      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be                               Jun 27 2019, 5:26 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.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Russell W. Brown, Jr.                                    Curtis T. Hill, Jr.
      King, Brown & Murdaugh, LLC                              Attorney General of Indiana
      Merrillville, Indiana                                    Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey P. Zbyrowski,                                    June 27, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1847
              v.                                               Appeal from the Porter Superior
                                                               Court
      State of Indiana,                                        The Honorable Jeffrey W. Clymer,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               64D02-1311-FB-10121



      Mathias, Judge.


[1]   Jeffrey Zbyrowski (“Zybrowski”) appeals the Porter Superior Court’s denial of

      his request to file a belated appeal pursuant to Post Conviction Rule 2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019                Page 1 of 6
      We affirm.


                                 Facts and Procedural History
[2]   Zbyrowski was charged with two counts of Class B felony rape, two counts of

      Class C felony incest, and two counts of Class D felony criminal confinement.

      On February 6, 2015, Zbyrowski entered into a plea agreement where he

      pleaded guilty to two counts of incest as a class C felony and two counts of

      criminal confinement as a class D felony, and the two counts of rape were

      dismissed. The plea agreement set a cap of eight years incarceration but

      otherwise provided for probation sentencing by the trial court with the only

      limitation being that statutory sentences would run consecutively. Appellant’s

      App. p. 57. The plea agreement also provided, “I waive all right to appeal my

      conviction, my sentence, any restitution order imposed, or the manner in which

      my conviction, my sentence, or the restitution order was determined or

      imposed on any grounds in this cause.” Id. at 59.


[3]   At the hearing in which the trial court accepted the guilty plea, the following

      exchange occurred:


              THE COURT: If you do that, you’ll waive certain rights. You’ll
              waive your right to [a] public and speedy trial by court or by jury.
              There will be no trial. You’ll waive the presumption of
              innocence. The State will not have to prove anything. You’ll
              waive your right to face and cross-examine the State’s witnesses,
              as well as the right to have me subpoena witnesses to testify in
              your favor. You’ll waive your right to remain silent and, in fact,
              you will be testifying against yourself. If we went to trial and if
              you were convicted, you could appeal that decision to the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019   Page 2 of 6
              Indiana Appellate Court System. Do you understand that you
              are, in fact, waiving all of those rights?


              ZBYROWSKI: Yes.


      Plea Tr. p. 3. The trial court then scheduled a sentencing hearing to be held on

      a later date. At the sentencing hearing, Zbyrowski was sentenced to twenty-two

      years, with fourteen years suspended. At the conclusion of the sentencing

      hearing, held over a month after the plea was accepted, the trial court told

      Zbyrowski,

              you’re entitled to take an appeal or file a motion to correct error
              with regard to the sentence; not the convictions, but the sentence.
              If you wish to file a motion to correct error, it must be done
              within 30 days of today’s date. If you wish to take an appeal, you
              must file a notice of appeal stating what it is you want included
              in the record on appeal, and that must also be done within 30
              days of today’s date. If you’re financially unable to employ an
              attorney to carry out that process, we will inquire into your
              resources and appoint a public defender if that’s what you wish.


      Sentencing Tr. pp. 12–13. Before the end of the sentencing hearing, the trial

      court then informed Zbyrowski once again that he had thirty days to file either

      a notice of appeal or motion to correct error. Id. at 13.


[4]   Zbyrowski was then transferred to the Department of Correction (“DOC”).

      While in the DOC, he wrote two letters to his trial counsel asking whether

      appellate counsel had been appointed to file an appeal on his behalf. He




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019   Page 3 of 6
      received no response from trial counsel, but received his file in October of 2015

      and learned that no appeal had been filed on his behalf.

[5]   In January of 2016, Zbyrowski, acting pro se, filed a Petition for Post-

      Conviction Relief. The Public Defender’s office was then appointed to represent

      Zbyrowski, but this representation ended when Zbyrowski was released from

      incarceration on or about March 11, 2018. Zbyrowski, through private counsel,

      then filed a Verified Petition for Permission to fie a Belated Notice of Appeal

      pursuant to Indiana Post Conviction Rule 2 on June 14, 2018. The State

      objected, and the trial court denied the petition without a hearing. Zbyrowski

      now appeals the denial of his Verified Petition for Permision to file a Belated

      Notice of Appeal.


                                     Discussion and Decision

[6]   “[A] defendant may waive their 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).

      However, a “defendant who can establish in a post-conviction proceeding that

      his plea was coerced or unintelligent is entitled to have his conviction set

      aside.” Id. When the issue on appeal is a pure question of law, the court should

      review the matter de novo. Kibbey v. State, 733 N.E.2d 991, 995 (Ind. Ct. App.

      2000)


[7]   This court has repeatedly addressed the issue of whether a defendant can appeal

      after waiving his or her right to appeal as a part of a plea agreement. In Creech,

      the Indiana Supreme Court explained that:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019   Page 4 of 6
              While we take this opportunity to emphasize the importance of
              avoiding confusing remarks in a plea colloquy, we think the
              statements at issue are not grounds for allowing Creech to
              circumvent the terms of his plea agreement.


              Creech does not claim that the language of the plea agreement
              was unclear or that he misunderstood the terms of the agreement
              at the time he signed it, but rather claims that his otherwise
              knowing and voluntary plea lost its knowing and voluntary status
              because the judge told him at the end of the sentencing hearing
              that he could appeal.


                                                       ***


              By 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.


      887 N.E.2d at 76-77. Cf. Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008)

      (holding that the trial court’s erroneous statements regarding ability to appeal

      made at the time of the entry of the plea did negate the waiver of the right to

      appeal in the plea), trans. denied.


[8]   Zbyrowski waived his right to appeal “on any grounds” as a part of the

      negotiated plea. Appellant’s App. p. 59. Because the terms of the plea

      agreement clearly state that Zbyrowski waived his right to appeal on any

      grounds, and because this was the court’s understanding of the agreement at the

      time the plea was accepted by the court, the statement by the court regarding


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019   Page 5 of 6
       appeal rights at the sentencing hearing well after the plea was negotiated and

       accepted does not negate Zbyrowski’s waiver of his appeal right.1


                                                    Conclusion

[9]    We take this opportunity to remind trial courts of the dangers of reciting

       improper boilerplate at any point in court proceedings and especially during

       plea bargains and sentencings2. However, as the language used by the trial court

       at sentencing in this matter did not change Zbyrowski’s initial waiver of his

       right to appeal in his plea agreement, we affirm the trial court’s denial of his

       motion to file a belated appeal.


[10]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       1
        Because we determine that Zbyrowski waived his right to appeal, we do not reach whether Indiana Post-
       Conviction Rule 2 would have allowed him the ability to file a belated appeal in this matter.
       2
         The judge who sentenced Zbyrowski retired prior to Zbyrowski’s filing of the Verified Petition for
       Permission to file a Belated Notice of Appeal. The specific petition on appeal was decided by the current
       judge, who did not sentence Zbyrowski.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1847 | June 27, 2019                     Page 6 of 6
