      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Feb 15 2017, 8:56 am
      court except for the purpose of establishing                         CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
      estoppel, or the law of the case.                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jay T. Hirschauer                                        Curtis T. Hill, Jr.
      Logansport, Indiana                                      Attorney General of Indiana
                                                               Matthew R. Elliot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Donald E. Morris,                                        February 15, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               91A02-1606-CR-1363
              v.                                               Appeal from the White Superior
                                                               Court
      State of Indiana,                                        The Honorable Robert B. Mrzlack,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               91D01-1403-FA-29

      Mathias, Judge.


[1]   Donald E. Morris (“Morris”) pleaded guilty in White Superior Court to Class A

      felony dealing in methamphetamine. On appeal, White contends that the




      Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017   Page 1 of 5
      sentence imposed by the trial court was inappropriate. Concluding that White

      waived his right to appeal his sentence, we affirm.


                                 Facts and Procedural History

[2]   In June 2014, Morris was a sixty-two-year-old disabled veteran of the Vietnam

      War who suffered from post-traumatic stress disorder (“PTSD”). Morris had

      been given a 70% disability rating due to his PTSD and still had shrapnel in his

      body as a result of his war injuries. Morris was also addicted to

      methamphetamine. On June 19, Morris made arrangements with a person with

      whom he was acquainted to come to his home and give him pseudoephedrine

      pills in exchange for methamphetamine. In fact, this person was a confidential

      informant working for the Indiana State Police. The amount of

      methamphetamine the informant bought was 3.09 grams.


[3]   As a result of this controlled buy, the State charged Morris on March 11, 2014,

      with Class A felony dealing in methamphetamine. After bonding out of jail,

      Morris sought treatment for his methamphetamine addiction and PTSD at a

      facility operated by the U.S. Department of Veterans Affairs. Morris did not do

      well in outpatient treatment and attempted to commit suicide. Thereafter, he

      was admitted to an inpatient treatment facility and completed the treatment

      program successfully.

[4]   On July 17, 2015, Morris entered into a plea agreement that called for him to

      plead guilty to Class A felony dealing in methamphetamine in exchange for the

      minimum twenty-year sentence. In addition, the plea agreement provided that

      Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017   Page 2 of 5
      the State would make no recommendation as to sentencing and that the

      placement for sentencing would be left to the discretion of the trial court.

      Paragraph 4 of the plea provided, “[t]he Defendant waives his right to appeal

      any sentence imposed by the trial court that is within the range set forth in the

      plea agreement. Further, Defendant knowingly, intelligently and voluntarily

      waives his right to challenge the sentence on the basis that it is erroneous.”

      Appellant’s App. p. 65.


[5]   On May 13, 2016, the trial court accepted the plea and sentenced Morris to the

      minimum term of twenty years. The trial court ordered Morris to serve ten

      years executed in the Indiana Department of Correction with the remaining ten

      years to be served on home detention. Morris now appeals.


                                     Discussion and Decision

[6]   Morris claims that his sentence is inappropriate in light of the nature of the

      offense and the character of the offender. The State argues that, in his plea

      agreement, Morris waived his right to appeal his sentence. We agree with the

      State.


[7]   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 the

      waiver is knowingly and voluntarily made. Creech v. State, 887 N.E.2d 73, 75

      (Ind. 2008). Here, Morris makes no argument that his plea was not knowingly

      and voluntarily made, and if he did, such an argument would be meritless.



      Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017   Page 3 of 5
[8]   During the guilty plea hearing, the trial court advised Morris of his rights,

      explained the rights he would forfeit by pleading guilty, inquired into Morris’s

      mental ability to enter into the plea agreement, and ensured that Morris was

      neither threatened nor forced to enter into the plea agreement. Tr. pp. 5-8. The

      trial court also explained that by pleading guilty, Morris was admitting to the

      facts underlying the charge against him, which Morris acknowledged. When

      asked, “Is your plea of guilty your own free and voluntary act,” Morris

      responded, “Yes.” Tr. p. 12. When asked, “And by pleading guilty you are

      telling the Court that on June 19, 2013, in White County, Indiana, you

      knowingly delivered a substance known to you to be methamphetamine in an

      amount that weighed more than three grams,” Morris replied, “Yes, sir.” Id.

      Thus, there is nothing to suggest that Morris’s decision to plead guilty was

      anything other than knowingly and voluntarily made.

[9]   Unlike in Creech, here the trial court did not misadvise Morris that, despite the

      waiver-of-appeal provision contained in the plea agreement, he nonetheless had

      a right to challenge his sentence on appeal. See Creech, 887 N.E.2d at 74.1 This

      makes the argument for a valid waiver stronger. See Bowling v. State, 960 N.E.2d

      837, 842 (Ind. Ct. App. 2012) (holding that failure of trial court to misadvise

      defendant of her right to appeal, notwithstanding a clear waiver of the right to

      appeal contained in the written plea agreement, made the case for waiver



      1
        The court in Creech held that the misadvisement did not render the waiver invalid, noting that the erroneous
      advisement came at the sentencing hearing which occurred after Creech had already pleaded guilty and
      received the benefit of his bargain. Id. at 77.

      Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017           Page 4 of 5
       stronger, not weaker). We note, however, that a specific dialogue with the trial

       court is not a prerequisite to a valid waiver of appeal, so long as there is other

       evidence in the record demonstrating a knowing and voluntary waiver. Id. at

       483 (citing Creech, 887 N.E.2d at 74).


[10]   As noted above, there is nothing in the record before us that would suggest that

       Morris’s waiver was anything other than knowingly and voluntarily made. The

       language of Paragraph 4 of the plea agreement is clear and unambiguous: by

       pleading guilty, Morris waived the right to appeal his sentence so long as the

       trial court sentenced him within the terms of the plea agreement. The trial court

       here sentenced Morris within the terms of the plea agreement.2 We therefore

       conclude that Morris waived his right to appeal his sentence.3

[11]   Affirmed.


       Baker, J., and Pyle, J., concur.




       2
         This is distinguishable from the facts in Morris v. State, 985 N.E.2d 364, 366 (Ind. Ct. App. 2013), clarified on
       reh’g, 2 N.E.3d 7, which held that a provision of written plea agreement providing that the defendant waived
       his right to appeal sentence on basis that it was “erroneous” was ambiguous as to whether he was giving up
       his right to challenge his sentence as inappropriate under Appellate Rule 7(B), because a non-erroneous
       sentence may still be considered inappropriate under Rule 7(B). Here, as in Morris, Paragraph 4 does state
       that Morris waived his right to challenge his sentence as “erroneous.” Unlike Morris, though, it also provides
       more generally that Morris waived his right to appeal his sentence so long as the trial court sentenced him
       within the terms of the plea agreement, which the trial court here did.
       3
         Waiver notwithstanding, we note that Morris received the minimum sentence allowed, and the trial court
       ordered him to serve only half of this sentence in incarceration. Assuming Morris receives Class 1 credit for
       his time served, he will spend five years in prison after admitting to a Class A felony. See Ind. Code § 35-50-6-
       3. This is a comparatively lenient sentence. Morris also has a criminal history which includes a prior felony
       conviction for burglary. Thus, even if we reached the merits of Morris’s claim, we would be hard pressed to
       say that his sentence was inappropriate under Appellate Rule 7(B).

       Court of Appeals of Indiana | Memorandum Decision 91A02-1606-CR-1363 | February 15, 2017               Page 5 of 5
