Jordan R. Leinenbach v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2020, 9:24 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jasper, Indiana Attorney General of Indiana
Angela Sanchez
Assistant Section Chief,
Criminal Appeals
Alexandria Sons
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jordan R. Leinenbach, October 26, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-843
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Nathan A.
Appellee-Plaintiff. Verkamp, Judge
Trial Court Cause No.
19C01-1808-F1-867
Mathias, Judge.
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[1] Jordan R. Leinenbach (“Leinenbach”) pleaded guilty in Dubois Circuit Court
to Level 3 felony neglect of a dependent causing serious bodily injury. The trial
court sentenced Leinenbach to the maximum term of sixteen years of
incarceration. Leinenbach appeals and presents two issues, which we restate as:
(1) whether the trial court abused its discretion in sentencing Leinenbach, and
(2) whether the sentence imposed by the trial court is inappropriate in light of
the nature of the offense and the character of the offender. The State cross-
appeals and presents one issue, which we restate as whether Leinenbach waived
his right to appeal in his plea agreement. Concluding that Leinenbach did waive
the right to appeal his sentence in his plea agreement, we affirm.
Facts and Procedural History
[2] At the time relevant to this appeal, Leinenbach had two children with
Cassandra Potts (“Potts”), with whom he cohabitated. The couple’s son,
M.R.L., was born on April 5, 2018, approximately twelve weeks premature. As
a result of his premature birth, M.R.L. spent two months in the neonatal
intensive care unit. The hospital released M.R.L. to his parents’ care on June 8,
2018. The parents were given monitoring and medical equipment to care for the
child at home. They were instructed to make sure that M.R.L. had a constant
supply of oxygen and keep his heart rate monitor and oxygen monitor attached
at all times except when bathing the child. They were also instructed that if they
ever needed to perform CPR on M.R.L. to call 911. Both parents attended
classes at the hospital to train them on how to care for M.R.L. at home, but
Leinenbach admitted that he did not pay attention during the classes.
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[3] At home, the parents did not follow the hospital’s instructions. In fact, between
June 11 and July 30, 2018, M.R.L. was connected to the oxygen monitor only
three times, contrary to the hospital’s instructions that the monitor be on at all
times except when bathing.
[4] On July 29, 2018, Leinenbach and Potts took a nap at 3:00 p.m. Approximately
an hour later, M.R.L. began to cry, which woke the parents up. Leinenbach
checked on the couple’s older child first, which made Potts angry. Potts then
got a bottle for M.R.L. and an alcoholic beverage for herself and took M.R.L.
upstairs to finish his nap. Potts then took a shower. Concerned that Potts was
spending too much time in the shower, Leinenbach checked on her. Potts
appeared to be cold and in shock, so Leinenbach got her some hot food.
Leinenbach then gave M.R.L. a bottle, but the child vomited it all up.
Leinenbach recognized that this was not normal “spit up” from an infant. He
then gave the child another bottle, but M.R.L. again threw it all up.
[5] Later that night, at around 10:00 p.m., Potts called for Leinenbach to come
upstairs. When he did so, he saw that M.R.L.’s oxygen monitor was going off
and that his oxygen levels were very low. Potts and Leinenbach then began to
perform two-finger chest compressions on the child. They performed several
rounds of CPR, with each round lasting approximately ten minutes. After each
round, M.R.L. seemed to improve, but then became unresponsive shortly
afterwards. Leinenbach asked Potts if they should call 911 as instructed, but
Potts insisted that they could manage the situation themselves. When he asked
again whether they should call 911, Potts again said no and stated that if they
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did, she would go to jail. Leinenbach decided not to call 911. And despite living
approximately one block away from the hospital, he did not immediately take
the child to the emergency room. Instead, at approximately 1:30 a.m.,
Leinenbach finally took M.R.L. to the emergency room. M.R.L. was quickly
placed on life support and flown to Children’s Hospital in Louisville, Kentucky.
Two days later, he was taken off life support and died.
[6] A subsequent autopsy of M.R.L. revealed that he had three fractured ribs and
that the fractures were approximately two weeks old. M.R.L. had two bleeds in
his brain and a severe hemorrhaging of the optic nerve. The medical examiner
concluded that the injuries were the result of severe trauma. Hospital personnel
also indicated that the injuries were not related to M.R.L.’s premature birth but
were likely the result of child abuse.
[7] Leinenbach later admitted that Potts had issues controlling her anger and
referred to her as a “monster.” Appellant’s Confidential App. p. 64. He had also
seen Potts handle M.R.L. and the parties’ older child in a rough manner.
Leinenbach’s father had also seen Potts handle M.R.L. in a haphazard manner
without properly supporting the infant’s head. When Leinenbach’s father
scolded Potts for this, Leinenbach told his father to be quiet and that he would
only make things worse. Leinenbach’s father also heard Potts say, in reference
to M.R.L., “[M]y God, why were you born?” Tr. p. 65. Leinenbach was also
aware that Potts used illegal drugs while caring for the children.
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[8] On August 6, 2018, the State charged Leinenbach with two counts: Level 1
felony neglect of a dependent resulting in death and Level 5 felony reckless
homicide. On February 12, 2020, the State amended the charging information
to include an additional charge of Level 3 felony neglect of a dependent causing
serious bodily injury. That same day, Leinenbach agreed to plead guilty to the
Level 3 felony in exchange for the State dismissing the remaining counts. The
plea agreement left sentencing to the discretion of the trial court, noting that the
sentencing range for a Level 3 felony was three to sixteen years. The plea
agreement also contained the following waiver provisions:
12. I understand that by pleading guilty in accordance with this
plea agreement, I knowingly and voluntarily agree to waive my
right to appeal my sentence on the basis that it is erroneous or for
any other reason, so long as the Court sentences me in
accordance with the terms of this plea agreement.
***
15. I hereby certify that I have read the above rights and I
knowingly, intelligently, and voluntarily waive my right to
appeal any sentence imposed by the Court, under any standard of
review, including but not limited to, an abuse of discretion
standard and the appropriateness of the sentence under Indiana
Appellate Rule 7(B), so long as the Court sentences me within
the terms of the plea agreement.
Appellant’s App. p. 50.
[9] On March 13, 2020, the trial court accepted the plea and held a sentencing
hearing. After hearing from several witnesses, including Leinenbach himself,
the trial court found Leinenbach to be “unrepentant, egocentric, [and] self-
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serving.” Tr. p. 84. The trial court found the following as aggravating factors:
(1) that the harm, injury, or loss suffered by M.R.L. was significant; (2) that
Leinenbach had a criminal history that included four misdemeanor convictions
and two felony convictions; (3) that the victim was less than twelve years old;
(4) that Leinenbach had recently violated the terms of his probation, parole, or
community corrections placement; and (5) that Leinenbach was in a position of
care with M.R.L. The trial court found as mitigating factors that Leinenbach
pleaded guilty, thereby admitting some responsibility, and that Leinenbach had
another young child for whom Leinenbach’s incarceration would be a hardship.
The trial court found that the aggravating factors outweighed the mitigating
factors and sentenced Leinenbach to sixteen years of incarceration, with credit
for time served. After imposing the sentence, the trial court told Leinenbach:
You have the right to appeal my sentence. You can file a motion
to correct errors and/or a notice of appeal. It must be filed within
30 days. If you cannot afford an attorney, the Court could
appoint an attorney for you.
Tr. p. 85. Although Leinenbach stated that he did not intend to file an appeal at
that time, he subsequently filed a notice of appeal, and this appeal ensued.
The State’s Cross-Appeal
[10] Because this issue is dispositive, we first address the State’s cross-appeal claim
that Leinenbach waived his right to appeal in his guilty plea. As noted,
Leinenbach’s plea agreement included the following waiver provisions:
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12. I understand that by pleading guilty in accordance with this
plea agreement, I knowingly and voluntarily agree to waive my
right to appeal my sentence on the basis that it is erroneous or for
any other reason, so long as the Court sentences me in
accordance with the terms of this plea agreement.
***
15. I hereby certify that I have read the above rights and I
knowingly, intelligently, and voluntarily waive my right to
appeal any sentence imposed by the Court, under any standard of
review, including but not limited to, an abuse of discretion
standard and the appropriateness of the sentence under Indiana
Appellate Rule 7(B), so long as the Court sentences me within
the terms of the plea agreement.
Appellant’s App. p. 50. The State argues that this clearly and unambiguously
waived Leinenbach’s right to appeal his sentence. We agree.
[11] It is well settled that a defendant may waive the right to appellate review of his
sentence as part of a written plea agreement. Creech v. State, 887 N.E.2d 73, 75
(Ind. 2008).1 In Creech, the defendant entered into a plea agreement that
contained a provision that read in relevant part: “I hereby waive my right to
appeal my sentence so long as the Judge sentences me within the terms of my
plea agreement.” Id. at 74. Our supreme court held that this waiver was valid.
Id.
1
A defendant who waives the right to appeal his sentence may still argue in a post-conviction proceeding that
his plea was coerced or unintelligent. Id.
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[12] Leinenbach’s plea agreement is analogous to all of these cases in which we have
upheld the waiver of the right to appeal a sentence as valid. See, e.g., Starcher v.
State, 66 N.E.3d 621, 621 (Ind. Ct. App. 2016) (holding that defendant waived
right to appeal sentence where plea agreement provided, “[a]s a condition of
entering this plea agreement, defendant knowingly and voluntarily agrees to
waive the right to appeal the sentence on the basis that it is erroneous or for any
other reason so long as the Judge sentences him/her within the terms of this
agreement.”), trans. denied; Mechling v. State, 16 N.E.3d 1015, 1016 n.2 (Ind. Ct.
App. 2014) (holding that defendant waived right to challenge his sentence on
appeal because his plea agreement provided, “I hereby waive my right to appeal
my sentence so long as the Judge sentences me within . . . the terms of this
Agreement,” and “I hereby specifically waive the right to challenge the
reasonableness of the sentence I receive in this cause under Appellate Rule 7(B).
I also specifically waive the right to challenge the sentence on the basis that it is
erroneous.”), trans. denied; Bowling v. State, 960 N.E.2d 837, 838 (Ind. Ct. App.
2012) (holding that defendant waived right to appeal sentence where plea
agreement provided, “[b]y pleading guilty you have agreed to waive your right
to appeal your sentence so long as the Judge sentences you within the terms of
your plea agreement.”), trans. denied.2
2
Leinenbach’s citation to Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013), is unavailing. In that case, the
waiver provision in the plea agreement merely provided that the defendant waived the right to appeal an
“erroneous” sentence. Id. at 366. The Morris court held that this did not preclude a claim that the sentence
was inappropriate under Appellate Rule 7(B) because “an ‘erroneous’ sentence is not the same as an
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[13] Our conclusion is not altered by the fact that, after the trial court had accepted
the plea and sentenced Leinenbach, it misadvised him that he had the right to
appeal his sentence. Our supreme court rejected this line of reasoning in Creech,
where the trial court also misadvised the defendant, after it had accepted the
plea agreement and sentenced him, that he had the right to appeal his sentence.
887 N.E.2d at 77. As explained in Creech, “[b]y 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.” Id.
The same is true here. By the time the trial court misadvised Leinenbach that he
had the right to appeal his sentence, the trial court had already accepted the
plea agreement containing the waiver of the right to appeal. A misadvisement
after the fact does not alter the effect of the waiver.3 See id.
‘inappropriate sentence.’” Id. The plea agreement here was much broader, waiving the right to appeal a
sentence whether “it is erroneous or any other reason,” and specifically waived the right to challenge the
sentence under Appellate Rule 7(B). Appellant’s App. p. 50.
The same is true regarding Leinenbach’s citation to Lacey v. State, 124 N.E.3d 1253 (Ind. Ct. App. 2019). In
that case, the defendant’s plea agreement included a waiver of the right to challenge his sentence. Id. at 1255.
The defendant subsequently filed a statutory motion to correct an erroneous sentence, claiming that his
habitual offender enhancement was improper as a matter of law. Id. On appeal from the trial court’s denial of
this motion, the State did not argue that the waiver provision applied to the motion to correct an erroneous
sentence. Id. Here, unlike the defendant in Lacey, Leinenbach did not file a statutory motion to correct
erroneous sentence; he is simply appealing his sentence. Moreover, Leinenbach does not claim that his
sentence is illegal on its face, as did the defendant in Lacey. We therefore do not find Lacey to be controlling.
3
In contrast, if a trial court at a plea hearing, prior to accepting the plea, misadvises the defendant that,
despite language in a plea agreement to the contrary, he has the right to appeal his sentence, and neither the
prosecutor nor the defense attorney contradicted this statement, we have held that the waiver was invalid.
Ricci v. State, 894 N.E.2d 1089, 1093–94 (Ind. Ct. App. 2008), trans. denied. Here, the trial court did not
misadvise Leinenbach prior to accepting the plea.
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[14] Leinenbach also attempts to avoid the effect of his waiver by noting that, when
advising him of the rights that he was giving up by pleading guilty, the trial
court stated, “[y]ou understand that if this went to trial, [and] there was an
adverse finding you’d have a right to appeal[,] but pleading guilty, you’re
substantially limiting your rights to an appeal.” Tr. p. 22 (emphasis added).
Leinenbach argues that this advisement implies that he was not wholly giving
up his right to appeal. We disagree; the trial court’s advisement was not
misleading. Had Leinenbach gone to trial, he would have had the right to
appeal the conviction and the sentence. By pleading guilty, he necessarily gave
up the right to appeal his conviction. See Tumulty v. State, 666 N.E.2d 394, 395
(Ind. 1996) (“One consequence of pleading guilty is restriction of the ability to
challenge the conviction on direct appeal.”). And by entering into a plea
agreement containing a provision that waived the right to appeal his sentence,
Leinenbach gave up the right to appeal his sentence “on the basis that it is
erroneous or for any other reason, so long as the Court sentences me in
accordance with the terms of this plea agreement.” Appellant’s App. p. 50. Had
the trial court sentenced him contrary to the terms of the plea agreement,
Leinenbach could have appealed his sentence. But so long as the trial court
sentenced him within the terms of the plea, which it did, he waived his right to
appeal his sentence. This, as the trial court aptly put it, substantially limited
Leinenbach’s right to appeal.
[15] We also find the present case readily distinguishable from that presented in our
supreme court’s recent decision in Johnson v. State, 145 N.E.3d 785 (Ind. 2020).
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In that case, our supreme court held that the defendant did not validly waive his
right to appeal his sentence where the language of the plea agreement contained
a vague, general waiver of the “right to appeal,” and also included an
unenforceable waiver of the right to seek post-conviction relief.4 Id. at 786–87.
Here, Leinenbach’s plea agreement did not include a vague waiver of the
general right to appeal, but explicitly waived his right to appeal his sentence.
Moreover, Leinenbach’s plea agreement did not include an unenforceable
waiver of the right to seek post-conviction relief.
Conclusion
[16] Because Leinenbach entered into a plea agreement that clearly and
unambiguously waived his right to appeal his sentence, we conclude that
Leinenbach may not now appeal his sentence. 5
[17] Affirmed.
Bradford, C.J., and Najam, J., concur.
4
We do not read the waiver provision here, which broadly waives a right to appeal on grounds that the
sentence is erroneous “or for any other reason” to include post-conviction relief, as suggested by Leinenbach.
We will not read into this broad language a waiver that is clearly prohibited by law. See Johnson, 145 N.E.3d
at 786–87.
5
Even if Leinenbach had not waived his right to appeal, his arguments that his sentence is improper would
not prevail. The trial court identified valid aggravating factors that were well supported by the record. More
importantly, there is nothing about the nature of Leinenbach’s offense, which involved the senseless and
tragic death of his infant son, or Leinenbach’s character, as reflected by his history of criminal behavior and
probation violations, that persuades us that his sixteen-year sentence is inappropriate.
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