                                                                      FILED
                                                                 Dec 29 2016, 9:15 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Brian A. Karle                                         Gregory F. Zoeller
      Ball Eggleston, PC                                     Attorney General of Indiana
      Lafayette, Indiana
                                                             Tyler G. Banks
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      William M. Starcher,                                   December 29, 2016
      Appellant-Defendant,                                   Court of Appeals Case No.
                                                             79A05-1605-CR-1135
              v.                                             Appeal from the Tippecanoe
                                                             Superior Court
      State of Indiana,                                      The Honorable Laura W. Zeman,
      Appellee-Plaintiff.                                    Judge
                                                             Trial Court Cause No.
                                                             79D04-1506-F6-110



      Najam, Judge.


                                      Statement of the Case
[1]   William M. Starcher appeals his two-year sentence after he pleaded guilty,

      pursuant to a written plea agreement, to maintaining a common nuisance, a

      Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor.

      Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016         Page 1 of 6
      Starcher raises a single issue for our review, namely, whether the trial court

      abused its discretion when it sentenced him. However, we agree with the State

      that the plain terms of Starcher’s plea agreement demonstrate that he waived

      his right to appellate review of his sentence. Accordingly, we grant the State’s

      motion to dismiss this appeal.


[2]   Dismissed.


                                 Facts and Procedural History
[3]   On June 2, 2015, the State charged Starcher with maintaining a common

      nuisance, a Level 6 felony; taking a child to a nuisance, as a Class A

      misdemeanor; possession of paraphernalia, as a Class A misdemeanor;

      possession of a synthetic drug, as a Class A misdemeanor; and possession of

      marijuana, as a Class B misdemeanor. Thereafter, Starcher pleaded guilty,

      pursuant to a written plea agreement, to maintaining a common nuisance, a

      Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor.

      In exchange for his guilty plea, the State agreed to dismiss the remaining

      charges.


[4]   According to Starcher’s plea agreement: “As a condition of entering this plea

      agreement, defendant knowingly and voluntarily agrees to waive the right to

      appeal the sentence on the basis that it is erroneous or for any other reason so

      long as the Judge sentences him/her within the terms of this agreement.”

      Appellant’s App. at 26. The terms of the agreement left sentencing “open” to

      the trial court’s discretion. Id.

      Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016   Page 2 of 6
[5]   At the ensuing guilty plea hearing, Starcher established a factual basis for his

      plea and the court took the agreement under advisement. Later, at the

      sentencing hearing, the court formally accepted the plea and sentenced Starcher

      to two years executed in the Department of Correction. The court then stated

      that Starcher had “the right to appeal this sentence . . . .” Tr. at 35. This appeal

      ensued.


                                       Discussion and Decision
[6]   Starcher appeals his two-year sentence. However, we agree with the State that

      Starcher has waived our review of his sentence.1


[7]   In Bonilla v. State, we explained the law on this issue clearly:


               The Indiana Supreme Court held in Creech v. State that a
               defendant may waive the right to appellate review of his sentence
               as part of a written plea agreement. 887 N.E.2d 73, 75 (Ind.
               2008). The Court then analyzed whether, despite the express
               language of the waiver in Creech’s plea agreement, he knowingly
               and voluntarily waived his right to appellate review of his
               sentence because the judge advised him at the close of the sentencing
               hearing that he retained the right to appeal. The Court rejected
               Creech’s argument, explaining:


                        While we take this opportunity to emphasize the
                        importance of avoiding confusing remarks in a plea
                        colloquy, we think the statements at issue are not grounds



      1
        Prior to the completion of briefing on appeal, the State moved to dismiss the appeal in light of the language
      of Starcher’s plea agreement. We held the State’s motion to dismiss in abeyance pending our review of the
      parties’ briefs, in which the parties also included argument on this issue.

      Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016                        Page 3 of 6
                for allowing Creech to circumvent the terms of his plea
                agreement.


                Creech does not claim that the language of the plea
                agreement was unclear or that he misunderstood the terms
                of the agreement at the time he signed it, but rather claims
                that his otherwise knowing and voluntary plea lost its
                knowing and voluntary status because the judge told him
                at the end of the sentencing hearing that he could appeal.


                                                   ***


                By the time the trial court erroneously advised Creech of
                the possibility of appeal, Creech had already pled guilty
                and received the benefit of his bargain. Being told at the
                close of the hearing that he could appeal presumably had
                no effect on that transaction.


        Id. at 76-77 (footnote omitted).


        After Creech, this Court decided Ricci v. State, 894 N.E.2d 1089
        (Ind. Ct. App. 2008), trans. denied. In Ricci, Ricci’s plea
        agreement contained a provision that he knowingly, intelligently,
        and voluntarily waived his right to appeal or challenge the
        sentence imposed by the court on the basis that it was erroneous
        or for any other reason. At the guilty plea hearing, however, the
        trial court advised Ricci that he had the right to appeal his
        sentence, and neither the prosecutor nor the defense spoke up.


        On appeal, this Court distinguished Creech:


                While it is clear that under Creech, a trial court’s incorrect
                advisement at the conclusion of a defendant’s sentencing
                hearing has no effect on an otherwise knowing, voluntary,

Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016     Page 4 of 6
                      and intelligent waiver of the right to appeal his sentence,
                      Creech does not address how a trial court’s misstatements
                      at the plea hearing impact the determination of whether a
                      defendant’s waiver was knowing, voluntary, and
                      intelligent. Unlike Creech, the trial court here clearly and
                      unambiguously stated at the plea hearing that it read the
                      plea agreement and that, according to its reading of the
                      agreement, Ricci had not surrendered the right to appeal
                      his sentence. Neither the prosecutor nor the defense
                      attorney contradicted this statement. Given these
                      circumstances, we may confidently say that the trial court
                      accepted the plea agreement, and the prosecuting attorney,
                      the defense attorney, and Ricci entered into the plea
                      agreement with the understanding that Ricci retained the
                      right to appeal his sentence. Accordingly, we conclude
                      that paragraph 2V is a nullity, and Ricci has not waived
                      the right to appeal his sentence.


              Ricci, 894 N.E.2d at 1093-94 (footnotes omitted).


      907 N.E.2d 586, 588-89 (Ind. Ct. App. 2009) (emphases added; footnotes

      omitted), trans. denied.


[8]   Starcher’s appeal falls squarely within Creech and outside Ricci. As in Creech,

      here the plain terms of Starcher’s plea agreement demonstrate that he

      knowingly and voluntarily waived his right to appeal his sentence. Further,

      also as in Creech, although the trial court erroneously advised Starcher that he

      could appeal his sentence that erroneous statement occurred only at the

      sentencing hearing and after Starcher had received the benefit of his plea

      agreement. Unlike in Ricci, the trial court did not erroneously advise Starcher

      at the guilty plea hearing that he could appeal his sentence.

      Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016   Page 5 of 6
[9]    Accordingly, we agree with the State that Starcher has knowingly and

       intelligently waived his right to appeal his sentence. We also reject Starcher’s

       argument that the record does not demonstrate an effective waiver of his right

       to appeal his sentence as well as his argument that the State failed to preserve

       this issue for our review. See, e.g., Creech, 887 N.E.2d at 77. Thus, we agree

       with the State that this appeal must be dismissed.


[10]   Dismissed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 79A05-1605-CR-1135 | December 29, 2016   Page 6 of 6
