Opinion
Court of Appeals Case No. 20A-CR-2251
05-17-2021
Dennis J. PRICE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Lisa Diane Manning, Danville, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Lisa Diane Manning, Danville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Catherine E. Brizzi, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Najam, Judge.
Statement of the Case
[1] After the State charged Dennis J. Price across several cause numbers with various offenses, he entered into a written plea agreement, which included a plea of guilty to battery on a law enforcement officer, as a Level 5 felony, to being a habitual offender, and an open plea to those two offenses. The text of the plea agreement stated that Price waived his "right to appeal any sentence imposed by the Court that is within the range of penalties set forth in this plea agreement." Appellant's App. Vol. 2 at 53. Nonetheless, Price appeals his sentence, arguing that his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We dismiss Price's appeal. However, we remand to the trial court with instructions for it to correct its judgment of conviction and abstract of judgment to identify Price's adjudication and sentence for being a habitual offender.
Facts and Procedural History
[3] In August of 2020, Price entered into a written plea agreement with the State that resolved pending charges across three cause numbers. In relevant part, Price agreed to plead guilty to battery on a law enforcement officer, as a Level 5 felony, and to being a habitual offender. And Price agreed that sentencing on those offenses would be left open to the trial court's discretion. The plea agreement further provided that Price waived his "right to appeal any sentence imposed by the Court that is within the range of penalties set forth in this plea agreement." Id.
[4] At Price's guilty plea hearing, the court acknowledged that Price had entered into and submitted a written plea agreement, and the court orally informed Price of the State's allegations against him, the penalties for those offenses, and the trial rights he would be giving up by pleading guilty. Price then established a factual basis for the offenses. For the battery offense, Price, while incarcerated, struck an officer multiple times in the head with the officer's own handcuffs, causing injury to the officer. And Price's criminal history demonstrated that he was a habitual offender. At the end of the guilty plea hearing, the trial court accepted the written plea agreement and set the matter for sentencing. Id. at 6.
[5] Following the later sentencing hearing, the court sentenced Price as follows:
The aggravating circumstances obviously [includes] your criminal history. It's quite lengthy. But not just because there's a criminal history there but also because there is a history of violence.... I understand that you have some mental health issues, which I don't know that that's completely a mitigator but I understand that that needs to be treated, but I also ... can't balance that out against you hurting somebody in this community.... Another aggravator is obviously that you were on probation and you were incarcerated at the time that this event took place. You haven't been successful on probation in the past.... Another mitigator ... is that you are working [in an educational program] ... at the DOC ..., and I also hope that you can get some treatment for your mental health issues while you are there.
Tr. Vol. 2 at 50-51. The court sentenced Price to six years for the Level 5 felony battery, which the court enhanced by an additional three years for Price being a habitual offender. At the end of the sentencing hearing, the court told Price that he had the right to appeal his sentence. This appeal ensued.
Discussion and Decision
[6] Price argues on appeal that his nine-year sentence is inappropriate under Indiana Appellate Rule 7(B). However, Price waived the right to appeal his sentence in his written plea agreement. As the parties did not discuss the waiver in their initial briefs to this Court, we asked the parties to file supplemental briefs to show cause, if any, why the written waiver should not apply on this record. In his supplemental brief, Price asserts that the written waiver should not apply both because the trial court informed him at the sentencing hearing that he could appeal his sentence and also because the State failed to raise the issue in its initial brief to this Court.
[7] Price's first argument has been repeatedly rejected by Indiana's appellate courts. In Bonilla v. State , which is more than ten years old, we explained the law on this issue clearly:
The Indiana Supreme Court held in Creech v. State that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement. 887 N.E.2d 73, 75 (Ind. 2008). The Court then analyzed whether, despite the express language of the waiver in Creech's plea agreement, he knowingly and voluntarily waived his right to appellate review of his sentence because the judge advised him at the close of the sentencing hearing that he retained the right to appeal. The Court rejected Creech's argument, explaining:
While we take this opportunity to emphasize the importance of avoiding confusing remarks in a plea colloquy, we think the statements at issue are not grounds for allowing Creech to circumvent the terms of his plea agreement.
Creech does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it, but rather claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal.
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By 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.
Id. at 76-77 (footnote omitted).
After Creech , this Court decided Ricci v. State , 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied. In Ricci , Ricci's plea agreement contained a provision that he knowingly, intelligently, and voluntarily waived his right to appeal or challenge the sentence imposed by the court on the basis that it was erroneous or for any other reason. At the guilty plea hearing, however, the trial court advised Ricci that he had the right to appeal his sentence , and neither the prosecutor nor the defense spoke up.
On appeal, this Court distinguished Creech :
While it is clear that under Creech , a trial court's incorrect advisement at the conclusion of a defendant's sentencing hearing has no effect on an otherwise knowing, voluntary, and intelligent waiver of the right to appeal his sentence, Creech does not address how a trial court's misstatements at the plea hearing impact the determination of whether a defendant's waiver was knowing, voluntary, and intelligent. Unlike Creech , the trial court here clearly and unambiguously stated at the plea hearing that it read the plea agreement and that, according to its reading of the agreement, Ricci had not surrendered the right to appeal his sentence. Neither the prosecutor nor the defense attorney contradicted this statement. Given these circumstances, we may confidently say that the trial court accepted the plea agreement, and the prosecuting attorney, the defense attorney, and Ricci entered into the plea agreement with the understanding that Ricci retained the right to appeal his sentence. Accordingly, we conclude that [the purported waiver] is a nullity, and Ricci has not waived the right to appeal his sentence.
Ricci , 894 N.E.2d at 1093-94 (footnotes omitted).
907 N.E.2d 586, 588-89 (Ind. Ct. App. 2009) (emphases added; footnotes omitted), trans. denied ; see also Starcher v. State , 66 N.E.3d 621, 622-23 (Ind. Ct. App. 2016) (same).
[8] Price's scenario is the same as the one in Creech . His written agreement waived his right to appeal his sentence, and the trial court accepted Price's plea agreement at the guilty plea hearing without advising Price to the contrary on his right to appeal. It was only at the close of the subsequent sentencing hearing, after Price had received the benefit of his bargain, that the trial court told Price that he had the right to appeal his sentence.
The trial court did not orally and specifically inform Price of his waiver of his right to appeal his sentence at the guilty plea hearing, but Price does not argue in his supplemental brief that that omission was relevant or material either as a matter of law or on this record, and we therefore do not consider those possibilities. See Ind. Appellate Rule 46(A)(8)(a).
[9] In his supplemental brief, Price relies on Merriweather v. State as purported support for his position that the trial court's comment at the sentencing hearing reinstated his right to appeal. But in Merriweather the trial court informed the defendant at the guilty plea hearing that he had retained the right to appeal his sentence. 151 N.E.3d 1281, 1285 (Ind. Ct. App. 2020). Merriweather thus follows Ricci and is not applicable to Price. As Price cannot distinguish his circumstances from Creech , we conclude that his written waiver is valid.
[10] Still, Price asserts that the State forfeited its right to enforce the terms of the written agreement when it failed to raise the issue in its initial brief to our Court. While it is not clear to this Court why the State did not file a motion to dismiss or raise the waiver in its initial brief, nonetheless it is the Appellant's burden on appeal to first make a prima facie showing of an entitlement to relief, and we conclude that Price failed to meet that burden when he simply ignored the plain language of the written agreement and well established Indiana law in his initial brief and proceeded instead to argue only the merits of his sentence.
Insofar as Price asserts that the State waived the issue by not objecting at the sentencing hearing, he again cites Merriweather . However, we again conclude that Creech is the proper authority here, and Creech does not suggest that the State forfeits its right on appeal to enforce an accepted written agreement between it and the defendant by not objecting to the trial court's erroneous comments at the end of a sentencing hearing.
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[11] Accordingly, we conclude that Price's appeal of his sentence is contrary to the terms of his written plea agreement and our Supreme Court's opinion in Creech . Thus, we dismiss this appeal. However, we note that the trial court's judgment of conviction and abstract of judgment fail to identify Price's adjudication and sentence for being a habitual offender. Accordingly, we remand with instructions for the court to correct those documents.
[12] Dismissed and remanded with instructions.
Pyle, J., and Tavitas, J., concur.