MEMORANDUM DECISION
                                                                       Feb 25 2016, 6:54 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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Office of Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Matthew Fritz,                                      February 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         76A04-1509-CR-1430
        v.                                               Appeal from the Steuben Superior
                                                         Court
State of Indiana,                                        The Honorable William C. Fee,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         76D01-1405-MR-1



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016      Page 1 of 9
                               Case Summary and Issues
[1]   Mark Fritz entered a plea of guilty to voluntary manslaughter, a Class B felony,

      and was sentenced to twenty years in the Indiana Department of Correction.

      On appeal, Fritz raises two issues regarding his sentence: 1) whether the

      provision in his plea agreement waiving the right to appeal is enforceable; and

      2) whether his twenty-year sentence, the maximum allowable under the plea

      agreement, is inappropriate in light of the nature of his offense and his

      character. Concluding the plea agreement is enforceable and Fritz waived his

      right to appeal his sentence, we affirm.



                            Facts and Procedural History
[2]   On June 24, 2001, Samuel Hunter was found dead in his home. His murder

      remained unsolved until 2014, when police recorded a conversation between

      Fritz and his niece in which he admitted to killing a man matching Hunter’s

      description in the same manner Hunter was killed. On May 14, 2014, the State

      charged Fritz with Hunter’s murder. At Fritz’s initial hearing, counsel was

      appointed to represent him. On April 1, 2015, the State added a charge of

      voluntary manslaughter. On that same date, Fritz and the State entered into a

      written plea agreement pursuant to which Fritz would plead guilty to voluntary

      manslaughter. In addition, the plea agreement provided:

              Defendant understands that he/she may be sentenced to a period
              of incarceration of between 6 years and 20 years and expressly
              waives any right to appeal his/her conviction and sentence in this


      Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 2 of 9
              cause either by direct appeal or by post conviction relief so long
              as the sentence is within the parameters described above.


      Appellant’s Appendix at 60.


[3]   At the change of plea hearing, the trial court placed Fritz under oath and then

      advised him that the court’s purpose was to “make sure that you understand

      what you are doing. That your acts are done voluntarily.” Transcript at 5.

      Fritz acknowledged that no one had forced or threatened him into entering the

      plea agreement. The trial court then advised Fritz of the various rights he was

      giving up by pleading guilty, including the right to appeal his conviction.

              Court: Any questions, Sir, about those rights?


              [Fritz]: No.


              Court: And do you think you understand those, then, Mr. Fritz?


              [Fritz]: Yes.


              Court: And do you understand that by pleading guilty, you are
              giving those rights up?


              [Fritz]: Yes.


      Id. at 9. At the trial court’s request, the State read the plea agreement for the

      record:

              The plea is to Voluntary Manslaughter. The Court will impose
              sentence. That sentencing range is a period of incarceration of

      Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 3 of 9
              between six years and twenty years. The defendant expressly
              waives any right to appeal his conviction and sentence either by
              direct appeal or post-conviction relief so long as it is within these
              parameters. There is a mandatory $100.00 public defender fee.


      Id. at 11. Fritz agreed this was his understanding of the plea agreement. Fritz

      offered a factual basis for the offense and pleaded guilty. The trial court took

      Fritz’s plea under advisement pending preparation of a pre-sentence

      investigation report and scheduled a sentencing hearing.


[4]   At the April 27, 2015, sentencing hearing, the trial court accepted the plea

      agreement and dismissed the murder charge on the State’s motion. At the

      conclusion of the hearing, the trial court sentenced Fritz to twenty years in

      prison, the maximum sentence allowable under the plea agreement.


[5]   On May 21, 2015, Fritz sent a letter to the trial court indicating he wanted to

      appeal his sentence and requesting appointment of appellate counsel. Upon

      learning of this letter, Fritz’s trial counsel filed a motion to correct errors,

      arguing Fritz’s sentence was erroneous because the trial court gave too much

      weight to Fritz’s criminal history and not enough to his guilty plea. The motion

      also requested the trial court appoint counsel for appeal. The trial court

      conducted a hearing on this motion on August 17, 2015, and denied the motion

      to correct errors because “this is a form of appellate review and there is this

      contract in place.” Id. at 36. In addition, the trial court noted the sentence was

      within the parameters of the plea agreement. The trial court also declined to

      appoint appellate counsel “because there is no appeal before the Court at this


      Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 4 of 9
      time.” Id. at 37. On August 21, 2015, the trial court reconsidered its ruling in

      part and appointed the office of the Public Defender of Indiana as appellate

      counsel for Fritz.


[6]   Fritz filed a notice of appeal on September 15, 2015. On November 12, 2015,

      Fritz, by counsel, filed a motion to dismiss the appeal because “counsel has

      found no evidence to support a possible claim that [Fritz’s] waiver of his

      appellate right was not knowing or voluntary.” Verified Motion to Dismiss

      Appeal at 2. This court denied the motion to dismiss, however:


              This case involves an appeal from a criminal case. This Court
              will not grant an Appellant’s request to dismiss such an appeal
              unless the Appellant demonstrates: (a) Appellant has been
              specifically advised that this is his or her only opportunity to
              directly appeal the trial court’s judgment; and (b) after having
              been advised of the consequences of dismissal of this appeal,
              Appellant consents to dismissal. A verified statement by counsel
              or an Affidavit signed by the Appellant setting forth this
              information will suffice.


      Order (November 20, 2015). The motion was denied without prejudice to

      Fritz’s right to file an amended motion to dismiss containing the required

      information within thirty days. Instead, Fritz timely filed his appellate brief.



                                 Discussion and Decision
[7]   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.

      Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 5 of 9
      2008) (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)).

      Here, Fritz signed the plea agreement containing the waiver provision and

      acknowledged to the trial court at his guilty plea hearing that he understood

      that provision and was voluntarily entering into the agreement. Nonetheless,

      Fritz argues he has not waived his right to appeal for several reasons: 1) the

      provision included an unenforceable waiver of the right to pursue post-

      conviction relief; 2) the trial court created an ambiguity regarding Fritz’s right

      to appeal when it appointed appellate counsel; and 3) this court denied Fritz’s

      motion to dismiss suggesting the case should be decided on its merits.


[8]   Fritz is correct that provisions in plea agreements waiving the right to seek post-

      conviction relief are void and unenforceable. Id. at 75-76. However, Fritz is

      attempting a direct appeal, not pursuing a post-conviction remedy, and as noted

      above, a defendant may waive his right to direct appeal. The plea agreement

      scrutinized in Perez v. State, 866 N.E.2d 817, 819 (Ind. Ct. App. 2007), trans.

      denied, also contained both waiver provisions, and this court enforced the

      waiver of direct appeal. Likewise here, the fact that the waiver of post-

      conviction relief is unenforceable does not invalidate the waiver of the right to

      direct appeal. See State v. Arnold, 27 N.E.3d 315, 321 (Ind. Ct. App. 2015)

      (noting that plea agreements are contractual in nature, and that as a general

      proposition, the fact that one part of an agreement may be void or

      unenforceable does not render the entire agreement void if the prohibited and

      valid provisions are severable), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 6 of 9
[9]    After a defendant pleads guilty and receives the benefit of a plea bargain,

       subsequent actions by the trial court do not affect a knowing and voluntary

       waiver of appeal rights because “[m]ost waivers are effective when set out in

       writing and signed.” Creech, 887 N.E.2d at 76-77 (alteration in original)

       (citation omitted). Thus, in Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct.

       App. 2008), trans. denied, we held a waiver provision in a plea agreement was

       unenforceable where the trial court advised the defendant at his plea hearing that

       he had the right to appeal because he entered his plea with the understanding he

       retained the right to appeal his sentence. However, where the subsequent

       erroneous statements or potentially misleading actions are made after the plea is

       entered, the waiver is not invalidated. See Brattain v. State, 891 N.E.2d 1055,

       1057 (Ind. Ct. App. 2008) (noting the trial court’s appointment of appellate

       counsel at defendant’s request more than a week after sentencing did not

       invalidate the waiver provision in defendant’s plea agreement).


[10]   At Fritz’s guilty plea hearing, the trial court explained to Fritz the terms of the

       plea agreement and what rights he was giving up by entering into it, including

       the right to appeal. Fritz affirmed to the trial court that he understood the terms

       of the agreement. The trial court sentenced Fritz to a term within the range

       provided in the plea agreement. The appointment of appellate counsel was first

       raised in Fritz’s own motion to correct errors, filed a month after his sentencing.

       At the hearing on the motion to correct errors, the trial court repeatedly

       referenced Fritz’s waiver of the right to appeal. We do acknowledge that the

       trial court’s subsequent appointment of counsel was then understandably


       Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 7 of 9
       confusing.1 However, as set out above, the trial court’s contradictory action

       nearly four months after Fritz’s sentencing does not invalidate the waiver

       provision.


[11]   Finally, Fritz’s motion to dismiss was made prior to this case being fully briefed

       on appeal, and as such, the order denying the motion to dismiss was not made

       on the merits but simply asked counsel to show that Fritz wished his appeal to

       be dismissed. Moreover, any actions this court took on appeal cannot have

       impacted Fritz’s understanding of his right to appeal at the time he entered into

       the plea agreement.


[12]   Fritz waived his right to directly appeal his sentence so long as the sentence fell

       within the parameters of the plea agreement. The trial court’s imposition of a

       twenty-year sentence was within those parameters, and we therefore decline to

       review his claim that his sentence was inappropriate.




       1
         The confusion was precipitated by Fritz’s own counsel, who had represented him throughout the
       proceedings, including negotiating the plea agreement and appearing at the change of plea and sentencing
       hearings, but nonetheless requested the appointment of appellate counsel. Counsel stated at the hearing on
       the motion to correct errors that he had spoken to someone with the public defender commission and was
       advised, “not about this case in particular, but there are circumstances when you waive your right to appeal
       you can nevertheless seek an appeal.” Tr. at 36.
       Up to and including the hearing on the motion to correct errors, it appeared the trial court was clear on the
       terms of Fritz’s plea agreement and the existence of the waiver provision. It was read into the record at the
       change of plea hearing, the trial court did not as a matter of course advise Fritz at his sentencing hearing of a
       right to appeal his sentence, and the trial court referenced the waiver several times during the hearing on the
       motion to correct errors. Although it appears the trial court recalled the waiver provision on its own, the
       State also apprised it of the provision during the hearing on the motion to correct errors. It is unclear why the
       trial court then reconsidered its earlier ruling regarding the appointment of counsel, as it was entered on the
       Chronological Case Summary as an “administrative event” apparently unrelated to any filing or hearing.
       Appellant’s App. at 11.

       Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016             Page 8 of 9
                                               Conclusion
[13]   Fritz knowingly and voluntarily entered into a written plea agreement with a

       provision waiving his appellate rights. Such provisions are valid and

       enforceable, and Fritz has advanced no reasons to hold otherwise in this case.

       He thus waived his right to appeal his sentence, and we do not consider the

       merits of his claim for appellate review of his sentence. The twenty-year

       sentence imposed by the trial court is affirmed.


[14]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1509-CR-1430 | February 25, 2016   Page 9 of 9
