Adam Morris v. State of Indiana

Apr 09 2013, 8:51 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. DIRK CARNAHAN GREGORY F. ZOELLER
Vincennes, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM MORRIS, )
)
Appellant-Defendant, )
)
vs. ) No. 14A05-1209-CR-495
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DAVIESS SUPERIOR COURT
The Honorable Mark R. McConnell, Special Judge
Cause No. 14D01-0910-FC-806
April 9, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Adam Morris appeals the one-year sentence and order of restitution imposed
following his conviction for Class A misdemeanor operating a vehicle while intoxicated
(“OWI”). We affirm in part and reverse in part.
Issues
The restated issues before us are:
I. whether Morris’s guilty plea waived his ability to
challenge his sentence on direct appeal;
II. whether Morris’s sentence is inappropriate; and
III. whether the trial court properly ordered Morris to pay
$14,972.45 in restitution.
Facts
In the early morning of October 4, 2009, Morris was driving an ATV in Daviess
County and was involved in an accident with another ATV. Morris’s fiancée, Jennifer
Celeste, was riding on the back of Morris’s ATV and had been thrown from it, causing
serious head injuries. The first responding officer noticed that Morris smelled of alcohol
and had slurred speech, bloodshot eyes, unsteady balance, and poor manual dexterity.
Morris agreed to take a portable breath test, which registered an alcohol content of .138.
A later blood test indicated Morris had a blood alcohol content of .158. Celeste died
from her injuries later in the morning of October 4.
On October 21, 2009, the State charged Morris with Class C felony causing death
while operating a vehicle with a blood alcohol equivalent of .08 or more. On July 9,
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2012, Morris agreed to plead guilty to the lesser included offense of Class A
misdemeanor OWI. The plea agreement provided that Morris “shall be sentenced at the
discretion of the Court,” but made no mention of restitution. App. p. 33. The agreement
also noted certain required terms of probation, including mandatory drug and alcohol
testing, although it did not expressly state that Morris would be receiving a term of
probation. The agreement further stated that Morris was forfeiting “all grounds for
review of any aspect of this case whether by appeal or post-conviction relief” and that he
“knowingly, intelligently, and voluntarily waives her [sic] right to challenge the
conviction or sentence on this [sic] basis that it is erroneous.” Id. at 35.
On September 28, 2012, the trial court sentenced Morris to a term of one year,
fully executed. It also ordered Morris to pay $14,972.45 to Celeste’s family as restitution
related to her funeral expenses. Morris now appeals.
Analysis
I. Waiver
Before turning to the merits, we address whether Morris’s guilty plea waived the
ability to challenge his sentence on direct appeal.1 It is clear that “a defendant may waive
the right to appellate review of his sentence as part of a written plea agreement.” Creech
v. State, 887 N.E.2d 73, 75 (Ind. 2008). A waiver of that kind should be given effect if
“‘the record clearly demonstrates that it was made knowingly and voluntarily.’” Id.
(quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)). The specific
1
The State acknowledges that the ability to seek post-conviction review of a guilty plea cannot be
waived. See Creech v. State, 887 N.E.2d 73, 75-76 (Ind. 2008).
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waiver that was upheld in Creech stated, “I hereby waive my right to appeal my sentence
so long as the Judge sentences me within the terms of my plea agreement.” Id. at 74.
Other cases following Creech that have found waiver addressed similar statements in plea
agreements. See Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans.
denied. Still other cases have found waiver where the plea agreement said, “Defendant
further waives the right (under Indiana Appellate Rule 7 and I.C. 35-38-1-15 or
otherwise) to review of the sentence imposed,” Brattain v. State, 891 N.E.2d 1055, 1057
(Ind. Ct. App. 2008), or that the defendant had waived “the right to challenge the
‘reasonableness’ of the Court’s sentence under Appellate Rule 7(B), waived the right to
challenge the Court’s findings as to aggravating and mitigating circumstances, and
waived the right to challenge the weighing of aggravating and mitigating circumstances,”
Buchanan v. State, 956 N.E.2d 124, 125 (Ind. Ct. App. 2011).
The purported waiver of the right to appeal in this case was much less clear than
the waivers in the above cases. There was, first, a general waiver of appellate review “of
any aspect of this case” and a more specific waiver of the ability to challenge an
“erroneous” sentence. App. p. 35. In legal terms, an “erroneous” sentence is not the
same as an “inappropriate” sentence. An “erroneous” sentence, which may be attacked
by a motion to correct erroneous sentence under Indiana Code Section 35-38-1-5, is one
that is erroneous “on its face” without reference to proceedings before, during, or after
trial. Davis v. State, 937 N.E.2d 8, 10-11 (Ind. Ct. App. 2010). Our supreme court has
recently observed that “the ‘appropriateness’ of a sentence has no bearing on whether a
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sentence is erroneous . . . .” Kimbrough v. State, 979 N.E.2d 625, 630 (Ind. 2012). Even
when a trial court has acted within its lawful discretion when imposing sentence, that
sentence still may be characterized by an appellate court as “inappropriate” under Indiana
Appellate Rule 7(B). Id. at 629.
Plea agreements are contractual in nature, and the general rule is that any
ambiguities in such agreements must be construed against the State because the State
ordinarily drafts them. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008),
trans. denied. We conclude that the purported waiver provisions in the boilerplate plea
agreement drafted by the State here are ambiguous as to whether Morris was giving up
his right to challenge his sentence as inappropriate under Rule 7(B). As such, we will
construe that ambiguity against the State and give Morris the benefit of the doubt and
address the appropriateness of his sentence.2 We also believe it is clear that any
purported waiver could not preclude Morris from challenging a sentencing term that
exceeded the scope of the plea agreement, as it would constitute a violation of the
agreement itself by the trial court. See id.
II. Appropriateness
Before turning to whether Morris’s sentence is inappropriate, we note that he also
alleges that the trial court abused its discretion in sentencing him. However, it is clear
that abuse of discretion review of a sentence, which concerns a trial court’s duty to issue
a sentencing statement along with its findings of aggravators and mitigators, has no place
2
We need not address whether this waiver could have affected abuse of discretion review of a sentence,
given our discussion below.
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in reviewing a misdemeanor sentence. See Cuyler v. State, 798 N.E.2d 243, 246 (Ind. Ct.
App. 2003), trans. denied; see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)
(stating that post-Blakely revisions to sentencing statutes included sentencing statement
requirement “whenever imposing sentence for a felony offense”). We will not further
address Morris’s abuse of discretion claims.
We now assess whether Morris’s one-year fully executed sentence is inappropriate
under Rule 7(B) in light of his character and the nature of the offense. Although Rule
7(B) does not require us to be “extremely” deferential to a trial court’s sentencing
decision, we still must give due consideration to that decision. Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
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case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Regarding the nature of the offense, Morris was involved in a very serious ATV
accident while he had a blood alcohol content well above the per se legal limit of .08.
The minimum facts necessary to support Morris’s conviction for Class A misdemeanor
OWI were that he operated a vehicle while intoxicated in a manner that endangered a
person. See Ind. Code § 9-30-5-2(b). Morris’s involvement in a very serious accident
went well beyond that minimum.
Morris argues that we should not consider the fact of Celeste’s death as evidence
of the egregiousness of the offense, because the State agreed to dismiss the charge of
operating with a BAC exceeding .08 resulting in death in exchange for his guilty plea.
Morris cites Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002), which held
that a trial court cannot rely on facts underlying charges that have been dismissed as part
of a plea agreement as aggravating circumstances. Our supreme court recently decided
Bethea v. State, No. 18S05-1206-PC-304 (Ind. March 12, 2013), in which it effectively
overruled Farmer and similar cases, such as Roney v. State, 872 N.E.2d 192 (Ind. Ct.
App. 2007). Rather, the court held that unless a plea agreement expressly forecloses the
possibility of the trial court enhancing a sentence based on elements or evidence related
to charges dismissed in exchange for the plea, “it is not necessary for a trial court to turn
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a blind eye to the facts of the incident that brought the defendant before them.” Bethea,
slip op. at p. 12. Here, there was nothing in Morris’s plea agreement that forbid
consideration of the undisputed fact that Celeste died as a result of this accident in
considering what sentence to impose. As such, we conclude that the severity of the
accident, including Celeste’s death, makes this particular offense very egregious, much
more so than the “typical” Class A misdemeanor OWI.
Regarding Morris’s character, it is true as he argues that he pled guilty. However,
a guilty plea may not be entitled to much weight in considering a sentence if it is clear the
decision to plead guilty was merely a pragmatic one because of the weight of the State’s
evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied.
Again, there appears to be no doubt here that the ATV accident resulted in Celeste’s
death, and Morris received a significant benefit from the plea agreement in the dismissal
of the C felony charge in exchange for an A misdemeanor conviction. Morris also has no
prior criminal convictions. He was, however, charged for operating a vehicle with a
BAC exceeding .15 twice before, in 2008 and 2003. The 2008 charge was dismissed
without explanation, and the 2003 charge was dismissed after Morris successfully
completed a pre-trial diversion program. Although those charges do not technically
constitute a criminal history because they were never reduced to convictions, they still
indicate that Morris had twice before been subjected to the police power of the State and
was specifically warned of the dangers of OWI but was not deterred from committing the
present offense. See Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). We conclude
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Morris’s one-year executed sentence is not inappropriate in light of the nature of the
offense and his character.
In a related argument, Morris argues that the trial court violated the plea
agreement by failing to suspend any portion of his sentence to probation. He notes that
the plea agreement makes specific reference to required terms of probation and argues
that this necessarily implies that the trial court had to impose a term of probation. We
disagree. The listing of required terms of probation clearly was part of a boilerplate plea
agreement that would apply in the event the trial court decided to exercise its discretion
to impose probation. Regarding that discretion, the plea agreement was very clear in
stating that the trial court had unfettered discretion in choosing what sentence to impose.
To the extent Morris argues that his guilty plea was involuntary because he was under the
impression that the trial court would impose a term of probation, such an argument must
be raised, if at all, through a post-conviction relief proceeding and not on direct appeal.
See Stringer v. State, 899 N.E.2d 748, 750 (Ind. Ct. App. 2009).
III. Restitution
Finally, we address Morris’s challenge to the restitution order of $14,972.45 for
Jennifer’s burial expenses. Morris contends there is insufficient evidence to support that
order and that it improperly applies to the C felony charge that was dismissed as part of
the plea bargain. However, there is a more fundamental problem with that order: the
plea agreement was completely silent on whether Morris could be ordered to pay
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restitution.3 It is clear that when a plea agreement is silent on the issue of restitution, a
trial court may not order the defendant to pay restitution as part of his or her sentence;
such an order exceeds the scope of the plea agreement. Sinn v. State, 693 N.E.2d 78,
80 (Ind. Ct. App. 1998). Thus, we reverse the order that Morris pay $14,972.45 in
restitution.
Conclusion
Although we decline to find that Morris waived his challenge to the
appropriateness of his sentence, we find that sentence to be appropriate. However, we
reverse the restitution order against him.
Affirmed in part and reversed in part.
BAKER, J., and RILEY, J., concur.
3
It does not appear that Morris objected before the trial court to there being any award of restitution.
However, this court will review the propriety of restitution orders on appeal, even where it was entered
without objection by a defendant, because of our duty to correct illegal sentences. Iltzsch v. State, 972
N.E.2d 409, 412 (Ind. Ct. App. 2012), summarily aff’d in relevant part, 981 N.E.2d 55, 57 (Ind. 2013).
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