Daniel Dodd v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Apr 16 2014, 9:18 am
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:
CLIFFORD M. DAVENPORT GREGORY F. ZOELLER
Davenport Law Offices Attorney General of Indiana
Anderson, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL DODD, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1310-CR-847
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause Nos. 48C03-1208-FD-1533, 48C03-1109-FD-1671,
48C03-1210-FB-1876 and 48C03-1211-FD-2219
April 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Daniel Dodd appeals his sentence following his convictions for burglary, as a
Class B felony; two counts of theft, as Class D felonies; possession of a schedule IV
controlled substance, as a Class D felony; unlawful possession of a legend drug, as a
Class D felony; unlawful sale of a legend drug, as a Class D felony; and possession of
marijuana, as a Class A misdemeanor; pursuant to a plea agreement. Dodd raises four
issues for our review. However, because Dodd waived his right to appeal his sentence,
we do not reach the merits of his appeal.
We affirm.
FACTS AND PROCEDURAL HISTORY
On January 13, 2013, Dodd pleaded guilty as charged under four separate cause
numbers. In particular, Dodd pleaded guilty to burglary, as a Class B felony; two counts
of theft, as Class D felonies; possession of a schedule IV controlled substance, as a Class
D felony; unlawful possession of a legend drug, as a Class D felony; unlawful sale of a
legend drug, as a Class D felony; and possession of marijuana, as a Class A
misdemeanor. Dodd executed a plea agreement whereby the trial court would stay
Dodd’s sentencing pending his successful completion of the Madison County Drug Court
Program. The plea agreement also provided that if he failed to graduate from Drug Court
for any reason, “sentencing shall be open to the Court.” Appellant’s App. at 149.
Finally, Dodd’s plea agreement provided, in relevant part, as follows:
The Defendant hereby waives the right to appeal any sentence imposed by
the Court, including the right to seek appellate review of the sentence
pursuant to Indiana Appellate Rule 7(B), so long as the Court sentences the
defendant within the terms of this plea agreement. It is further agreed that
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the sentence recommended and/or imposed is the appropriate sentence to be
served pursuant to this agreement and the defendant hereby waives any
future request to modify the sentence under I.C. 35-38-1-17.
Appellant’s App. at 149.
In June, Dodd tested positive for fentanyl, and in August his participation in the
Drug Court Program was terminated. Following a sentencing hearing in September, the
trial court imposed an aggregate sentence of twenty-nine years. This appeal ensued.
DISCUSSION AND DECISION
We do not reach the merits of Dodd’s appeal of his sentence because, as the State
points out, Dodd waived his right to appeal his sentence. It is well settled that a
defendant may waive the right to appellate review of his sentence as part of a written plea
agreement. See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Further, as our supreme
court has observed,
neither the Indiana Rules of Criminal Procedure nor Indiana Code requires
trial courts that accept plea agreements to make express findings regarding
a defendant’s intention to waive his appellate rights. 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.
Id. at 77.
In an attempt to avoid waiver, Dodd, for the first time in his reply brief, contends
that he “did not knowingly or willingly waive his right to appeal.” Appellant’s Brief at 5.
But an appellant may not raise an issue for the first time in a reply brief, and the issue is
waived. French v. State, 778 N.E.2d 816, 825-26 (Ind. 2002). The State erroneously
refers to its waiver argument as a “cross-appeal.” But a cross-appeal is a freestanding
claim of reversible error. Here, the State merely responds to Dodd’s challenges to his
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sentence by asserting that he had waived his right to appeal his sentence. Thus, while
Dodd would be permitted to respond to any issue properly raised on cross-appeal in his
reply brief, such is not the case here.
Waiver notwithstanding, to the extent Dodd contends that the trial court was
required to orally advise Dodd that he was waiving his right to appeal his sentence, our
supreme court has rejected that contention. See Creech, 887 N.E.2d at 77; see also
Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 2008) (rejecting assertion that
waiver in plea agreement must be accompanied by trial court advisement, citing Creech).
Likewise, we reject Dodd’s contention that the waiver is invalid because his plea
agreement did not explicitly state that he was willingly and voluntarily giving up his right
to appeal. See Creech, 887 N.E.2d at 77 (noting “[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.”) We hold that Dodd waived
his right to appeal his sentence.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
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