Michael Anthony Torrence v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
08/28/2017, 10:30 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Michael Anthony Torrence Curtis T. Hill, Jr.
Branchville, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Anthony Torrence, August 28, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2542
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Renner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1504-F4-13115
Bailey, Judge.
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Case Summary
[1] Michael Anthony Torrence (“Torrence”), pro se, appeals his sentence,
following a guilty plea, for his conviction of unlawful possession of a firearm by
a serious violent felon, as a Level 4 felony.1 He raises two issues on appeal.
However, because he waived his right to appeal his sentence, we dismiss.
Facts and Procedural History
[2] On April 14, 2015, the State charged Torrence with Count I, unlawful
possession of a firearm by a serious violent felon, as a Level 4 felony; 2 Count II,
possession of cocaine, as a Level 5 felony;3 Count III, maintaining a common
nuisance, as a Level 6 felony;4 and Count IV, possession of paraphernalia, as a
Class A misdemeanor.5 Torrence posted bond and was released from the
Marion County Jail on September 1, 2015. On May 5, 2016, Torrence and the
State entered into a plea agreement which stated, in relevant part, as follows:
2. Defendant enters into this agreement knowing that the
Court has the authority to accept or reject the agreement and
understands that the Court may take the Defendant’s criminal
1
Ind. Code § 35-47-4-5(c) (2015).
2
Torrence had previously been convicted of dealing in cocaine or a narcotic drug, I.C. § 35-48-4-1, which is
a serious violent felony. I.C. § 35-47-4-5(b)(24).
3
I.C. § 35-48-4-6(a).
4
I.C. § 35-48-4-13(b)(1) (current version at I.C. § 35-45-1-5).
5
I.C. § 35-48-4-8.3(a)(1).
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record into consideration in determining whether to accept or
reject this plea agreement.
3. The Defendant agrees to plead guilty to: UNLAWFUL
POSSESSION OF A FIREARM BY A SERIOUS VIOLENT
FELON, a level 4 felony, as charged in Count I.
4. At the time of sentencing, the State will dismiss: [the
remaining charges].
5. At the time of the taking of the guilty plea and again at the
time of the Defendant’s sentencing, the State reserves the right to question
witnesses and comment on any evidence presented upon which the Court
may rely to determine the sentence to be imposed; to present testimony
or statements from the victim(s) or victim representative(s), and
the State of Indiana and the Defendant agree[] that the Court
shall impose the following sentence:
a. A total of ten (10) years, with an initial executed
sentence of five (5) years executed placement open to the
Court. The State agrees to make no recommendation as to
placement. The remaining five (5) years suspended …
b. All remaining terms to be determined by the Court, after
argument by the parties.
***
6. Defendant hereby waives the right to appeal any sentence imposed
by the Court, including the right to seek appellate review of the
sentence pursuant to Indiana Appellate Rule 7(B), so long as the
Court sentences the defendant within the terms of this plea agreement.
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7. The Defendant acknowledges that the State’s
recommendation, or agreement to make no recommendation, is
based on the Defendant’s criminal history known to the Deputy
Prosecutor representing the State at the time this agreement is
executed and who entered into the agreement. In the event that
such information is incomplete, that a further or more accurate
criminal history is discovered prior to the entry of judgment or
the Defendant is charged with the commission of another offense
prior to sentencing, the State reserves the right to unilaterally
withdraw from this agreement at any time prior to the entry of
judgment herein.
8. The Defendant understands and acknowledges by his/her
initials that if this agreement is accepted by the Court, the
Defendant will give up the following rights:
***
(g) the right to appeal the conviction(s).
***
10. The Defendant acknowledges satisfaction with Defense
Counsel’s representation and competency in this matter. The
Defendant believes this agreement to be in the Defendant’s best
interest.
11. The Defendant acknowledges that he/she has a right to pursue
post-conviction relief, if there is a legal and factual basis to do so,
and that entering a guilty plea herein does not operate as a
waiver of that right.
Appellant’s App. at 14-15 (emphases added).
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[3] Torrence initialed sections 5(a) and sections six through twelve of the plea
agreement, and he and his counsel signed the plea agreement. The trial court
held a guilty plea hearing on that same date, at which Torrence informed the
court that he had read the plea agreement with his attorney, and that his
attorney had explained to him all of the terms of the agreement and answered
all his questions. The trial court informed Torrence of the constitutional rights
he would waive by entering into the plea agreement, and Torrence stated that
he understood and was “willing to give up those rights.” Tr. at 4-5. Torrence
also admitted to the facts necessary to find that he committed the offense.
Torrence stated that he understood and agreed to the plea agreement, and the
trial court accepted his guilty plea.
[4] On August 22, 2016, the trial court held a sentencing hearing at which the
prosecutor informed the court that there was one change to Torrence’s
presentence investigation report (“PSI”), namely, that he had been arrested on a
new offense on August 4, 2016. The prosecutor asked the court to add the
pending charges to the PSI.
[5] After Torrence testified on his own behalf, he asked the trial court to place him
on work release for the executed portion of his sentence. In response, the
following colloquy occurred:
STATE: No questions. I just want to point out a few things. I
know I cannot make the recommendation as to placement –
COURT: Okay.
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STATE: -- but I would still like to make note of a couple of
items.
***
STATE: Thank you. I just wanted to note that Mr. Torrence
had been on Marion County Community Correction for 21 days
when he picked up the arrest on this matter. He was out on bond
pending sentencing when he picked up the most recent case,
which the State noted that addition to the PSI. … I would also
like to note that this is his 11th felony conviction, so –
TORRENCE: I give up.
STATE: I will leave it at that.
Tr. Vol. II at 23-24.
[6] The trial court then sentenced Torrence as follows:
COURT: All right. Well, in considering the sentence in this
case, I’ve considered the Pre-Sentence Investigation, the
testimony of the Defendant, the argument of the Parties. I do
find one mitigating circumstance that Defendant has entered into
a plea of guilty in this case. I think that is a mitigating factor.
Aggravating factor would be that he is – was on community
corrections at the time this offense was committed for another
case. He was convicted in 2005—I’m sorry, he does have a
history of—a prior history of delinquency or criminal
convictions. And again, I’m referring to the pre-sentence.
***
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I do find the aggravating outweigh the mitigating circumstances
in this case. I’ll enter a conviction for a serious violent felony as
a—possession of a firearm, a serious violent felon a Level 4
felony. I’m going to sentence him to ten years in the Indiana
Department of Corrections. Five years of those—five years of
that sentence will be executed in the Indiana Department of
Correction. The remaining will be suspended with the exception
of one-day non-reporting probation.
Id. at 25-26. The trial court also granted the State’s motion to dismiss the
remaining charges. Torrence now appeals his sentence.
Discussion and Decision
[7] Torrence appeals his sentence6 on the grounds that the prosecutor engaged in
misconduct and his defense counsel was ineffective for failing to object to that
misconduct. However, Torrence entered into a plea agreement with the State
under which he explicitly waived his right to appeal his sentence “so long as the
Court sentences the defendant within the terms of this plea agreement.”
Appellant’s App. at 15. Because the trial court’s sentence was within the terms
of Torrence’s plea agreement, we hold that Torrence waived his right to appeal
that sentence.7
6
He does not, as the State maintains, appeal his convictions. See Appellant’s Br. at 14.
7
Thus, we do not address Torrence’s other claims.
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[8] Our Supreme Court has held that “a defendant may waive the right to appellate
review of his sentence as part of a written plea agreement,” so long as the
waiver is knowing and voluntary.8 Creech v. State, 887 N.E.2d 73, 75 (Ind.
2008). Torrence does not address the waiver issue at all on appeal. However,
he seems to contend that the trial court did not sentence him “within the terms
of the plea agreement,” because the prosecutor made statements at his
sentencing hearing which amounted to a “recommendation as to placement” in
violation of provision 5(a) of the plea agreement. Appellant’s Br. at 13.
[9] The only statements about which Torrence complains are the prosecutor’s
statements that “the Defendant was out on bond, the Defendant violated
community corrections.” Id. Torrence contends that those statements
“impl[ied] that the defendant should serve his executed sentence with the
Indiana Department of Corrections.” Id. We disagree. Those statements are
not recommendations as to Torrence’s placement; rather they are comments on
the evidence of Torrence’s criminal history that was already before the court 9
and upon which the Court could rely to determine the sentence to be imposed.
Such comments were explicitly allowed under provision 5 of the plea
agreement. Appellant’s App. at 14.
8
Torrence does not claim that his waiver of his right to appeal was not knowing and voluntary.
9
See Appellant’s App. at 26-27 (PSI) regarding Torrence’s violation of community corrections due to his
arrest for the charges in this case, and Appellant’s App. at 6 (CCS) regarding Torrence being released on
bond in this case at the time he was arrested for a new offense.
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[10] Because the sentence imposed by the trial court was within the terms of
Torrence’s plea agreement, he waived his right to a direct appeal of that
sentence.
[11] Dismissed.
Baker, J., and Altice, J., concur.
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