MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Jun 26 2019, 9:26 am
this Memorandum Decision shall not be                                               CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
                                                                                   Court of Appeals
court except for the purpose of establishing                                         and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Ray Walton,                                      June 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3103
        v.                                               Appeal from the Shelby Circuit
                                                         Court
State of Indiana,                                        The Honorable Trent Meltzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         73C01-1610-F6-411
                                                         73C01-1708-F5-95



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019                           Page 1 of 5
                                       Statement of the Case
[1]   Michael Ray Walton appeals his sentence following his convictions for failure

      to register as a sex offender, as a Level 5 felony, and failure of a sex or violent

      offender to possess identification, as a Level 6 felony, pursuant to a guilty plea.

      Walton presents a single issue for our review, namely, whether his sentence is

      inappropriate in light of the nature of the offenses and his character. However,

      in his plea agreement, Walton waived his right to appeal his sentence.

      Accordingly, we dismiss his appeal.


                                 Facts and Procedural History
[2]   The State charged Walton with one count of failure of a sex or violent offender

      to possess identification, as a Level 6 felony, and with being a habitual offender.

      Thereafter, in a separate cause number, the State also charged Walton with one

      count of failure to register as a sex offender, as a Level 5 felony, and one count

      of failure to reside at a registered address, as a Level 6 felony. On August 21,

      2018, Walton entered into a joint plea agreement. Pursuant to that agreement,

      Walton agreed to plead guilty to failure to register as a sex offender, as a Level

      5 felony, and failure of a sex or violent offender to possess identification, as a

      Level 6 felony. In exchange for his guilty plea, the State agreed to dismiss the

      other charges. The plea agreement left sentencing open to the trial court’s

      discretion, but the plea provided for a maximum executed sentence of fifty-four

      months.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019   Page 2 of 5
[3]   The plea also included a series of additional provisions with boxes for check

      marks next to them. One of those provisions stated that Walton would waive

      any right to appellate review of his sentence, but the box next to that provision

      was not checked. However, contemporaneous with his plea agreement, and

      submitted to the court with his agreement, Walton also signed an advisement of

      rights and waiver form. Pursuant to that form, Walton


              hereby waive[d] the 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 the defendant within the terms of the plea agreement.


      Appellant’s App. Vol. II at 56.


[4]   The trial court held a hearing on Walton’s guilty plea. During that hearing, the

      trial court explained Walton’s rights and clarified the apparent ambiguity

      between the plea agreement and the waiver of rights form by expressly

      informing Walton that he “do[es] not have the right to appeal the sentences as

      long as the Court sentences [him] within the cap.” Tr. Vol. II at 15. Walton

      orally stated that he understood. Thereafter, the trial court held a sentencing

      hearing during which the court accepted Walton’s guilty plea and entered

      judgment of conviction accordingly. The court then sentenced Walton to an

      aggregate term of fifty-four months executed. At the conclusion of the

      sentencing hearing, the trial court stated that Walton “ha[s] the right to appeal

      this sentence imposed herein.” Id. at 43. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019   Page 3 of 5
                                      Discussion and Decision
[5]   Walton contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. However, we do not reach the merits of his appeal

      because we agree with the State that Walton waived the right to appeal his

      sentence at his guilty plea hearing.


[6]   Our Supreme Court has held that defendants may waive their right to appeal a

      sentence as part of a guilty plea. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).

      Walton’s advisement of rights and waiver form, which Walton signed and

      submitted to the court along with his guilty plea, 1 included the following

      provision:


              The defendant hereby waives the 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 the defendant within the
              terms of the plea agreement.


      Appellant’s App. Vol. II at 56.


[7]   Walton first contends that he did not waive the right to appeal his sentence

      because the waiver was “ambiguous” despite the terms in the advisement of

      rights and waiver form because the plea agreement did not include a check

      mark next to the provision that indicated that Walton would waive the right to



      1
        The parties do not dispute that the advisement of rights and waiver form was submitted
      contemporaneously with the plea agreement and that it was to be considered along with the plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019                  Page 4 of 5
      appeal his sentence. Reply Br. at 4. But insofar as his waiver of rights form

      conflicted with the precise terms of his guilty plea, at Walton’s guilty plea

      hearing the trial court disambiguated those two documents when it orally

      informed Walton that he did not have the right to appeal his sentence as long as

      the court sentenced him within the terms of the plea agreement. Walton

      acknowledged that he understood that he was waiving his right to appeal his

      sentence and continued with his guilty plea.


[8]   Nonetheless, Walton also contends that he did not waive the right to appeal his

      sentence because the trial court informed him at his sentencing hearing that he

      had the right to appeal his sentence. But the trial court in Creech made the same

      mistake, and our Supreme Court held that it was of no moment. That Court

      observed that, “[b]y the time the trial court erroneously advised [the defendant]

      of the possibility of appeal, [he] had already pled guilty and received the benefit

      of his bargain. Being told at the close of the [sentencing] hearing that he could

      appeal presumably had no effect on that transaction.” Creech, 887 N.E.2d at 77.

      The same is true here. By the time the trial court erroneously advised Walton

      that he had the right to appeal his sentence, Walton had already pleaded guilty

      and received the benefit of his bargain. Accordingly, Walton waived the right

      to appeal his sentence, and we dismiss his appeal.


[9]   Dismissed.


      Baker, J., and Robb, J., concur.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019   Page 5 of 5
