Tuesday, August 20, 2013
Ind. Courts - "A Big Waste of County Money and State Resources"
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
More than five years after the Indiana Supreme Court upheld the enforceability of sentencing waiver provisions in plea agreements in Creech v. State, 887 N.E.2d 73 (Ind. 2008), numerous appeals that never should have been filed are still making their way through the Court of Appeals.
And criminal appeals are not free. Counties generally pay appointed counsel an hourly or flat rate. The Attorney General’s office must assign a lawyer to file a brief in response, and the Court of Appeals must then issue a written opinion.
The most recent example is Burnett v. State, where the language of the sentencing waiver provision virtually tracked the provision upheld in Creech, and the defendant did not “claim that he failed to understand the provision or that it was unclear.”
Looking back just a few months, here are other examples:
- Hawkins v. State (“[T]he trial court did not make any contradictions or raise any ambiguities with respect to the plea agreement and the waiver language. The trial court clearly enumerated the rights Hawkins had foregone by pleading guilty and then asked Hawkins if he understood he would have the right to appeal if he went to trial, but that by entering into the plea agreement, he had waived that right.”).
- Willis v. State (“Here, in his plea agreement Willis ‘knowingly and voluntarily agree[d] to waive his right to appeal his sentence . . . .’ (Appellant’s App. 61). The State is therefore correct that Willis has waived appellate review of the appropriateness of his sentence.”)
- White v. State (“Here, White’s plea agreement specifically provided that he was waiving the right to appeal his sentence, and White acknowledged to the trial court that his plea was voluntary.”).
Some of these appeals result from imprecise or sloppy language in plea agreements. Although I’m in no way advocating that every prosecutor include a sentencing waiver provision in every plea agreement, if the term is going to be included it should be carefully drafted to obviate an appeal of the sentence. Here are a few examples of problematic plea language:
- Westlake v. State (“[T]he waiver clearly forecloses Westlake’s right to challenge his sentence pursuant to Indiana Appellate Rule 7(B), but does not prohibit him from raising the issue of whether the trial court abused its discretion.”).
- Morris v. State (“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.”).
- Duff v. State (“Here, the State admits in its argument that the plea agreement provides that Duff may suffer consequences if she appeals her sentence. The plain language of the plea agreement lists the possible consequences if Duff appeals her sentence. Clearly, the plea agreement would not provide such consequences if Duff waived her right to appeal. As such, we conclude that Duff has not waived her right to appeal.”)
Other appeals result from the judge’s role during the guilty plea hearing or afterward. As discussed in Hawkins (quoted below), defendants may be entitled to relief in narrow circumstances, which are entirely avoidable if the trial court exercise care in the plea colloquy. Those cases are Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied.
Ricci involved a written plea agreement which provided that the defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea hearing, the trial court unambiguously stated that, according to its reading, Ricci had not surrendered the right to appeal his sentence, and the trial court’s statement was not contradicted by counsel for either party. Id. In those circumstances, we concluded that all parties entered the plea agreement with the understanding that Ricci retained the right to appeal his sentence and held the waiver to be a nullity. Id. at 1094.Judges can carefully review the plea provision with a defendant—or simply say nothing in the face of a carefully drafted plea provision according to Creech. Problems arise when judges muddy the waters with statements such as those in Bonilla and Ricci.
A similar situation occurred in Bonilla. Bonilla entered into a written plea agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing, the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id. However, the court proceeded to advise Bonilla of his right to appeal and asked if he understood that right. Id. Given the contradictory information Bonilla received at the plea hearing and the fact that Bonilla was not a native English speaker, we concluded that Bonilla did not waive his right to appeal his sentence. Id. at 590.
Although there is no right to appeal a sentence in the face of a valid waiver provision in a plea agreement, judges nevertheless appoint counsel in some cases. Doing so will start a process that appointed counsel will unlikely be unable to escape—and will likely result in an opinion like the one last week with no winners—and a county’s taxpayers and the state’s limited appellate resources again the loser.
Posted by Marcia Oddi on August 20, 2013 10:35 AM
Posted to Schumm - Commentary