Amanda Pearson v. State of Indiana (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                              Jan 06 2016, 8:49 am
    regarded as precedent or cited before 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
    Mark K. Leeman                                           Gregory F. Zoeller
    Leeman Law Offices                                       Attorney General of Indiana
    Logansport, Indiana
    Richard C. Webster
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Amanda Pearson,                                          January 6, 2016
    Appellant-Defendant,                                     Court of Appeals Case No.
    09A05-1508-CR-1182
    v.                                               Appeal from the Cass Superior
    Court
    State of Indiana,                                        The Honorable Rick Maughmer,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    09D02-1206-FB-17
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016    Page 1 of 13
    Case Summary and Issues
    [1]   Amanda Pearson entered a plea of guilty to burglary, a Class B felony, and was
    sentenced to 7,300 days of incarceration with 3,650 days suspended to
    probation. On appeal, Pearson raises two issues regarding her sentence:
    whether the trial court abused its discretion in sentencing her and whether her
    sentence is inappropriate in light of the nature of her offense and her character.
    The State cross-appeals, contending Pearson entered into a plea agreement
    waiving her right to appeal her sentence. Concluding Pearson waived her right
    to appeal her sentence, we affirm.
    Facts and Procedural History
    [2]   In 2012, Pearson was romantically involved and living with Jeremiah Kelley.
    Their relationship was volatile and marked by drug use. In April 2012, Kelley,
    his friend, Clifton Stone, and Pearson engaged in a series of residential
    burglaries in Carroll, Cass, Howard, and Tipton Counties. In particular, on
    April 4, 2012, the trio burglarized a home in Cass County. Pearson acted as
    lookout and remained in the car while Kelley and Stone entered the home and
    took a television and several items of jewelry. When making entry, they
    damaged the door from the garage into the house.
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 2 of 13
    [3]   The State charged Pearson with burglary, a Class B felony, and theft, a Class D
    felony.1 On August 25, 2014, two days before a jury trial was scheduled to
    begin, Pearson and the State filed a written plea agreement which provided
    Pearson would plead guilty to burglary and the State would dismiss the theft
    count. With regard to the sentence, the agreement provided there would be
    “[o]pen argument by the parties as to sentence,” and restitution to the victims
    would be determined at sentencing. Appellant’s Appendix at 140. As part of
    the plea agreement, Pearson acknowledged that she:
    (2) has been informed that by his plea he/she waives his/her
    rights to:
    ***
    (e) Waiver of appellate review of this sentence imposed by the
    court. Defendant acknowledges that he/she has discussed this
    matter with counsel, and hereby makes a knowing and voluntary
    waiver of appellate review of the sentence imposed by the trial
    court. Defendant may appeal any illegal sentence which may be
    imposed.
    ***
    (9) The defendant hereby waives any right to challenge the trial
    court’s finding on sentencing, including the balancing of
    mitigating and aggravating factors and further waives his right to
    have the Indiana Court of Appeals review his sentence under
    Indiana Appellate Rule 7(B).
    
    Id. at 140-41.
    1
    Pearson also faced charges for burglaries occurring in the other counties.
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 3 of 13
    [4]   Also on August 25, 2014, the trial court held a plea hearing:
    [Court]: [W]e are here today because there was a plea
    agreement, proposed plea agreement filed in this cause of action.
    [Pearson is placed under oath.]
    ***
    [Court]: It is my understanding you wish to enter a plea of guilty
    pursuant to a plea agreement that you have negotiated with the
    Prosecutor, is that correct?
    [Pearson]: Yes.
    ***
    [Court]: I have before [me] here what purports to be a plea
    agreement with your signature on it. Did you sign this?
    [Pearson]: Yes, I did.
    [Court]: Did you read it before you signed it?
    [Pearson]: Yes, I did.
    [Court]: Did you discuss it with your Attorney . . . before you
    signed it?
    [Pearson]: Yes, we did.
    [Court]: I think it just simply says that your [sic] pleading guilty
    straight up to count one (1), the class B felony, six (6) to twenty
    (20) years, and a fine of nothing up to ten (10) thousand dollars,
    and the State is going to dismiss count two (2). Parties are free to
    argue in sentencing and if I do accept, the plea agreement there
    will be a no contact order with the alleged victims and restitution
    to be determined at the sentencing hearing. . . . Is that your
    agreement?
    [Pearson]: Yes.
    ***
    [Court]: Hum, counsel is that the agreement . . .
    [State]: Yes.
    ***
    [Defense Counsel]: Yes.
    Appellee’s App. at 3, 9-10. A factual basis was established and the trial court
    took the plea under advisement pending preparation of a pre-sentence
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 4 of 13
    investigation report. A sentencing hearing was scheduled for October 13, 2014,
    but ultimately was not held until July of 2015.2
    [5]   The parties appeared in court for a sentencing hearing on July 14, 2015. The
    victims had not been properly notified of the date, so the trial court agreed to
    start the sentencing hearing but defer ruling so the victims could be notified of
    their right to be present and the State could present evidence regarding
    restitution at a later date. Pearson testified, as did several witnesses on her
    behalf. The court reconvened on July 23, 2015, at which time the victims
    appeared and gave testimony regarding their loss. At the conclusion of the
    hearing, the trial court sentenced Pearson to 7,300 days, all but 3,650 days
    suspended to probation, and ordered her to pay $23,928 in restitution. The trial
    court then stated,
    I need to advise you of your rights even though this was a plea
    agreement . . . . Do you understand that if you wish to take an
    appeal you must file a notice of appeal designating what is to be
    included in the record on appeal within thirty days after
    sentencing . . . ?
    [Pearson]: Yes, Your Honor.
    ***
    [Court]: Now the rule says that I inquire of you whether or not
    you wish to appeal or file a motion to correct error. I don’t know
    if you waived that in your plea agreement.
    [State]: There is no plea agreement, Judge, this was just an open
    ...
    2
    It appears Pearson’s sentencing was delayed until after Kelley’s case was resolved due to the possibility of
    her testifying in that case.
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016             Page 5 of 13
    [Court]: Straight up sentence? No, there is an acknowledgement
    and waiver of rights filed August 25th. Let’s just go ahead and
    say that it wasn’t done. All right, do you wish to file an appeal or
    motion to correct error at this time? If you don’t know, you can
    talk to counsel.
    [Defense counsel]: She does, Judge.
    Transcript, Volume 2, at 57-59. The trial court appointed counsel for Pearson
    and entered a sentencing order which indicated a plea agreement had been
    filed, a judgment of conviction for the crime of burglary, a Class B felony, was
    entered, and Pearson was sentenced to 7,300 days. See Appellant’s App. at 179.
    In addition, the abstract of judgment prepared by the trial court shows Pearson
    was charged with burglary and theft, with the disposition being “plea by
    agreement” to burglary and dismissal of the theft charge. See 
    id. at 181.
    Discussion and Decision
    [6]   Pearson contends the trial court abused its discretion in sentencing her and that
    her sentence is inappropriate. The State argues that Pearson waived the right to
    appeal her sentence pursuant to her plea agreement. Given the nature of the
    State’s argument, we address it first.
    [7]   The State contends Pearson specifically agreed in her plea agreement not to
    appeal her sentence, except for an illegal sentence. As the trial court sentenced
    her within the terms of the plea agreement, and neither an abuse of discretion in
    sentencing nor an inappropriate sentence constitute an illegal sentence, the
    State urges this appeal be dismissed. Pearson acknowledges she signed a
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 6 of 13
    document entitled “plea agreement” advising her that if the agreement was
    accepted by the trial court, she waived her right to appeal. Appellant’s Brief at
    12. She contends, however, that “the parties and the trial court all concede that
    Pearson entered a straight guilty plea and received no consideration for her plea
    agreement and, therefore, did not waive her right to appeal her sentence.” 
    Id. In support
    of this assertion, Pearson notes the trial court did not sign the plea
    agreement document and the State said at sentencing there was no plea
    agreement. In addition, Pearson interprets the trial court saying, “let’s just go
    ahead and say it wasn’t done” to mean that “a waiver of the right to appeal
    ‘wasn’t done’ in this case.” 
    Id. [8] In
    Creech v. State, 
    887 N.E.2d 73
    (Ind. 2008), the defendant’s plea agreement left
    his sentence to the trial court’s discretion, and he agreed to waive his right to
    appeal the sentence so long as he was sentenced within the terms of his plea
    agreement. After the defendant had entered his plea of guilty and been
    sentenced, the trial court erroneously advised him that he had the right to
    appeal his sentence. Our supreme court held first that provisions waiving the
    right to appellate review of a sentence are enforceable as part of a written plea
    agreement. 
    Id. at 75.
    The court further determined that after a defendant
    pleads guilty and receives the benefit of the plea bargain, subsequent actions by
    the trial court do not affect that waiver, recognizing that “[m]ost waivers are
    effective when set out in writing and signed.” 
    Id. at 76-77
    (alteration in
    original) (quoting United States v. Wenger, 
    58 F.3d 280
    , 282 (7th Cir. 1995),
    superseded by statute on other grounds). Therefore, the court held the trial court’s
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 7 of 13
    erroneous advisement at the conclusion of the sentencing hearing had no effect
    on an otherwise knowing, voluntary, and intelligent waiver of the right to
    appeal and was not grounds for allowing the defendant to circumvent the terms
    of his plea agreement. 
    Id. at 76.
    [9]   We have since addressed this issue in various iterations. In Brattain v. State, 
    891 N.E.2d 1055
    (Ind. Ct. App. 2008), the trial court appointed appellate counsel
    for the defendant at his request more than a week after his sentencing hearing.
    We held, based on the reasoning in Creech, that this action did not invalidate the
    provision of the defendant’s plea agreement waiving appellate review of his
    sentence. 
    Id. at 1057.
    In Ricci v. State, 
    894 N.E.2d 1089
    (Ind. Ct. App. 2008),
    trans. denied, the trial court advised the defendant at his plea hearing that
    according to its reading of the plea agreement, the defendant had not waived
    the right to appeal his sentence. Neither the State nor the defendant
    contradicted or corrected the trial court by drawing its attention to the waiver
    provision in the plea agreement. Therefore, we held the waiver provision was a
    nullity because “the trial court accepted the plea agreement, and [all parties]
    entered into the plea agreement with the understanding that [defendant]
    retained the right to appeal his sentence.” 
    Id. at 1094.
    And in Mechling v. State,
    
    16 N.E.3d 1015
    (Ind. Ct. App. 2014), trans. denied, we addressed the defendant’s
    argument that the State was estopped from enforcing the waiver provision of a
    plea agreement because it did not correct the trial court when the trial court
    mistakenly advised him at his sentencing hearing that he had the right to appeal
    and offered to appoint appellate counsel. Because the trial court’s misstatement
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 8 of 13
    came at the conclusion of the sentencing hearing, we held the State had no duty
    “to object to a statement that carried no legal effect” and therefore application
    of estoppel was not warranted. 
    Id. at 1017-18.
    We also noted that if there was
    a duty to correct the trial court, as officers of the court, the State and defense
    counsel would have an equal duty to do so. 
    Id. at 1018.
    [10]   Thus, the timing of an advisement or action conflicting with the waiver
    provision of a plea agreement is the crucial factor in determining whether it
    effectively waived appeal rights. Here, the plea agreement was referenced
    repeatedly at the guilty plea hearing, and Pearson acknowledged having read
    and signed it. Unlike Ricci, Pearson’s right to appeal was never mentioned at
    the guilty plea hearing, and therefore Pearson could not have proceeded with
    the understanding that provision of her plea agreement was void.3 Instead, as
    in Creech, it was not until the conclusion of Pearson’s sentencing hearing, after
    her plea had been accepted and her sentence imposed, that the trial court
    advised her an appeal must be initiated within thirty days and asked if she
    wished to appeal. It is difficult to know exactly what the trial court was
    referring to when it said, “Let’s just go ahead and say that it wasn’t done.” Tr.
    Vol. 2 at 59 (emphasis added). However, as the trial court made that statement
    after accepting the plea agreement and sentencing Pearson, and as the trial
    3
    A trial court is not required to inform a defendant of the right to appeal a sentence before accepting a guilty
    plea. See Ind. Code § 35-35-1-2. Nor is a trial court required to make an express finding about a defendant’s
    intention to waive appellate rights. 
    Creech, 887 N.E.2d at 77
    (“Acceptance of the plea agreement containing
    the waiver provision is sufficient to indicate that, in the trial court’s view, the defendant knowingly and
    voluntarily agreed to the waiver.”).
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016               Page 9 of 13
    court is bound by the terms of a plea agreement once it is accepted, Ind. Code §
    35-35-3-3(e), whatever the trial court’s intent, the statement had no legal effect
    on the terms of Pearson’s plea.
    [11]   Finally, the fact the State represented at the conclusion of the sentencing
    hearing that there was no plea agreement is of no consequence. First, the trial
    court immediately corrected the State and referred to the written plea
    agreement filed in August 2014. Second, even if the trial court had not done so,
    it is important to note the timing of the State’s representation: it came after
    sentence was imposed pursuant to the plea agreement and could not have had
    any effect on Pearson’s decision to plead guilty or her understanding of the
    terms under which she was pleading guilty. And third, Pearson’s counsel—
    who had advised her regarding the plea agreement, signed the agreement, and
    represented at the guilty plea hearing that the trial court had accurately
    represented the terms of the agreement between the State and Pearson—also
    had an obligation to speak up to correct any misstatements or
    misunderstandings about the course of the proceedings. See 
    Mechling, 16 N.E.3d at 1018
    . The nearly one-year delay in sentencing Pearson after her plea
    agreement was filed may have contributed to the confusion at the conclusion of
    her sentencing hearing. As in Creech, we again “emphasize the importance of
    avoiding confusing remarks in a plea 
    colloquy,” 887 N.E.2d at 76
    , and remind
    trial courts they “would be well advised to determine whether such a [waiver]
    provision is part of any plea agreement that comes before them[,]” Ricci, 894
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 10 
    of 13 N.E.2d at 1093
    n.7. The plea agreement was clearly part of the trial court’s
    record and available for review before and during the sentencing hearing.
    [12]   Pearson argues she actually received no benefit from the plea agreement
    because the dismissed charge was a lesser-included offense and her sentence
    was left open to the trial court’s discretion. It is likely the outcome would have
    been no different if Pearson had walked into court and said, “I plead guilty,”
    without first having any conversations with the State and agreeing to waive
    rights over and above those inherently waived by a guilty plea. But the fact of
    the matter is, she did have conversations with the State and she did knowingly
    and voluntarily sign a plea agreement that included a provision allowing
    appellate review only of an illegal sentence. The trial court sentenced her
    within the terms of the plea agreement and within the statutory limits. See Ind.
    Code § 35-50-2-5. Pearson’s sentence was not illegal and we therefore conclude
    Pearson has waived the issues raised in this appeal.
    [13]   Waiver notwithstanding, Pearson’s challenge to her sentence fails on its merits.
    She contends the trial court abused its discretion in sentencing her by failing to
    find as mitigating circumstances that her involvement in the crime was less
    culpable than her co-defendants and that she was scared and simply following
    an abusive boyfriend. The finding of mitigating circumstances is within the
    discretion of the trial court, and to prove an abuse of that discretion, the
    defendant must show on appeal that the mitigating evidence is significant and
    clearly supported by the record. Healey v. State, 
    969 N.E.2d 607
    , 616 (Ind. Ct.
    App. 2012), trans. denied. Pearson’s testimony in support of her proffered
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 11 of 13
    mitigating circumstances was equivocal. There was evidence of an abusive
    relationship with Kelley and that she felt pressured to assist in the crime.
    However, Pearson also testified that she was a “somewhat” willing participant
    in the burglaries, Tr. Vol. 1 at 25, and that the “biggest part” of why she helped
    was to get money for drugs, 
    id. at 43.
    As to her involvement in the crime, she
    did not enter the house but stayed in the car to act as lookout and driver should
    they need to leave quickly. She was involved in a string of residential burglaries
    across multiple counties, so it was not a one-time event that caught her
    unaware. “A trial court does not err in failing to find a mitigating factor where
    that claim is highly disputable in nature, weight, or significance.” 
    Healey, 969 N.E.2d at 616
    .
    [14]   Finally, as to Pearson’s claim that her twenty-year sentence is inappropriate, we
    may revise a sentence “if, after due consideration of the trial court’s decision,
    the Court finds that the sentence is inappropriate in light of the nature of the
    offense and the character of the offender.” Ind. Appellate Rule 7(B). The
    principal role of appellate review is to “leaven the outliers, . . . not to achieve a
    perceived ‘correct’ result in each case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225
    (Ind. 2008). Therefore, the question “is not whether another sentence is more
    appropriate; rather, the question is whether the sentence imposed is
    inappropriate.” Fonner v. State, 
    876 N.E.2d 340
    , 344 (Ind. Ct. App. 2007)
    (emphasis in original). This crime was committed as part of a series of similar
    crimes, and the damage and loss to the victims exceeded $20,000. Pearson has
    a criminal history dating back several years and a history of drug use which at
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 12 of 13
    least in part prompted her participation in this crime. We may not have
    imposed the same sentence the trial court did, but the sentence is not
    inappropriate.
    Conclusion
    [15]   Pearson entered into a written plea agreement with a provision waiving her
    appellate rights. Although there was a confusing colloquy at her sentencing
    hearing, it occurred after her plea agreement was accepted and her sentence was
    imposed and thus, none of the statements, misstatements, or omissions had an
    effect on her decision to accept the plea agreement’s terms. She has thus
    waived her right to appeal her sentence. In any event, her sentence was neither
    an abuse of discretion nor inappropriate. We therefore affirm the sentence.
    [16]   Affirmed.
    Barnes, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 13 of 13