Carlvet Lee v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 29 2016, 8:56 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan W. Tanselle Gregory F. Zoeller
Capper Tulley & Reimondo Attorney General of Indiana
Brownsburg, Indiana
Matthew R. Elliott
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carlvet Lee, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
32A04-1607-CR-1547
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Karen M. Love,
Appellee-Plaintiff Judge
Trial Court Cause No.
32D03-1507-F2-16
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016 Page 1 of 3
[1] Carlvet Lee appeals the sentence imposed by the trial court after he pleaded
guilty to seven counts of felony drug and gun offenses. Lee argues that the trial
court abused its discretion in its determination of mitigating circumstances and
that the sentence is inappropriate under Indiana Appellate Rule 7(B). Finding
that Lee waived the right to challenge the sentence, we dismiss the appeal.
[2] Lee and the State entered into a plea agreement, which was accepted by the
trial court on April 26, 2016. The plea agreement contains the following
provision:
Defendant is knowingly, intelligently and voluntarily waiving his
right to challenge the sentence imposed by the Court pursuant to
this agreement on the basis that such sentence is erroneous for
any reason. He is waiving his right to challenge the Court’s
finding and balancing of mitigating and aggravating factors as
well as his right to have the Court of Appeals review the sentence
under Indiana Appellate Rule 7(B).
Appellant’s App. p. 58-59. It is undisputed that the sentence imposed by the
trial court was within the bounds of the terms of the plea agreement.
[3] It is well established that a defendant may waive his right to appeal his sentence
as part of a plea agreement and that such waivers are valid and enforceable.
E.g., Creech v. State, 887 N.E.2d 73, 74-75 (Ind. 2008). Lee contends that the
waiver is unenforceable because the record does not reveal that he was advised
of his right to appeal an open plea before he agreed to the waiver provision. It
is well established, however, that neither a separate advisement of rights form
nor an additional discussion about the waiver provision are required for a valid
Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016 Page 2 of 3
waiver. Id. at 76. If the written plea agreement contains an express waiver of
the right and nothing else in the record indicates that the plea was not knowing
and voluntary, then the waiver is valid. Id. at 76-77. Here, Lee and his
attorney both stated that he understood the plea agreement and Lee stated
under oath that he understood the potential sentence he faced under the plea
agreement. Tr. p. 12-13, 45-47. Under these circumstances, we find that Lee
has waived his right to challenge his sentence and hereby dismiss this appeal.
[4] The appeal is dismissed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016 Page 3 of 3