Andrew Lamont Swanson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 15 2016, 11:43 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Adam C. James Gregory F. Zoeller
Shelbyville, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Lamont Swanson, November 15, 2016
Appellant-Defendant, Court of Appeals Case No.
73A01-1604-CR-967
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Chris D. Monroe,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
73D02-1603-F6-116
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016 Page 1 of 4
Statement of the Case
[1] Andrew Lamont Swanson appeals his sentence following his convictions for
identity deception, as a Level 6 felony, and driving while license suspended, as
a Class A misdemeanor, pursuant to a guilty plea. Swanson presents two issues
for our review, namely, whether his sentence and placement in the Department
of Correction (“DOC”) are inappropriate in light of the nature of the offenses
and his character. We hold that, because Swanson agreed to a two-year
executed sentence in the DOC as part of his plea agreement, Swanson may not
challenge the appropriateness of his sentence or his placement in this direct
appeal. We affirm.
Facts and Procedural History
[2] On March 28, 2016, in open court, Swanson pleaded guilty to identity
deception, as a Level 6 felony, and driving while license suspended, as a Class
A misdemeanor.1 In exchange for that plea, the State agreed to an aggregate
sentence of two years executed in the DOC, and the State granted Swanson
“immunity from a further perjury charge.” Appellant’s Br. at 13. Swanson
agreed to those terms, and the trial court entered judgment of conviction and
sentence accordingly. This appeal ensued.
1
A third charge for false informing was dismissed.
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Discussion and Decision
[3] Swanson contends that his sentence is inappropriate in light of the nature of the
offenses and his character. However, as our supreme court has held, where a
plea agreement includes a defendant’s agreement to a specific sentence, such
defendant may not challenge the sentence by means of a timely or belated direct
appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). Again, here, in open
court, the State offered Swanson a plea agreement whereby he would be
sentenced to “two years executed at the [DOC],” and Swanson agreed. Tr. at
7. Further, the trial court expressly advised Swanson that “when you accept a
plea offer . . . for a specific executed sentence, you also give up the right to
appeal the sentence itself.” Id. at 15. The trial court asked Swanson whether he
understood that, and Swanson stated that he did. Swanson accepted the plea
agreement, including the two-year executed sentence in the DOC, and,
therefore, “his sentence is not available for Rule 7(B) review.” Hole v. State, 851
N.E.2d 302, 304 (Ind. 2006).2
[4] Finally, Swanson is also precluded from challenging “his placement at the
Indiana Department of Correction [as] inappropriate in light of the nature of
the offense and his character.” Appellant’s Br. at 10. Again, the plea
2
We note that the written sentencing order indicates that Swanson’s plea was “open.” Appellant’s App. at
13. However, because the transcript unambiguously shows that Swanson’s plea agreement was closed in that
it provided for an executed two-year sentence in the DOC, the notation in the written sentencing statement is
an error. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (holding that, “[r]ather than presuming the
superior accuracy of the oral statement, we examine it alongside the written sentencing statement to assess
the conclusions of the trial court. This Court has the option of crediting the statement that accurately
pronounces the sentence or remanding for resentencing.”).
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agreement here specified Swanson’s placement at the DOC. Tr. at 7.
Accordingly, his placement was not subject to the trial court’s discretion, and
the issue is not available on direct appeal. See Hole, 851 N.E.2d at 304 n.4
(noting that placement is subject to Appellate Rule 7(B) review where plea
agreement gives trial court discretion to sentence defendant to community
corrections program or the Department of Correction).
[5] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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