Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jul 23 2014, 6:45 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW J. MCGOVERN GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
SHANNON GOODMAN, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1401-CR-5 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Susan L. Orth, Judge Cause No. 22D01-1208-FA-1778
July 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Shannon Goodman appeals the fifteen-year sentence that was
imposed following her guilty plea to Burglary Resulting in Bodily Injury, 1 a class A
felony. Although Goodman claims that she did not knowingly and voluntarily waive her
right to appeal her sentence because those terms were not expressly set forth in the
written plea agreement, we conclude that the terms in the plea agreement stating that she
would not appeal, along with the colloquy between Goodman, her counsel, and the trial
court at the guilty plea and sentencing hearings, support the conclusion that Goodman
waived her right to appeal the sentence.
Waiver notwithstanding, we also find that the sentence was not inappropriate
when considering the nature of the offense and Goodman’s character. Thus, we affirm
the judgment of the trial court.
FACTS
On July 25, 2012, Goodman and her husband, William Vest, drove to ninety-two-
year-old Richard Manka’s house in Lanesville. Even though Goodman knew that Vest
was planning to burglarize Manka’s residence and steal his property, she agreed to drive
him there.
After letting Vest out of her vehicle near Manka’s house, Goodman drove the car
“down the road a little ways and parked . . . to wait for [Vest] to return.” Tr. p. 11.
Approximately forty minutes later, Vest returned to the vehicle empty-handed and
remarked that the “old f’er” was home. Id. Although Vest had taken some coins and a
1 Ind. Code § 35-43-2-1. 2 shotgun from Manka, he told Goodman that he left the property behind because the coin
bag had broken.
Later that same day, Goodman and Vest went to Rhonda Crone’s house. At some
point, they decided to return to Manka’s and recover the property they had taken. When
they arrived, Goodman and Crone took the property and cashed in the change at a local
grocery store. Vest later told Goodman that he had hit Manka and stated that Manka had
requested his oxygen tank while he was lying on the floor. As a result of being beaten in
the head and neck during the burglary, Manka continues to suffer from short-term
memory loss and severe pain.
Following the incident, the State charged Goodman with burglary resulting in
bodily injury, a class A felony. Thereafter, Goodman entered into a plea agreement that
capped the executed portion of her sentence at twenty years. However, the remainder of
the sentence was within the trial court’s discretion.
Goodman’s plea agreement contained a provision stating that the “DEFENDANT
WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF.” Appellant’s
App. p. 51. At the guilty plea hearing, Goodman’s counsel informed the trial court that
“to the extent permissible, [Goodman] would waive her right to appeal the sentence
imposed.” Tr. p. 5. The trial court asked Goodman if she “under[stood] what we’re
talking about here,” to which Goodman responded, “Yes, Ma’am.” Id. The trial court
then inquired, “What’s your understanding about the sentence?” Id. at 5. Goodman
3 responded that “whatever you decide my sentence is is [sic] what it’s gonna be and I
can’t try to change that later.” Id.
At the sentencing hearing that commenced approximately one month later,
Goodman’s counsel again confirmed that it was his client’s intent to waive the right to
appeal the sentence, stating “[T]hat was a term of our, uh, plea agreement, that we would
waive, uh, appeal of sentence as well as, uh, the judgment of conviction.” Id. at 25
(emphasis added).
In imposing the sentence, the trial court identified as aggravating factors Manka’s
age and the serious and lasting injuries that were inflicted upon him. The trial court
noted that Manka “should not have to endure . . . both psychological and physical”
injuries in his twilight years. Tr. p. 52-53. The trial court noted Goodman’s educational
background, her minimal criminal history, the fact that she had paid child support, her
employment and earning potential, and the fact that incarceration would be a hardship to
her children as mitigating circumstances.
Concluding that the mitigating factors outweighed the aggravating circumstances,
the trial court sentenced Goodman to twenty years of incarceration with five years
suspended to probation, thus resulting in a fifteen-year executed sentence. Goodman now
claims that she did not knowingly waive her right to appeal the sentence and challenges
the propriety of the sentence that was imposed.
4 DISCUSSION AND DECISION
I. Appeal of Sentence
In addressing Goodman’s contention that she did not knowingly waive her right to
appeal her sentence, we initially observe that while an individual who pleads guilty is
generally not allowed to challenge his or her conviction on direct appeal, he or she is
typically entitled to contest the merits of his sentence when the trial court has exercised
discretion at sentencing. Holsclaw v. State, 907 N.E.2d 1086, 1087 (Ind. Ct. App. 2009).
A defendant may enter into a plea agreement that provides for the waiver of
constitutional rights; indeed, “[d]efendants waive a whole panoply of rights by
voluntarily pleading guilty.” Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). These
rights that are subject to waiver include the right to a jury trial, the right against self-
incrimination, the right to appeal the conviction, and the right to attack collaterally one’s
plea based on double jeopardy. See id.
Our Supreme Court has also held that a defendant may waive the constitutional
right to the appellate review of a sentence in a plea agreement. Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008). And the waiver may be valid even when the trial court does
not specifically advise the defendant that he is waiving the right to appeal his sentence.
Id. at 77; see also Bowling v. State, 960 N.E.2d 837, 842 (Ind. Ct. App. 2012) (holding
that a defendant knowingly and voluntarily waived her right to appeal her sentence by
signing an advisement and waiver of rights form at the time of her guilty plea that
5 specified that by signing defendant acknowledged that she agreed to waive her right to
appeal her sentence).
As discussed above, the signed plea agreement in this case specifically provided
that “Defendant waives right to appeal.” Appellant’s App. p. 51. Although the
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jul 23 2014, 6:45 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW J. MCGOVERN GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
SHANNON GOODMAN, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1401-CR-5 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Susan L. Orth, Judge Cause No. 22D01-1208-FA-1778
July 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Shannon Goodman appeals the fifteen-year sentence that was
imposed following her guilty plea to Burglary Resulting in Bodily Injury, 1 a class A
felony. Although Goodman claims that she did not knowingly and voluntarily waive her
right to appeal her sentence because those terms were not expressly set forth in the
written plea agreement, we conclude that the terms in the plea agreement stating that she
would not appeal, along with the colloquy between Goodman, her counsel, and the trial
court at the guilty plea and sentencing hearings, support the conclusion that Goodman
waived her right to appeal the sentence.
Waiver notwithstanding, we also find that the sentence was not inappropriate
when considering the nature of the offense and Goodman’s character. Thus, we affirm
the judgment of the trial court.
FACTS
On July 25, 2012, Goodman and her husband, William Vest, drove to ninety-two-
year-old Richard Manka’s house in Lanesville. Even though Goodman knew that Vest
was planning to burglarize Manka’s residence and steal his property, she agreed to drive
him there.
After letting Vest out of her vehicle near Manka’s house, Goodman drove the car
“down the road a little ways and parked . . . to wait for [Vest] to return.” Tr. p. 11.
Approximately forty minutes later, Vest returned to the vehicle empty-handed and
remarked that the “old f’er” was home. Id. Although Vest had taken some coins and a
1 Ind. Code § 35-43-2-1. 2 shotgun from Manka, he told Goodman that he left the property behind because the coin
bag had broken.
Later that same day, Goodman and Vest went to Rhonda Crone’s house. At some
point, they decided to return to Manka’s and recover the property they had taken. When
they arrived, Goodman and Crone took the property and cashed in the change at a local
grocery store. Vest later told Goodman that he had hit Manka and stated that Manka had
requested his oxygen tank while he was lying on the floor. As a result of being beaten in
the head and neck during the burglary, Manka continues to suffer from short-term
memory loss and severe pain.
Following the incident, the State charged Goodman with burglary resulting in
bodily injury, a class A felony. Thereafter, Goodman entered into a plea agreement that
capped the executed portion of her sentence at twenty years. However, the remainder of
the sentence was within the trial court’s discretion.
Goodman’s plea agreement contained a provision stating that the “DEFENDANT
WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF.” Appellant’s
App. p. 51. At the guilty plea hearing, Goodman’s counsel informed the trial court that
“to the extent permissible, [Goodman] would waive her right to appeal the sentence
imposed.” Tr. p. 5. The trial court asked Goodman if she “under[stood] what we’re
talking about here,” to which Goodman responded, “Yes, Ma’am.” Id. The trial court
then inquired, “What’s your understanding about the sentence?” Id. at 5. Goodman
3 responded that “whatever you decide my sentence is is [sic] what it’s gonna be and I
can’t try to change that later.” Id.
At the sentencing hearing that commenced approximately one month later,
Goodman’s counsel again confirmed that it was his client’s intent to waive the right to
appeal the sentence, stating “[T]hat was a term of our, uh, plea agreement, that we would
waive, uh, appeal of sentence as well as, uh, the judgment of conviction.” Id. at 25
(emphasis added).
In imposing the sentence, the trial court identified as aggravating factors Manka’s
age and the serious and lasting injuries that were inflicted upon him. The trial court
noted that Manka “should not have to endure . . . both psychological and physical”
injuries in his twilight years. Tr. p. 52-53. The trial court noted Goodman’s educational
background, her minimal criminal history, the fact that she had paid child support, her
employment and earning potential, and the fact that incarceration would be a hardship to
her children as mitigating circumstances.
Concluding that the mitigating factors outweighed the aggravating circumstances,
the trial court sentenced Goodman to twenty years of incarceration with five years
suspended to probation, thus resulting in a fifteen-year executed sentence. Goodman now
claims that she did not knowingly waive her right to appeal the sentence and challenges
the propriety of the sentence that was imposed.
4 DISCUSSION AND DECISION
I. Appeal of Sentence
In addressing Goodman’s contention that she did not knowingly waive her right to
appeal her sentence, we initially observe that while an individual who pleads guilty is
generally not allowed to challenge his or her conviction on direct appeal, he or she is
typically entitled to contest the merits of his sentence when the trial court has exercised
discretion at sentencing. Holsclaw v. State, 907 N.E.2d 1086, 1087 (Ind. Ct. App. 2009).
A defendant may enter into a plea agreement that provides for the waiver of
constitutional rights; indeed, “[d]efendants waive a whole panoply of rights by
voluntarily pleading guilty.” Mapp v. State, 770 N.E.2d 332, 334-35 (Ind. 2002). These
rights that are subject to waiver include the right to a jury trial, the right against self-
incrimination, the right to appeal the conviction, and the right to attack collaterally one’s
plea based on double jeopardy. See id.
Our Supreme Court has also held that a defendant may waive the constitutional
right to the appellate review of a sentence in a plea agreement. Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008). And the waiver may be valid even when the trial court does
not specifically advise the defendant that he is waiving the right to appeal his sentence.
Id. at 77; see also Bowling v. State, 960 N.E.2d 837, 842 (Ind. Ct. App. 2012) (holding
that a defendant knowingly and voluntarily waived her right to appeal her sentence by
signing an advisement and waiver of rights form at the time of her guilty plea that
5 specified that by signing defendant acknowledged that she agreed to waive her right to
appeal her sentence).
As discussed above, the signed plea agreement in this case specifically provided
that “Defendant waives right to appeal.” Appellant’s App. p. 51. Although the
agreement itself does not contain express language that Goodman agreed to waive
appellate review of her sentence, the colloquy between Goodman, her counsel, and the
trial court at both the guilty plea and sentencing hearings demonstrates that Goodman
knew that she was also waiving appellate review of her sentence. Indeed, Goodman
signed the agreement containing the waiver provision and acknowledged to the trial court
that she reviewed the agreement with her counsel and understood the terms of the
agreement. Tr. p. 3-4; Appellant’s App. p. 51. Even more compelling, the parties’
exchange with the trial court demonstrates that Goodman understood this language to
mean that she was waiving her right to appeal her sentence. Tr. p. 4-5.
Although Goodman contends for the first time on appeal that she was “confused”
by what the trial court stated at the sentencing hearing and, therefore, did not validly
waive her right to appeal the sentence, neither she nor her counsel expressed any alleged
misunderstanding at that time or at any later time during the proceedings. Appellant’s Br.
p. 7-8; Tr. p. 4-5. In fact, the trial court resolved any ambiguity relating to this provision
by communicating with both Goodman, her counsel, and the deputy prosecutor, about the
nature and scope of the language contained in the plea agreement regarding the right to
appeal.
6 As noted above, Goodman’s counsel expressly informed the trial court that
Goodman “would waive her right to appeal the sentence.” Tr. p. 4-5 (emphasis added).
Goodman acknowledged to the trial court that she could not “try to change [the sentence]
later.” Id.
In light of these circumstances, we can only conclude that Goodman knew and
understood that she was waiving the right to appeal her sentence. While the trial court
initially expressed concern at the guilty plea hearing that the waiver provision embodied
in the plea agreement applied only to Goodman’s conviction, the deputy prosecutor
immediately pointed out that the waiver provision also included an appeal of the
sentence. Tr. p. 4. Again, Goodman’s counsel acknowledged that this was the agreement
of the parties stating, “yes, Judge, to the extent permissible [Goodman] would waive her
right to appeal the sentence imposed.” Id. at 5.
The parties also informed the trial court at sentencing that was conducted nearly a
month after the guilty plea hearing that Goodman was waiving the right to appeal her
sentence in accordance with the plea agreement. Tr. p. 24-25. Again, the deputy
prosecutor informed the trial court that the parties intended the waiver provision to apply
to sentence review, and Goodman’s counsel specifically confirmed that the waiver
provision included Goodman’s waiver of her right to challenge the propriety of the
sentence. Id. at 25.
In light of the above, the parties clearly intended the waiver provision to preclude
sentence review on appeal. Goodman does not argue to the contrary and claims only that
7 the specific language of the plea agreement does not contain an “express waiver” of the
right to appeal her sentence. Appellant’s Br. p. 8.
While the specific language set forth in the agreement could have been clearer, we
conclude that the trial court’s colloquy and Goodman’s representations and
acknowledgments to the trial court demonstrate that she understood that, by pleading
guilty in this case, she was foregoing the right to appeal her sentence. See Creech, 887
N.E.2d at 75; see also Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 2008)
(noting that the defendant waived his right to appeal his sentence where the plea
agreement provided in part that the defendant waived the right under Ind. Appellate Rule
7 to review of the sentence imposed). As a result, Goodman’s claim fails, and she has
waived appellate review of her sentence. 2
II. Appropriate Sentence
Even if we were to conclude solely for argument’s sake that Goodman had not
waived her right to appeal the propriety of her sentence, she would not prevail on her
inappropriateness claim. With respect to Goodman’s argument, Indiana Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Under this rule, the
2 As an aside, we note that Goodman clearly invited any alleged error with regard to the issue of waiving her right to appeal her sentence. Thus, Goodman’s claim also fails on this basis. See Kingery v. State, 659 N.E.2d 490, 494 (Ind.1995) (holding that an error invited by the complaining party is not reversible error).
8 burden is on the defendant to persuade us that the sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006). 3 The sentencing range for a class A felony is
from twenty to fifty years with an advisory sentence of thirty years. Ind. Code § 35-50-2-
4.
As for the nature of the offense, the evidence reflects that Goodman participated in
preying upon Manka, a ninety-two-year-old individual. Tr. p. 39. Manka continues to
suffer from lasting injuries, including memory loss and severe pain. Id. The trial court
noted that Manka will “never recover.” Id. at 53.
Goodman plotted with her husband to burglarize Manka’s residence and steal his
property. The evidence demonstrates that Goodman drove her husband to and from the
crime scene and back again after learning that her husband had initially abandoned the
stolen property. Moreover, the record reveals that it was Goodman who retrieved
Manka’s property, which included some coins that she later cashed in at a grocery store.
Id. at 13, 14. In short, the evidence indicates that Goodman participated in a brutal
crime, and her nature of the offense argument avails her of nothing.
With regard to Goodman’s character, we note that the trial court pointed out that
her husband was more “culpable and the manipulator in this.” Tr. p. 53. However, it was
also observed that the crime could not have occurred without Goodman’s participation.
3 Although Goodman alludes to the fact that the trial abused its discretion in sentencing her because proper weight was not afforded to the aggravating and mitigating factors that were found, we note that “[b]ecause the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence . . . a trial court cannot now be said to have abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). 9 Id. Indeed, Goodman assisted and enabled her husband in physically attacking Manka.
Goodman never inquired about Manka’s well-being even after being informed that her
husband had hit Manka, and Manka had asked for his oxygen tank while lying on the
floor. Tr. p. 16. This behavior certainly shows Goodman’s callous attitude toward
Manka.
Even though Goodman had a minor criminal history that consisted of an out-of-
state marijuana possession conviction, it is apparent that the parties contemplated that one
conviction by agreeing to a sentence cap of twenty years—the minimum sentence for a
class A felony conviction. Put another way, Goodman agreed to limit the trial court’s
discretion to impose a sentence that was less than the statutory maximum by executing a
plea agreement that capped the executed portion of her sentence at twenty years, which
was thirty years below the maximum statutory sentence and ten years below the advisory
sentence. Tr. p. 9, 10.
Here, when considering the nature of the offense and her character, we note that
Goodman assisted in the burglary of a ninety-two year old man’s residence. She also
returned to the scene, recovered the stolen property, and failed to inquire about Manka’s
well-being after her husband had struck him, which resulted in significant and lasting
harm. Under these circumstances, we cannot conclude that Goodman demonstrated that
the sentence imposed was inappropriate.
Thus, even if we were to conclude that Goodman had not waived her right to
challenge her sentence on appeal, Goodman has failed to show that the fifteen-year
10 executed sentence was inappropriate. As a result, we decline to set aside Goodman’s
sentence.
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.