James J. Leffler, II v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION                                                             FILED
    Pursuant to Ind. Appellate Rule 65(D),                                     Oct 30 2017, 10:34 am
    this Memorandum Decision shall not be                                           CLERK
    Indiana Supreme Court
    regarded as precedent or cited before any                                      Court of Appeals
    and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Kimberly A. Jackson                                      Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Lyubov Gore
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    James J. Leffler, II,                                    October 30, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    84A01-1702-CR-265
    v.                                               Appeal from the Vigo Superior
    Court
    State of Indiana,                                        The Honorable David R. Bolk,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    84D03-1511-F3-2713
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017              Page 1 of 6
    Case Summary and Issue
    [1]   James Leffler II pleaded guilty to dealing in methamphetamine, a Level 4
    felony, and the trial court sentenced him to nine years executed in the Indiana
    Department of Correction. On appeal, Leffler raises two issues for our review.
    The State cross-appeals arguing Leffler waived his right to appeal his sentence.
    Concluding Leffler waived his right to appeal his sentence, we dismiss his
    appeal.
    Facts and Procedural History
    [2]   In late 2015, Leffler was arrested and charged with dealing in
    methamphetamine, a Level 3 felony; dealing in methamphetamine, a Level 4
    felony; possession of methamphetamine, a Level 6 felony; and two counts of
    maintaining a common nuisance, a Level 6 felony. The State also alleged
    Leffler was an habitual offender.
    [3]   On July 15, 2016, Leffler and the State entered into a written plea agreement
    pursuant to which Leffler agreed to plead guilty to dealing in
    methamphetamine, a Level 4 felony, in exchange for the State’s dismissal of the
    remaining charges. Additionally, the plea agreement provided,
    The parties have no agreement regarding sentencing except that
    such sentence shall not exceed nine (9) years. The parties shall
    argue sentencing before the Court. The defendant shall waive the
    right to have any aggravating circumstances to be found beyond
    a reasonable doubt by a jury and said aggravating circumstances
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 2 of 6
    would be determined by the Judge. . . . The defendant waives
    the right to appeal the sentence imposed in this matter.
    Appellant’s Appendix, Volume II at 56. At the guilty plea hearing, the trial
    court advised Leffler of the various rights he was giving up by pleading guilty,
    including his right to appeal his sentence. The relevant colloquy went as
    follows:
    [Trial Court]:            You’re waiving your right to appeal the
    sentence imposed in this matter.
    ***
    [Trial Court]:            If the case went to trial and you were
    convicted, you’d have a right to appeal your
    conviction and any sentence imposed by this
    Court to a higher court; understand you have
    this appeal right?
    [Leffler]:                Yes sir.
    [Trial Court]:            Understand that by entering into this plea
    agreement, you’re giving up your appeal right
    with both respect to the finding of guilt and
    any sentence imposed by this Court?
    [Leffler]:                Yes.
    Transcript, Volume VI at 5-9. The trial court accepted Leffler’s plea and
    entered judgment of conviction. At the sentencing hearing, the trial court
    sentenced Leffler to nine years in the Department of Correction. The trial court
    also advised Leffler that “[y]ou have a right to appeal the sentence imposed in
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 3 of 6
    this case Mr. Leffler[,]” and appointed a public defender to represent him. Tr.,
    Vol. VII at 89.
    [4]   Leffler now appeals.
    Discussion and Decision
    [5]   We first address the State’s cross-appeal. The State argues Leffler cannot
    challenge his sentence because he waived his right to do so pursuant to the
    terms of the plea agreement. Leffler counters that the plea agreement is
    ambiguous and notes the trial court advised Leffler of his right to appeal. We
    agree with the State.
    [6]   Leffler first argues the plea agreement is ambiguous and unenforceable. The
    validity and interpretation of a plea agreement is a question of law. We
    evaluate questions of law under a de novo standard and owe no deference to
    the trial court's determinations. McCown v. State, 
    890 N.E.2d 752
    , 756 (Ind. Ct.
    App. 2008).
    [7]   As noted above, the plea agreement provides,
    The parties have no agreement regarding sentencing except that
    such sentence shall not exceed nine (9) years. The parties shall
    argue sentencing before the Court. The defendant shall waive the
    right to have any aggravating circumstances to be found beyond
    a reasonable doubt by a jury and said aggravating circumstances
    would be determined by the Judge. . . . The defendant waives
    the right to appeal the sentence imposed in this matter.
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 4 of 6
    Appellant’s App., Vol. II at 56. Leffler alleges the first sentence, which states
    the parties “have no agreement regarding sentencing[,]” conflicts with the
    remaining provisions of the paragraph stating Leffler waives certain rights.
    Contrary to Leffler’s argument, the first sentence of the paragraph only refers to
    the parties’ agreement that the trial court will determine the sentence imposed,
    and that the trial court’s sentence may not exceed nine years. The agreement
    unambiguously waives Leffler’s right to appeal.
    [8]   Leffler also asserts the trial court advised him he may appeal his sentence. In
    Creech v. State, the defendant executed a plea agreement in which sentencing
    was left to the discretion of the trial judge, subject to a cap of six years executed.
    
    887 N.E.2d 73
    , 74 (Ind. 2008). The agreement further provided, “I hereby
    waive my right to appeal my sentence so long as the Judge sentences me within
    the terms of my plea agreement.” 
    Id. The court
    imposed a six-year sentence.
    On appeal, the defendant sought to challenge the appropriateness of his
    sentence. Our supreme court concluded the “express language” of the plea
    agreement established a valid waiver of the defendant’s right to appeal his
    sentence. 
    Id. at 76.
    Further, although the trial judge erroneously advised the
    defendant at the end of the sentencing hearing that he had a right to appeal, our
    supreme court concluded the advisement had no effect on his plea because “[the
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 5 of 6
    defendant] had already pled guilty and received the benefit of his bargain.” 
    Id. at 77.1
    [9]    Here, Leffler executed a valid waiver of his right to appeal his sentence and the
    trial court advised him that he was waiving this right at the guilty plea hearing.
    Leffler answered in the affirmative that he understood he was forfeiting his right
    to appeal his sentence. Further, as in Creech, the trial court’s mistaken
    advisement that Leffler had the right to an appeal occurred after Leffler had
    pleaded guilty and had received the benefit of his bargain. We conclude Leffler
    has waived his right to appeal his sentence and grant the State’s cross-appeal for
    dismissal of the appeal. See Starcher v. State, 
    66 N.E.3d 621
    , 623 (Ind. Ct. App.
    2016) (enforcing written waiver of right to appeal sentence despite trial court’s
    erroneous advisement at sentencing that defendant had a right to appeal), trans.
    denied.
    Conclusion
    [10]   For the reasons stated above, we dismiss Leffler’s appeal.
    [11]   Appeal dismissed.
    Riley, J., and Pyle, J., concur.
    1
    As our supreme court stated in Creech, “we take this opportunity to emphasize the importance of avoiding
    confusing remarks in a plea 
    colloquy.” 887 N.E.2d at 76
    .
    Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017          Page 6 of 6
    

Document Info

Docket Number: 84A01-1702-CR-265

Filed Date: 10/30/2017

Precedential Status: Precedential

Modified Date: 10/30/2017