Laurence F. Myers, Jr. v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 11 2014, 10:09 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:
CHAD MONTGOMERY GREGORY F. ZOELLER
McCoy & Montgomery Law Office Attorney General of Indiana
Lafayette, Indiana
CHANDRA HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LAURENCE F. MYERS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1308-CR-755
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1212-FC-51
Cause No. 79D01-1205-FB-7
March 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Laurence Myers, Jr., purportedly appeals the sentence imposed after he pleaded guilty
to Burglary as a Class B felony1 and being an habitual offender2 under cause number 79D01-
1205-FB-7 (FB-7) and Auto Theft as a Class C felony3 under cause number 79D01-1212-FC-
51 (FC-51).
We affirm.
Issue
Myers raises two issues on appeal, one of which we find dispositive and restate as
whether Myers knowingly and voluntarily waived his right to appeal the appropriateness of
his sentence when he entered into a plea agreement with the State.
Facts and Procedural History
In May 2012, the State charged Myers with Burglary as a Class B felony, Theft as a
Class D felony, Possession of Methamphetamine as a Class D felony, and Possession of
Paraphernalia as a Class A misdemeanor under cause number FB-7. The State later amended
the charging information to include an habitual substance offender enhancement and an
habitual offender enhancement. These charges resulted from Myers breaking and entering
the home of a friend’s seventy-three-year-old mother and stealing jewelry and a laptop. In
December 2012, the State charged Myers with Auto Theft as a Class C felony, Auto Theft as
1
Ind. Code § 35-43-2-1.
2
I.C. § 35-50-2-8.
3
I.C. § 35-43-4-2.5.
2
a Class D felony, and Theft as a Class D felony under cause number FC-51. These charges
resulted from Myers stealing a car from the owner’s garage.
In June 2013, Myers and the State entered into a plea agreement wherein Myers
agreed to plead guilty to Burglary as a Class B felony and to admit to his status as an habitual
offender under cause number FB-7, and to Auto Theft as a Class C felony under cause
number FC-51, and the State agreed to dismiss the remaining charges. The plea agreement
further provided that Myers would serve his sentence in cause number FB-7 consecutively
with his sentence under cause number FC-51, and that the sentence would be left to the trial
court’s discretion. In addition, the plea agreement provided as follows:
3. The Defendant hereby waives the right to appeal any sentence imposed
by the Court, under any standard of review, including but not limited to, an
abuse of discretion standard and the appropriateness of the sentence under
Indiana Appellate Rule 7(B), so long as the Court sentences the Defendant
within the terms of the plea agreement.
Appellant’s App. p. 29.
During the June 2013 guilty plea hearing, the following colloquy ensued:
Trial Court: Do you understand that if you were to have a trial and if you
were convicted you would have the right to appeal that conviction to the Court
of Appeal[s] or Supreme Court of Indiana?
Myers: Yes your honor.
Trial Court: Do you understand by pleading guilty you give up that right of
appeal?
Myers: Yes.
Trial Court: Also, at paragraph three, as long as the Court accepts the plea
agreement and also sentences you within its term, that you are waiving your
right to appeal your sentence, do you understand this?
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Myers: Yes, your honor.
Trial Court: You have the right to be represented by an attorney at all times
including during a trial or for an appeal. If you cannot afford an attorney, the
court would appoint one for you. Do you understand this?
Myers: Yes.
Tr. pp. 6-7. Following the hearing, the trial court took the guilty plea under advisement.
In August 2013, the trial court accepted Myers’ plea and sentenced him to sixteen
years for burglary enhanced by twenty years for being an habitual substance offender under
cause number FB-7. In addition, the trial court sentenced Myers to six years for auto theft in
cause number FC-51. Pursuant to the plea agreement, the trial court ordered the sentences in
the two cause numbers to run consecutively to each other for a total sentence of forty-two
years.
Myers appeals his sentence.
Discussion and Decision
Myers contends that even though his plea agreement contains a clause waiving the
right to appeal his sentence, he did not knowingly and voluntarily waive this right.
Specifically, Myers points to the trial court’s advisement during the plea hearing that he is
entitled to be represented by an attorney on appeal.
Defendants who bargain to plead guilty in return for favorable outcomes give up a
plethora of substantive claims and procedural rights. Hawkins v. State, 990 N.E.2d 508. 509
(Ind. Ct. App. 2013), trans, denied. In this regard, our supreme court has held that a
defendant may waive the right to appellate review of his sentence as part of a written plea
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agreement as long as the waiver is knowing and voluntary. Id. at 509-10. The content and
language of the plea agreement itself, as well as the colloquy where necessary, govern the
determination as to the validity of the waiver. Id. at 510. A specific dialogue with the trial
court 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.Here, Myers argues that “it is entirely reasonable that Myers was confused by the
court[’]s statement ‘[y]ou have the right to be represented by an attorney at all times during a
trial or for an appeal. If you cannot afford an attorney, the Court would appoint one for you.
Do you understand this?’” Tr. pp. 6-7. Specifically, Myers contends that “[i]t is reasonable
that if Myers had a right to an attorney for an appeal that he also believed that he had the
right to appeal. Due to this statement from the court, it cannot be said that Myers knowingly,
voluntarily, and intelligently waived his right to appeal his sentence.” Appellant’s Br. pp. 11-
12.
Hawkins, 990 N.E.2d at 508, is dispositive. There, during the hearing on Hawkins’
guilty plea, the trial court read through the agreement in open court and advised Hawkins of
the rights he was waiving by pleading guilty, including his right to appeal his sentence. The
trial court subsequently asked Hawkins if he understood that he had the right to be
represented by an attorney at all times, including during trial or for an appeal.
Hawkins, like Myers, argued that he did not knowingly and voluntarily waive his right
to appeal his sentence. Like Myers, Hawkins pointed to the trial court’s advisement that he
was entitled to be represented by an attorney on appeal. This court concluded that the trial
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court was not contradicting the waiver policy when it advised Hawkins that he had the right
to be represented by an attorney at all times. Id. at 510. Rather, we concluded that the trial
court was merely explaining Hawkins’ right of representation, which is a right clearly distinct
from his right to appeal his sentence. Id. We further concluded that by separating the right
to appeal from the right to representation, the trial court properly advised Hawkins without
contradicting itself or raising any ambiguities. Id. at 511. We therefore concluded that
Hawkins knowingly and voluntarily waived his right to appeal his sentence. Id.
Here, as in Hawkins, the trial court was not contradicting the waiver policy when it
advised Hawkins that he had the right to be represented by an attorney. Instead, the trial
court was merely explaining a right that was distinct from his right to appeal his sentence.
By separating the right to appeal from the right to representation, the trial court properly
advised Myers without contradicting itself or raising any ambiguities. Myers knowingly and
voluntarily waived his right to appeal his sentence. See id.
We further note that Myers’ reliance on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App.
2008), trans. denied, is misplaced. There, the written plea agreement provided that Ricci
waived his right to appeal. However, during the plea hearing, the trial court stated that
according to its reading, Ricci had not surrendered the right to appeal his sentence, and the
trial court’s statement was not contradicted by counsel for either party. Under those
circumstances, we concluded that all parties entered the plea agreement with the
understanding that Ricci retained the right to appeal his sentence and held the waiver to be a
nullity. Id. at 1094. The facts in Ricci, however, are distinguishable from those before us.
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Specifically, here, the trial court never stated that Myers had not surrendered his right to
appeal his sentence. Myers knowingly and voluntarily waived his right to appeal his
sentence.
Conclusion
Myers has waived the right to appeal the appropriateness of his sentence.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
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