MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 07 2017, 7:50 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
Mark Small                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Angela N. Sanchez
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew C. Robinson,                                     December 7, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        21A01-1706-CR-1229
        v.                                              Appeal from the Fayette Superior
                                                        Court
State of Indiana,                                       The Honorable Daniel L. Pflum,
Appellee-Plaintiff.                                     Senior Judge
                                                        Trial Court Cause No.
                                                        21D01-1512-F2-992



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017         Page 1 of 8
                                Case Summary and Issue
[1]   Andrew Robinson pleaded guilty to robbery, a Level 2 felony, and battery, a

      Level 6 felony, and the trial court sentenced him to thirty years executed in the

      Indiana Department of Correction. On appeal, Robinson raises two issues

      related to his sentence for our review. The State responds alleging Robinson

      waived the right to appeal his sentence. Concluding Robinson waived the right

      to appeal his sentence, we affirm.



                            Facts and Procedural History
[2]   On December 16, 2015, the State charged Robinson with eight counts: robbery

      and burglary, both Level 2 felonies; battery, a Level 3 felony; battery, a Level 6

      felony; striking a law enforcement animal, resisting law enforcement, and

      possession of marijuana with a prior conviction, all Class A misdemeanors; and

      possession of marijuana, a Class B misdemeanor. The State also alleged

      Robinson was an habitual offender.


[3]   On April 3, 2017, Robinson entered into a written plea agreement with the

      State where, in exchange for pleading guilty to robbery, a Level 2 felony, and

      battery, a Level 6 felony, the State would dismiss the remaining counts and the

      habitual offender enhancement. Additionally, the plea agreement provided:


              The defendant further acknowledges that, by entering this plea
              agreement, he/she knowingly and voluntarily agrees to waive
              his/her right to appeal the resulting sentence on the basis that it is
              erroneous or for any other reason so long as the sentence is

      Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 2 of 8
              within the terms of this plea agreement. If this plea agreement
              includes an open sentence provision (which leaves defendant’s
              sentence to the discretion of the Judge), the defendant hereby
              waives the right to appeal the sentence so long as the sentence is
              within the terms of this plea agreement.


      Appellant’s Appendix, Volume 2 at 29.


[4]   At the guilty plea hearing, the trial court advised Robinson of the numerous

      rights he would waive by pleading guilty. Robinson acknowledged these rights.

      The trial court went on to state:


              [Trial Court]: Do you understand if you were to have a trial and
              were found guilty that you have the right to appeal your
              conviction[?]


              [Robinson]: Yes sir.


              [Trial Court]: Do you understand that if you plead guilty that
              you give up that right to appeal[?]


              [Robinson]: Yes sir.


              ***


              [Trial Court]: Now I have before what purports to be a plea
              agreement with your signature on it. Did you sign it?


              [Robinson]: Yes sir.


              [Trial Court]: Did you read it before you signed it?


      Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 3 of 8
              [Robinson]: Yes sir.


              [Trial Court]: Did you discuss with your attorney before you
              signed it?


              [Robinson]: Yes sir.


      Transcript, Volume 2 at 31; 34.


[5]   The trial court accepted Robinson’s guilty plea and entered judgment of

      conviction. At the sentencing hearing on May 5, 2017, the trial court sentenced

      Robinson to thirty years in the Indiana Department of Correction. Thereafter,

      the court stated:


              [Trial Court]: Okay first off, because this was an open sentencing,
              an open sentence, uh you have the right to appeal this sentence
              uh to do so you must file a motion to correct errors or a notice of
              appeal within 30 days of today’s date . . . .


      Id. at 111. Robinson now appeals.



                                Discussion and Decision
[6]   The State argues Robinson cannot challenge his sentence because he waived his

      right to do so pursuant to the terms of the plea agreement. In his appellant’s

      brief, Robinson failed to put forth an argument regarding waiver, focusing only

      on the merits of his appeal. Despite the State contending Robinson waived

      appellate review in its Brief of the Appellee, Robinson did not file a reply brief

      or otherwise respond to the State’s waiver argument. Therefore, we review the

      Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 4 of 8
      State’s claim for prima facie error. Buchanan v. State, 956 N.E.2d 124, 127 (Ind.

      Ct. App. 2011) (noting that the defendant did not respond to the State’s

      allegation that the defendant had waived his right to appeal and therefore this

      court would review for prima facie error). “Prima facie means at first sight, on

      first appearance, or on the face of it.” Id.


[7]   The State contends that Robinson’s plea agreement waived his right to appeal.

      Plea agreements “are in the nature of contracts entered into between the

      defendant and the [S]tate.” Perez v. State, 866 N.E.2d 817, 819 (Ind. Ct. App.

      2007), trans. denied. As provided above, the plea agreement stated:


              The defendant further acknowledges that, by entering this plea
              agreement, he/she knowingly and voluntarily agrees to waive
              his/her right to appeal the resulting sentence on the basis that it is
              erroneous or for any other reason so long as the sentence is
              within the terms of the plea agreement. If this plea agreement
              includes an open sentence provision (which leaves defendant’s
              sentence to the discretion of the judge), the defendant hereby
              waives the right to appeal the sentence so long as the sentence is
              within the terms of this plea agreement.


      Appellant’s App., Vol. 2 at 29. The plea agreement provides the following open

      sentence provisions:


                [Robbery]: Open sentencing with restitution to be determined
                           by Court.


                                                Concurrent with:




      Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 5 of 8
                [Battery]:     Open sentencing with restitution to be determined
                               by Court.


                               Parties agree that Purposeful Incarceration is appropriate.
                               The Court shall determine, after argument, both the length
                               of the sentence and what amount of said sentence shall be
                               served prior to eligibility for Purposeful Incarceration.


      Id. at 28.


[8]   The trial court also engaged in a colloquy with Robinson, asking, “Do you

      understand that if you plead guilty that you give up that right to appeal[?]” to

      which Robinson replied, “Yes sir.” Tr., Vol. 2 at 31. However, after Robinson

      entered the plea agreement and the trial court accepted the agreement on April

      3, the trial court erroneously advised Robinson that he had the right to appeal

      his sentence at the conclusion of his sentencing hearing on May 5. The State

      contends that such evidence clearly indicates Robinson knowingly and

      voluntarily waived the right to appeal and the trial court’s erroneous statement

      at sentencing—after Robinson had accepted the plea agreement and was

      sentenced— “does not matter[.]” Brief of the Appellee at 19.


[9]   We agree with the State. It is well established in our jurisprudence that “a

      defendant may waive the right to appellate review as part of a written plea

      agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). In Creech, our

      supreme court explained that in order for a defendant to waive such a right, the

      record must demonstrate the waiver was made “knowingly and voluntarily.”

      Id. There, the defendant waived his right to appeal in a written plea agreement

      Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 6 of 8
       but the trial court made remarks to the contrary at sentencing. Presented with

       almost identical facts, our supreme court explained:


                . . . Creech argues that he did not knowingly and voluntarily
                waive his right to appeal, despite the express language in the
                written plea agreement, because the court made statements at the
                close of the sentencing hearing that led him to believe that he
                retained the right to appeal. 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
                for allowing Creech to circumvent the terms of his plea
                agreement.


       Id. at 76. Accordingly, we find Creech as controlling of the issue now before us.


[10]   Here, Robinson knowingly and voluntarily waived his right to appeal by

       accepting the plea agreement and confirming his knowledge of—and agreement

       to—such a waiver to the trial court. Although the trial court erroneously

       advised Robinson he maintained his right to appeal at sentencing, 1 “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, and intelligent waiver of the right to appeal his sentence[.]” Ricci v.




       1
         We have repeatedly urged trial courts to be vigilant of plea agreements containing a waiver of the right to
       appeal and, as our supreme court explained in Creech, trial courts must avoid including confusing remarks in
       their plea colloquy or at sentencing. See, e.g., Mechling v. State, 16 N.E.3d 1015, 1018 n.4 (Ind. Ct. App.
       2014), trans. denied.
       Moreover, we must remind counsel—both prosecutors and defense attorneys—of their duty as officers of the
       court to correct the record and to notify the court that the right to appeal has been waived by the terms of the
       underlying plea agreement. Waiver of such a right should not come as a surprise to either party, especially
       the prosecutor who prepared such agreement.

       Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017              Page 7 of 8
       State, 894 N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied. Therefore,

       Robinson waived his right to appeal his sentence and we need not address the

       merits of his argument.



                                               Conclusion
[11]   Because Robinson waived his right to appeal pursuant to the plea agreement,

       we affirm the sentence.


[12]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1706-CR-1229 | December 7, 2017   Page 8 of 8
