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:

CHRISTOPHER A. CAGE                               GREGORY F. ZOELLER
Anderson, Indiana                                 Attorney General of Indiana

                                                  AARON J. SPOLARICH
                                                  Deputy Attorney General

                                                                                FILED
                                                  Indianapolis, Indiana

                                                                            Feb 15 2013, 9:28 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




DENNIS WHITE,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 48A02-1207-CR-588
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Thomas Newman, Jr., Judge
                             Cause No. 48C03-1203-FB-410



                                       February 15, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
      Appellant-Defendant Dennis White appeals the trial court’s order of maximum

and consecutive sentences, totaling fourteen years executed, after White pled guilty to

one count each of Class C felony criminal confinement, Class D felony criminal

confinement, and Class D felony torturing or mutilating a vertebrate animal. White’s

plea was made pursuant to an agreement with Appellee-Plaintiff the State of Indiana in

exchange for the State’s dismissal of twelve additional felony charges against him. The

agreement left the sentence open to the trial court’s discretion and further provided that

White “waives the right to appeal any sentence imposed by the Court … so long as the

Court sentences the defendant within the terms of this plea agreement.” Concluding that

White knowingly and intelligently waived the right to appeal his sentence, we affirm.

                      FACTS AND PROCEDURAL HISTORY

      On February 23, 2012, an argument erupted between White and his girlfriend,

Wendy Shipley, at the couple’s home in Anderson. The argument involved Shipley’s

$1300 tax refund, which Shipley refused to share with White. During their argument,

White physically restrained Shipley on a couch, slapped her in the face, and grabbed her

throat so Shipley could not breathe. Shipley’s pit bull, Coco, came to Shipley’s defense

and bit White on his buttock. White pushed the dog away, allowing Shipley to rise from

the couch. As the argument continued, Shipley’s son-in-law arrived at the home and tried

to defuse the situation. White prohibited the son-in-law from leaving the house until

White and Shipley resolved their dispute. Eventually, Shipley fled the home, leaving

Coco and the dog’s eight two-week-old puppies behind. Shipley later called White,

inquiring about Coco and the puppies. White informed Shipley that he had taken the


                                            2
dogs to the local animal shelter and that Coco had been euthanized.

        At some point, after the argument, officers from the Anderson Police Department

went to the couple’s home “to investigate a trouble with call.”1 Tr. p. 8. The officers

found blood in several rooms, including blood splatter “[f]ive feet or higher on the walls”

that “contained what appeared to be dog hair.” Appellant’s App. p. 39. Coco was found

dead in a closet with multiple stab wounds, and White admitted to stabbing the dog with

a knife. The officers also found the eight puppies, all dead or near death. Anderson

Animal Control Officer Danny Davis came and collected the puppies, noting that some of

their heads were caved in due to trauma.

        The State charged White with fifteen crimes, consisting of one count each of Class

B felony robbery, Class B felony robbery resulting in bodily injury, Class C felony

criminal confinement, Class D felony strangulation, Class D felony criminal

confinement, Class D felony domestic violence animal cruelty, and Class D felony killing

a domestic animal; and eight counts of Class D felony torturing or mutilating a vertebrate

animal. On May 9, 2012, White entered into a plea agreement with the State, whereby

White agreed to plead guilty to one count each of Class C felony criminal confinement,

Class D felony criminal confinement, and Class D felony torturing or mutilating a

vertebrate animal. In exchange for his plea, the remaining charges were to be dismissed.

        With regard to sentencing, White’s plea agreement provided, “The sentence shall

be open to the Court.” Appellant’s App. p. 8 (emphasis omitted). The agreement further

provided:

        1
         The record does not reveal whether this investigation was related to the couple’s argument or an
unrelated matter.

                                                    3
               The 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), so long as the Court
        sentences the defendant 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 the
        defendant hereby waives any future request to modify the sentence under
        I.C. 35-38-1-17.

Appellant’s App. p. 9. On May 21, 2012, the trial court conducted a guilty plea hearing,

where White confirmed that his plea was his “own free and voluntary act” and that he

was satisfied with the representation of his counsel. Tr. p. 7.

        The trial court held a sentencing hearing on June 18, 2012. After reviewing

White’s extensive criminal history,2 the trial court stated:

        It’s unbelievable the aggravating circumstances in this case far outweigh
        any mitigating circumstances. Therefore based upon the aggravating
        circumstances and the kind of person that Mr. White has shown the court
        disdain for the law abiding citizenry that we should be expected to have in
        this community and to what he’s done, deserves and enhances sentence on
        each case and each to run consecutive to one another.

Tr. p. 26-27.       Consequently, the trial court sentenced White to eight years in the

Department of Correction for his conviction of Class C felony criminal confinement,

three years for his conviction of Class D felony criminal confinement, and three years for

his conviction of Class D felony torturing or mutilating a vertebrate animal. White’s

consecutive sentences totaled fourteen years.

                                 DISCUSSION AND DECISION

        2
           Since 1984, White has been charged multiple times each with burglary, theft, operating a
vehicle while intoxicated, disorderly conduct, public intoxication, resisting law enforcement, check
deception, and battery resulting in bodily injury. Additional charges against White have included, inter
alia, assault, battery, domestic battery, battery by bodily waste, battery resulting in bodily injury to law
enforcement officer, and battery resulting in injury to family member.


                                                     4
       White argues that the trial court abused its discretion by failing to recognize his

guilty plea as a significant mitigating circumstance. White also argues that his maximum

and consecutive sentences are inappropriate in light of his character and the nature of his

offense. The State argues that White has waived these claims for appellate review, and

we agree.

       “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.” Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012) (citing Collins v.

State, 817 N.E.2d 230, 231 (Ind. 2004)), trans. denied. “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.

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

       Here, White’s plea agreement specifically provided that he was waiving the right

to appeal his sentence, and White acknowledged to the trial court that his plea was

voluntary.   “[A] trial court is not required to make express findings regarding a

defendant[’s] intention to waive his appellate rights.” Id. (citing Creech, 887 N.E.2d at 77

(“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.”)). Moreover, White does not contend that his plea agreement or its waiver

provision was signed unknowingly or involuntarily. Concluding that White’s waiver is

fully enforceable, we hold that White cannot challenge his sentence on appeal.

       The judgment of the trial court is affirmed.


                                             5
NAJAM, J., and FRIEDLANDER, J., concur.




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