Opinion
23A-CR-2491
08-15-2024
Lisa D. Harris, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer B. Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Crawford Circuit Court The Honorable Justin B. Mills, Judge Trial Court Cause No. 13C01-2009-MR-1
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer B. Anwarzai Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
BAKER, SENIOR JUDGE.
Case Summary and Issue
[¶1] Lisa Harris appeals the sentence imposed on her conviction of Level 3 felony aggravated battery, contending that the trial court abused its discretion and that her sentence is inappropriate. Concluding that the terms of Harris' plea agreement demonstrate she waived her right to appellate review of her sentence, we dismiss her appeal.
Facts and Procedural History
[¶2] Pursuant to a written plea agreement, Harris pleaded guilty to aggravated battery as a lesser-included offense of her original charge of murder. In exchange, the State agreed to dismiss the murder charge as well as a separate case. The agreement also provided that Harris waived her right to appeal. The court sentenced Harris to 3,240 days, the maximum term permitted by her plea agreement. Harris now appeals.
Discussion and Decision
[¶3] Harris challenges her sentence both as an abuse of the court's discretion and as inappropriate, but we need not reach those issues because she waived her right to appeal. A plea agreement is a contract, and once the trial court accepts it, the agreement and its terms are binding upon the court, the State, and the defendant. Archer v. State, 81 N.E.3d 212, 215-16 (Ind. 2017). As part of a plea agreement, a defendant may waive her right to appeal a sentence, and such a waiver is valid and enforceable. Creech v. State, 887 N.E.2d 73, 75-76 (Ind. 2008).
[¶4] The plea agreement Harris signed provides that the court would determine her sentence, with a maximum possible sentence of 3,240 days. Appellant's App. Vol. IV, p. 6 (Plea Agrmt ¶ 2.A.). The agreement also states: "DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF." Id. at 7 (Plea Agrmt ¶ 2.M.). Additionally, in her Written Advisement and Waiver of Rights document, Harris acknowledged by initialing the provision that states, in part:
Provisions in plea agreements that waive a defendant's right to seek post-conviction relief are void and unenforceable. Creech, 887 N.E.2d at 75-76.
I understand and waive my right to appeal the sentence so long as the Judge sentences me within the terms of this plea agreement.Id. at 9. Harris also initialed and accepted the provision that states:
I knowingly, intelligently and voluntarily waive the right to challenge the reasonableness of the sentence under Appellate Rule 7(b), waive the right to challenge the Court's findings as to aggravating and mitigating circumstances, and waive the right to
challenge the weighing of aggravating and mitigating circumstances.Id. at 10.
[¶5] At the plea hearing, the court informed Harris: "You're waiving your right to an appeal by entering into this plea agreement." Supp. Tr. p. 9. The court further advised Harris that she has the right to an appeal and then inquired, "By you entering into this plea agreement, do you understand that you're waiving all of those rights?" Id. at 10. Harris responded, "I do, Your Honor." Id. And, finally, the court stated: "[Y]ou're waiving your right to an appeal. Once this is done, it's done. You understanding [sic] that?" Id. And again, Harris responded, "I do, Your Honor." Id.
[¶6] Harris acknowledges the precedent our Supreme Court established with Creech but nevertheless urges us to "criticize" it. Appellant's Br. p. 18. She argues that, despite the express language of the written plea agreement and waiver, she should not be deemed to have waived her right to appellate review of her sentence because (1) the court did not specifically advise her she was waiving her right to appeal her sentence, and (2) the court's written sentencing order states, "Pursuant to plea agreement, Defendant waives her right to appeal this conviction." Appellant's App. Vol. II, p. 34.
[¶7] Harris does not claim that the language of the plea agreement and waiver were unclear, that she misunderstood the terms of the agreement at the time she signed it, or that her consent to the agreement was involuntary. She waived her right to appeal her sentence through the unambiguous terms of her written plea agreement, and the trial court sentenced her within the terms of that agreement. Like Creech, Harris specifically waived her right to appeal her sentence so long as the judge sentenced her within the terms of her plea agreement. See Creech, 887 N.E.2d at 74; see also Appellant's App. Vol. IV, p. 9. Thus, Harris' sentencing appeal waiver is valid.
[¶8] Additionally, the trial court's agreement to appoint appellate counsel does not nullify Harris' waiver of her right to appeal. Harris asserts that the trial court's appointment of appellate counsel "rendered the language regarding waiving her right to appeal void." Appellant's Br. p. 16. At the conclusion of the sentencing hearing, the trial court appointed appellate counsel only in response to a request from Harris' counsel. Further, by the time the trial court appointed appellate counsel, Harris had already pleaded guilty months earlier after being advised several times by the court concerning her waiver, being sentenced, and receiving the benefit of her bargain. Being appointed counsel at the conclusion of the proceedings presumably had no effect on her agreement. Nevertheless, if Harris was misled by the trial court's act of appointing appellate counsel, her only remedy is to pursue post-conviction relief. See Davis v. State, 217 N.E.3d 1229 (Ind. 2023) (holding that if trial court's misstatement about defendant's appeal rights misled defendant, remedy is to seek vacation of conviction through postconviction relief proceedings), as modified (Oct. 3, 2023).
Conclusion
[¶9] Based on the foregoing, we conclude Harris entered into a written plea agreement with an explicit provision waiving her right to appellate review of her sentence. Harris has thus waived her right to appeal her sentence directly, and therefore this appeal is dismissed.
[¶10] Dismissed.
Riley, J., and Pyle, J., concur.