Shaun Cox v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 5, 2014
• Docket: 48A05-1312-CR-588
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 05 2014, 9:03 am any 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:

JOHN T. WILSON GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

SHAUN COX, ) ) Appellant-Defendant, ) ) vs. ) No. 48A05-1312-CR-588 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48C03-1301-FA-147

September 5, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Shaun Cox appeals his sentence of forty years for five counts of Class A felony child

molesting.1 We affirm.

FACTS AND PROCEDURAL HISTORY

On January 22, 2013, the State charged Cox with five counts of Class A felony child

molesting. On October 14, Cox pled guilty to all five counts. Cox’s plea agreement provided

he “waives the right to appeal any sentence imposed by the court, including the right to seek

appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the court

sentences the defendant within the terms of this plea agreement.” (App. at 16.) Cox’s plea

agreement indicated his “sentence shall be open to the Court with all counts to run

concurrently.” (Id. at 15.) On November 4, the trial court sentenced Cox to forty years for

each count of Class A felony child molesting, to run concurrently, for an aggregate sentence

of forty years.

DISCUSSION AND DECSION

“[A] defendant may waive the right to appellate review of his sentence as part of a

written plea agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).2 Cox pled guilty

to five counts of Class A felony child molesting and, as part of his plea agreement, agreed to

waive his right to appeal his sentence as long as the trial court sentenced him according to the

terms of the plea agreement. The plea agreement indicated sentencing was at the discretion

of the court, and all counts must run concurrently.

1 Ind. Code § 35-42-4-3(b) (2012). 2 However, a defendant “who can establish in a post-conviction proceeding that his plea was coerced or unintelligent is entitled to have his conviction set aside.” Creech, 887 N.E.2d at 75. 2 The trial court sentenced Cox to forty years for each count of Class A felony child

molesting, and ordered the sentences to be served concurrently. When Cox was sentenced in

2013, the sentencing range for a Class A felony was between twenty and fifty years, with an

advisory sentence of thirty years. Ind. Code § 35-50-2-4(a). As Cox’s sentence was within

the range for a Class A felony, and the sentences ran concurrently as provided in his plea

agreement, he may not challenge his sentence on direct appeal. See Creech, 887 N.E.2d at 75

(defendant may waive the right to appeal his sentence as part of his plea agreement).

Accordingly, we affirm.

Affirmed.

KIRSCH, J., and BAILEY, J., concur.