Joseph D. Wasserman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2019
• Docket: 18A-CR-2932
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 27 2019, 5:38 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA Joseph D. Wasserman, June 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2932 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Jonathan N. Appellee-Plaintiff. Cleary, Judge Trial Court Cause No. 15D01-1805-F3-9

Mathias, Judge.

[1] Joseph Wasserman (“Wasserman”) pleaded guilty in Dearborn Superior Court

to Level 3 felony dealing in methamphetamine and admitted to being an

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 1 of 5 habitual offender. The trial court sentenced Wasserman to twenty-two years in

the Department of Correction (“DOC”). Wasserman appeals and argues his

sentence is inappropriate in light of the nature of the offense and the character

of the offender. Concluding that Wasserman waived his right to appeal his

sentence, we affirm.

Facts and Procedural History [2] On May 16, 2018, the Lawrence Police Department executed a search warrant

on Wasserman’s residence after conducting a trash pull that uncovered multiple

items of drug paraphernalia and conducting surveillance that identified

numerous individuals with criminal histories of illegal drug activity visiting

Wasserman’s residence. Tr. p. 34. Wasserman’s room contained three grams of

methamphetamine. Id. at 36. Wasserman’s cellphone contained text messages

indicating he intended to deliver the methamphetamine. Id. at 37–38.

[3] The State charged Wasserman on May 17, 2018 with: (1) Level 3 felony dealing

in methamphetamine, (2) Level 6 felony maintaining a common nuisance, (3)

Level 6 felony possession of methamphetamine, (4) Class C misdemeanor

possession of paraphernalia, and (5) Class C misdemeanor possession of

paraphernalia. Appellant’s App. Vol. II, pp. 12–14. On August 16, 2018, the

State amended the information to allege that Wasserman was a habitual

offender. Id. at 121–123.

[4] Wasserman entered into a plea agreement on September 27, 2017. He pleaded

guilty to Count I, Level 3 felony dealing in methamphetamine and to the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 2 of 5 habitual offender enhancement in exchange for the State’s dismissal of the

remaining counts and agreement to cap his habitual offender enhancement at

10 years. Id. at 175–76. Paragraph 5 of the plea agreement provided,

“[d]efendant hereby waives the right. . . [to] seek appellate review of the

sentence, pursuant to Indiana Appellate Rule 7(B).” Id. at 176.

[5] The trial court accepted the plea agreement on October 16, 2018. Tr. p. 28.

Twenty-four days later, on November 9, 2018, the trial court sentenced

Wasserman to 13 years on Count I and enhanced the sentence by 9 years due to

Wasserman’s habitual offender status. Id. at 78. In addition, the trial court

informed Wasserman that he had a right to appeal; Wasserman now appeals.

Id.

Discussion and Decision [6] In his Appellant’s brief, Wasserman claims his sentence is inappropriate in light

of the nature of the offense and the character of the offender. However, we

conclude that Wasserman waived his right to appeal his sentence.

[7] A defendant may waive the right to appellate review of his sentence as part of a

written plea agreement as long as the waiver is knowing and voluntary. Creech v.

State, 887 N.E.2d 73, 74 (Ind. 2008). The language of Paragraph 5 of the plea

agreement is clear and unambiguous: by pleading guilty, Wasserman waived

the right to appeal his sentence so long as the trial court sentenced him within

the terms of his plea agreement. Appellant’s App. p. 176.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 3 of 5 [8] During the guilty plea hearing, Wasserman clarified his plea agreement, asking,

“[a]nd then I’m not allowed to appeal the sentence?” Tr. p. 24. The court

responded:

So your question was, can you appeal this sentence, and if I accept this plea agreement you cannot appeal the sentence so long as I sentence you between six to ten years on habitual offender, and sentence you between three and sixteen years on a Level 3. Is that your understanding of what was going to happen?

Id. at 25. Wasserman responded, “[y]es, Your Honor.” Id. The trial court

further advised Wasserman of his rights and ensured that Wasserman was

neither threatened nor forced to enter into the plea agreement. Tr. pp. 24–26.

Thus, there is nothing in the record before us to suggest that Wasserman’s

waiver was anything other than knowing and voluntary.

[9] After sentencing, the trial court misadvised Wasserman that he had a right to

appeal the sentence. Id. at 78. In Creech, our Supreme Court found that a trial

court’s erroneous statement that the defendant had a right to appeal was not

grounds for allowing the defendant to “circumvent the terms of his plea

agreement.” 887 N.E.2d at 76. The defendant had already pleaded guilty and

received the benefit of his plea bargain; being told at the close of his sentencing

hearing that he could appeal had no effect on his decision to accept the plea

agreement. Id. at 77.

[10] Wasserman received the benefit of his plea agreement: the State dropped four

charges and capped his habitual offender enhancement at ten years. The trial

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 4 of 5 court’s statement could not have affected Wasserman’s decision to accept the

plea agreement because the statement occurred over a month after Wasserman

entered into the plea agreement and three weeks after the court accepted the

plea agreement.

[11] As noted above, there is nothing in the record that suggests that Wasserman’s

waiver was anything other than knowing and voluntary. The sentence of

thirteen years for Level 3 felony dealing in methamphetamine and a nine-year

habitual offender enhancement are within the terms of the plea agreement. We

therefore conclude that Wasserman waived his right to appeal his sentence.

[12] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 5 of 5