilty plea

hearing and again at sentencing hearing that he had right to appeal sentence)

trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008)

(concluding that Ricci did not waive right to appeal sentence where trial court

advised him at guilty plea hearing that he had right to appeal sentence), trans

denied.

[12] As happened in Creech and Mechling, the trial court in this case did not

mistakenly advise McDaniel at the guilty plea hearing that he had the right to

appeal his sentence. McDaniel’s counsel at sentencing was the same counsel

who advised him during plea negotiations, who signed the plea agreement, and

who represented him at the guilty plea hearing. The trial court’s mistaken

advisement at the end of the sentencing hearing had no effect on the prior valid

waiver of McDaniel’s right to appeal his sentence. We also observe that the

trial court sentenced McDaniel within the terms of the plea agreement.

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 8 of 9 Therefore, we conclude that McDaniel waived the right to appellate review of

his sentence, and we dismiss his appeal.

[13] Dismissed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 9 of 9