MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Dec 29 2016, 8:56 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan W. Tanselle                                        Gregory F. Zoeller
Capper Tulley & Reimondo                                Attorney General of Indiana
Brownsburg, Indiana
                                                        Matthew R. Elliott
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carlvet Lee,                                            December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A04-1607-CR-1547
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Karen M. Love,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        32D03-1507-F2-16



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016   Page 1 of 3
[1]   Carlvet Lee appeals the sentence imposed by the trial court after he pleaded

      guilty to seven counts of felony drug and gun offenses. Lee argues that the trial

      court abused its discretion in its determination of mitigating circumstances and

      that the sentence is inappropriate under Indiana Appellate Rule 7(B). Finding

      that Lee waived the right to challenge the sentence, we dismiss the appeal.


[2]   Lee and the State entered into a plea agreement, which was accepted by the

      trial court on April 26, 2016. The plea agreement contains the following

      provision:

              Defendant is knowingly, intelligently and voluntarily waiving his
              right to challenge the sentence imposed by the Court pursuant to
              this agreement on the basis that such sentence is erroneous for
              any reason. He is waiving his right to challenge the Court’s
              finding and balancing of mitigating and aggravating factors as
              well as his right to have the Court of Appeals review the sentence
              under Indiana Appellate Rule 7(B).


      Appellant’s App. p. 58-59. It is undisputed that the sentence imposed by the

      trial court was within the bounds of the terms of the plea agreement.


[3]   It is well established that a defendant may waive his right to appeal his sentence

      as part of a plea agreement and that such waivers are valid and enforceable.

      E.g., Creech v. State, 887 N.E.2d 73, 74-75 (Ind. 2008). Lee contends that the

      waiver is unenforceable because the record does not reveal that he was advised

      of his right to appeal an open plea before he agreed to the waiver provision. It

      is well established, however, that neither a separate advisement of rights form

      nor an additional discussion about the waiver provision are required for a valid

      Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016   Page 2 of 3
      waiver. Id. at 76. If the written plea agreement contains an express waiver of

      the right and nothing else in the record indicates that the plea was not knowing

      and voluntary, then the waiver is valid. Id. at 76-77. Here, Lee and his

      attorney both stated that he understood the plea agreement and Lee stated

      under oath that he understood the potential sentence he faced under the plea

      agreement. Tr. p. 12-13, 45-47. Under these circumstances, we find that Lee

      has waived his right to challenge his sentence and hereby dismiss this appeal.


[4]   The appeal is dismissed.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 32A04-1607-CR-1547 | December 29, 2016   Page 3 of 3
