Ryan Westlake v. State of Indiana , 2013 Ind. App. LEXIS 212 ( 2013 )

May 07 2013, 9:29 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GILDA W. CAVINESS GREGORY F. ZOELLER
Caviness Law Office, LLC Attorney General of Indiana
Rushville, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RYAN WESTLAKE, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1209-CR-433
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause Nos. 73D01-1201-FA-1 and 73D01-1201-FB-4
May 7, 2013
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Ryan Westlake was charged under two cause numbers with various offenses stemming
from his sexual relationships with two teenage girls. Westlake entered a plea agreement
whereby he pled guilty to class A felony child molesting and class B felony sexual
misconduct with a minor in exchange for the dismissal of four other charges. Sentencing was
left to the trial court’s discretion. The trial court identified one aggravating factor,
Westlake’s criminal and juvenile record, and one mitigating factor, his mental health issues.
Finding the factors to be of equal weight, the trial court imposed concurrent advisory
sentences.
Westlake appeals his sentence, arguing that the trial court abused its discretion by
failing to identify his guilty plea as a mitigating factor and that his sentence is inappropriate.
The State argues that Westlake waived his right to appeal his sentence by signing a document
titled “Advisement of Rights and Waiver” that was submitted to the court along with his plea
agreement. We conclude that the waiver clearly forecloses Westlake’s right to challenge his
sentence pursuant to Indiana Appellate Rule 7(B), but does not prohibit him from raising the
issue of whether the trial court abused its discretion. However, because Westlake had
already confessed to having sexual intercourse with the victims and received a substantial
benefit in the form of dismissed charges, he has not persuaded us that the trial court abused
its discretion by failing to identify his guilty plea as a mitigating factor. Therefore, we
affirm.
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Facts and Procedural History
In January 2012, R.E. reported that her fourteen-year-old daughter, C.E., had run away
and might be with Westlake at an abandoned residence on West Washington Street in
Shelbyville. Officer Dan McCarty went to the residence and found C.E. and Westlake there.
According to the probable cause affidavit filed in cause number 73D01-1201-FB-4
(“FB-4”), police determined that the residence belonged to Christopher Lux, who had not
given C.E. or Westlake permission to be there. Officer McCarty ordered Westlake to come
out of the house several times before he complied. In a subsequent interview, Westlake, who
was twenty-two years old at the time, admitted that he knew that C.E. was fourteen and
admitted to having sexual intercourse with C.E. on three occasions during January 2012. As
a result, Westlake was charged under this cause number with class B felony sexual
misconduct with a minor, class C felony sexual misconduct with a minor, class D felony
residential entry, and class A misdemeanor resisting law enforcement.
According to the probable cause affidavit filed in cause number 73D01-1201-FA-1
(“FA-1”), on January 13, 2012, the Department of Child Services informed the Shelbyville
Police Department that it had received a report that Westlake had been involved in a sexual
relationship with a thirteen-year-old girl, B.B. After his arrest on the charges in FB-4,
Westlake was also questioned about this report. Westlake admitted that he had had sexual
intercourse with B.B. on three occasions and that she had told him prior to the second and
third occasions that she was thirteen. As a result, Westlake was charged with child molesting
as a class A and as a class C felony.
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On May 25, 2012, Westlake and the State filed a joint motion to enter guilty plea
concerning the charges in FA-1 and FB-4. Westlake agreed to plead guilty to class A felony
child molesting in FA-1 and class B felony sexual misconduct with a minor in FB-4, and the
State agreed to dismiss the remaining charges. Sentencing was left to the court’s discretion.
The parties also filed a document titled “Advisement of Rights and Waiver,” which includes
the following language:
If you are pleading guilty to an offense with sentencing to be determined by
the Court, you waive your right to have any Court review the reasonableness of
the sentence, including but not limited to appeals under Indiana Rule of
Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of
the Court is reasonable and appropriate in light of your nature and character,
and the nature and character of the offense. Creech v. State, 887 N.E.2d 73(Ind. 2008).
Appellant’s App. at 43. At the guilty plea hearing, the trial court gave Westlake the
following advisement concerning his right to appeal:
THE COURT: Do you understand if you went to trial and you were
convicted that you would have the right to appeal your conviction?
MR. WESTLAKE: Yes, sir.
THE COURT: Do you understand that by pleading guilty you’re giving
up most of your rights associated with your right of appeal?
MR. WESTLAKE: Yes, sir.
Tr. at 6-7.
After advising Westlake of his rights, the court questioned Westlake about the factual
basis for his plea. The court asked Westlake how he knew B.B., and Westlake said, “I
mentored her there for a little bit and I took her to church” because her father had “asked me
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to find an activity for her to keep out of trouble.” Id. at 14. Westlake stated that B.B. “was
giving me looks and stuff and like, pretty much made a move and I let it happen.” Id.
Westlake said that he met C.E. through B.B. Westlake stated that the night that he ran
away with C.E., he had been smoking marijuana and got into an argument with his sister.
His sister said that she was going to call the police, and Westlake left because he did not
want to get caught with drugs in his system. He went to a friend’s house and smoked some
more marijuana. Then he went to C.E.’s house and told her that he needed help getting out of
town because the police were after him, and she took him to an abandoned house. Westlake
claimed that after a while, C.E. started “looking” at him, and he “made a move.” Id. at 16.
The trial court took the plea agreement under advisement and scheduled a sentencing
hearing. At the sentencing hearing on July 27, 2012, the trial court accepted the plea and
heard testimony from Westlake’s mother, Angela Spears. Spears stated that Westlake had
been in special education classes in school and was typically four to five grades behind other
students his age. She said that on an emotional level, Westlake is “younger than an adult,”
and his “brain capacity” is comparable to children twelve to fourteen years old. Id. at 23.
Because of this, Westlake tended to associate with children that age. Spears testified that
Westlake is capable of following rules “to an extent” and does better if his day is structured.
Id. at 24. She felt that Westlake has trouble with drugs and alcohol and is susceptible to peer
pressure. Westlake made a statement to the court in which he apologized for his actions and
acknowledged that what he had done was wrong.
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The presentence investigation report (“PSI”) indicates that Westlake committed his
first delinquent act – class D felony theft if committed by an adult – in 2000 at the age of ten.
He was placed on probation and ordered to participate in mental health treatment. In 2002,
he committed what would be class A misdemeanor battery if committed by an adult. He was
again placed on probation. He underwent a mental health evaluation and was diagnosed with
bipolar disorder, post-traumatic stress disorder, and disruptive behavior disorder. In 2003, he
committed what would be class C felony child molesting if committed by an adult. The
victim was a four-year-old girl whom his mother was babysitting. He was again placed on
probation and ordered to participate in counseling. Westlake violated probation twice by
running away and possessing pornography. In 2005, he was arrested and charged with being
a runaway and what would be class A misdemeanor conversion, class D felony intimidation,
and class A misdemeanor battery resulting in bodily injury if committed by an adult. The PSI
does not reflect which of these resulted in true findings, but Westlake was placed in the
Indiana Boys School. Westlake was placed on parole at some point, but he violated parole
and was returned to the Indiana Boys School. Westlake was released in 2009 at the age of
nineteen. In 2011, Westlake was convicted of class C misdemeanor operating a vehicle
having never received a license, his only adult offense other than the instant offenses.
The PSI reflects that Westlake has received mental health treatment from at least five
different facilities. Although he denied having been abused as a child, other information in
the PSI suggests that he was. Westlake’s IQ is 82, and he never received a diploma or GED.
Westlake admitted that he had been smoking marijuana heavily over the previous two years.
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When the interviewer asked Westlake about the instant offenses, he admitted that he was “in
the wrong,” but also blamed the girls’ parents for not supervising them more carefully.
Appellant’s App. at 80.
The trial court found Westlake’s criminal and juvenile record to be aggravating,
placing particular emphasis on the adjudication for child molesting. As a mitigating factor,
the court found that Westlake has significant mental health issues that impact his ability to
conform his behavior to the law. The court found that the aggravating and mitigating factors
were of equal weight and imposed concurrent advisory sentences – thirty years on the class A
felony and ten years on the class B felony.1 The court suspended five years of the thirty-year
sentence, giving Westlake an aggregate sentence of twenty-five years executed and five
suspended. Westlake now appeals his sentence.
Discussion and Decision
Westlake argues that the trial court abused its discretion by failing to identify his
guilty plea as a mitigating factor and that his sentence is inappropriate. The State argues that
Westlake has waived his right to appeal these issues. Because the State’s argument is
potentially dispositive, we will address it first.
I. Waiver
Along with his plea agreement, Westlake signed a document titled “Advisement of
Rights and Waiver.” That document contains the following provision:
If you are pleading guilty to an offense with sentencing to be determined by
1
See Ind. Code § 35-50-2-4 (advisory sentence for a class A felony is thirty years); Ind. Code § 35-50-
2-5 (advisory sentence for class B felony is ten years).
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the Court, you waive your right to have any Court review the reasonableness of
the sentence, including but not limited to appeals under Indiana Rule of
Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of
the Court is reasonable and appropriate in light of your nature and character,
and the nature and character of the offense. Creech v. State, 887 N.E.2d 73(Ind. 2008).
Appellant’s App. at 43.
In Creech, our supreme court held that a defendant may, as part of a plea agreement,
waive the right to appellate review of his sentence, as long as the waiver is knowing and
voluntary. 887 N.E.2d at 75. In determining whether a defendant has made a knowing and
voluntary waiver, our courts have typically considered the advisement given by the trial court
at the guilty plea hearing. See, e.g., Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App.
2008) (finding no waiver where, despite language in the plea agreement that defendant
waived his right to appeal the sentence, court advised defendant at the plea hearing that he
had not surrendered his right to appeal the sentence), trans. denied. At the guilty plea
hearing, the trial court advised Westlake as follows:
THE COURT: Do you understand if you went to trial and you were
convicted that you would have the right to appeal your conviction?
MR. WESTLAKE: Yes, sir.
THE COURT: Do you understand that by pleading guilty you’re giving
up most of your rights associated with your right of appeal?
MR. WESTLAKE: Yes, sir.
Tr. at 6-7.
The written waiver clearly states that Westlake waived his right to challenge his
sentence pursuant to Indiana Appellate Rule 7(B). Although the trial court’s advisement was
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not very specific, nothing in the advisement contradicts the language of the waiver.
Therefore, we conclude that Westlake has waived his right to challenge his sentence pursuant
to Appellate Rule 7(B).
An abuse of discretion claim, however, is distinct from review pursuant to Appellate
Rule 7(B). See King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (inappropriate
sentence and abuse of discretion claims are to be analyzed separately). The waiver provision
states that he cannot challenge the “reasonableness” of the sentence, a term which appears to
be used as a synonym for “appropriateness,” the linchpin of our analysis pursuant to
Appellate Rule 7(B). The waiver provision does not specifically address abuse of discretion
claims or include any “catchall” language completely foreclosing the possibility of appeal.
The trial court’s advisement also suggested that some relief might still be available on appeal.
As to abuse of discretion claims, the waiver provision is ambiguous at best and should be
construed against the State as the drafter. See Valenzuela v. State, 898 N.E.2d 480, 483-84
(Ind. Ct. App. 2008) (ambiguous plea agreement should be strictly construed against the
State), trans. denied (2009). We conclude that Westlake has not waived his abuse of
discretion claim.
II. Abuse of Discretion
Sentencing decisions are within the sound discretion of the trial court and are
reviewed only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is
clearly against the logic and effect of the facts and circumstances before the court, or the
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reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may
abuse its discretion in sentencing by failing to enter a sentencing statement, entering a
sentencing statement that explains reasons for imposing a sentence which the record does not
support, omitting reasons that are clearly supported by the record and advanced for
consideration, or giving reasons that are improper as a matter of law. Id. at 490-91.
Westlake argues that the trial court abused its discretion by failing to identify his
guilty plea as a mitigating factor. “An allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record.” Id. at 493. A guilty plea does not
automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005), trans. denied (2006). “For instance, a guilty plea does not rise to the
level of significant mitigation where the defendant has received a substantial benefit from the
plea or where the evidence against him is such that the decision to plead guilty is merely a
pragmatic one.” Id.Westlake notes that he pled guilty a few months after being arrested, he pled guilty to
the most serious charge under each cause number, and his plea agreement contained no cap
on the sentence that could be imposed. However, he obtained a substantial benefit in that
four additional charges were dismissed, three of which were felonies. In addition, Westlake
admitted to having sexual intercourse with each victim multiple times after being discovered
in an abandoned home with one of the victims. Given the strength of the evidence against
him and the benefit that Westlake received from the plea agreement, Westlake has not
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persuaded us that the trial court abused its discretion by failing to identify his guilty plea as a
mitigating factor. We therefore affirm his sentence.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
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