Joshua Love v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 9, 2017
• Docket: 47A01-1703-CR-544
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 09 2017, 7:58 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Spangler, Jr. Curtis T. Hill, Jr. Lawrence County Public Defender Attorney General of Indiana Agency Bedford, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Love, August 9, 2017 Appellant-Defendant, Court of Appeals Case No. 47A01-1703-CR-544 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael Robbins, Appellee-Plaintiff Judge Trial Court Cause No. 47D01-1604-F1-399

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 1 of 6 Case Summary [1] Joshua Love pled guilty to criminal confinement and sexual battery and was

sentenced to sixteen years. He now appeals his sentence. The State argues that

Love has waived appellate review of his sentence because of a waiver provision

in his plea agreement. We agree with the State and therefore affirm Love’s

sentence.

Facts and Procedural History [2] On January 4, 2017, Love and the State entered into a written plea agreement

in which Love pled guilty to Level 3 felony criminal confinement and Level 6

felony sexual battery. In exchange, the State agreed to dismiss the remaining

counts and another cause number in its entirety. According to the terms of the

plea agreement, the sentences would run concurrently, and the parties would

“argue [the] remaining terms of [the] sentence to the Court.” Appellant’s App.

Vol. II p. 23. The plea agreement contained the following provision concerning

Love’s right to appeal his sentence:

As a condition of entering this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.

Id. Love also signed an Acknowledgement of Rights. Paragraph 10 similarly

provided:

Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 2 of 6 As a condition of entering this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason so long as the Judge sentences me within the terms of my plea agreement.

Id. at 25.

[3] At the guilty-plea hearing held that same day, the trial court went over the plea

agreement and the Acknowledgement of Rights with Love. Specifically, the

court confirmed with Love that he understood he was “waiving certain rights of

appeal” as explained in paragraphs 6-13 of the Acknowledgement of Rights.

Tr. Vol. II. p. 5. The court found that a factual basis existed for the offenses

and set a sentencing hearing.

[4] At the February sentencing hearing, the trial court sentenced Love to sixteen

years for criminal confinement and two-and-a-half years for sexual battery, to

be served concurrently, for an aggregate term of sixteen years. The court

suspended two years to probation and ordered the last year of incarceration to

be served on house arrest “in lieu of incarceration.” Id. at 97. The trial court

then told Love, “you have a right to appeal . . . the sentence . . . that I just

imposed.” Id.

[5] Love now appeals his sentence.

Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 3 of 6 Discussion and Decision [6] Love contends that his sentence is inappropriate in light of the nature of the

offenses and his character. The State responds that Love has waived the right

to appeal his sentence.

[7] The Indiana Supreme Court held in Creech v. State that “a defendant may waive

the right to appellate review of his sentence as part of a written plea

agreement.” 887 N.E.2d 73, 75 (Ind. 2008). The Supreme Court then analyzed

whether, despite the express language of the waiver in Creech’s plea agreement,

he knowingly and voluntarily waived the right to appellate review of his

sentence because the judge advised him at the close of the sentencing hearing

that he retained the right to appeal. The Court rejected Creech’s argument as

follows:

While we take this opportunity to emphasize the importance of avoiding confusing remarks in a plea colloquy, we think the statements at issue are not grounds for allowing Creech to circumvent the terms of his plea agreement.

Creech does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it, but rather claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal.

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Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 4 of 6 By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction.

Id. at 77 (footnotes omitted). As this Court later explained, “under Creech, a

trial court’s incorrect advisement at the conclusion of a defendant’s sentencing

hearing has no effect on an otherwise knowing, voluntary, and intelligent

waiver of the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089,

1093 (Ind. Ct. App. 2008), trans. denied.

[8] On appeal, Love makes no argument that the language of his plea agreement

was unclear or that he misunderstood the terms of the agreement when he

signed it. As in Creech, although the trial court erroneously advised Love that

he could appeal his sentence, that erroneous statement occurred only at the

sentencing hearing and after Love had received the benefit of his plea

agreement.1 We therefore find that Love knowingly and voluntarily waived the

right to appeal his sentence. See Starcher v. State, 66 N.E.3d 621 (Ind. Ct. App.

1 Love argues that this case is more akin to Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied, than it is to Creech. Bonilla entered into a written plea agreement waiving the right to appeal his sentence. At the guilty-plea hearing, the trial court noted Bonilla “may” have waived the right to appeal his sentence. Id. at 588. However, the court proceeded to advise Bonilla of the right to appeal his sentence and asked if he understood that right. Id. Given the contradictory information Bonilla received at the guilty-plea hearing and the fact that Bonilla was not a native English speaker, we concluded that Bonilla did not waive the right to appeal his sentence. Id. at 590. Here, however, the trial court did not advise Love at his guilty-plea hearing that he had the right to appeal his sentence; rather, the court told Love the opposite—that he was “waiving certain rights of appeal.” Tr. Vol. II p. 5.

Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 5 of 6 2016) (finding defendant waived right to appellate review of sentence in plea

agreement despite trial court’s advisement at sentencing hearing that defendant

had right to appeal sentence), trans. denied. We therefore affirm Love’s

[9] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 6 of 6