Christopher L. McAllister v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as Jul 21 2017, 6:57 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan Curtis T. Hill, Jr.
Wilson & Wilson Attorney General
Greenwood, Indiana
Elizabeth M. Littlejohn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher L. McAllister, July 21, 2017
Appellant-Defendant, Court of Appeals Case No.
41A04-1701-CR-46
v. Appeal from the Johnson Superior
Court.
The Honorable Lance Hamner,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
41D03-1610-CM-1159
Barteau, Senior Judge
Statement of the Case
[1] Christopher L. McAllister executed a plea agreement with the State and appeals
the sentence the trial court imposed for his conviction of driving while
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intoxicated in a manner endangering a person, a Class A misdemeanor. We
dismiss this appeal.
Issues
[2] McAllister raises one issue, which we restate as: whether McAllister’s sentence
is inappropriate in light of the nature of the offense and the character of the
offender. On cross-appeal, the State asks the Court to dismiss McAllister’s
appeal, claiming he has waived his right to appeal his sentence.
Facts and Procedural History
[3] On July 3, 2016, Deputy Reese of the Johnson County Sheriff’s Department
was dispatched to investigate a report of a dangerous motorcyclist on Highway
31. A concerned citizen had called 911 to say he or she saw a motorcyclist
driving on the shoulder of the road. Reese saw the motorcyclist, later identified
as McAllister, weaving and driving fifty-five miles per hour in a forty-five mile
per hour zone.
[4] Deputy Reese stopped McAllister and approached the motorcycle. The
motorcycle’s engine was still running, so Reese asked McAllister to put the
motorcycle on its kickstand and turn it off. Reese asked McAllister for his
license. He could smell the odor of an alcoholic beverage on McAllister. In
addition, McAllister’s eyes were bloodshot and glassy, and his speech was slow.
He denied consuming alcohol, and when Reese told McAllister he could smell
an alcoholic beverage, McAllister said he was on his way home from work.
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[5] Deputy Reese administered three sobriety tests: the horizontal gaze nystagmus,
the nine step walk and turn, and the one leg stand. McAllister failed all three
tests, displaying poor manual dexterity and difficulty with balance. Next, Reese
offered to administer a portable breath test. McAllister took the test, which
revealed a blood alcohol content of 0.157.
[6] Deputy Reese asked McAllister to take a certified blood test, and McAllister
refused. Reese took McAllister to jail and held him there while seeking a search
warrant for a blood draw. The Johnson County Circuit Court issued the search
warrant, and Reese took McAllister to a hospital for the blood draw. The blood
test showed a blood alcohol content of 0.15.
[7] The State charged McAllister with operating a vehicle while intoxicated in a
manner endangering a person, a Class A misdemeanor; operating a vehicle with
an alcohol concentration of at least 0.15, a Class A misdemeanor; operating a
vehicle while intoxicated, a Class C misdemeanor; and operating a vehicle with
an alcohol concentration of less than 0.15 but more than 0.08, a Class C
misdemeanor. The parties began negotiating a plea agreement. McAllister was
initially released on bond, but the State moved to revoke his bond after he was
arrested in Kentucky on a charge of operating while intoxicated.
[8] McAllister and the State executed a plea agreement. McAllister agreed to plead
guilty to operating a vehicle while intoxicated in a manner endangering a
person, a Class A misdemeanor. The remaining counts would merge into the
Class A misdemeanor. The parties agreed to an “open sentence,” meaning the
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sentence would be left up to the court. Appellant’s App. Vol. 2, p. 13.
McAllister wrote his initials next to each term of the agreement, including the
following clause: “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.” Id. at 12.
[9] The trial court held a guilty plea hearing, during which it considered the State’s
motion to revoke bond. The court read through the plea agreement with
McAllister, and McAllister acknowledged that he had read, understood, and
signed the agreement. McAllister conceded he had no grounds to contest the
bond revocation and suggested that he be sentenced that day. The court
accepted the plea agreement but declined to sentence McAllister at that time,
scheduling the sentencing hearing for a later date.
[10] At the sentencing hearing, the court sentenced McAllister to a year in jail, the
maximum possible sentence. In addition, the court suspended his driver’s
license for two years. Finally, the court advised McAllister of his right to
appeal and appointed counsel to represent him. This appeal followed.
Discussion and Decision
[11] We first address the State’s cross-appeal claim because waiver of the right to
appeal, if established, will dispose of the case. The State argues McAllister
waived his right to appeal pursuant to the parties’ plea agreement. The validity
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and interpretation of a plea agreement is a question of law. We evaluate
questions of law under a de novo standard and owe no deference to the trial
court’s determinations. Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App.
2012), trans. denied.
[12] A defendant may waive the right to appellate review of a sentence as part of a
written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). The
waiver must be made knowingly and voluntarily. Bowling, 960 N.E.2d at 841.
[13] In Creech, the appellant executed a plea agreement in which sentencing was left
to the discretion of the trial judge, subject to a cap of six years executed. The
agreement further provided, “I hereby waive my right to appeal my sentence so
long as the Judge sentences me within the terms of my plea agreement.” 887
N.E.2d at 74. The court imposed a six-year sentence.
[14] On appeal, Creech sought to challenge the appropriateness of his sentence. The
Indiana Supreme Court concluded the “express language” of the plea
agreement established waiver of Creech’s right to appeal the sentence. Id. at 76.
Further, although the trial judge erroneously advised Creech at the end of the
sentencing hearing that he had a right to appeal, the Court concluded the
advisement did not make a difference because “Creech had already pled guilty
and received the benefit of his bargain.” Id. at 77.
[15] In the current case, the waiver clause in the parties’ plea agreement closely
tracks the waiver clause in Creech. Further, as in Creech, the trial court’s
mistaken advisement that McAllister had the right to an appeal occurred after
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McAllister had pleaded guilty and had received the benefit of his bargain. We
conclude McAllister has waived his right to appeal his sentence and grant the
State’s request for dismissal of the appeal. See Starcher v. State, 66 N.E.3d 621,
623 (Ind. Ct. App. 2016) (enforcing written waiver of right to appeal sentence
despite trial court’s erroneous advisement at sentencing that defendant had a
right to appeal), trans. denied.
Conclusion
[16] For the reasons stated above, we dismiss this appeal.
[17] Appeal dismissed.
Bailey, J., and Robb, J., concur.
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