Adam Worthington v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 28 2020, 10:05 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Chad A. Montgomery Curtis T. Hill, Jr.
Montgomery Law Office Attorney General
Lafayette, Indiana
Myriam Serrano
Deputy Attorney General
Molly M. McCann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam Worthington, December 28, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1382
v. Appeal from the
Tippecanoe Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Sean Persin, Judge
Trial Court Cause No.
79C01-1902-F1-3
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 1 of 5
[1] Facing seven criminal charges, Adam Worthington entered into a plea
agreement under which he would plead guilty to one count of Level 1 felony
burglary resulting in serious bodily injury, the State would dismiss the
remaining charges, and Worthington’s sentence would be capped at thirty years
but would otherwise be left to the discretion of the trial court. The plea
agreement also included the following appeal waiver:
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. Vol. II p. 26. The trial court accepted the agreement and
sentenced Worthington to thirty years, with twenty-eight years to serve in the
Department of Correction and two years suspended to probation.
[2] Worthington now appeals. However, he does not challenge his conviction or
his sentence. He only asks us to find his appeal waiver was not knowing,
voluntary, and intelligent and to “remand to the trial court.” Appellant’s Br. p.
20. He does not say what he thinks should happen on remand, but presumably
he envisions a second appeal concerning the merits of his sentence.
[3] Worthington relies on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008),
trans. denied, where we held the defendant’s appeal waiver was not enforceable.
But the defendant in Ricci challenged the merits of his sentence, in addition to
the waiver. Here, Worthington only challenges the waiver. As a result, the State
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 2 of 5
asks us to dismiss the appeal, arguing that because Worthington “is not asking
this Court to revise his sentence or remand to the trial court to revise his
sentence, no actual controversy exists.” Appellee’s Br. p. 9. We could dismiss
the appeal on this basis, but in the interest of judicial efficiency, we choose to
address Worthington’s argument.
[4] In arguing he did not knowingly, voluntarily, and intelligently waive his right to
appeal his sentence, Worthington relies on the following exchange at the guilty-
plea hearing:
THE COURT: Do you understand that if you went to a trial and
then were convicted you would have an automatic right to appeal
the convictions to the Indiana Court of Appeals?
THE DEFENDANT: Yes.
THE COURT: When you plead guilty to a charge and you say
judge please enter a conviction because I committed this crime,
you’re waiving and giving up your right to appeal the conviction.
Does that make sense?
THE DEFENDANT: Yeah.
THE COURT: In fact, if you plead guilty today and you’re
waiving and giving up all of the rights that we’ve talked about so
far. You do have the right to be represented by a lawyer both at
the trial level and on any appeal. If at any point you cannot
afford a lawyer, I can appoint one to represent you.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 3 of 5
Tr. pp. 10-11 (emphasis added). Focusing on the emphasized sentence—“You
do have the right to be represented by a lawyer both at the trial level and on any
appeal.”—Worthington contends he was left with the impression he had the
right to appeal his sentence notwithstanding the appeal waiver in the written
plea agreement. But that sentence cannot be read in isolation. The complete
quoted exchange makes clear the trial court was simply informing Worthington
he would have the right to an attorney at trial and on appeal if he chose not to
plead guilty.
[5] Ricci is distinguishable. There, the defendant’s plea agreement included an
appeal waiver like the one in this case, but during the guilty-plea hearing, the
trial court stated:
Now I read the Plea Agreement and if I accept this Plea
Agreement I read it to say that sentencing is gonna be left to the
Court. So [ ] your side will make arguments, the State will make
arguments, and you’ll leave to the Court to decide what the
appropriate sentence is. So you do not give up your right to
appeal that sentence, because you are giving that discretion to
the Court. So I wanna make sure you understand you would
[have] a right to appeal sentencing, but you could never appeal
whether you committed this crime or not[.]
Ricci, 894 N.E.2d at 1090 (emphasis added). Because the defendant was
expressly told at the guilty-plea hearing he had the right to appeal his sentence,
we held the appeal waiver in his plea agreement was “a nullity.” Id. at 1094.
Worthington, unlike the defendant in Ricci, was never told by the trial court he
had the right to appeal his sentence.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 4 of 5
[6] Worthington has failed to establish his appeal waiver was not knowing,
voluntary, and intelligent.
[7] Affirmed.
Brown, J., and Pyle, J., concur.
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