      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                               Jun 27 2019, 5:38 am

      regarded as precedent or cited before any                               CLERK
                                                                          Indiana Supreme Court
      court except for the purpose of establishing                           Court of Appeals
                                                                               and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                       Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana                                         Monika Prekopa Talbot
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Joseph D. Wasserman,                                     June 27, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2932
              v.                                               Appeal from the Dearborn
                                                               Superior Court
      State of Indiana,                                        The Honorable Jonathan N.
      Appellee-Plaintiff.                                      Cleary, Judge
                                                               Trial Court Cause No.
                                                               15D01-1805-F3-9



      Mathias, Judge.


[1]   Joseph Wasserman (“Wasserman”) pleaded guilty in Dearborn Superior Court

      to Level 3 felony dealing in methamphetamine and admitted to being an

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019               Page 1 of 5
      habitual offender. The trial court sentenced Wasserman to twenty-two years in

      the Department of Correction (“DOC”). Wasserman appeals and argues his

      sentence is inappropriate in light of the nature of the offense and the character

      of the offender. Concluding that Wasserman waived his right to appeal his

      sentence, we affirm.


                                 Facts and Procedural History
[2]   On May 16, 2018, the Lawrence Police Department executed a search warrant

      on Wasserman’s residence after conducting a trash pull that uncovered multiple

      items of drug paraphernalia and conducting surveillance that identified

      numerous individuals with criminal histories of illegal drug activity visiting

      Wasserman’s residence. Tr. p. 34. Wasserman’s room contained three grams of

      methamphetamine. Id. at 36. Wasserman’s cellphone contained text messages

      indicating he intended to deliver the methamphetamine. Id. at 37–38.


[3]   The State charged Wasserman on May 17, 2018 with: (1) Level 3 felony dealing

      in methamphetamine, (2) Level 6 felony maintaining a common nuisance, (3)

      Level 6 felony possession of methamphetamine, (4) Class C misdemeanor

      possession of paraphernalia, and (5) Class C misdemeanor possession of

      paraphernalia. Appellant’s App. Vol. II, pp. 12–14. On August 16, 2018, the

      State amended the information to allege that Wasserman was a habitual

      offender. Id. at 121–123.


[4]   Wasserman entered into a plea agreement on September 27, 2017. He pleaded

      guilty to Count I, Level 3 felony dealing in methamphetamine and to the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019   Page 2 of 5
      habitual offender enhancement in exchange for the State’s dismissal of the

      remaining counts and agreement to cap his habitual offender enhancement at

      10 years. Id. at 175–76. Paragraph 5 of the plea agreement provided,

      “[d]efendant hereby waives the right. . . [to] seek appellate review of the

      sentence, pursuant to Indiana Appellate Rule 7(B).” Id. at 176.


[5]   The trial court accepted the plea agreement on October 16, 2018. Tr. p. 28.

      Twenty-four days later, on November 9, 2018, the trial court sentenced

      Wasserman to 13 years on Count I and enhanced the sentence by 9 years due to

      Wasserman’s habitual offender status. Id. at 78. In addition, the trial court

      informed Wasserman that he had a right to appeal; Wasserman now appeals.

      Id.


                                     Discussion and Decision
[6]   In his Appellant’s brief, Wasserman claims his sentence is inappropriate in light

      of the nature of the offense and the character of the offender. However, we

      conclude that Wasserman waived his right to appeal his sentence.


[7]   A defendant may waive the right to appellate review of his sentence as part of a

      written plea agreement as long as the waiver is knowing and voluntary. Creech v.

      State, 887 N.E.2d 73, 74 (Ind. 2008). The language of Paragraph 5 of the plea

      agreement is clear and unambiguous: by pleading guilty, Wasserman waived

      the right to appeal his sentence so long as the trial court sentenced him within

      the terms of his plea agreement. Appellant’s App. p. 176.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019   Page 3 of 5
[8]    During the guilty plea hearing, Wasserman clarified his plea agreement, asking,

       “[a]nd then I’m not allowed to appeal the sentence?” Tr. p. 24. The court

       responded:


               So your question was, can you appeal this sentence, and if I
               accept this plea agreement you cannot appeal the sentence so
               long as I sentence you between six to ten years on habitual
               offender, and sentence you between three and sixteen years on a
               Level 3. Is that your understanding of what was going to happen?


       Id. at 25. Wasserman responded, “[y]es, Your Honor.” Id. The trial court

       further advised Wasserman of his rights and ensured that Wasserman was

       neither threatened nor forced to enter into the plea agreement. Tr. pp. 24–26.

       Thus, there is nothing in the record before us to suggest that Wasserman’s

       waiver was anything other than knowing and voluntary.


[9]    After sentencing, the trial court misadvised Wasserman that he had a right to

       appeal the sentence. Id. at 78. In Creech, our Supreme Court found that a trial

       court’s erroneous statement that the defendant had a right to appeal was not

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

       agreement.” 887 N.E.2d at 76. The defendant had already pleaded guilty and

       received the benefit of his plea bargain; being told at the close of his sentencing

       hearing that he could appeal had no effect on his decision to accept the plea

       agreement. Id. at 77.


[10]   Wasserman received the benefit of his plea agreement: the State dropped four

       charges and capped his habitual offender enhancement at ten years. The trial


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019   Page 4 of 5
       court’s statement could not have affected Wasserman’s decision to accept the

       plea agreement because the statement occurred over a month after Wasserman

       entered into the plea agreement and three weeks after the court accepted the

       plea agreement.


[11]   As noted above, there is nothing in the record that suggests that Wasserman’s

       waiver was anything other than knowing and voluntary. The sentence of

       thirteen years for Level 3 felony dealing in methamphetamine and a nine-year

       habitual offender enhancement are within the terms of the plea agreement. We

       therefore conclude that Wasserman waived his right to appeal his sentence.


[12]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019   Page 5 of 5
