Kimbert A. G. Crafton v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                            FILED
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                                    Apr 16 2018, 10:16 am
    court except for the purpose of establishing                                      CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                          Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Donald R. Shuler                                         Curtis T. Hill, Jr.
    Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
    Goshen, Indiana
    Marjorie Lawyer-Smith
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Kimbert A. G. Crafton,                                   April 16, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    43A03-1710-CR-2551
    v.                                               Appeal from the Kosciusko
    Superior Court
    State of Indiana,                                        The Honorable Joe V. Sutton,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause Nos.
    43D03-1705-F5-351
    43D03-1705-F5-382
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018                  Page 1 of 7
    Case Summary and Issue
    [1]   Kimbert Crafton pleaded guilty to attempted theft, theft, and resisting law
    enforcement, all Level 6 felonies. The trial court sentenced Crafton to six years
    with six months suspended to probation. On appeal, Crafton raises two issues
    for review, one of which we find dispositive: whether the provision in his plea
    agreement waiving his right to appeal his sentence is enforceable. Concluding
    that Crafton waived his right to appeal his sentence in a valid plea agreement,
    we affirm.1
    Facts and Procedural History
    [2]   On May 4, 2017, the State charged Crafton with corrupt business influence, a
    Level 5 felony, and attempted theft, a Level 6 felony. On May 12, 2017,
    Crafton was charged in a separate count with corrupt business influence, a
    Level 5 felony, and theft, auto theft, and resisting law enforcement, all Level 6
    felonies. The State later filed an habitual offender enhancement.
    [3]   On July 17, 2017, Crafton entered into a written plea agreement with the State
    in which Crafton agreed to plead guilty to attempted theft, theft, and resisting
    law enforcement, all Level 6 felonies, in exchange for the State dismissing the
    remaining charges and the habitual offender enhancement. The plea agreement
    1
    Because we hold Crafton’s waiver of his appellate rights was enforceable, we do not address his claims that
    the trial court abused its discretion in its restitution order or that his sentence is inappropriate.
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018               Page 2 of 7
    provided that the executed sentence for all three charges would not exceed six
    years and included the following provision:
    The Defendant knowingly, intelligently, and voluntarily waives
    his/her right to appeal any sentence imposed by the trial court
    that is within the range set forth in this plea agreement, and
    waives his right to have the Court of Appeals review his sentence
    under Indiana Appellate Rule 7(B).
    Appellant’s Appendix, Volume 2 at 120.
    [4]   At his guilty plea hearing, Crafton confirmed that he had reviewed his plea
    agreement with his attorney and was entering into it of his own free will.
    Although the appellate waiver was not specifically addressed during the
    colloquy, the trial court did ask Crafton whether he was familiar with the terms
    of the plea agreement, to which Crafton replied “[y]es, sir.” Transcript of
    Evidence, Volume 2 at 8. The trial court subsequently accepted Crafton’s guilty
    plea.
    [5]   At the sentencing hearing, the trial court sentenced Crafton to six years with six
    months suspended to probation. At the close of the sentencing hearing, the trial
    court told Crafton that, because the judge had a discretionary range in which to
    sentence him, “you do have the right to appeal the sentence of the Court.” 
    Id. at 40.
    Despite their familiarity with the plea agreement, neither the State nor
    defense counsel interjected to correct the trial court regarding this
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018   Page 3 of 7
    misstatement.2 Crafton indicated that he would like to appeal his sentence and
    the trial court appointed a public defender for the purpose of appeal. Crafton
    now appeals his sentence.
    Discussion and Decision
    [6]   A defendant who pleads guilty has the right to appeal the trial court’s
    sentencing decision “even when the defendant agrees to a sentencing cap or
    range.” 
    Creech, 887 N.E.2d at 74
    . Our supreme court has also held that a
    defendant may waive this right to appeal, so long as the waiver is knowing and
    voluntary. 
    Id. at 75.
    Crafton argues that his waiver was not knowing and
    voluntary, and therefore unenforceable, based on the trial court’s advisement at
    sentencing.
    [7]   Our supreme court addressed the validity of appellate waivers in Creech, and the
    relevant facts of Creech are almost identical to the facts at issue here. Creech
    entered into a plea agreement that included a waiver of his right to appeal his
    sentence. At the guilty plea hearing, the judge did not question him about the
    waiver provision. During the sentencing hearing, after the sentence had been
    pronounced, the judge advised Creech of the right to appeal his sentence. Our
    2
    We have repeatedly urged trial courts to be vigilant of plea agreements containing a waiver of the right to
    appeal, see, e.g., Mechling v. State, 
    16 N.E.3d 1015
    , 1018 n.4 (Ind. Ct. App. 2014), trans. denied, and, as our
    supreme court explained in Creech v. State, 
    887 N.E.2d 73
    , 76 (Ind. 2008), trial courts must avoid including
    confusing remarks in their plea colloquy or at sentencing. Moreover, we must remind counsel—both
    prosecutors and defense attorneys—of their duty as officers of the court to correct the record and to notify the
    court that the right to appeal has been waived by the terms of the underlying plea agreement. Waiver of such
    a right should not come as a surprise to either party.
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018                 Page 4 of 7
    supreme court upheld the validity of the appellate waiver, stating that a
    “specific dialogue with the judge is not a necessary prerequisite to a valid
    waiver of appeal, if there is other evidence in the record demonstrating a
    knowing and voluntary waiver.” 
    Id. at 76
    (quoting United States v. Agee, 
    83 F.3d 882
    , 886 (7th Cir. 1996)). Regarding the advisement at sentencing that Creech
    had the right to appeal, the court determined that “the statements at issue are
    not grounds for allowing Creech to circumvent the terms of his plea
    agreement.” 
    Id. The court
    emphasized the timing of the statements, noting that
    “[b]y 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 77.
    [8]   Crafton relies on Ricci v. State, 
    894 N.E.2d 1089
    (Ind. Ct. App. 2008), trans.
    denied, and Bonilla v. State, 
    907 N.E.2d 586
    (Ind. Ct. App. 2009), trans. denied,
    but both cases are factually distinguishable from his case. Ricci’s plea
    agreement included a provision waiving his right to appeal or challenge his
    sentence but at the guilty plea hearing, the trial court advised Ricci that he would
    have the right to appeal the sentence if the agreement was accepted. 
    Ricci, 894 N.E.2d at 1090
    . Neither the State nor the defense attorney disputed this
    assertion. 
    Id. The court
    distinguished Ricci from Creech based on the timing of
    the incorrect advisement, stating that although this action would have no effect
    on the waiver at a sentencing hearing, “Creech does not address how a trial
    court’s misstatements at the plea hearing impact the determination of whether a
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018   Page 5 of 7
    defendant’s waiver was knowing, voluntary, and intelligent.” 
    Id. at 1093.
    In
    holding that the waiver was invalid, the court concluded that, under these
    circumstances, “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.” 
    Id. at 1094.
    [9]    Bonilla also involves a statement by the trial court at the guilty plea hearing.
    Bonilla entered into a plea agreement which contained a waiver of his right to
    appeal his sentence but at the guilty plea hearing, the trial court told Bonilla
    that he “may” have waived his right to appeal, but then proceeded to “promptly
    advise[] Bonilla of the right to appeal and the right to an attorney.” 
    Bonilla, 907 N.E.2d at 590
    . In holding that the waiver was invalid, the court noted that
    “[t]his advisement occurred at the guilty plea hearing, which is before Bonilla
    received the benefit of his bargain.” 
    Id. [10] The
    facts of this case are clearly more similar to those of Creech than Ricci or
    Bonilla, and we find Creech controlling. Crafton stated at the guilty plea hearing
    that he was entering into the plea agreement of his own free will, that he had a
    chance to review the agreement and ask questions of his attorney regarding the
    agreement, and that he had read and signed the agreement. Although the
    appellate waiver was not specifically discussed at the guilty plea hearing, a
    specific discussion is not necessary if there is other evidence in the record
    demonstrating a knowing and voluntary waiver of the right to appeal. See
    
    Creech, 887 N.E.2d at 76
    . Crafton’s statements at the guilty plea hearing
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018   Page 6 of 7
    constitute evidence of a knowing and voluntary waiver. And like Creech, the
    erroneous advisement to Crafton came up at his sentencing hearing, when he
    had already received the benefit of the bargain in his guilty plea. The
    statements at issue at the sentencing hearing are not enough for Crafton to
    circumvent the plea agreement and, as explained in Creech, “[b]eing told at the
    close of the hearing that he could appeal presumably had no effect on that
    transaction.” 
    Id. at 77.
    For the foregoing reasons, we hold that Crafton’s guilty
    plea contains an enforceable appellate waiver.
    Conclusion
    [11]   Crafton’s guilty plea contained an enforceable appellate waiver. For this
    reason, we do not reach the substantive issues raised by Crafton about his
    sentence. Crafton waived the right to appeal his sentence, and we therefore
    affirm.
    [12]   Affirmed.
    Crone, J., and Bradford, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018   Page 7 of 7
    

Document Info

Docket Number: 43A03-1710-CR-2551

Filed Date: 4/16/2018

Precedential Status: Precedential

Modified Date: 4/16/2018