MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 16 2018, 10:16 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kimbert A. G. Crafton, April 16, 2018 Appellant-Defendant, Court of Appeals Case No. 43A03-1710-CR-2551 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable Joe V. Sutton, Appellee-Plaintiff. Judge Trial Court Cause Nos. 43D03-1705-F5-351 43D03-1705-F5-382
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 1 of 7 Case Summary and Issue [1] Kimbert Crafton pleaded guilty to attempted theft, theft, and resisting law
enforcement, all Level 6 felonies. The trial court sentenced Crafton to six years
with six months suspended to probation. On appeal, Crafton raises two issues
for review, one of which we find dispositive: whether the provision in his plea
agreement waiving his right to appeal his sentence is enforceable. Concluding
that Crafton waived his right to appeal his sentence in a valid plea agreement,
we affirm.1
Facts and Procedural History [2] On May 4, 2017, the State charged Crafton with corrupt business influence, a
Level 5 felony, and attempted theft, a Level 6 felony. On May 12, 2017,
Crafton was charged in a separate count with corrupt business influence, a
Level 5 felony, and theft, auto theft, and resisting law enforcement, all Level 6
felonies. The State later filed an habitual offender enhancement.
[3] On July 17, 2017, Crafton entered into a written plea agreement with the State
in which Crafton agreed to plead guilty to attempted theft, theft, and resisting
law enforcement, all Level 6 felonies, in exchange for the State dismissing the
remaining charges and the habitual offender enhancement. The plea agreement
1 Because we hold Crafton’s waiver of his appellate rights was enforceable, we do not address his claims that the trial court abused its discretion in its restitution order or that his sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 2 of 7 provided that the executed sentence for all three charges would not exceed six
years and included the following provision:
The Defendant knowingly, intelligently, and voluntarily waives his/her right to appeal any sentence imposed by the trial court that is within the range set forth in this plea agreement, and waives his right to have the Court of Appeals review his sentence under Indiana Appellate Rule 7(B).
Appellant’s Appendix, Volume 2 at 120.
[4] At his guilty plea hearing, Crafton confirmed that he had reviewed his plea
agreement with his attorney and was entering into it of his own free will.
Although the appellate waiver was not specifically addressed during the
colloquy, the trial court did ask Crafton whether he was familiar with the terms
of the plea agreement, to which Crafton replied “[y]es, sir.” Transcript of
Evidence, Volume 2 at 8. The trial court subsequently accepted Crafton’s guilty
plea.
[5] At the sentencing hearing, the trial court sentenced Crafton to six years with six
months suspended to probation. At the close of the sentencing hearing, the trial
court told Crafton that, because the judge had a discretionary range in which to
sentence him, “you do have the right to appeal the sentence of the Court.” Id.
at 40. Despite their familiarity with the plea agreement, neither the State nor
defense counsel interjected to correct the trial court regarding this
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 3 of 7 misstatement.2 Crafton indicated that he would like to appeal his sentence and
the trial court appointed a public defender for the purpose of appeal. Crafton
now appeals his sentence.
Discussion and Decision [6] A defendant who pleads guilty has the right to appeal the trial court’s
sentencing decision “even when the defendant agrees to a sentencing cap or
range.” Creech, 887 N.E.2d at 74. Our supreme court has also held that a
defendant may waive this right to appeal, so long as the waiver is knowing and
voluntary. Id. at 75. Crafton argues that his waiver was not knowing and
voluntary, and therefore unenforceable, based on the trial court’s advisement at
sentencing.
[7] Our supreme court addressed the validity of appellate waivers in Creech, and the
relevant facts of Creech are almost identical to the facts at issue here. Creech
entered into a plea agreement that included a waiver of his right to appeal his
sentence. At the guilty plea hearing, the judge did not question him about the
waiver provision. During the sentencing hearing, after the sentence had been
pronounced, the judge advised Creech of the right to appeal his sentence. Our
2 We have repeatedly urged trial courts to be vigilant of plea agreements containing a waiver of the right to appeal, see, e.g., Mechling v. State, 16 N.E.3d 1015, 1018 n.4 (Ind. Ct. App. 2014), trans. denied, and, as our supreme court explained in Creech v. State, 887 N.E.2d 73, 76 (Ind. 2008), trial courts must avoid including confusing remarks in their plea colloquy or at sentencing. Moreover, we must remind counsel—both prosecutors and defense attorneys—of their duty as officers of the court to correct the record and to notify the court that the right to appeal has been waived by the terms of the underlying plea agreement. Waiver of such a right should not come as a surprise to either party.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 4 of 7 supreme court upheld the validity of the appellate waiver, stating that a
“specific dialogue with the judge is not a necessary prerequisite to a valid
waiver of appeal, if there is other evidence in the record demonstrating a
knowing and voluntary waiver.” Id. at 76 (quoting United States v. Agee, 83 F.3d
882, 886 (7th Cir. 1996)). Regarding the advisement at sentencing that Creech
had the right to appeal, the court determined that “the statements at issue are
not grounds for allowing Creech to circumvent the terms of his plea
agreement.” Id. The court emphasized the timing of the statements, noting that
“[b]y 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.
[8] Crafton relies on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans.
denied, and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied,
but both cases are factually distinguishable from his case. Ricci’s plea
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 16 2018, 10:16 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kimbert A. G. Crafton, April 16, 2018 Appellant-Defendant, Court of Appeals Case No. 43A03-1710-CR-2551 v. Appeal from the Kosciusko Superior Court State of Indiana, The Honorable Joe V. Sutton, Appellee-Plaintiff. Judge Trial Court Cause Nos. 43D03-1705-F5-351 43D03-1705-F5-382
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 1 of 7 Case Summary and Issue [1] Kimbert Crafton pleaded guilty to attempted theft, theft, and resisting law
enforcement, all Level 6 felonies. The trial court sentenced Crafton to six years
with six months suspended to probation. On appeal, Crafton raises two issues
for review, one of which we find dispositive: whether the provision in his plea
agreement waiving his right to appeal his sentence is enforceable. Concluding
that Crafton waived his right to appeal his sentence in a valid plea agreement,
we affirm.1
Facts and Procedural History [2] On May 4, 2017, the State charged Crafton with corrupt business influence, a
Level 5 felony, and attempted theft, a Level 6 felony. On May 12, 2017,
Crafton was charged in a separate count with corrupt business influence, a
Level 5 felony, and theft, auto theft, and resisting law enforcement, all Level 6
felonies. The State later filed an habitual offender enhancement.
[3] On July 17, 2017, Crafton entered into a written plea agreement with the State
in which Crafton agreed to plead guilty to attempted theft, theft, and resisting
law enforcement, all Level 6 felonies, in exchange for the State dismissing the
remaining charges and the habitual offender enhancement. The plea agreement
1 Because we hold Crafton’s waiver of his appellate rights was enforceable, we do not address his claims that the trial court abused its discretion in its restitution order or that his sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 2 of 7 provided that the executed sentence for all three charges would not exceed six
years and included the following provision:
The Defendant knowingly, intelligently, and voluntarily waives his/her right to appeal any sentence imposed by the trial court that is within the range set forth in this plea agreement, and waives his right to have the Court of Appeals review his sentence under Indiana Appellate Rule 7(B).
Appellant’s Appendix, Volume 2 at 120.
[4] At his guilty plea hearing, Crafton confirmed that he had reviewed his plea
agreement with his attorney and was entering into it of his own free will.
Although the appellate waiver was not specifically addressed during the
colloquy, the trial court did ask Crafton whether he was familiar with the terms
of the plea agreement, to which Crafton replied “[y]es, sir.” Transcript of
Evidence, Volume 2 at 8. The trial court subsequently accepted Crafton’s guilty
plea.
[5] At the sentencing hearing, the trial court sentenced Crafton to six years with six
months suspended to probation. At the close of the sentencing hearing, the trial
court told Crafton that, because the judge had a discretionary range in which to
sentence him, “you do have the right to appeal the sentence of the Court.” Id.
at 40. Despite their familiarity with the plea agreement, neither the State nor
defense counsel interjected to correct the trial court regarding this
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 3 of 7 misstatement.2 Crafton indicated that he would like to appeal his sentence and
the trial court appointed a public defender for the purpose of appeal. Crafton
now appeals his sentence.
Discussion and Decision [6] A defendant who pleads guilty has the right to appeal the trial court’s
sentencing decision “even when the defendant agrees to a sentencing cap or
range.” Creech, 887 N.E.2d at 74. Our supreme court has also held that a
defendant may waive this right to appeal, so long as the waiver is knowing and
voluntary. Id. at 75. Crafton argues that his waiver was not knowing and
voluntary, and therefore unenforceable, based on the trial court’s advisement at
sentencing.
[7] Our supreme court addressed the validity of appellate waivers in Creech, and the
relevant facts of Creech are almost identical to the facts at issue here. Creech
entered into a plea agreement that included a waiver of his right to appeal his
sentence. At the guilty plea hearing, the judge did not question him about the
waiver provision. During the sentencing hearing, after the sentence had been
pronounced, the judge advised Creech of the right to appeal his sentence. Our
2 We have repeatedly urged trial courts to be vigilant of plea agreements containing a waiver of the right to appeal, see, e.g., Mechling v. State, 16 N.E.3d 1015, 1018 n.4 (Ind. Ct. App. 2014), trans. denied, and, as our supreme court explained in Creech v. State, 887 N.E.2d 73, 76 (Ind. 2008), trial courts must avoid including confusing remarks in their plea colloquy or at sentencing. Moreover, we must remind counsel—both prosecutors and defense attorneys—of their duty as officers of the court to correct the record and to notify the court that the right to appeal has been waived by the terms of the underlying plea agreement. Waiver of such a right should not come as a surprise to either party.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 4 of 7 supreme court upheld the validity of the appellate waiver, stating that a
“specific dialogue with the judge is not a necessary prerequisite to a valid
waiver of appeal, if there is other evidence in the record demonstrating a
knowing and voluntary waiver.” Id. at 76 (quoting United States v. Agee, 83 F.3d
882, 886 (7th Cir. 1996)). Regarding the advisement at sentencing that Creech
had the right to appeal, the court determined that “the statements at issue are
not grounds for allowing Creech to circumvent the terms of his plea
agreement.” Id. The court emphasized the timing of the statements, noting that
“[b]y 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.
[8] Crafton relies on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans.
denied, and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied,
but both cases are factually distinguishable from his case. Ricci’s plea
agreement included a provision waiving his right to appeal or challenge his
sentence but at the guilty plea hearing, the trial court advised Ricci that he would
have the right to appeal the sentence if the agreement was accepted. Ricci, 894
N.E.2d at 1090. Neither the State nor the defense attorney disputed this
assertion. Id. The court distinguished Ricci from Creech based on the timing of
the incorrect advisement, stating that although this action would have no effect
on the waiver at a sentencing hearing, “Creech does not address how a trial
court’s misstatements at the plea hearing impact the determination of whether a
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 5 of 7 defendant’s waiver was knowing, voluntary, and intelligent.” Id. at 1093. In
holding that the waiver was invalid, the court concluded that, under these
circumstances, “the trial court accepted the plea agreement, and the prosecuting
attorney, the defense attorney, and Ricci entered into the plea agreement with
the understanding that Ricci retained the right to appeal his sentence.” Id. at
1094.
[9] Bonilla also involves a statement by the trial court at the guilty plea hearing.
Bonilla entered into a plea agreement which contained a waiver of his right to
appeal his sentence but at the guilty plea hearing, the trial court told Bonilla
that he “may” have waived his right to appeal, but then proceeded to “promptly
advise[] Bonilla of the right to appeal and the right to an attorney.” Bonilla, 907
N.E.2d at 590. In holding that the waiver was invalid, the court noted that
“[t]his advisement occurred at the guilty plea hearing, which is before Bonilla
received the benefit of his bargain.” Id.
[10] The facts of this case are clearly more similar to those of Creech than Ricci or
Bonilla, and we find Creech controlling. Crafton stated at the guilty plea hearing
that he was entering into the plea agreement of his own free will, that he had a
chance to review the agreement and ask questions of his attorney regarding the
agreement, and that he had read and signed the agreement. Although the
appellate waiver was not specifically discussed at the guilty plea hearing, a
specific discussion is not necessary if there is other evidence in the record
demonstrating a knowing and voluntary waiver of the right to appeal. See
Creech, 887 N.E.2d at 76. Crafton’s statements at the guilty plea hearing
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 6 of 7 constitute evidence of a knowing and voluntary waiver. And like Creech, the
erroneous advisement to Crafton came up at his sentencing hearing, when he
had already received the benefit of the bargain in his guilty plea. The
statements at issue at the sentencing hearing are not enough for Crafton to
circumvent the plea agreement and, as explained in Creech, “[b]eing told at the
close of the hearing that he could appeal presumably had no effect on that
transaction.” Id. at 77. For the foregoing reasons, we hold that Crafton’s guilty
plea contains an enforceable appellate waiver.
Conclusion [11] Crafton’s guilty plea contained an enforceable appellate waiver. For this
reason, we do not reach the substantive issues raised by Crafton about his
sentence. Crafton waived the right to appeal his sentence, and we therefore
affirm.
[12] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 7 of 7