Keith L. Johnson 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
May 08 2017, 10:03 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David K. Payne Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Michigan City, IN Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith L. Johnson, May 8, 2017
Appellant-Defendant, Court of Appeals Case No.
46A03-1602-CR-329
v. Appeal from the LaPorte
Superior Court
State of Indiana,
Appellee-Plaintiff. The Honorable Michael S.
Bergerson, Judge
Trial Court Cause No.
46D01-1506-F3-523
Brown, Judge.
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[1] Keith L. Johnson appeals his sentence for his conviction for robbery as a level 3
felony and for being an habitual offender. Johnson raises two issues which we
revise and restate as whether the trial court abused its discretion in sentencing
him or whether his sentence is inappropriate. The State cross-appeals and
raises the issue of whether Johnson has waived the right to appeal his sentence.
We determine that Johnson has waived the right to appeal his sentence and
remand for resentencing on the habitual offender enhancement.
Facts and Procedural History
[2] On June 23, 2015, Johnson and a woman went to a consignment and resale
business in Michigan City, Indiana, and knowingly or intentionally took
property from the owner by threat of force while armed with a deadly weapon.
Johnson knew when he went in with her the woman she was robbing the store,
and he served as a lookout for her. On June 24, 2015, the State charged him
with: Count I, robbery as a level 3 felony; and Count II, possession of a firearm
by a serious violent felon as a level 4 felony. On October 5, 2015, the State
alleged that Johnson was an habitual offender under Count III.
[3] Johnson and the State entered into a written plea agreement, pursuant to which
Johnson agreed to plead guilty to robbery as a level 3 felony as charged under
Count I and to admit being an habitual offender as alleged under Count III.
The agreement provided:
On Count I – Robbery, [Johnson] will be sentenced to ten (10)
years in the Indiana Department of Correction;
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On Count III – Habitual Offender, [Johnson] will have an argued
sentence to determine sentence; . . . .
Appellant’s Appendix Volume II at 32. The agreement provided that, upon
sentencing, the remaining count would be dismissed. In addition, the
agreement stated:
[Johnson] understands that in consideration of the State’s entry
into this plea agreement, he expressly waives his right to appeal
or to contest any sentence and any restitution order imposed or
the manner in which the conviction or sentence or the restitution
order was determined or imposed, to the Indiana Court of
Appeals, the Indiana Supreme Court or any other Court on any
ground, including any claim of ineffective assistance of counsel
unless the claimed ineffective assistance of counsel relates
directly to this waiver or its negotiation, including any
proceeding under Indiana Post-Conviction Rules 1 and 2 or 28,
United States Code, Section 2254.
Id. at 34.
[4] Pursuant to the plea agreement, Johnson pled guilty to robbery as a level 3
felony under Count I and admitted to being an habitual offender under Count
III. The court held a sentencing hearing and sentenced him to ten years for his
conviction for robbery as a level 3 felony under Count I. With respect to the
habitual offender allegation the court stated that it had considered the
presentence investigation report, the arguments at the sentencing hearing, and
the victim’s statements. It referred to mitigating and aggravating circumstances,
and sentenced Johnson to twenty years as an habitual offender to be served
consecutive to the ten-year sentence for robbery. The court advised Johnson
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“you’re entitled to file an Appeal or file a Motion to Correct Error” and “if you
cannot afford to hire an attorney one would be appointed for you at the
county’s expense.” Transcript at 78. The court then asked “[i]s it your
intention to want to file a Motion to Correct Errors or file a Precipe to Appeal
the decision of the Court,” and Johnson’s counsel answered affirmatively on
behalf of Johnson. Id.
[5] The court’s written sentencing order states the court sentenced Johnson to ten
years for robbery as a level 3 felony under Count I and, “on Count III, Habitual
Offender to twenty (20) years.” Appellant’s Appendix Volume II at 63. The
court further ordered “that the sentences be served consecutively.” Id.
Additionally, entries in the chronological case summary and the abstract of
judgment indicate that the court entered a term of ten years for robbery as a
class 3 felony under Count I and a term of twenty years for being an habitual
offender 1 and ordered that the sentence for the habitual offender finding be
served consecutive to the sentence under Count I. Johnson filed a notice of
appeal. The State filed a motion to dismiss with this Court arguing that
Johnson waived his right to appeal based on the terms of the plea agreement.
Johnson filed a response stating that the trial court stated at the guilty plea
hearing that, by pleading guilty, he would limit his ability to appeal and argues
1
While the sentencing order refers to the habitual offender finding under Count III, the abstract of judgment
and chronological case summary appear to identify the habitual offender designation under Count II.
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that his waiver was not made knowingly or voluntarily. We denied the State’s
motion to dismiss.
Discussion
[6] Johnson contends the trial court abused its discretion in imposing a sentence of
twenty years for being an habitual offender in addition to his sentence for
robbery, and that his sentence is inappropriate in light of the nature of the
offense and his character. The State cross-appeals, arguing Johnson specifically
waived any appeal of his sentence pursuant to his plea agreement, and that,
waiver notwithstanding, the court properly determined the sanction for the
habitual offender finding. It states that “[a]t sentencing the parties mistakenly
believed that being a habitual offender was a crime subject to being sentenced as
a crime and not the status offense that it actually is,” “[i]n imposing the 20 year
enhancement, the trial court mistakenly determined the presence of aggravating
and mitigating circumstances,” and “[h]owever, because aggravating and
mitigating circumstances do not apply to habitual offender enhancements, the
trial court’s determination was, in all respects, harmless.” Appellee’s Brief at
13. The State also notes the trial court treated the habitual offender
enhancement as a separate sentence and states that we may wish to remand
with instructions to properly impose the habitual offender enhancement. In
reply, Johnson asserts that he did not knowingly or voluntarily waive his right
to appeal and notes that the trial court advised him at the guilty plea proceeding
that his guilty plea would “somewhat limit your ability to appeal.” Appellant’s
Reply Brief at 5 (citing Transcript at 30).
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[7] The Indiana Supreme Court has held 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). In Creech, the Court adopted the view of
the Seventh Circuit which declared “that defendants ‘may waive their right to
appeal as part of a written plea agreement . . . as long as 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 Court also indicated
that a trial court’s statements that led a defendant to believe that he retained the
right to appeal at the sentencing hearing were not grounds to circumvent the
terms of the plea agreement. Id. at 76. Specifically, the Court held that, by the
time the trial court erroneously advised the defendant of the possibility of
appeal, the defendant had already pled guilty and received the benefit of his
bargain. Id. at 77.
[8] Here, the plea agreement provides:
[Johnson] understands that . . . he expressly waives his right to
appeal . . . any sentence . . . imposed or the manner in which the
. . . sentence . . . was determined or imposed . . . on any ground,
including any claim of ineffective assistance of counsel unless the
claimed ineffective assistance of counsel relates directly to this
waiver or its negotiation . . . .
Appellant’s Appendix Volume II at 34.
[9] The following exchange between the court and Johnson occurred at the guilty
plea hearing:
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Q. In addition, if you were to [sic] of had that trial and you were
found guilty, you’d also have the right to [a]ppeal your
conviction to the Supreme Court or the Court of Appeals as the
case maybe [sic]. Do you understand that by pleading guilty you
somewhat limit your ability to file that appeal?
A. Yes, sir.
*****
Q. And do you understand, the charge to which you are
pleading guilty is Robbery, as a Level 3 Felony, as charged under
Count I of the Charging Information? In addition, you’re also
gonna plead guilty to Count III, habit - as being an Habitual
Offender as charged under Count III of the Charging
Information?
A. Yes, sir.
*****
Q. Have you seen a copy of the Charging Information?
A. Yes, I have it right in front of me, sir.
Q. And do you need to have that reread to you at this point in
time?
A. No, sir.
Q. And do you understand the possible penalties that could be
attached to those charges if you were found guilty?
A. Yes, Sir.
*****
Q. I have before me what purports to be a Plea Agreement with
your signature on it. First of all, did you sign it?
A. Yes, sir.
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Q. And did you read it before you signed it?
A. Yes, I did.
Q. Did you discuss it with your attorney again before you signed
it? Af -- I mean are you reaffirming that that’s your signature --
A. Yes.
Q. -- and that you want to go through this exercise today?
A. Yes, Sir.
*****
Q. And again, what’s -- with respect to the Robbery charge,
what’s gonna be the, the term of commitment to the Department
of Correction that’s being proposed?
A. Ten years.
Q. And with respect to the Habitual Offender charge, what is
your understanding as to how that case is gonna be disposed of?
A. As far as I know I get up to -- from six to 20 years on that
one.
Q. And that -- how is that gonna be determined by the, by
argument?
A. As far as I know, yes, sir.
Q. Okay, you’re gonna ar -- you and your -- your attorney and
you and the State are gonna have a hearing with the Court and
then I’ll decide at, at some point in the future between that six to
14 years how much time should be imposed?
A. Yes, that’s from what I’m understanding.
Transcript at 30-31, 33-36 (emphasis added).
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[10] To the extent the plea agreement states that Johnson waives his right to appeal
“any sentence . . . on any ground, including any claim of ineffective assistance
of counsel unless the claimed ineffective assistance of counsel relates directly to
this waiver or its negotiation,” Appellant’s Appendix Volume II at 34, we
cannot say that the provision creates an ambiguity or allows Johnson to raise
the issues of whether the trial court abused its discretion in sentencing him or
whether his sentence is inappropriate. Further, to the extent the court asked
Johnson at the guilty plea hearing whether he understood “that by pleading
guilty you somewhat limit your ability to file that appeal,” Transcript at 30, we
cannot say that the question created uncertainty regarding the issues Johnson
was and was not entitled to appeal under the plea agreement. Johnson
indicated that he read and discussed the plea agreement with his attorney before
he signed it. Also, we observe that under Creech the fact that the trial court
made a statement at the sentencing hearing, after imposing a sentence,
informing Johnson that he was entitled to take an appeal does not invalidate
Johnson’s plea where he received the benefit of his bargain, or invalidate his
waiver of his right to appeal.
[11] Based upon the language in the plea agreement and the trial court’s advisement
at the guilty plea hearing, we conclude that Johnson waived his right to appeal
his sentence. See Creech, 887 N.E.2d at 74-75 (holding the defendant waived his
right to appeal his sentence, including his claim that his sentence was
inappropriate, pursuant to the express language in his written plea agreement
stating that he waived his right to appeal his sentence so long as the judge
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sentenced him within the terms of his plea agreement). We accordingly do not
address Johnson’s claims that the trial court abused its discretion in sentencing
him or that his sentence is inappropriate.
[12] We also observe, as the State acknowledges, that the trial court erroneously
entered a separate twenty-year sentence for the habitual offender finding to be
served consecutive to his sentence for robbery. Ind. Code § 35-50-2-8 provides
that an habitual offender finding does not constitute a separate crime or result
in a separate sentence. Rather, an habitual offender finding results in a
sentence enhancement imposed upon the conviction of a subsequent felony.
Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). The court’s sentencing
order entered a sentence of twenty years on the habitual offender count and
ordered the sentence to be served consecutive to his sentence for robbery.
Similarly, the abstract of judgment and chronological case summary list a
separate sentence on the habitual offender count and do not reflect that the
habitual offender enhancement was attached to Johnson’s sentence for robbery
as a level 3 felony. We remand for resentencing on the habitual offender
enhancement.
Conclusion
[13] For the foregoing reasons, we remand for resentencing on the habitual offender
enhancement.
[14] Remanded.
Vaidik, C.J., and Bradford, J., concur.
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