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Thursday, May 22, 2008

Ind. Decisions - More on: Supreme Court holds that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement

Yesterday's Supreme Court decision in the case of Timothy Ray Creech v. State of Indiana is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly:

The Indiana Supreme Court ruled Wednesday that a Huntington County child molester could not appeal his sentence, which was the result of a voluntary plea agreement.

Timothy R. Creech, 49, pleaded guilty in late 2006 to fondling a young girl on multiple occasions. Part of the plea agreement read, “I hereby waive my right to appeal my sentence so long as the judge sentences me within the terms of my plea agreement."

But Creech appealed anyway, and the Indiana Court of Appeals ruled he had given up his right to do so.

Complicating the matter is that the trial judge told him at his original sentencing hearing that he could appeal the sentence and the prosecutor did not correct him.

Indiana doesn’t allow defendants to appeal in cases of fixed plea agreements, such as when the prosecution and defense agree to an exact sentence of 10 years.

But this case involved an open plea agreement in which the judge still had some discretion. The molesting conviction carried a possible sentence of between two years and eight years in prison, and the agreement capped the executed portion of the sentence at six years.

He received a six-year sentence.

The Indiana Supreme Court heard the case late last year and issued an opinion Wednesday that first clarified that defendants may waive their right to appeal a discretionary sentencing decision as part of a plea agreement.

As for Creech specifically, the court noted that he did not claim the language of the plea agreement was unclear or that he misunderstood the terms of the agreement when he signed it.

“Creech argues that he did not knowingly and voluntarily waive his right to appeal, despite the express language in the written plea agreement, because the court made statements at the close of the sentencing hearing that led him to believe that he retained the right to appeal.

“While we take this opportunity to emphasize the importance of avoiding confusing remarks in a plea colloquy, we think the statements at issue are not grounds for allowing Creech to circumvent the terms of his plea agreement.”

Posted by Marcia Oddi on May 22, 2008 07:41 AM
Posted to Ind. Sup.Ct. Decisions