Brianna C. Petrarca v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 29 2017, 10:46 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan Curtis T. Hill, Jr.
Wilson & Wilson Attorney General of Indiana
Greenwood, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brianna C. Petrarca, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
41A05-1702-CR-296
v. Appeal from the Johnson Circuit
Court
State of Indiana, The Honorable K. Mark Loyd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
41C01-1511-F4-69
Pyle, Judge.
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Statement of the Case
[1] Brianna C. Petrarca (“Petrarca”) appeals the sentence imposed by the trial court
following her guilty plea to two counts of Level 4 felony dealing in
methamphetamine.1 Petrarca argues that her aggregate sentence of eight (8)
years with seven (7) years executed and one (1) year suspended on probation is
inappropriate. Petrarca’s plea agreement contained a provision that she was
waiving her right to appeal her sentence so long as the trial court sentenced her
within the terms of her plea agreement. Because the trial court sentenced
Petrarca within the terms of her plea agreement, we conclude that she has
waived her right to appeal her sentence. Accordingly, we dismiss this appeal.
[2] We dismiss.
Issue
Whether Petrarca has waived her right to appeal her sentence
pursuant to her written plea agreement.
Facts
[3] On August 25, 2015, and, one week later, on August 31, 2015, Petrarca
knowingly or intentionally delivered methamphetamine, which had a weight
1
IND. CODE § 35-48-4-1.1. We note that, since the time of Petrarca’s offense, the dealing in
methamphetamine statute has been twice amended, with effective dates of July 1, 2016, and July 1, 2017.
These amendments have no effect on this appeal.
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between one and five grams. Thereafter, the State charged Petrarca with two
counts of Level 4 felony dealing in methamphetamine.
[4] In November 2016, Petrarca entered into a written plea agreement. The terms
of the agreement required her to plead guilty as charged. In exchange, the State
would recommend that the sentences on the two charges be served
concurrently. Finally, a cap of eight years would be placed on any executed
time, with any additional time to be suspended. Petrarca’s plea agreement also
contained a provision, which provided, in relevant part, as follows:
17. I acknowledge that I may have the right to challenge this
agreement and the resulting conviction and sentence. By
entering into this plea agreement I hereby waive any right to
appeal the conviction and/or sentence in this cause by direct
appeal so long as the Judge sentences me within the terms of my
plea agreement.
(App. Vol. 2 at 19) (emphasis added). During the plea hearing, the trial court
established that Petrarca had read the plea agreement and had reviewed it with
her attorney. Additionally, the trial court confirmed that Petrarca had signed
the plea agreement with the understanding that she was “[w]aiv[ing] [her] rights
and entitlements as contained throughout and entering into the plea based on
the prosecutor’s [sentencing] recommendation[.]” (Tr. 6).
[5] For each conviction, the trial court sentenced Petrarca to a term of eight (8)
years with seven (7) years executed and one (1) year on probation, and it
ordered these sentences to be served concurrently. Thus, the trial court
sentenced Petrarca within the terms of her plea agreement. The trial court also
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recommended that Petrarca be placed in Purposeful Incarceration, and it noted
that it would consider a modification of her executed sentenced if she
successfully completed a Therapeutic Community Program. Petrarca now
attempts to appeal her sentence.2
Decision
[6] Petrarca argues that her aggregate sentence of eight (8) years with seven (7)
years executed and one (1) year on probation for her two Level 4 felony dealing
in methamphetamine convictions was inappropriate.
[7] Our Indiana Supreme Court has held that “a defendant may waive the right to
appellate review of his sentence as part of a written plea agreement.” Creech v.
State, 887 N.E.2d 73, 75 (Ind. 2008). The Creech Court adopted the view of the
Seventh Circuit “that defendants ‘may waive their right to appeal as part of a
written plea agreement . . . as long as the record clearly demonstrates that it was
made knowingly and voluntarily.’” Id. (quoting United States v. Williams, 184
F.3d 666, 668 (7th Cir. 1999)). The Creech Court also noted the benefit of such
a waiver:
[D]efendants are free to waive their rights, to exchange them for
other things that they value more highly. They exchange jury
trials for lower sentences—and there is no reason why defendants
cannot do the same with rights to appeal. An appeal requires the
2
The trial court did not inform Petrarca that she had a right to appeal her sentence. Petrarca filed a petition
seeking permission to file a belated notice of appeal. Prior to receiving a response from the State, the trial
court granted the petition.
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prosecutor’s office to spend time researching the record, writing a
brief, and attending oral argument. All of this time could be
devoted to other prosecutions; and a promise that frees up time
may induce a prosecutor to offer concessions. A defendant who
values these concessions will waive his rights in order to obtain
them. The process makes both society and the defendant better
off. To make a given right ineligible for waiver would stifle this
process and imprison the defendant in his privileges.
Id. (quoting United States v. Hare, 269 F.3d 859, 861 (7th Cir. 2001)). The Creech
Court held that a trial court is not required to make an “express finding” that a
defendant has waived his appellate rights and that “[a]cceptance 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.” Id. at 77.
[8] Here, Petrarca’s written plea agreement contained a recommendation from the
State that the sentences for the charges to which she was pleading guilty be
served concurrently and have a cap of eight years on any executed time. Her
plea agreement contained a specific provision that she was waiving her right to
appeal her sentence “so long as the Judge sentence[d] [her] within the terms of
[her] plea agreement.” (App. Vol. 2 at 19). The trial court sentenced
Petrarca—within the terms of her plea agreement—to a term of eight (8) years
with seven (7) years executed and one (1) year on probation, and it ordered
these sentences to be served concurrently.
[9] Based upon the language in the plea agreement and the fact that the trial court
sentenced Petrarca according to the terms of her plea agreement, we conclude
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that Petrarca has waived her right to appeal her sentence. See Creech, 887
N.E.2d at 74-75 (holding the defendant had waived his right to appeal his
sentence, including his claim that his sentence was inappropriate, pursuant to
the express language in his written plea agreement stating that he waived his
right to appeal his sentence “so long as the Judge sentence[d] [him] within the
terms of [his] plea agreement”); Starcher v. State, 66 N.E.3d 621, 623 (Ind. Ct.
App. 2016) (dismissing the defendant’s appeal of his sentence based on the
provision in his guilty plea waiving appellate review “so long as the Judge
sentences him . . . within the terms of []his agreement”), trans. denied.
Accordingly, we will not address Petrarca’s argument that her sentence was
inappropriate, and we dismiss this appeal.
[10] Dismissed.
May, J., concurs in result.
Brown, J., concurs.
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