Opinion
23A-CR-3049
09-27-2024
Michelle E. Coe, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana Attorney for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge trial Court Cause No. 49D27-2111-F4-35900
Attorney for Appellant Talisha Griffin Marion County Public Defender Agency Indianapolis, Indiana
Attorney for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Weissmann, Judge
[¶1] Under a plea agreement, Michelle Coe pleaded guilty to leaving the scene of a deadly accident, a Level 4 felony. The plea agreement specified that Coe waived her right to appeal her sentence so long as it was "within the terms of this plea agreement." App. Vol. II, p. 94. The trial court later entered a restitution order requiring Coe to pay the burial costs for the victim-an order that she challenges in this appeal. We conclude Coe waived her right to appeal the restitution order and therefore dismiss.
Facts
[¶2] In August 2021, Coe was driving in Indianapolis when she struck a pedestrian, Justin Spicer. The collision launched Spicer into the air, causing his body to spin before he slammed onto the concrete roadway. Although Coe was a nurse, she did not stop. Spicer later was run over by a second vehicle and died at the scene. The entire incident was captured on security cameras.
[¶3] The State charged Coe with Level 4 felony leaving the scene of an accident resulting in death or catastrophic injury. Two years later, Coe pleaded guilty as charged under a plea agreement. The plea agreement contained two provisions critical to this appeal. First, it provided that "[a]ll other aspects of the Defendant's sentence shall be determined by the Court after argument of the parties." Id. Second, the agreement specified that Coe "waive[d] the right to appeal any sentence imposed by the Court . . . so long as the Court sentences the defendant within the terms of this plea agreement." Id.
[¶4] Consistent with the plea agreement, the court sentenced Coe to five years imprisonment, with three years suspended and one year of probation. At the end of the sentencing hearing, the court set a new hearing to consider the State's request for restitution for the victim's burial expenses. Coe objected at the hearing and later by motion. She argued, among other things, that the trial court lacked authority to impose restitution because the plea agreement did not mention it.
[¶5] The restitution hearing proceeded as scheduled and resulted in an order requiring Coe to pay $10,113.90 in restitution upon her release to probation. Coe renewed her objections to the order and then filed a motion to correct error. In this motion, she claimed that restitution was improper because the person who paid the victim's funeral expenses had died. She argued that awarding restitution to the family member handling the estate was inappropriate. The trial court denied the motion to correct error but appointed appellate counsel at Coe's request.
[¶6] Coe proceeded to appeal the restitution order. After she filed her Appellant's Brief, the State moved to dismiss the appeal, arguing that Coe waived her right to appeal. The motions panel of this Court summarily denied the State's motion to dismiss.
Discussion and Decision
[¶7] In its appellee's brief, the State renews its claim that the appellate waiver in Coe's plea agreement bars this appeal. Coe responds with two arguments. First, she claims the trial court orally modified-or, at the least, "clarified"-the plea agreement to allow Coe to challenge the restitution order. Appellant's Reply Br., p. 5. Second, she repeats her contention that the restitution order is illegal and that this Court has a duty to bring an illegal sentence into compliance on direct appeal. We reject both claims and find Coe waived her appeal of the restitution order.
While we are reluctant to overrule orders by the motions panel, "this court has inherent authority to reconsider any decision while an appeal remains in fieri." Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind.Ct.App. 2007). We note that we have the benefit of more substantial argument by the parties on the dismissal issue than the motions panel did when denying the State's motion to dismiss.
I. The Trial Court Did Not Orally Modify or "Clarify" Coe's Plea Agreement
[¶8] Citing pages 118-119 of the transcript, Coe first argues the trial court orally modified the plea agreement to exempt the restitution order from the scope of the plea agreement's appellate waiver. Coe does not elaborate.
[¶9] This argument misstates the record and conflicts with our precedent establishing that a trial court cannot modify a plea agreement. The transcript merely reflects that the trial court appointed the Marion County Public Defender Agency to represent Coe in an appeal of the restitution order. Nothing in the transcript reflects that the trial court modified or clarified the plea agreement. In fact, the court mentioned that a public defender might decide against proceeding with the appeal. At no time did the trial court ever indicate that it was modifying or clarifying the plea agreement.
[¶10] The trial court lacked authority to orally modify the plea agreement. "It is well-settled that the trial court 'may not change the terms' of the agreement." Knight v. State, 202 N.E.3d 475, 479 (Ind.Ct.App. 2023) (quoting Disney v. State, 441 N.E.2d 489, 493 (Ind.Ct.App. 1982)). "Plea agreements are contracts and once the trial court accepts it, a plea agreement and its terms are binding upon the trial court, the State and the defendant." Archer v. State, 81 N.E.3d 212, 215-16 (Ind. 2017). A defendant may waive her right to appeal a sentence as part of a written plea agreement. Creech v. State, 887 N.E.2d 73, 74-75 (Ind. 2008). Such waivers are valid and enforceable. Id. at 75.
[¶11] Coe's plea agreement provided that "[a]ll other aspects of the Defendant's sentence shall be determined by the Court after argument of the parties." App. Vol. II, p. 94. Our Supreme Court "has stated on multiple occasions that restitution is as much a part of a criminal sentence as a fine or other penalty." Knight, 202 N.E.3d at 479 (internal quotations omitted). By specifying the trial court had discretion to determine "[a]ll other aspects of the Defendant's sentence," the plea agreement authorized the court to impose restitution. See id. at 479-80 (ruling that the defendant's plea agreement allowed the trial court to impose restitution when it left portions of the defendant's sentence to the discretion of the trial court).
[¶12] This means the trial court sentenced Coe "within the terms" of the plea agreement when it exercised its discretion to enter the restitution order. The appellate waiver therefore barred Coe's appeal of the restitution order. See Nolan v. State, 177 N.E.3d 881, 884 (Ind.Ct.App. 2023) (finding plea agreement's appellate waiver provision barred appeal of restitution order when the agreement left all sentencing terms to the discretion of the trial court and specified that: (1) the defendant "waives his right to appeal any discretionary portion of the sentence entered pursuant to and in accordance with this plea agreement"; and (2) the defendant "waives his right to appeal the sentence so long as the Court sentences him within the terms of the plea agreement").
II. Coe's Claim that the Restitution Order is Illegal is Unavailing
[¶13] Coe next claims that the restitution order is illegal. Citing Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016), she seems to suggest that this Court on direct appeal has a duty to address the merits of a waived appeal to ensure an illegal sentence is corrected. Bell does not advance her argument.
[¶14] Bell considered whether an objection to sentencing provisions is a prerequisite to challenging those provisions on appeal-not whether an appellate waiver negotiated as part of a plea agreement applied to a restitution order. Id. Coe offers no authority supporting her proposition that an appellate court may address a sentencing challenge that is prohibited by an appellate waiver in a plea agreement that the parties negotiated, the trial court approved, and the defendant is bound by. Accordingly, we reject her claim.
[¶15] We dismiss Coe's appeal.
Vaidik, J., and Foley, J., concur.