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Wednesday, May 21, 2008

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

In Timothy Ray Creech v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

The question here is whether a criminal defendant can, as part of a plea agreement, waive his right to appeal a discretionary sentencing decision. We hold that a defendant can do so, as long as the waiver is knowing and voluntary. * * *

Though the weight of Creech’s brief is to urge that his agreement to waive appeal was not voluntary and intelligent, he also presents a question of first impression: whether such waivers should be enforceable at all. The opportunity for appeal is the prevailing rule. If a defendant’s sentence is not fixed by a plea agreement, for example, a defendant “who pleads guilty is entitled to contest on direct appeal the merits of a trial court’s sentencing decision.” Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004). The same is true even when the defendant agrees to a sentencing cap or range. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).

The issue here is whether, through a plea agreement, a defendant can waive altogether this right to appellate review of his sentence. * * *

The Seventh Circuit has declared, aligning itself with virtually every other federal court of appeals, 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.” United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999). The Seventh Circuit “has consistently upheld valid appeal waivers and dismissed appeals taken in contravention.” * * *

While the matter is not free from doubt, we find this reasoning persuasive. Accordingly, we hold that a defendant may waive the right to appellate review of his sentence as part of a written plea agreement. This holding does not affect our very long-standing policy that a defendant who can establish in a post-conviction proceeding that his plea was coerced or unintelligent is entitled to have his conviction set aside. * * *

Moreover, we do not mean to alter our case law invalidating provisions that waive post-conviction rights. * * *

Creech argues that, despite the express language of the written plea agreement, he should not be deemed to have waived his right to appellate review of his sentence because (1) the judge advised him that he retained the right to appeal and (2) the trial judge made no express or implied finding that Creech intended to waive his appellate rights. We disagree. * * *

Creech does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it, but rather claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal. * * *

By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction. The federal authorities appear to take the same view. * * *

As to Creech’s second argument that the trial court should have made an express finding as to whether he intended to waive his appellate rights, neither the Indiana Rules of Criminal Procedure nor Indiana Code requires trial courts that accept plea agreements to make express findings regarding a defendant’s intention to waive his appellate rights. Acceptance of the plea agreement containing the waiver provision is sufficient to indicate that, in the trial court’s view, the defendant knowingly and voluntarily agreed to the waiver.

Conclusion We affirm the trial court’s sentence.

Posted by Marcia Oddi on May 21, 2008 12:01 PM
Posted to Ind. Sup.Ct. Decisions