MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Dec 30 2016, 8:55 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbra A. Stooksbury                                    Gregory F. Zoeller
Howes & Howes, LLP                                      Attorney General of Indiana
La Porte, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph R. Keller,                                       December 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        46A04-1601-CR-142
        v.                                              Appeal from the LaPorte Superior
                                                        Court
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff                                      Bergerson, Judge
                                                        Trial Court Cause No.
                                                        46D01-1407-F3-20



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016   Page 1 of 6
                                             Case Summary
[1]   Joseph R. Keller appeals the sentence imposed by the trial court following his

      guilty plea to level 4 felony child molesting. Specifically, Keller argues that the

      trial court abused its discretion during sentencing and that his sentence is

      inappropriate in light of the nature of the offense and his character. The State

      cross-appeals arguing that Keller has waived his right to appeal his sentence

      pursuant to his plea agreement. Concluding that he has waived appellate

      review of his sentence, we affirm.


                                 Facts and Procedural History
[2]   On July 14, 2014, the State charged Keller with two counts of child molesting,

      one as a level 3 felony and one as a level 4 felony. Pursuant to a plea

      agreement, Keller pled guilty to the level 4 felony in exchange for dismissal of

      the level 3 felony. Sentencing was left to the trial court’s discretion with the

      only limitation being that Keller’s sentence had to contain at least one year

      suspended to probation. Additionally, Keller agreed to the following waiver of

      his right to appeal:

              The Defendant understands that in consideration of the State’s
              entry into this plea agreement, he expressly waives his right to
              appeal or to contest any sentence and any restitution order
              imposed or the manner in which the conviction or sentence or
              the restitution order was determined or imposed, to the Indiana
              Court of Appeals, the Indiana Supreme Court or any other Court
              on any ground, including any claim of ineffective assistance of
              counsel unless the claimed ineffective assistance of counsel
              relates directly to this waiver or its negotiation, including any


      Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016   Page 2 of 6
              proceeding under Indiana Post-Conviction Rules 1 and 2 or 28,
              United States Code, Section 2254.


      Appellant’s App. at 111.


[3]   Both Keller and his attorney signed the plea agreement. A guilty plea hearing

      was held on November 5, 2015. During that hearing, the trial court advised

      Keller of his constitutional right to appeal and confirmed that his waiver of that

      right was knowing, voluntary, and intelligent. Specifically, the trial court asked

      Keller, “Do you understand that by pleading guilty you limit your ability to file

      [an] appeal.” Tr. at 7. Keller responded that he understood. Id. The trial court

      also confirmed that Keller had read the entire plea agreement and discussed it

      with his attorney before signing it.


[4]   A sentencing hearing was held on December 10, 2015. The trial court imposed

      a sentence of ten years with three years suspended to probation. At the

      conclusion of the sentencing hearing, the trial court erroneously advised Keller

      that he had the right to appeal and appointed pauper counsel. This appeal

      ensued.


                                     Discussion and Decision
[5]   Keller asserts both that the trial court abused its discretion during sentencing

      and that his sentence is inappropriate. Relying on Creech v. State, 887 N.E.2d 73

      (Ind. 2008), the State cross-appeals arguing that Keller waived his right to

      appeal his sentence pursuant to his plea agreement. We find the State’s

      argument dispositive of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016   Page 3 of 6
[6]   Keller did not file a reply brief or otherwise respond to the State’s allegation on

      cross-appeal that he has waived his right to appeal his sentence pursuant to his

      plea agreement. Under such circumstances, if we find prima facie error, the

      State may prevail. See Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App.

      2015). Prima facie error is error at first sight, on first appearance, or on the face

      of it. Id.


[7]   In Creech, our supreme court held that “a defendant may waive the right to

      appellate review of his sentence as part of a written plea agreement.” 887

      N.E.2d at 75. 1 Specifically, in Creech, the defendant’s plea agreement left his

      sentence to the trial court’s discretion, and he agreed to waive his right to

      appeal the sentence so long as he was sentenced within the terms of his plea

      agreement. Id. at 74. After the defendant had already entered his plea of guilty

      and been sentenced, the trial court erroneously advised the defendant at the

      close of the sentencing hearing that he retained the right to appeal his sentence.

      Id. Our supreme court held that provisions waiving the right to appellate

      review of a sentence are enforceable as part of a written plea agreement. Id. at

      75. The court further determined that after a defendant pleads guilty and

      receives the benefit of the plea bargain, subsequent actions by the trial court do

      not affect that waiver, recognizing that “[m]ost waivers are effective when set

      out in writing and signed.” Id. at 76-77 (alteration in original) (quoting United




      1
       Our supreme court has subsequently noted that in Indiana, a defendant can even waive his right to appeal
      an illegal sentence. Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013).

      Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016         Page 4 of 6
      States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995), superseded by statute on other

      grounds). Therefore, the court held that the trial court’s erroneous advisement at

      the conclusion of the sentencing hearing had no effect on an otherwise

      knowing, voluntary, and intelligent waiver of the right to appeal and was not

      grounds for allowing the defendant to circumvent the terms of his plea

      agreement. Id. at 76. 2


[8]   Consistent with Creech, we conclude that Keller’s waiver of his right to appeal is

      enforceable as part of his written plea agreement. The trial court’s erroneous

      advisement of Keller’s right to appeal at the conclusion of the sentencing

      hearing had no effect on his prior waiver of that right. The trial court’s

      statement that Keller could appeal his sentence was not made until after the

      court had accepted the plea agreement and entered Keller’s sentence. Indeed,

      Keller had already received the benefit of his bargain prior to the trial court’s

      misstatement. Moreover, as we stated above, Keller failed to respond to the

      State’s cross-appeal, so he makes no claim that the waiver of his right to appeal

      was not otherwise knowing, voluntary, or intelligent. Even had he done so, the

      record would belie any such assertion. Keller signed a clearly stated written

      waiver of the right to appeal his sentence, and we discern no ambiguity in the




      2
        Since Creech, this Court has repeatedly held that a trial court’s erroneous advisement of a right to appeal
      during a sentencing hearing does not invalidate an otherwise knowing, voluntary, and intelligent waiver of
      the right to appeal. See, e.g., Mechling v. State, 16 N.E.3d 1015, 1017 (Ind. Ct. App. 2014), trans. denied (2015);
      Ivy v. State, 947 N.E.2d 496, 499 (Ind. Ct. App. 2011); Akens v. State, 929 N.E.2d 265, 266 (Ind. Ct. App.
      2010); but see Bonilla v. State, 907 N.E.2d 586, 589 (Ind. Ct. App. 2009), trans. denied, and Ricci v. State, 894
      N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied (both cases distinguishing Creech and finding waiver of
      right to appeal unenforceable on other grounds).

      Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016                Page 5 of 6
      trial court’s advisements of the effect of his waiver during the guilty plea

      hearing. Accordingly, we conclude that Keller has waived the right to appeal

      his sentence.


[9]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 46A04-1601-CR-142 | December 30, 2016   Page 6 of 6
