Rex Allen Duke, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 6, 2019
• Docket: 18A-CR-1963
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 06 2019, 10:27 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 Caroline B. Briggs Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Angela Sanchez Josiah Swinney Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rex Allen Duke, Sr., March 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1963 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1801-F5-13

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019 Page 1 of 4 Statement of the Case [1] Rex Allen Duke, Sr. appeals his sentence following his conviction for burglary,

as a Level 5 felony, and his adjudication as a habitual offender. Duke presents

a single issue for our review, namely, whether his sentence is inappropriate in

light of the nature of the offense and his character. However, in his plea

agreement, Duke waived his right to appeal his sentence. Accordingly, we

dismiss his appeal.

Facts and Procedural History [2] On January 10, 2018, Duke broke and entered a garage at Margaret Hicks’

residence in Lafayette. Duke took some items he found in the garage and

inside a parked van and put them in a bag. At some point, Hicks and her

neighbor Jose Gaeta entered the garage, turned on the light, and found Duke.

Gaeta called 9-1-1, and Duke did not leave but waited for law enforcement.

[3] The State charged Duke with burglary, as a Level 5 felony; theft, as a Level 6

felony; theft, as a Class A misdemeanor; and being a habitual offender. On

May 31, 2018, Duke pleaded guilty to burglary, as a Level 5 felony, and

admitted to being a habitual offender. In exchange for his plea, the State

dismissed the remaining charges and dismissed a probation revocation petition

pending in another cause. By his plea agreement, Duke

waive[d] the right to appeal any sentence imposed by the Court, under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019 Page 2 of 4 sentence[d] the Defendant within the terms of the plea agreement.

Appellant’s App. Vol. 2 at 18. The plea agreement left sentencing open to the

trial court’s discretion. Following a sentencing hearing, the trial court imposed

an aggregate eight-year term. This appeal ensued.

Discussion and Decision [4] Duke contends that his sentence is inappropriate in light of the nature of the

offense and his character. However, we do not reach the merits of his appeal

because, as the State correctly points out, Duke waived his right to appeal his

sentence. In particular, Duke’s plea agreement left his sentence to the trial

court’s discretion and included the following provision:

The Defendant hereby waives the right to appeal any sentence imposed by the Court, under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court sentences the Defendant within the terms of the plea agreement.

Id. Our Supreme Court has held that such a waiver is enforceable. See Creech v.

State, 887 N.E.2d 73, 75 (Ind. 2008). Indeed, here, at Duke’s guilty plea

hearing, the trial court made certain that Duke understood that the court had

discretion in sentencing him and that he was giving up his right to appeal his

sentence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019 Page 3 of 4 [5] Still, in his Reply Brief, Duke asserts that “the State has waived its right to

challenge Mr. Duke’s right to appeal the sentencing” because the State did not

object when, at the conclusion of sentencing, the trial court inadvertently

advised Duke that he had a right to appeal his sentence. Appellant’s Br. at 7.

But the trial court in Creech made the same mistake, and our Supreme Court

held that it was of no moment. The Court observed 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.” Creech, 887 N.E.2d at 77. The same is true here.

[6] Duke does not suggest that his waiver was not knowing and voluntary. Duke

merely contends that the State waived its right to enforce his waiver when it did

not object to the trial court’s statement at the conclusion of sentencing that

Duke could appeal his sentence. We hold that Duke’s waiver of his right to

appeal his sentence is valid and enforceable. Accordingly, we dismiss Duke’s

appeal.

[7] Dismissed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019 Page 4 of 4