MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Dec 07 2016, 9:45 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Michael E. Boring                                       Gregory F. Zoeller
Christopher R. Taylor                                   Attorney General of Indiana
Boring & Boring, P.C.
                                                        Justin F. Roebel
New Palestine, Indiana                                  Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William E. Schini,                                      December 7, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        30A01-1603-CR-418
        v.                                              Appeal from the Hancock Circuit
                                                        Court
State of Indiana,                                       The Honorable Richard D. Culver,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        30C01-1412-FA-2038



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 1 of 8
                                Case Summary and Issue
[1]   William Schini pleaded guilty to child molesting as a Class A felony and the

      trial court sentenced him to forty years executed in the Indiana Department of

      Correction. On appeal, Schini raises the sole issue of whether the trial court

      abused its discretion in sentencing him. Concluding Schini has waived his right

      to appeal his sentence, we affirm.



                            Facts and Procedural History
[2]   For nearly three years, Schini molested his stepdaughter, S.F. In December

      2014, the State charged Schini with eleven counts related to the molestation,

      including two counts of child molesting as a Class A felony. On the eve of trial,

      Schini signed a written plea agreement whereby he agreed to plead guilty to one

      count of child molesting as a Class A felony in exchange for the State

      dismissing the remaining counts. The plea agreement included a waiver

      provision and also stated Schini “shall plead open and the court shall determine

      the sentence after argument by the parties.” Appellant’s Appendix at 79. The

      plea agreement did not provide for a capped sentence.


[3]   At the plea hearing, the trial court notified Schini the plea agreement was

      entered into after the trial court’s plea deadline and therefore “the plea would

      not be pursuant to a plea agreement and it would be considered an open

      plea[.]” Supplemental Transcript at 5. The trial court further explained an

      “open plea means . . . any . . . sentence that would be appropriate under the law


      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 2 of 8
      within the range allowed by the statute.” Id. Schini indicated he understood

      the trial court, offered a factual basis for the offense, and pleaded guilty. The

      trial court accepted the plea and entered judgment of conviction. The trial

      court later sentenced Schini to forty years executed in the Indiana Department

      of Correction and stated Schini had a right to appeal his sentence. This appeal

      ensued.



                                Discussion and Decision
[4]   The State argues Schini cannot challenge his sentence because he waived his

      right to do so pursuant to the terms of the plea agreement. Schini counters he

      did not waive his right to appeal because the trial court stated his sentence

      would not be pursuant to the plea agreement. In the alternative, Schini claims

      he did not knowingly or voluntarily waive his right to appeal. We agree with

      the State.


[5]   Generally, where a plea agreement contains no waiver clause and provides a

      specific sentence, the defendant may not challenge the sentence on direct

      appeal. Blanck v. State, 988 N.E.2d 817, 819 (Ind. Ct. App. 2013). However,

      where a plea agreement contains no waiver clause and “the guilty plea is an

      ‘open plea,’ that is, a plea agreement under which the trial court exercised

      sentencing discretion, direct appeal challenges to sentences have been

      permitted.” Id. (citation omitted).


              Where a defendant pleads guilty to what has been characterized
              as an open plea the freedom and latitude of the trial court to

      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 3 of 8
              impose a particular sentence is readily apparent. Under such
              circumstances, the trial court’s discretion is limited only by the
              Constitution and relevant statutes. In an open plea situation, the
              sentence must be challenged, if at all, by way of a direct appeal.


      Williams v. State, 51 N.E.3d 1205, 1209 (Ind. Ct. App. 2016) (citations and

      internal quotation marks omitted). At the same time, a plea agreement is

      contractual in nature, and upon its acceptance by the trial court, it binds the

      defendant, the State, and the trial court. Id. at 1208. A defendant may waive

      the right to appellate review of his sentence as part of a written plea agreement.

      Id.


[6]   Here, the waiver provision provides,


              [Schini] hereby waives the right to appeal any sentence imposed
              by the Court, including the right to seek appellate review of the
              sentence pursuant to Indiana Appellate Rule 7(B), so long as the
              Court sentences [Schini] within the terms of this plea agreement.


      Appellant’s App. at 79-80 (emphasis added). The crux of Schini’s position is

      that he only waived his right to appeal if the trial court sentenced him pursuant

      to the plea agreement, and because the trial court stated it would not sentence him

      pursuant to the plea agreement, he claims his sentence was not within the terms

      of his plea agreement and he has therefore not waived his right to appeal. We

      do not agree the trial court’s statement, in and of itself, means the sentence was

      not pursuant to the plea agreement. On the eve of trial, the State and Schini

      entered into a plea agreement whereby Schini agreed to plead open in exchange

      for the State dismissing the remaining ten counts. Because Schini did not plead

      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 4 of 8
      guilty before the plea deadline, however, the trial court—albeit unnecessarily—

      stated his “plea would not be pursuant to a Plea Agreement and it would be

      considered an open plea[.]” Supp. Tr. at 5. Notwithstanding the trial court’s

      erroneous statement, the plea agreement also required Schini to plead open,

      which means Schini already had agreed to give the trial court the discretion to

      sentence him within the parameters set by statutory authority, see Williams, 51

      N.E.3d at 1209, and Schini does not argue his sentence is illegal. We further

      note, if we were to accept Schini’s argument that he is not bound by the waiver

      provision, then the State would not be bound by its agreement to dismiss the

      remaining ten counts. We conclude the waiver provision is enforceable in this

      regard.


[7]   Schini also argues he did not knowingly or voluntarily waive his right to appeal.

      Specifically, he contends the trial court’s statement noted above, coupled with

      its statement at the sentencing hearing that Schini had a right to appeal his

      sentence, led him to believe he retained the right to appeal his sentence. Again,

      we disagree. Although the trial court’s statement regarding the open plea could

      be loosely interpreted to mean the waiver provision contained within the plea

      agreement is unenforceable, Schini’s counsel—as an officer of the court—could

      have brought any confusion regarding the plea agreement and the right to

      appeal to the trial court’s attention. Counsel did not raise any concerns with

      the trial court and the trial court accepted the plea. In addition, despite the trial

      court erroneously advising Schini of the possibility of an appeal at the

      sentencing hearing, Schini had already pleaded guilty and received the benefit


      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 5 of 8
      of the State dismissing the remaining ten counts by the time the trial court made

      this erroneous statement. See Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008)

      (noting a trial court’s erroneous statement advising a defendant of a right to

      appeal a sentence despite a waiver provision in the plea agreement does not

      negate a defendant’s waiver when a defendant has already pleaded guilty and

      received the benefit of the plea agreement). Thus, this latter statement had no

      effect on the plea agreement. We conclude Schini knowingly and voluntarily

      waived the right to appeal his sentence.



                                             Conclusion
[8]   Schini entered into a plea agreement with the State whereby he agreed to plead

      open and waive his right to appeal. In return, the State agreed to dismiss the

      remaining ten counts. We conclude Schini cannot now challenge his sentence.

      Accordingly, we affirm.


[9]   Affirmed.


      Mathias, J., concurs.


      Brown, J., dissents with separate opinion.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 6 of 8
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       William E. Schini,                                      Court of Appeals Case No.
                                                               30A01-1603-CR-418
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Brown, Judge, dissenting.


[10]   I respectfully dissent from the majority’s conclusion that Schini waived his right

       to appeal his sentence. At the guilty plea hearing, the court specifically advised

       Schini that “by pleading guilty because [the plea agreement] was submitted after

       the deadline the Court established [] for the taking of a plea [] that the plea

       would not be pursuant to a Plea Agreement and it would be considered an open

       plea,” and Schini responded that he understood. Supplemental Transcript at 4-

       5. To the extent that a discrepancy might exist between the language of the plea

       agreement and the court’s specific statements at the guilty plea hearing, I would

       err on the side of reviewing the merits of Schini’s arguments because this court

       prefers to decide cases and issues on the merits. See Shoultz v. State, 995 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 7 of 8
       647, 659 (Ind. Ct. App. 2013) (noting that this court prefers “to decide cases

       and issues on the merits” and that the defendant did not waive his claim).


[11]   Because the court did not accept Schini’s plea pursuant to the plea agreement, I

       would not enforce the provision in that agreement whereby Schini waived his

       right to appeal his sentence and would address the merits of Schini’s argument.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016   Page 8 of 8
