MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Nov 09 2016, 6:40 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Kelly A. Loy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Corvette McCampbell,                                    November 9, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A01-1605-CR-1081
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan N.
Appellee-Plaintiff.                                     Cleary, Judge
                                                        Trial Court Cause No.
                                                        15D01-1511-F2-31



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016       Page 1 of 9
                               Case Summary and Issues
[1]   Corvette McCampbell entered a plea of guilty to dealing in a narcotic, a Level 2

      felony, and was sentenced to twenty-eight years in the Indiana Department of

      Correction. On appeal, McCampbell raises two issues regarding his sentence:

      1) whether the provision in his plea agreement waiving the right to appeal his

      sentence is enforceable; and 2) whether the trial court abused its discretion in

      sentencing him. Concluding the waiver provision of his plea agreement is

      enforceable and McCampbell waived his right to appeal his sentence, we affirm.



                            Facts and Procedural History
[2]   On October 30, 2015, Officer James Wells of the Indiana State Police stopped

      McCampbell for a traffic violation in Dearborn County, Indiana. Thereafter,

      Officer Wells learned an active warrant had been issued for McCampbell in

      White County, Indiana. Officer Wells placed McCampbell under arrest and

      performed an inventory search of the vehicle. The inventory search revealed

      approximately 500 grams of heroin in the trunk of the vehicle.


[3]   The State charged McCampbell with dealing in a narcotic drug, a Level 2

      felony, and alleged he was an habitual offender. On March 30, 2016,

      McCampbell and the State entered into a written plea agreement pursuant to

      which McCampbell would plead guilty to dealing in a narcotic drug in

      exchange for the State’s dismissal of the habitual offender enhancement. In

      addition, the plea agreement provided,


      Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 2 of 9
              Defendant 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).


      Appendix of Appellant at 60.


[4]   At the change of plea hearing, the trial court advised McCampbell of the

      various rights he was giving up by pleading guilty, including the right to appeal

      his sentence.


              The Court: [T]he State of Indiana and the Defendant agree that
                         pursuant to your plea of guilty you shall be
                         sentenced by the Court at the sole discretion of the
                         Court pursuant to Indiana sentencing laws. And,
                         that you waive 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)]. . . . Is that your
                         understanding of your agreement?


              [McCampbell]: Yes.


      Transcript at 3. McCampbell offered a factual basis for the offense and pleaded

      guilty. The trial court accepted McCampbell’s plea, entered judgment of

      conviction for dealing in a narcotic, and scheduled a sentencing hearing. At the

      hearing, the trial court sentenced McCampbell to twenty-eight years in prison.

      McCampbell now appeals.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 3 of 9
                                                I. Waiver
[5]   A provision waiving the right to appellate review as part of a written plea

      agreement is enforceable “as long as the record clearly demonstrates that it was

      made knowingly and voluntarily.” Creech v. State, 887 N.E.2d 73, 75 (Ind.

      2008) (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)).

      Acceptance of the plea agreement containing the waiver provision is sufficient

      to indicate that, in the trial court’s view, the defendant knowingly and

      voluntarily agreed to the waiver. Id. at 77. Although McCampbell signed a

      written waiver of his right to appeal his sentence, he argues the language in the

      waiver provision is incomplete and confusing, and thus unenforceable, because

      it does not specifically waive his right to have his sentence reviewed for an

      abuse of discretion. Stated differently, he argues because the waiver provision

      specifically mentions Indiana Appellate Rule 7(B) review and not abuse of

      discretion review, the latter is still available to him on direct appeal. We

      disagree with McCampbell that the waiver provision is incomplete, confusing,

      and unenforceable.


[6]   The contested provision states,

              Defendant 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).


      Appendix of Appellant at 60. This provision precludes McCampbell’s right to

      appeal any sentence imposed by the trial court, including Rule 7(B) review. The

      provision is not limited solely to Rule 7(B), and we decline to read it as such.
      Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 4 of 9
[7]   McCampbell also points out that, after sentencing, the trial court advised him of

      his right to appeal, heightening his confusion. While the trial court did advise

      McCampbell of his right to appeal, it began its statement with, “[h]e waived the

      right to appeal this sentence based upon . . . the State’s dismissal of the habitual

      offender . . . .” Tr. at 86. The trial court went on to state, “[b]ut, the Court will

      still advise him of his right to appeal, though it has been waived.” Id. We

      admit this is confusing; however, it does not alter the legal effect of his plea

      agreement, which had already been accepted by the trial court at the change of

      plea hearing. See Creech 887 N.E.2d at 77 (explaining by the time the trial court

      erroneously advised the defendant of the possibility of appeal, the defendant

      had already pleaded guilty and received the benefit of his bargain, therefore

      being told at the close of the sentencing hearing that he could appeal

      presumably had no effect on his decision to enter the plea agreement).


[8]   Here, the plea agreement was referenced repeatedly at the change of plea

      hearing, and McCampbell acknowledged having read and signed it. The trial

      court did not advise McCampbell he had a right to appeal at the change of plea

      hearing, and therefore McCampbell could not have proceeded with the

      understanding that provision of his plea agreement was void. As in Creech, it

      was not until the conclusion of McCampbell’s sentencing hearing, after his plea

      had been accepted and his sentence imposed, that the trial court advised him of

      his right to appeal. As the trial court advised him of his right to appeal after

      accepting the plea agreement and sentencing him, whatever the trial court’s




      Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 5 of 9
       intent in advising him of the right to appeal, the statement had no legal effect on

       the terms of McCampbell’s plea. See id. at 76-77.


[9]    Further, McCampbell’s waiver was made knowingly and voluntarily. At

       McCampbell’s guilty plea hearing, the trial court explained to McCampbell the

       terms of the plea agreement and what rights he was giving up by entering into

       it, including the right to appeal. McCampbell affirmed to the trial court he

       understood the terms of the agreement and the trial court subsequently

       sentenced McCampbell to a term within the range provided by statute. See Ind.

       Code § 35-50-2-4.5 (stating a person who commits a Level 2 felony shall be

       imprisoned for a fixed term between ten and thirty years). Therefore, we

       conclude McCampbell has waived his right to directly appeal his sentence.


                                     II. Abuse of Discretion
[10]   Waiver notwithstanding, McCampbell’s challenge to his sentence fails on its

       merits. He contends the trial court abused its discretion by relying on an

       improper factor to support his sentence. Sentencing decisions lie within the

       sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222

       (Ind. 2008). An abuse of discretion occurs if the 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.” Gross v.

       State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.

       A trial court abuses its discretion in sentencing if it does any of the following:




       Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 6 of 9
               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007)).


[11]   McCampbell argues the trial court relied on an improper factor in sentencing

       him. To support this argument, McCampbell points to certain comments made

       by the trial court while discussing McCampbell’s offense. The trial court stated,


               Obviously as the Judge of the Dearborn County Veterans
               Treatment Court and also the Dearborn County Drug Court, I
               oversee a large docket of primary, primarily young IV heroin
               users. And, the exhibit, State’s exhibit two, the blocks, or bricks
               of heroin is something that, being in criminal courts everyday
               [sic] for fifteen [years] I’ve never seen. I have never seen this
               much heroin, I mean this is a significant amount of heroin, and
               obviously that’s the elephant in the room. The facts of this case
               are heinous, five thousand doses of heroin, I can go through in
               my mind the, the Drug Court participants who have overdosed
               and died, I can see their faces in my mind right now.


       Tr. at 83. By this statement, McCampbell contends the trial court “conjured up

       images of dead heroin addicts who had previously passed through the court

       [and] punished McCampbell for the crimes of others by allowing past cases to

       improperly influence the outcome in this case.” Brief of Appellant at 9.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 7 of 9
[12]   We find no error with the trial court’s statements. It is clear the trial court was

       discussing the serious nature of heroin addiction and its effect on past

       participants in the Dearborn County Drug Court. Further, the trial court went

       on to state,


               Five thousand doses of heroin is dangerous. The culpability of
               the Defendant is high, severity of the crime of, of transporting
               one pound of heroin to deal is high, and the potential damage to
               others is high. The criminal history . . . [shows] eight
               convictions, five of those were misdemeanors, . . . there were
               three felonies . . . . So the Court, by law, is required to consider
               the facts, in particular, the pound of heroin, and the criminal
               history. . . . The criminal history and the amount of heroin
               involved puts the Court in a position . . . where it’s not going to
               impose the maximum sentence, but it’s not in the position to
               exercise much mercy either.


       Tr. at 83-86. It is obvious from reading the trial court’s entire statement it did

       not punish McCampbell for the crimes of others. Rather, the trial court

       illustrated the seriousness of McCampbell’s offense by commenting on

       Dearborn County’s unfortunate past experiences with heroin addicts and the

       danger presented to the community by possessing that amount of heroin. The

       trial court made clear the aggravating factors it considered were McCampbell’s

       criminal history and the substantial amount of heroin in his possession.



                                              Conclusion
[13]   McCampbell knowingly and voluntarily entered into a written plea agreement

       with a provision waiving his appellate rights. Such provisions are valid and

       Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 8 of 9
       enforceable, and McCampbell has advanced no reasons to hold otherwise in

       this case. Therefore, he has waived his right to appeal his sentence. The

       twenty-eight-year sentence imposed by the trial court is affirmed.


[14]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1605-CR-1081 | November 9, 2016   Page 9 of 9
