      MEMORANDUM DECISION
                                                                 Feb 13 2015, 8:47 am
      Pursuant to Ind. Appellate Rule 65(D), this
      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
      John T. Wilson                                            Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Iquise Taylor,                                           February 13, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               48A04-1406-CR-254
              v.                                               Appeal from the Madison Circuit
                                                               Court, The Honorable Thomas
                                                               Newman, Jr., Judge
      State of Indiana,                                        Cause No. 48C03-1308-FA-1634
      Appellee-Plaintiff




      Najam, Judge.


                                         Statement of the Case
[1]   Iquise Taylor appeals his sentence after he pleaded guilty but mentally ill to

      burglary, as a Class A felony; criminal deviate conduct, as a Class B felony;

      criminal confinement, as a Class C felony; and strangulation, a Class D felony.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 1 of 8
      Taylor presents two issues for our review, but we address only one dispositive

      issue, namely, whether Taylor waived his right to appeal his sentence in his

      plea agreement. We hold that he did, and, therefore, we affirm.


                                 Facts and Procedural History
[2]   During the late-night hours of July 15, 2013, and the early-morning hours of

      July 16, seventeen-year-old Taylor forcibly entered the Madison County

      residence of ninety-three-year-old Amelia Rudolf, who had lived there for

      nearly sixty years. Taylor kicked in the backdoor to Rudolf’s home and made

      his way to Rudolf’s bedroom. Once there, Taylor strangled Rudolf and

      penetrated her rectum with his penis. Taylor’s assault broke Rudolf’s toe and

      left “physical abuse marks” on her face. Tr. at 85. The State recovered

      Taylor’s DNA on tissues left in the restroom nearest to Rudolf’s bedroom, and

      anal swabs, collected from Rudolf, revealed the presence of Taylor’s DNA in

      her rectum. Rudolf’s DNA was also discovered on a pair of Taylor’s shorts,

      worn by him that night and later found at his home. Taylor was on probation

      for a prior offense at the time he attacked Rudolf.


[3]   On August 26, 2013, the State charged Taylor with burglary, as a Class A

      felony; criminal deviate conduct, as a Class B felony; criminal confinement, as

      a Class C felony; and strangulation, a Class D felony. On April 8, 2014, Taylor

      agreed to plead guilty but mentally ill, in an open plea, to all charges, and the

      State agreed to recommend concurrent sentences for all charges. The parties

      agreed to otherwise leave sentencing to the court’s discretion. Pursuant to the

      agreement, if the court sentenced Taylor within the parameters of the plea
      Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 2 of 8
      agreement Taylor agreed to waive appellate review of any sentence imposed.

      Specifically, the agreement provided:

              (3) [Taylor] shall plead guilty but mentally ill as charged.


              (4) At the time of taking of the guilty plea [sic], and again at the time
              of [Taylor’s] sentencing, the State will recommend as to the sentence
              to be imposed as follows:


                       The sentence shall be open to the Court with all counts
                       to run concurrently.


                       All other terms and conditions of the sentencing and
                       probation are to be set by the Court.


                                                      ***


              (5) [Taylor] understands that the State and Federal Constitutions
              guarantee all criminal defendants certain rights . . . . [Taylor] further
              understands that the entry of a guilty plea pursuant to this agreement
              waives those rights . . . .


              (6) [Taylor] 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 this Court sentences [Taylor] within
              the terms of this plea agreement. It is further agreed that the sentence
              recommended and/or imposed is the appropriate sentence to be served
              pursuant to this agreement and [Taylor] hereby waives any future
              request to modify the sentence under I.C.35-38-1-17 [sic].


      Appellant’s App. at 30-31 (emphasis added).


[4]   Taylor’s counsel reviewed the evidence against Taylor with him, read the plea

      agreement to him, and answered any questions Taylor had about its contents or

      Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 3 of 8
      Taylor’s legal rights. Taylor then signed the plea agreement in counsel’s

      presence. Following a plea colloquy, the trial court determined that Taylor

      understood the charges against him and voluntarily entered his plea. Thus, the

      court accepted Taylor’s plea of guilty but mentally ill and set the case for

      sentencing.


[5]   On May 5, the court sentenced him to an aggregate, concurrent sentence of fifty

      years. In sentencing Taylor, the court stated:

              [T]he court finds in regards to sentencing mitigating circumstances to
              be the age of the defendant at the time of the incident. This is
              somewhat [m]itigated by the facts and circumstances of the case[,]
              which were particularly heinous and aggravated. The fact that he
              entered a plea[,] which obviated the time necessary for a trial[,] but he
              had benefits from entering the plea in that t[h]e sentences for four
              different counts will be running concurrent instead of consecutive.


              Aggravating circumstances would be the defendant’s criminal
              history[,] and it would appear[,] despite the defendant’s prior criminal
              history and attempts of rehabilitation, he’s still unable to abide by the
              law and live a criminal[-]free life. Another aggravating circumstance
              would be . . . the age of the victim in this case and how the incident
              has changed the victim[’]s life to the extent that it’s totally altered her
              lifestyle, denied her of one of the great [d]reams that she had to live her
              life in the house . . . that she and her husband built and that she had
              lived in from that time on.


              It is obvious that the defendant is somewhat low functioning and has
              somewhat limited capacity[,] but this sort of lends itself to the fact that
              the defendant may not appreciate the criminal law and the
              wrongfulness of his conduct[,] which logically places innocent citizens
              in danger and in so based upon the aggravating circumstance[s]
              outweighing the mitigating circumstances the sentence for Court I[] is
              fifty years, all executed. Count II, twenty; Count III, eight[;] and


      Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 4 of 8
              Count IV, three, all concurrent for a fifty[-]year sentence to the
              Department of Correction[].


      Tr. at 114-15 (line breaks added).


[6]   Despite the language contained in the plea agreement, after the court sentenced

      Taylor, it asked whether he would like to appeal his sentence. Taylor’s counsel

      responded affirmatively, and the court appointed counsel. This appeal ensued.


                                     Discussion and Decision
[7]   Taylor contends that the trial court abused its discretion when it sentenced him

      and that the nature of the offense and his character make his sentence

      inappropriate. The State, however, responds that Taylor waived his right to

      appeal in his plea agreement. We agree with the State, and, therefore, we do

      not reach Taylor’s contentions.


[8]   In response to the State’s waiver argument, Taylor contends that we should not

      enforce the waiver clause in his plea agreement because it is ambiguous. But, as

      the State points out, the clause contained in Taylor’s guilty plea is similar to

      that present in Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans.

      denied. There, Bowling entered in a plea agreement that contained a clause that

      read: “By pleading guilty you have agreed to waive your right to appeal your

      sentence so long as the Judge sentences you within the terms of your plea

      agreement.” Bowling attempted to appeal her sentence, arguing that the waiver

      clause in the plea agreement was “confusing and should not be enforced.” Id.

      We disagreed and stated:

      Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 5 of 8
               A plea agreement in which the trial court has discretion over the length
               of the sentence is referred to as an open plea. Where a plea agreement
               leaves sentencing to the trial court’s discretion, a defendant is entitled
               to contest on direct appeal the merits of a trial court’s sentencing
               decision. This includes a plea agreement wherein a defendant agrees
               to a sentencing cap or range. However, our supreme court has held
               that a defendant can waive the right to appellate review of his sentence
               as a part of a written plea agreement as long as such waiver is made
               knowingly and voluntarily.


       Id. at 841-42 (emphasis added).


[9]    The trial court here found that Taylor made his plea knowingly and voluntarily,

       and Taylor does not dispute that finding. Further, Taylor’s plea agreement is

       similar to that present in Bowling. Paragraph five of Taylor’s plea agreement

       indicates that Taylor understood that, as a defendant, he had several rights

       available to him under both the federal and Indiana constitutions, and it

       additionally declares that Taylor knowingly waived those rights by pleading

       guilty. Although the right to appeal his sentence is not included among those

       specifically enumerated in paragraph five, in the very next paragraph, Taylor

       specifically waived his 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 sentence[d him] within the terms of

       this plea agreement.” Appellant’s App. at 31. In the same paragraph, Taylor

       also agreed to “waive[] any future request to modify [his] sentence.” Id.


[10]   Thus, we hold that Taylor knowingly and voluntarily waived his right to appeal

       his sentence. We cannot agree with Taylor, as he argues, that paragraph six of

       his plea agreement is ambiguous; that paragraph clearly stated that Taylor
       Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015   Page 6 of 8
       agreed to waive his right to appeal his sentence so long as the court sentenced

       him within the parameters of the plea agreement. Those parameters dictated

       that the court could sentence Taylor to any term permitted for any of the

       charges so long as the court ordered the sentences to be served concurrently.

       The court did so, and, thus, the waiver clause in the plea agreement is binding

       upon Taylor.


[11]   Neither would we agree that the court’s erroneous statement at Taylor’s

       sentencing hearing, where it asked Taylor whether he wished to appeal his

       sentence, should alter our analysis. Our supreme court has held that erroneous

       statements made by a trial court at a sentencing hearing, such as the one made

       here, do not abrogate the language of a plea agreement after it has been

       accepted by the court and after a defendant has received the benefit of his plea

       bargain. See Creech v. State, 887 N.E.2d 73, 76 (Ind. 2008); Bowling, 960 N.E.2d

       at 842 n.7. The court in Creech stated:

                The content and language of the plea agreement itself, as well as the
                colloquy where necessary, govern the determination as to the validity
                of the waiver. A specific dialogue with the judge is not a necessary
                prerequisite to a valid waiver of appeal, if there is other evidence in the
                record demonstrating a knowing and voluntary waiver.


       Id. (citations and quotation marks omitted). 1




       1
         But “[w]here the trial court inaccurately advised the defendant at the guilty plea hearing regarding the right
       to appeal his sentence, we have found that the written waiver was unenforceable.” Bowling, 960 N.E.2d at
       842 n.7 (emphasis supplied) (citing Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1406-CR-254 | February 13, 2015               Page 7 of 8
[12]   Here, the court accepted Taylor’s plea agreement on April 8, and it sentenced

       him on May 5. The court made its erroneous statement on May 5 after it had

       already imposed Taylor’s sentence. In other words, the court made the

       statement after it had accepted Taylor’s plea and after Taylor had benefitted

       from his plea bargain. Thus, we hold that the trial court’s erroneous statement

       is immaterial, and Taylor waived his right to appeal.


[13]   Affirmed.


[14]   Mathias, J., and Bradford, J., concur.




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