MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 30 2016, 8:55 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbra A. Stooksbury Gregory F. Zoeller Howes & Howes, LLP Attorney General of Indiana La Porte, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph R. Keller, December 30, 2016 Appellant-Defendant, Court of Appeals Case No. 46A04-1601-CR-142 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff Bergerson, Judge Trial Court Cause No. 46D01-1407-F3-20
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 1 of 6 Case Summary [1] Joseph R. Keller appeals the sentence imposed by the trial court following his
guilty plea to level 4 felony child molesting. Specifically, Keller argues that the
trial court abused its discretion during sentencing and that his sentence is
inappropriate in light of the nature of the offense and his character. The State
cross-appeals arguing that Keller has waived his right to appeal his sentence
pursuant to his plea agreement. Concluding that he has waived appellate
review of his sentence, we affirm.
Facts and Procedural History [2] On July 14, 2014, the State charged Keller with two counts of child molesting,
one as a level 3 felony and one as a level 4 felony. Pursuant to a plea
agreement, Keller pled guilty to the level 4 felony in exchange for dismissal of
the level 3 felony. Sentencing was left to the trial court’s discretion with the
only limitation being that Keller’s sentence had to contain at least one year
suspended to probation. Additionally, Keller agreed to the following waiver of
his right to appeal:
The Defendant understands that in consideration of the State’s entry into this plea agreement, he expressly waives his right to appeal or to contest any sentence and any restitution order imposed or the manner in which the conviction or sentence or the restitution order was determined or imposed, to the Indiana Court of Appeals, the Indiana Supreme Court or any other Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 2 of 6 proceeding under Indiana Post-Conviction Rules 1 and 2 or 28, United States Code, Section 2254.
Appellant’s App. at 111.
[3] Both Keller and his attorney signed the plea agreement. A guilty plea hearing
was held on November 5, 2015. During that hearing, the trial court advised
Keller of his constitutional right to appeal and confirmed that his waiver of that
right was knowing, voluntary, and intelligent. Specifically, the trial court asked
Keller, “Do you understand that by pleading guilty you limit your ability to file
[an] appeal.” Tr. at 7. Keller responded that he understood. Id. The trial court
also confirmed that Keller had read the entire plea agreement and discussed it
with his attorney before signing it.
[4] A sentencing hearing was held on December 10, 2015. The trial court imposed
a sentence of ten years with three years suspended to probation. At the
conclusion of the sentencing hearing, the trial court erroneously advised Keller
that he had the right to appeal and appointed pauper counsel. This appeal
ensued.
Discussion and Decision [5] Keller asserts both that the trial court abused its discretion during sentencing
and that his sentence is inappropriate. Relying on Creech v. State, 887 N.E.2d 73
(Ind. 2008), the State cross-appeals arguing that Keller waived his right to
appeal his sentence pursuant to his plea agreement. We find the State’s
argument dispositive of this appeal.
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 3 of 6 [6] Keller did not file a reply brief or otherwise respond to the State’s allegation on
cross-appeal that he has waived his right to appeal his sentence pursuant to his
plea agreement. Under such circumstances, if we find prima facie error, the
State may prevail. See Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App.
2015). Prima facie error is error at first sight, on first appearance, or on the face
of it. Id.
[7] In Creech, our supreme court held that “a defendant may waive the right to
appellate review of his sentence as part of a written plea agreement.” 887
N.E.2d at 75. 1 Specifically, in Creech, the defendant’s plea agreement left his
sentence to the trial court’s discretion, and he agreed to waive his right to
appeal the sentence so long as he was sentenced within the terms of his plea
agreement. Id. at 74. After the defendant had already entered his plea of guilty
and been sentenced, the trial court erroneously advised the defendant at the
close of the sentencing hearing that he retained the right to appeal his sentence.
Id. Our supreme court held that provisions waiving the right to appellate
review of a sentence are enforceable as part of a written plea agreement. Id. at
75. The court further determined that after a defendant pleads guilty and
receives the benefit of the plea bargain, subsequent actions by the trial court do
not affect that waiver, recognizing that “[m]ost waivers are effective when set
out in writing and signed.” Id. at 76-77 (alteration in original) (quoting United
1 Our supreme court has subsequently noted that in Indiana, a defendant can even waive his right to appeal an illegal sentence. Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013).
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 4 of 6 States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995), superseded by statute on other
grounds). Therefore, the court held that the trial court’s erroneous advisement at
the conclusion of the sentencing hearing had no effect on an otherwise
knowing, voluntary, and intelligent waiver of the right to appeal and was not
grounds for allowing the defendant to circumvent the terms of his plea
agreement. Id. at 76. 2
[8] Consistent with Creech, we conclude that Keller’s waiver of his right to appeal is
enforceable as part of his written plea agreement. The trial court’s erroneous
advisement of Keller’s right to appeal at the conclusion of the sentencing
hearing had no effect on his prior waiver of that right. The trial court’s
statement that Keller could appeal his sentence was not made until after the
court had accepted the plea agreement and entered Keller’s sentence. Indeed,
Keller had already received the benefit of his bargain prior to the trial court’s
misstatement. Moreover, as we stated above, Keller failed to respond to the
State’s cross-appeal, so he makes no claim that the waiver of his right to appeal
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 30 2016, 8:55 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbra A. Stooksbury Gregory F. Zoeller Howes & Howes, LLP Attorney General of Indiana La Porte, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph R. Keller, December 30, 2016 Appellant-Defendant, Court of Appeals Case No. 46A04-1601-CR-142 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff Bergerson, Judge Trial Court Cause No. 46D01-1407-F3-20
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 1 of 6 Case Summary [1] Joseph R. Keller appeals the sentence imposed by the trial court following his
guilty plea to level 4 felony child molesting. Specifically, Keller argues that the
trial court abused its discretion during sentencing and that his sentence is
inappropriate in light of the nature of the offense and his character. The State
cross-appeals arguing that Keller has waived his right to appeal his sentence
pursuant to his plea agreement. Concluding that he has waived appellate
review of his sentence, we affirm.
Facts and Procedural History [2] On July 14, 2014, the State charged Keller with two counts of child molesting,
one as a level 3 felony and one as a level 4 felony. Pursuant to a plea
agreement, Keller pled guilty to the level 4 felony in exchange for dismissal of
the level 3 felony. Sentencing was left to the trial court’s discretion with the
only limitation being that Keller’s sentence had to contain at least one year
suspended to probation. Additionally, Keller agreed to the following waiver of
his right to appeal:
The Defendant understands that in consideration of the State’s entry into this plea agreement, he expressly waives his right to appeal or to contest any sentence and any restitution order imposed or the manner in which the conviction or sentence or the restitution order was determined or imposed, to the Indiana Court of Appeals, the Indiana Supreme Court or any other Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 2 of 6 proceeding under Indiana Post-Conviction Rules 1 and 2 or 28, United States Code, Section 2254.
Appellant’s App. at 111.
[3] Both Keller and his attorney signed the plea agreement. A guilty plea hearing
was held on November 5, 2015. During that hearing, the trial court advised
Keller of his constitutional right to appeal and confirmed that his waiver of that
right was knowing, voluntary, and intelligent. Specifically, the trial court asked
Keller, “Do you understand that by pleading guilty you limit your ability to file
[an] appeal.” Tr. at 7. Keller responded that he understood. Id. The trial court
also confirmed that Keller had read the entire plea agreement and discussed it
with his attorney before signing it.
[4] A sentencing hearing was held on December 10, 2015. The trial court imposed
a sentence of ten years with three years suspended to probation. At the
conclusion of the sentencing hearing, the trial court erroneously advised Keller
that he had the right to appeal and appointed pauper counsel. This appeal
ensued.
Discussion and Decision [5] Keller asserts both that the trial court abused its discretion during sentencing
and that his sentence is inappropriate. Relying on Creech v. State, 887 N.E.2d 73
(Ind. 2008), the State cross-appeals arguing that Keller waived his right to
appeal his sentence pursuant to his plea agreement. We find the State’s
argument dispositive of this appeal.
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 3 of 6 [6] Keller did not file a reply brief or otherwise respond to the State’s allegation on
cross-appeal that he has waived his right to appeal his sentence pursuant to his
plea agreement. Under such circumstances, if we find prima facie error, the
State may prevail. See Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App.
2015). Prima facie error is error at first sight, on first appearance, or on the face
of it. Id.
[7] In Creech, our supreme court held that “a defendant may waive the right to
appellate review of his sentence as part of a written plea agreement.” 887
N.E.2d at 75. 1 Specifically, in Creech, the defendant’s plea agreement left his
sentence to the trial court’s discretion, and he agreed to waive his right to
appeal the sentence so long as he was sentenced within the terms of his plea
agreement. Id. at 74. After the defendant had already entered his plea of guilty
and been sentenced, the trial court erroneously advised the defendant at the
close of the sentencing hearing that he retained the right to appeal his sentence.
Id. Our supreme court held that provisions waiving the right to appellate
review of a sentence are enforceable as part of a written plea agreement. Id. at
75. The court further determined that after a defendant pleads guilty and
receives the benefit of the plea bargain, subsequent actions by the trial court do
not affect that waiver, recognizing that “[m]ost waivers are effective when set
out in writing and signed.” Id. at 76-77 (alteration in original) (quoting United
1 Our supreme court has subsequently noted that in Indiana, a defendant can even waive his right to appeal an illegal sentence. Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013).
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 4 of 6 States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995), superseded by statute on other
grounds). Therefore, the court held that the trial court’s erroneous advisement at
the conclusion of the sentencing hearing had no effect on an otherwise
knowing, voluntary, and intelligent waiver of the right to appeal and was not
grounds for allowing the defendant to circumvent the terms of his plea
agreement. Id. at 76. 2
[8] Consistent with Creech, we conclude that Keller’s waiver of his right to appeal is
enforceable as part of his written plea agreement. The trial court’s erroneous
advisement of Keller’s right to appeal at the conclusion of the sentencing
hearing had no effect on his prior waiver of that right. The trial court’s
statement that Keller could appeal his sentence was not made until after the
court had accepted the plea agreement and entered Keller’s sentence. Indeed,
Keller had already received the benefit of his bargain prior to the trial court’s
misstatement. Moreover, as we stated above, Keller failed to respond to the
State’s cross-appeal, so he makes no claim that the waiver of his right to appeal
was not otherwise knowing, voluntary, or intelligent. Even had he done so, the
record would belie any such assertion. Keller signed a clearly stated written
waiver of the right to appeal his sentence, and we discern no ambiguity in the
2 Since Creech, this Court has repeatedly held that a trial court’s erroneous advisement of a right to appeal during a sentencing hearing does not invalidate an otherwise knowing, voluntary, and intelligent waiver of the right to appeal. See, e.g., Mechling v. State, 16 N.E.3d 1015, 1017 (Ind. Ct. App. 2014), trans. denied (2015); Ivy v. State, 947 N.E.2d 496, 499 (Ind. Ct. App. 2011); Akens v. State, 929 N.E.2d 265, 266 (Ind. Ct. App. 2010); but see Bonilla v. State, 907 N.E.2d 586, 589 (Ind. Ct. App. 2009), trans. denied, and Ricci v. State, 894 N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied (both cases distinguishing Creech and finding waiver of right to appeal unenforceable on other grounds).
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 5 of 6 trial court’s advisements of the effect of his waiver during the guilty plea
hearing. Accordingly, we conclude that Keller has waived the right to appeal
his sentence.
[9] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016 Page 6 of 6