      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    May 29 2015, 8:58 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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                                      Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Indianapolis, Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Matthew T. Dickerhoff,                                   May 29, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               52A02-1408-CR-535
              v.                                               Appeal from the Miami Circuit
                                                               Court

      State of Indiana,                                        The Honorable Timothy P. Spahr,
                                                               Judge
      Appellee-Plaintiff
                                                               Trial Court Cause No.
                                                               52C01-1306-FB-23




      Mathias, Judge.

[1]   Matthew T. Dickerhoff (“Dickerhoff”) pleaded guilty in Miami Circuit Court to

      Class D felony maintaining a common nuisance and Class A misdemeanor

      possession of marijuana. After a sentencing hearing, the trial court sentenced


      Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015       Page 1 of 11
      Dickerhoff to two years imprisonment for the Class D felony with one year

      executed and one year suspended to supervised probation. The court sentenced

      Dickerhoff to one year executed in the Miami County jail for the Class A

      misdemeanor. The sentences were to be served concurrently. On appeal,

      Dickerhoff claims both that the trial court abused its discretion in sentencing

      him and that his sentence is inappropriate.

[2]   We affirm.


                                    Facts and Procedural History

[3]   On June 5, 2013, police obtained a search warrant to search Dickerhoff’s

      residence at 213 South Wabash in Peru. That residence consisted of two

      separate apartments. Dickerhoff lived in one apartment, and his sister and her

      family lived in the other. Dickerhoff possessed less than thirty grams of

      marijuana in his residence. The residents of the other apartment possessed

      marijuana, drug paraphernalia, and methamphetamine. Dickerhoff admitted

      that he maintained the other apartment and that he knew they kept

      methamphetamine there.

[4]   Dickerhoff was charged with five counts: Count 1, Class B felony dealing in

      methamphetamine; Count 2, Class D felony possession of methamphetamine;

      Count 3, Class D felony maintaining a common nuisance; Count 4, Class A

      misdemeanor possession of marijuana; and Count 5, Class A misdemeanor

      possession of paraphernalia. Dickerhoff agreed to plead guilty to Count 3 and

      Count 4, and the State agreed to dismiss the remaining charges. Sentencing


      Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 2 of 11
      remained in the trial court’s discretion. Under the terms of the plea agreement,

      Dickerhoff waived the right to appeal his conviction and sentence:

              WAIVER OF RIGHT TO APPEAL OR MODIFIY (sic)
              SENTENCE. I understand and agree that by accepting the terms of
              this Plea Agreement(,) I am forever waiving, forfeiting and giving up
              the right to appeal my conviction and the sentence contained in the
              Agreement, and waiving the right to ask the Court to modify the
              sentence at a later date. I may only appeal my sentencing (sic) if the
              Judge does not sentence me within the terms of my Plea Agreement. If
              he does sentence me within the terms of my Plea Agreement, my right
              to appeal the sentence is waived. I may only modify my sentenced (sic)
              with the agreement of the Miami county (sic) Prosecuting Attorney.

      Appellant’s App. p. 60.


[5]   At the plea hearing, the trial court advised Dickerhoff of the rights he waived by

      pleading guilty. However, contrary to the terms of the plea agreement, the trial

      court informed Dickerhoff that he had the right to appeal the sentence because

      sentencing was left to the trial court’s discretion.


[6]   At the sentencing hearing, the trial court found Dickerhoff’s criminal history to

      be an aggravating factor, and it found no mitigating factors. The court

      sentenced Dickerhoff to two years imprisonment with one year executed and

      one year suspended to supervised probation for Class D felony maintaining a

      common nuisance, and it sentenced Dickerhoff to one year in the Miami

      County jail for Class A misdemeanor possession of marijuana. The remaining

      three charges were dismissed. After ordering the sentence, the trial court again

      informed Dickerhoff that he had the right to appeal the court’s sentence.

      Dickerhoff now appeals.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 3 of 11
                                        Discussion and Decision

[7]    First, Dickerhoff argues that despite the plea agreement, he did not waive his

       right to appeal his sentence. Second, Dickerhoff argues that the trial court

       abused its discretion in sentencing him to an aggregate term of two years

       imprisonment with one year suspended to probation, and he claims that this

       sentence was inappropriate.


                                    I. Waiving the Right to Appeal

[8]    When a court convicts or sentences a defendant for a crime, the defendant has a

       constitutional right to appeal that conviction or sentence. Miller v. State, 702

       N.E.2d 1053, 1058 (Ind. 1998). When a defendant pleads guilty, he waives the

       right to appeal his conviction. Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004).

       A defendant may also waive the right to appeal his sentence as part of a written

       plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).


[9]    In order for a defendant to waive his right to appeal his sentence, he must do so

       knowingly, voluntarily, and intelligently. See id. at 76–77; Ricci v. State, 894

       N.E.2d 1089, 1093 (Ind. Ct. App. 2008). Most waiver agreements are effective

       when set out in writing and signed. See Creech, 887 N.E.2d at 76 (citing United

       States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)). The content and language of

       the plea agreement, as well as the colloquy, determine the validity of the

       waiver. Id. (citing United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)).


[10]   In Creech, the appellant argued that despite the express language in the plea

       agreement, he did not knowingly and voluntarily waive his right to appeal. Id.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 4 of 11
       The appellant claimed that the waiver in his plea lost its knowing and voluntary

       status because at the end of the sentencing hearing the court advised him of his

       right to appeal the sentence. Id. On appeal, our Supreme Court rejected the

       appellant’s argument because the trial court’s erroneous statement was made in

       the sentencing hearing. By the time the trial court advised him of the possibility

       of appeal, the appellant had already pled guilty and received the benefit of the

       plea agreement. Id. at 76–77. “Being told at the close of the hearing that he

       could appeal presumably had no effect on that transaction.” Id. at 77.


[11]   In Ricci, the appellant also argued that the waiver of appellate review in his plea

       agreement was invalid because of statements made by the trial court. See 894

       N.E.2d at 1093. However, unlike Creech, the trial court in Ricci stated at the plea

       hearing, as opposed to just the sentencing hearing, that the defendant had not

       surrendered the right to appeal his sentence. Id. Neither of the two parties

       contradicted this statement by the trial court, so we concluded that the

       defendant entered into the plea agreement with the understanding that he

       retained the right to appeal his sentence, voiding the written waiver of appeal.

       Id. at 1094.


[12]   The facts of the present case are most similar to those of Ricci. Dickerhoff

       signed a plea agreement that stated: “I am forever waiving, forfeiting and giving

       up the right to appeal my conviction and the sentence contained in the

       Agreement . . . . I may only appeal my sentencing if the Judge does not

       sentence me within the terms of my Plea Agreement.” Appellant’s App. p. 60.

       Despite this language, the trial court advised Dickerhoff: “And do you

       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 5 of 11
       understand that by pleading guilty, you’d be giving up that appeal right too,

       except as to any sentencing since sentencing is being left to the Court’s

       discretion?” Tr. p. 104. Neither party objected to this statement. The trial court

       again advised Dickerhoff during his sentencing hearing that he had a right to

       appeal his sentence and appointed him counsel to do so. Tr. pp. 128–29.


[13]   The trial court’s statement during the guilty plea hearing that Dickerhoff had

       the right to appeal his sentence voids the waiver in his plea agreement. Because

       the trial court gave Dickerhoff conflicting information regarding his right to

       appeal before he entered into his plea agreement, we cannot say that he

       knowingly, voluntarily, and intelligently waived his right to appeal. See Ricci,

       894 N.E.2d at 1093. Therefore, we conclude that Dickerhoff retains his right to

       appeal his sentence.


                                            Abuse of Discretion

[14]   A sentence that is within the statutory range is subject to review only for abuse

       of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). The trial

       court abuses its discretion if its decision is “clearly against the logic and effect of

       the facts and circumstances before the court, or the reasonable, probable, and

       actual deductions to be drawn therefrom.” Id. A trial court abuses its discretion

       by: (1) failing to enter a sentencing statement, (2) finding aggravating or

       mitigating factors unsupported by the record, (3) omitting mitigating factors

       clearly supported by the record and advanced for consideration, or (4) giving

       reasons that are improper as a matter of law. Id. at 490–91.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 6 of 11
[15]   When considering aggravating and mitigating factors, the relative weight given

       to a factor is not available for appellate review. Id. at 493–94. Also, the trial

       court does not abuse its discretion if it fails to consider a mitigating factor that

       was not raised at sentencing. Id. at 492.


[16]   At the sentencing hearing, Dickerhoff mentioned his medical problems in

       arguing for a reduced sentence, but he failed to advance his guilty plea as a

       mitigating circumstance. Tr. p. 122. The trial court found Dickerhoff’s criminal

       history to be an aggravator, but it found no mitigators. Tr. p. 126. Dickerhoff

       argues that the trial court abused its discretion by not finding his medical

       problems and guilty plea to be mitigating circumstances.


[17]   The court did consider Dickerhoff’s medical problems, but it found that it was

       not a significant mitigating circumstance: “[N]othing the Court has heard

       would rise . . . to the point of the Court finding those things to be mitigators.”

       Tr. p. 126. The trial court is not required to find the presence of mitigating

       circumstances as does the defendant. See Campbell v. State, 820 N.E.2d 711, 720.


[18]   Even though Dickerhoff did not raise his guilty plea as a mitigating factor at

       sentencing, it can still be raised for the first time on appeal. See Anglemyer v.

       State, 875 N.E.2d 218, 220 (Ind. 2007). A guilty plea deserves some mitigating

       weight. See McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007). However, a guilty

       plea may not be significantly mitigating when the defendant receives a

       substantial benefit in return for the plea. Id. In this case, Dickerhoff received a

       substantial benefit in return for the guilty plea: the State dismissed three of the


       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 7 of 11
       charges, and the trial court ordered concurrent sentences. See id. (holding that

       receiving concurrent sentences was a substantial benefit). Therefore, the trial

       court did not abuse its discretion in failing to find any mitigating circumstances.


                                         Inappropriate Sentence

[19]   Pursuant to Appellate Rule 7(b), we may revise a sentence otherwise authorized

       by statute if, “after due consideration of the trial court’s decision, [we] find[]

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” Whether a sentence is inappropriate ultimately turns

       on the culpability of the defendant, the severity of the crime, the damage done

       others, and the myriad of other factors that come to light in a given case.

       Cardwell v. State, 895 N.E.2d 1219, 1221 (Ind. 2008).


[20]   On the date Dickerhoff committed his offense, the sentencing range for a Class

       D felony was six months to three years, with the advisory sentence being one

       and one-half years. I.C. § 34-50-2-7. The sentencing range for a Class A

       misdemeanor was up to one year. I.C. § 35-50-3-2. Following the probation

       department’s recommendation, the trial court sentenced Dickerhoff to two

       years of incarceration with one year suspended for the felony and one year of

       incarceration for the misdemeanor, and the court ordered the sentences to be

       served concurrently.

[21]   The nature of the offense is that Dickerhoff was heavily involved in drugs. He

       possessed drugs, and he maintained a nuisance where drugs could be

       manufactured. As to the Dickerhoff's character, the trial court found that he had


       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 8 of 11
       a steady criminal history. In addition, he made no effort to address his drug

       problem and reacted poorly when his probation officer suggested he take

       substance abuse classes. The trial court specifically mentioned Dickerhoff’s

       attitude toward substance abuse classes as one of its concerns. Tr. p. 126.

[22]   In light of the nature of the offense and the character of the offender, we

       conclude that the trial court’s sentence was not inappropriate.

[23]   Affirmed.


       May, J., concurs, and Robb, J., concurs with opinion.




       Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 9 of 11
                                                IN THE
          COURT OF APPEALS OF INDIANA

      Matthew T. Dickerhoff,                                  May 29, 2015

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              52A02-1408-CR-535
              v.                                              Appeal from the Miami Circuit Court
                                                              The Honorable Timothy P. Spahr,
      State of Indiana,                                       Judge
                                                              Trial Court Cause No.
      Appellee-Plaintiff
                                                              52C01-1306-FB-23




      Robb, Judge, concurring.


[1]   I concur with the majority that because the trial court misadvised Dickerhoff

      about his appeal rights at his plea hearing rather than at his sentencing hearing,

      he has not knowingly, voluntarily, and intelligently waived his right to appeal.

      See slip op. at ¶ 13. However, I note, much as we did in Mechling v. State, 16

      N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing

      the State and the defendant are both officers of the court and have a

      responsibility to correct any obvious errors at the time they are committed. In

      Mechling, we held the State was not estopped from enforcing the waiver

      provisions of a plea agreement simply because it had not objected when the trial

      court, at the conclusion of the sentencing hearing, erroneously advised the

      defendant of his right to appeal his sentence. Id. at 1017-18. We also noted,


      Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 10 of 11
      however, that defendant’s counsel “sat just as idly by as the State during the

      trial court’s erroneous advisement” and that there was “much in judicial

      resources to be lost” by the failure of either attorney to speak up if the result was

      to be a “gratuitous appeal.” Id. at 1018.


[2]   That is the situation we have encountered here. The parties knew the terms of

      the plea agreement and should have corrected the trial judge when he misspoke.

      Because the improper advisement came during Dickerhoff’s plea hearing, time,

      effort, and resources have been expended briefing and deciding a sentencing

      appeal that Dickerhoff had originally bargained away.




      Court of Appeals of Indiana | Memorandum Decision 52A02-1408-CR-535 | May 29, 2015   Page 11 of 11
