MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 31 2018, 8:48 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                           Curtis T. Hill, Jr.
Bertig and Associates                                     Attorney General of Indiana
Valparaiso, Indiana
                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard M. Statler,                                       July 31, 2018
Appellant/Cross-Appellee-Defendant,                       Court of Appeals Case No.
                                                          18A-CR-182
        v.                                                Appeal from the
                                                          Porter Superior Court
State of Indiana,                                         The Honorable
Appellee/Cross-Appellant-Plaintiff.                       William E. Alexa, Judge
                                                          The Honorable
                                                          Jeffrey W. Clymer, Judge
                                                          Trial Court Cause No.
                                                          64D02-1605-F5-4905



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018                       Page 1 of 7
[1]   Following his plea of guilty to two counts of Level 5 felony sexual misconduct

      with a minor,1 Richard M. Statler (“Statler”) appeals his sentence contending

      that the trial court abused its discretion and that his sentence is inappropriate in

      light of the nature of the offenses and his character. The State cross appeals,

      arguing that Statler has waived his right to appeal his sentence by the terms of

      his plea agreement. We find the State’s issue to be dispositive.


[2]   We affirm.


                                      Facts and Procedural History
[3]   From June 16 through June 18, 2015, Statler’s fourteen-year-old granddaughter,

      K.C., and her fifteen-year-old friend, R.M., stayed at Statler’s home in

      Chesterton, Indiana. During that visit, Statler committed various improper

      acts, including: (1) supplying the girls with alcohol and giving them money and

      transportation to buy marijuana; (2) holding K.C. tightly and kissing and

      sucking her breasts; (3) kissing K.C. on the lips and fondling her vagina; (4)

      touching R.M.’s breasts over her clothes; (5) touching R.M.’s “butt” and

      making her touch his penis over his clothes; (6) asking the girls to have sex with

      each other so he could watch; (7) asking R.M. if she would give him a “blow

      job”; and (8) giving the girls some of his medicine, advising that it would calm

      them down. Appellant’s App. Vol. 2 at 19-20.




      1
          See Ind. Code § 35-42-4-9(b).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018   Page 2 of 7
[4]   The State charged Statler with two counts of Level 5 felony sexual misconduct

      with a minor, two counts of Level 5 felony child solicitation, and two counts of

      Level 5 felony contributing to the delinquency of a minor. By written plea

      agreement, Statler pleaded guilty to two counts of Level 5 felony sexual

      misconduct with a minor in exchange for the State dismissing the remaining

      four counts. The plea agreement required Statler to register as a sex offender

      and capped his executed sentence at five years. Within those limits, the trial

      court had discretion in sentencing; there was no limit on probation, except as

      provided by statute. Id. at 53. Included among the provisions to which Statler

      agreed was Paragraph (10), which provided:


               I waive all right to appeal my conviction, my sentence, any
               restitution order imposed, and/or the manner in which my
               conviction, my sentence, and/or the restitution order was/were
               determined or imposed on any grounds in this cause.


      Id. at 55.


[5]   Statler and his attorney each signed the plea agreement, thereby agreeing to its

      terms. During the guilty plea hearing, the trial court advised Statler that he was

      waiving certain rights, including the right to “appeal to the Indiana appellate

      court.”2 Tr. Vol. 2 at 15. Statler withdrew his previous plea of not guilty and

      entered a plea of guilty to two counts of Level 5 felony sexual misconduct with




      2
        Statler did not include the transcript of his guilty plea hearing with the record on appeal; however, during
      the sentencing hearing, the trial court reiterated that Statler had been informed during the initial change of
      plea hearing that he was waiving certain rights, including the right to a direct appeal. Tr. Vol. 2 at 15.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018                         Page 3 of 7
      a minor, and the State moved to dismiss the remaining four counts. The trial

      court subsequently accepted the plea agreement. Appellant’s App. Vol. 2 at 6.


[6]   During the October 2017 sentencing hearing, the trial court considered the

      aggravating and mitigating factors set out in the pre-sentence investigation

      report, including, Statler’s age, his poor health, the fact that he had no prior

      criminal history or substance abuse history, the fact that Statler later

      downplayed the acts to which he had pleaded guilty, the fact that he violated a

      position of trust, and the harm he caused to the victims. The trial court

      sentenced him to consecutive sentences of four years for each of Count I and

      Count II, with Count I executed and Count II fully suspended to probation, for

      an aggregate executed sentence of four years. Tr. Vol. 2 at 13. At the close of

      the sentencing hearing, the trial court incorrectly advised Statler that he had the

      right to appeal his sentence. Id. at 15-16. Thereafter, Statler unsuccessfully

      challenged his sentence in a motion to correct error. This appeal ensued.


                                     Discussion and Decision
[7]   Statler contends that the trial court abused its discretion during sentencing and

      that his sentence is inappropriate in light of the nature of the offenses and his

      character. In its cross appeal, the State argues that Statler waived his right to

      appeal his sentence pursuant to Paragraph (10) of his plea agreement. Finding

      the State’s cross appeal to be dispositive, we address only that issue.


[8]   In the instant case, Statler 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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018   Page 4 of 7
      sentence pursuant to his plea agreement. Under such circumstances, if we find

      prima facie error, the State may prevail. 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.


[9]   To support its claim, the State cites to Creech v. State, 887 N.E.2d 73, 74 (Ind.

      2008), where the defendant argued on transfer that “he did not knowingly and

      voluntarily waive his right to appellate review and that his sentence was

      inappropriate.” 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 75.3 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.4 Id. at 75. The Court further determined that after a defendant




      3
        Our Supreme Court 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, 625 (Ind. 2013) (“Absent due process concerns to the
      contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of
      sentences, whether or not the sentence or method is authorized by the law, he cannot later appeal such
      sentence on the ground that it is illegal.”).
      4
          In Archer v. State, 81 N.E.3d 212, 215-16 (Ind. 2017), our Supreme Court recently noted:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018                      Page 5 of 7
       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 (alteration in original)

       (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995), superseded by

       statute on other grounds). Therefore, the Creech 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.5 Id. at 76.


[10]   Under his plea agreement, Statler agreed to plead guilty to two counts of Level

       5 felony sexual misconduct with a minor and to “waive all right to appeal [his] .

       . . sentence . . . on any grounds in this cause.” Appellant’s App. Vol. 2 at 53, 54.

       In exchange, the State dismissed four Level 5 felony counts and agreed to cap

       Statler’s executed sentence to five years. Statler received the benefit of his




              Plea agreements are contracts and once the trial court accepts it, a plea agreement and its terms
              are binding upon the trial court, the State and the defendant. Bethea v. State, 983 N.E.2d 1134,
              1144 (Ind. 2013). Because a plea agreement is a contract, the principles of contract law can
              provide guidance when considering plea agreements. Griffin v. State, 756 N.E.2d 572, 574 (Ind.
              Ct. App. 2001). A defendant may waive his or her right to appeal a sentence as part of a plea
              agreement and such waivers are valid and enforceable. Creech v. State, 887 N.E.2d 73, 74-75
              (Ind. 2008).
       5
         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; 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 Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013); Bonilla v. State, 907 N.E.2d 586, 589 (Ind. Ct. App.
       2009), trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied (cases
       distinguishing Creech and finding waiver of right to appeal unenforceable on other grounds).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018                             Page 6 of 7
       bargain when the four counts were dismissed, and he was sentenced to just four

       years executed.


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

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

       advisement to Statler concerning a right to appeal, given, as it was, at the

       conclusion of the sentencing hearing, had no effect on his prior waiver of that

       right. Creech, 887 N.E.2d at 76. The trial court’s statement that Statler could

       appeal his sentence was not made until after the court had accepted the plea

       agreement and ordered his sentence. Tr. Vol. 2 at 15. Indeed, Statler had

       already received the benefit of his bargain prior to the trial court’s misstatement.

       Moreover, as noted above, Statler 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. Statler signed a clearly stated written waiver

       of the right to appeal his sentence “on any grounds.” Appellant’s App. Vol. 2 at

       55. Accordingly, we conclude that Statler waived the right to appeal his

       sentence.


[12]   Affirmed.


[13]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018   Page 7 of 7
