Mark Matthew Fritz v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 25 2016, 6:54 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Ian McLean
Deputy Attorney General
Office of Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Matthew Fritz, February 25, 2016
Appellant-Defendant, Court of Appeals Case No.
76A04-1509-CR-1430
v. Appeal from the Steuben Superior
Court
State of Indiana, The Honorable William C. Fee,
Appellee-Plaintiff Judge
Trial Court Cause No.
76D01-1405-MR-1
Robb, Judge.
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Case Summary and Issues
[1] Mark Fritz entered a plea of guilty to voluntary manslaughter, a Class B felony,
and was sentenced to twenty years in the Indiana Department of Correction.
On appeal, Fritz raises two issues regarding his sentence: 1) whether the
provision in his plea agreement waiving the right to appeal is enforceable; and
2) whether his twenty-year sentence, the maximum allowable under the plea
agreement, is inappropriate in light of the nature of his offense and his
character. Concluding the plea agreement is enforceable and Fritz waived his
right to appeal his sentence, we affirm.
Facts and Procedural History
[2] On June 24, 2001, Samuel Hunter was found dead in his home. His murder
remained unsolved until 2014, when police recorded a conversation between
Fritz and his niece in which he admitted to killing a man matching Hunter’s
description in the same manner Hunter was killed. On May 14, 2014, the State
charged Fritz with Hunter’s murder. At Fritz’s initial hearing, counsel was
appointed to represent him. On April 1, 2015, the State added a charge of
voluntary manslaughter. On that same date, Fritz and the State entered into a
written plea agreement pursuant to which Fritz would plead guilty to voluntary
manslaughter. In addition, the plea agreement provided:
Defendant understands that he/she may be sentenced to a period
of incarceration of between 6 years and 20 years and expressly
waives any right to appeal his/her conviction and sentence in this
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cause either by direct appeal or by post conviction relief so long
as the sentence is within the parameters described above.
Appellant’s Appendix at 60.
[3] At the change of plea hearing, the trial court placed Fritz under oath and then
advised him that the court’s purpose was to “make sure that you understand
what you are doing. That your acts are done voluntarily.” Transcript at 5.
Fritz acknowledged that no one had forced or threatened him into entering the
plea agreement. The trial court then advised Fritz of the various rights he was
giving up by pleading guilty, including the right to appeal his conviction.
Court: Any questions, Sir, about those rights?
[Fritz]: No.
Court: And do you think you understand those, then, Mr. Fritz?
[Fritz]: Yes.
Court: And do you understand that by pleading guilty, you are
giving those rights up?
[Fritz]: Yes.
Id. at 9. At the trial court’s request, the State read the plea agreement for the
record:
The plea is to Voluntary Manslaughter. The Court will impose
sentence. That sentencing range is a period of incarceration of
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between six years and twenty years. The defendant expressly
waives any right to appeal his conviction and sentence either by
direct appeal or post-conviction relief so long as it is within these
parameters. There is a mandatory $100.00 public defender fee.
Id. at 11. Fritz agreed this was his understanding of the plea agreement. Fritz
offered a factual basis for the offense and pleaded guilty. The trial court took
Fritz’s plea under advisement pending preparation of a pre-sentence
investigation report and scheduled a sentencing hearing.
[4] At the April 27, 2015, sentencing hearing, the trial court accepted the plea
agreement and dismissed the murder charge on the State’s motion. At the
conclusion of the hearing, the trial court sentenced Fritz to twenty years in
prison, the maximum sentence allowable under the plea agreement.
[5] On May 21, 2015, Fritz sent a letter to the trial court indicating he wanted to
appeal his sentence and requesting appointment of appellate counsel. Upon
learning of this letter, Fritz’s trial counsel filed a motion to correct errors,
arguing Fritz’s sentence was erroneous because the trial court gave too much
weight to Fritz’s criminal history and not enough to his guilty plea. The motion
also requested the trial court appoint counsel for appeal. The trial court
conducted a hearing on this motion on August 17, 2015, and denied the motion
to correct errors because “this is a form of appellate review and there is this
contract in place.” Id. at 36. In addition, the trial court noted the sentence was
within the parameters of the plea agreement. The trial court also declined to
appoint appellate counsel “because there is no appeal before the Court at this
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time.” Id. at 37. On August 21, 2015, the trial court reconsidered its ruling in
part and appointed the office of the Public Defender of Indiana as appellate
counsel for Fritz.
[6] Fritz filed a notice of appeal on September 15, 2015. On November 12, 2015,
Fritz, by counsel, filed a motion to dismiss the appeal because “counsel has
found no evidence to support a possible claim that [Fritz’s] waiver of his
appellate right was not knowing or voluntary.” Verified Motion to Dismiss
Appeal at 2. This court denied the motion to dismiss, however:
This case involves an appeal from a criminal case. This Court
will not grant an Appellant’s request to dismiss such an appeal
unless the Appellant demonstrates: (a) Appellant has been
specifically advised that this is his or her only opportunity to
directly appeal the trial court’s judgment; and (b) after having
been advised of the consequences of dismissal of this appeal,
Appellant consents to dismissal. A verified statement by counsel
or an Affidavit signed by the Appellant setting forth this
information will suffice.
Order (November 20, 2015). The motion was denied without prejudice to
Fritz’s right to file an amended motion to dismiss containing the required
information within thirty days. Instead, Fritz timely filed his appellate brief.
Discussion and Decision
[7] A provision waiving the right to appellate review as part of a written plea
agreement is enforceable “as long as the record clearly demonstrates that it was
made knowingly and voluntarily.” Creech v. State, 887 N.E.2d 73, 75 (Ind.
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2008) (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)).
Here, Fritz signed the plea agreement containing the waiver provision and
acknowledged to the trial court at his guilty plea hearing that he understood
that provision and was voluntarily entering into the agreement. Nonetheless,
Fritz argues he has not waived his right to appeal for several reasons: 1) the
provision included an unenforceable waiver of the right to pursue post-
conviction relief; 2) the trial court created an ambiguity regarding Fritz’s right
to appeal when it appointed appellate counsel; and 3) this court denied Fritz’s
motion to dismiss suggesting the case should be decided on its merits.
[8] Fritz is correct that provisions in plea agreements waiving the right to seek post-
conviction relief are void and unenforceable. Id. at 75-76. However, Fritz is
attempting a direct appeal, not pursuing a post-conviction remedy, and as noted
above, a defendant may waive his right to direct appeal. The plea agreement
scrutinized in Perez v. State, 866 N.E.2d 817, 819 (Ind. Ct. App. 2007), trans.
denied, also contained both waiver provisions, and this court enforced the
waiver of direct appeal. Likewise here, the fact that the waiver of post-
conviction relief is unenforceable does not invalidate the waiver of the right to
direct appeal. See State v. Arnold, 27 N.E.3d 315, 321 (Ind. Ct. App. 2015)
(noting that plea agreements are contractual in nature, and that as a general
proposition, the fact that one part of an agreement may be void or
unenforceable does not render the entire agreement void if the prohibited and
valid provisions are severable), trans. denied.
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[9] After a defendant pleads guilty and receives the benefit of a plea bargain,
subsequent actions by the trial court do not affect a knowing and voluntary
waiver of appeal rights because “[m]ost waivers are effective when set out in
writing and signed.” Creech, 887 N.E.2d at 76-77 (alteration in original)
(citation omitted). Thus, in Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct.
App. 2008), trans. denied, we held a waiver provision in a plea agreement was
unenforceable where the trial court advised the defendant at his plea hearing that
he had the right to appeal because he entered his plea with the understanding he
retained the right to appeal his sentence. However, where the subsequent
erroneous statements or potentially misleading actions are made after the plea is
entered, the waiver is not invalidated. See Brattain v. State, 891 N.E.2d 1055,
1057 (Ind. Ct. App. 2008) (noting the trial court’s appointment of appellate
counsel at defendant’s request more than a week after sentencing did not
invalidate the waiver provision in defendant’s plea agreement).
[10] At Fritz’s guilty plea hearing, the trial court explained to Fritz the terms of the
plea agreement and what rights he was giving up by entering into it, including
the right to appeal. Fritz affirmed to the trial court that he understood the terms
of the agreement. The trial court sentenced Fritz to a term within the range
provided in the plea agreement. The appointment of appellate counsel was first
raised in Fritz’s own motion to correct errors, filed a month after his sentencing.
At the hearing on the motion to correct errors, the trial court repeatedly
referenced Fritz’s waiver of the right to appeal. We do acknowledge that the
trial court’s subsequent appointment of counsel was then understandably
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confusing.1 However, as set out above, the trial court’s contradictory action
nearly four months after Fritz’s sentencing does not invalidate the waiver
provision.
[11] Finally, Fritz’s motion to dismiss was made prior to this case being fully briefed
on appeal, and as such, the order denying the motion to dismiss was not made
on the merits but simply asked counsel to show that Fritz wished his appeal to
be dismissed. Moreover, any actions this court took on appeal cannot have
impacted Fritz’s understanding of his right to appeal at the time he entered into
the plea agreement.
[12] Fritz waived his right to directly appeal his sentence so long as the sentence fell
within the parameters of the plea agreement. The trial court’s imposition of a
twenty-year sentence was within those parameters, and we therefore decline to
review his claim that his sentence was inappropriate.
1
The confusion was precipitated by Fritz’s own counsel, who had represented him throughout the
proceedings, including negotiating the plea agreement and appearing at the change of plea and sentencing
hearings, but nonetheless requested the appointment of appellate counsel. Counsel stated at the hearing on
the motion to correct errors that he had spoken to someone with the public defender commission and was
advised, “not about this case in particular, but there are circumstances when you waive your right to appeal
you can nevertheless seek an appeal.” Tr. at 36.
Up to and including the hearing on the motion to correct errors, it appeared the trial court was clear on the
terms of Fritz’s plea agreement and the existence of the waiver provision. It was read into the record at the
change of plea hearing, the trial court did not as a matter of course advise Fritz at his sentencing hearing of a
right to appeal his sentence, and the trial court referenced the waiver several times during the hearing on the
motion to correct errors. Although it appears the trial court recalled the waiver provision on its own, the
State also apprised it of the provision during the hearing on the motion to correct errors. It is unclear why the
trial court then reconsidered its earlier ruling regarding the appointment of counsel, as it was entered on the
Chronological Case Summary as an “administrative event” apparently unrelated to any filing or hearing.
Appellant’s App. at 11.
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Conclusion
[13] Fritz knowingly and voluntarily entered into a written plea agreement with a
provision waiving his appellate rights. Such provisions are valid and
enforceable, and Fritz has advanced no reasons to hold otherwise in this case.
He thus waived his right to appeal his sentence, and we do not consider the
merits of his claim for appellate review of his sentence. The twenty-year
sentence imposed by the trial court is affirmed.
[14] Affirmed.
Barnes, J., and Altice, J., concur.
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