Joshua Love v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Aug 09 2017, 7:58 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Spangler, Jr. Curtis T. Hill, Jr.
Lawrence County Public Defender Attorney General of Indiana
Agency
Bedford, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Love, August 9, 2017
Appellant-Defendant, Court of Appeals Case No.
47A01-1703-CR-544
v. Appeal from the Lawrence
Superior Court
State of Indiana, The Honorable Michael Robbins,
Appellee-Plaintiff Judge
Trial Court Cause No.
47D01-1604-F1-399
Vaidik, Chief Judge.
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Case Summary
[1] Joshua Love pled guilty to criminal confinement and sexual battery and was
sentenced to sixteen years. He now appeals his sentence. The State argues that
Love has waived appellate review of his sentence because of a waiver provision
in his plea agreement. We agree with the State and therefore affirm Love’s
sentence.
Facts and Procedural History
[2] On January 4, 2017, Love and the State entered into a written plea agreement
in which Love pled guilty to Level 3 felony criminal confinement and Level 6
felony sexual battery. In exchange, the State agreed to dismiss the remaining
counts and another cause number in its entirety. According to the terms of the
plea agreement, the sentences would run concurrently, and the parties would
“argue [the] remaining terms of [the] sentence to the Court.” Appellant’s App.
Vol. II p. 23. The plea agreement contained the following provision concerning
Love’s right to appeal his sentence:
As a condition of entering this plea agreement, I knowingly and
voluntarily agree to waive my right to appeal my sentence on the
basis that it is erroneous or for any other reason so long as the
Judge sentences me within the terms of my plea agreement.
Id. Love also signed an Acknowledgement of Rights. Paragraph 10 similarly
provided:
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As a condition of entering this plea agreement, I knowingly and
voluntarily agree to waive my right to appeal my sentence on the
basis that it is erroneous or for any other reason so long as the
Judge sentences me within the terms of my plea agreement.
Id. at 25.
[3] At the guilty-plea hearing held that same day, the trial court went over the plea
agreement and the Acknowledgement of Rights with Love. Specifically, the
court confirmed with Love that he understood he was “waiving certain rights of
appeal” as explained in paragraphs 6-13 of the Acknowledgement of Rights.
Tr. Vol. II. p. 5. The court found that a factual basis existed for the offenses
and set a sentencing hearing.
[4] At the February sentencing hearing, the trial court sentenced Love to sixteen
years for criminal confinement and two-and-a-half years for sexual battery, to
be served concurrently, for an aggregate term of sixteen years. The court
suspended two years to probation and ordered the last year of incarceration to
be served on house arrest “in lieu of incarceration.” Id. at 97. The trial court
then told Love, “you have a right to appeal . . . the sentence . . . that I just
imposed.” Id.
[5] Love now appeals his sentence.
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Discussion and Decision
[6] Love contends that his sentence is inappropriate in light of the nature of the
offenses and his character. The State responds that Love has waived the right
to appeal his sentence.
[7] The Indiana Supreme Court held in Creech v. State that “a defendant may waive
the right to appellate review of his sentence as part of a written plea
agreement.” 887 N.E.2d 73, 75 (Ind. 2008). The Supreme Court then analyzed
whether, despite the express language of the waiver in Creech’s plea agreement,
he knowingly and voluntarily waived the right to appellate review of his
sentence because the judge advised him at the close of the sentencing hearing
that he retained the right to appeal. The Court rejected Creech’s argument as
follows:
While we take this opportunity to emphasize the importance of
avoiding confusing remarks in a plea colloquy, we think the
statements at issue are not grounds for allowing Creech to
circumvent the terms of his plea agreement.
Creech does not claim that the language of the plea agreement
was unclear or that he misunderstood the terms of the agreement
at the time he signed it, but rather claims that his otherwise
knowing and voluntary plea lost its knowing and voluntary status
because the judge told him at the end of the sentencing hearing
that he could appeal.
*****
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By the time the trial court erroneously advised Creech of the
possibility of appeal, Creech had already pled guilty and received
the benefit of his bargain. Being told at the close of the hearing
that he could appeal presumably had no effect on that
transaction.
Id. at 77 (footnotes omitted). As this Court later explained, “under Creech, a
trial court’s incorrect advisement at the conclusion of a defendant’s sentencing
hearing has no effect on an otherwise knowing, voluntary, and intelligent
waiver of the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089,
1093 (Ind. Ct. App. 2008), trans. denied.
[8] On appeal, Love makes no argument that the language of his plea agreement
was unclear or that he misunderstood the terms of the agreement when he
signed it. As in Creech, although the trial court erroneously advised Love that
he could appeal his sentence, that erroneous statement occurred only at the
sentencing hearing and after Love had received the benefit of his plea
agreement.1 We therefore find that Love knowingly and voluntarily waived the
right to appeal his sentence. See Starcher v. State, 66 N.E.3d 621 (Ind. Ct. App.
1
Love argues that this case is more akin to Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans.
denied, than it is to Creech. Bonilla entered into a written plea agreement waiving the right to appeal his
sentence. At the guilty-plea hearing, the trial court noted Bonilla “may” have waived the right to
appeal his sentence. Id. at 588. However, the court proceeded to advise Bonilla of the right to appeal
his sentence and asked if he understood that right. Id. Given the contradictory information Bonilla
received at the guilty-plea hearing and the fact that Bonilla was not a native English speaker, we
concluded that Bonilla did not waive the right to appeal his sentence. Id. at 590. Here, however, the
trial court did not advise Love at his guilty-plea hearing that he had the right to appeal his sentence;
rather, the court told Love the opposite—that he was “waiving certain rights of appeal.” Tr. Vol. II p.
5.
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2016) (finding defendant waived right to appellate review of sentence in plea
agreement despite trial court’s advisement at sentencing hearing that defendant
had right to appeal sentence), trans. denied. We therefore affirm Love’s
sentence.
[9] Affirmed.
Mathias, J., and Crone, J., concur.
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