MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       May 31 2017, 10:09 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Curtis T. Hill, Jr.
Leeman Law Office and Cass County                       Attorney General of Indiana
Public Defender
                                                        Marjorie Lawyer-Smith
Logansport, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Donato Lorenzo-Diego,                                   May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        09A02-1612-CR-2830
        v.                                              Appeal from the Cass Circuit
                                                        Court
State of Indiana,                                       The Honorable Leo T. Burns,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        09C01-1603-F1-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1612-CR-2830 | May 31, 2017      Page 1 of 5
                                          Case Summary
[1]   Donato Lorenzo-Diego (“Lorenzo-Diego”) challenges the thirty-year advisory

      sentence imposed upon his plea of guilty to Child Molesting, as a Level 1

      felony.1 He presents the issue of whether the trial court abused its sentencing

      discretion. The State responds that Lorenzo-Diego waived his right to appeal

      his sentence. We affirm.



                                   Facts and Procedural History
[2]   On March 23, 2015, Lorenzo-Diego was charged with molesting his eight-year-

      old niece by forcibly engaging in sexual intercourse with her. On October 6,

      2016, he pled guilty to that offense. The plea agreement capped his sentence at

      thirty-five years. On December 8, 2016, the trial court sentenced Lorenzo-

      Diego to thirty years imprisonment. After sentencing Lorenzo-Diego, the trial

      court advised him that he could appeal the sentence. This appeal ensued.



                                     Discussion and Decision
[3]   A person who commits a Level 1 felony has a sentencing range of twenty to

      forty years, with thirty years being the advisory sentence. I.C. § 35-50-2-4. In

      sentencing Lorenzo to the advisory sentence of thirty years, the trial court

      found the guilty plea to be a mitigator and found as aggravators the age of the




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1612-CR-2830 | May 31, 2017   Page 2 of 5
      victim and that the harm suffered was significant and greater than the elements

      necessary to prove the commission of the crime. Lorenzo-Diego argues that the

      trial court abused its discretion by recognizing each of those aggravators.


[4]   The State argues that we should not reach the merits of this sentencing

      challenge because Lorenzo-Diego expressly waived his right to appeal his

      sentence. Our Indiana Supreme Court has held that a defendant may waive the

      right to appellate review of his sentence as part of a written plea agreement.

      Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).2 “Acceptance of the plea

      agreement containing the waiver provision is sufficient to indicate that, in the

      trial court’s view, the defendant knowingly and voluntarily agreed to the

      waiver.” Id. at 77.


[5]   Here, the plea agreement provided in relevant part:


               Because the Defendant is pleading guilty, he/she understands
               that there will be no appellate review of the sentence. The
               Defendant acknowledges that he/she has discussed this matter
               with counsel, and hereby makes a knowing and voluntary waiver
               of appellate review of the sentence imposed by the trial court.


               [Defendant] hereby waives any right to challenge the trial court’s
               finding on sentencing, including the balancing of mitigating and
               aggravating factors and further waives his right to have the




      2
       The holding leaves in place the long-standing policy that a defendant who can establish in a post-conviction
      proceeding that his plea was coerced or unintelligent is entitled to have his conviction set aside. Creech, 887
      N.E.2d at 75.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1612-CR-2830 | May 31, 2017                 Page 3 of 5
               Indiana Court of Appeals review his sentence under Indiana
               Appellate Rule 7(B).


      (App. Vol. II at 44-45.) The plea agreement preserved the right to appeal “an

      illegal sentence.” (App. Vol II. at 44.)


[6]   Attempting to avoid waiver, Lorenzo-Diego argues that his sentence is an

      illegal sentence. It is not. Pursuant to Indiana Code Section 35-50-2-4, a

      person who commits a Level 1 felony may, within statutory bounds, receive a

      sentence of twenty to forty years. Lorenzo-Diego received the statutorily-

      prescribed advisory sentence of thirty years. He merely attempts to challenge

      the process by which that sentence was selected.


[7]   Lorenzo-Diego also argues that he did not voluntarily waive his right to appeal

      “because he was a non-native English speaker3 who received contradictory

      information about the waiver of his appellate rights.” Appellant’s Br. at 12. He

      does not claim that his guilty plea was not knowingly or voluntarily made, but

      argues only that his waiver of his right to appeal is a nullity. 4




      3
       Lorenzo-Diego is from Guatemala and speaks as his primary language Kamjoba, a Mayan language. He
      advised the presentence investigator that he had been educated in the Spanish language.
      4
        The State acknowledges that, at the conclusion of the sentencing hearing, the trial court mistakenly advised
      Lorenzo-Diego of a purported right to appeal his sentence. In Creech, the Court held that such mistaken
      advisement was not grounds for allowing defendants to circumvent plea agreements. 887 N.E.2d at 76.
      However, when the defendant is mistakenly advised of a right to appeal or given conflicting information
      when he or she is entering a plea, and this advice factors into the decision-making process, the waiver may be
      found ineffective. See Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. denied; Ricci v. State, 894
      N.E.2d 1089 (Ind. Ct. App. 2008), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1612-CR-2830 | May 31, 2017                  Page 4 of 5
[8]    We observe that Lorenzo-Diego was provided a translator, and he expressed no

       confusion or concern as to an unresolved language barrier. The translator

       advised the trial court that she had translated each word of the plea agreement

       for Lorenzo-Diego and that he had acknowledged his understanding. Lorenzo-

       Diego confirmed, in response to a question propounded by his counsel, that he

       had been assisted by counsel and the interpreter. He indicated that he wished

       to plead guilty pursuant to the plea agreement. At sentencing, Lorezno-Diego

       made a personal plea to the trial court for forgiveness; thus, the record does not

       reflect a failure of communication. The record demonstrates that the waiver of

       the right to appeal was made knowingly and voluntarily.



                                               Conclusion
[9]    Lorenzo-Diego waived the right to appeal his sentence. Accordingly, we do not

       address the merits of his claim that the trial court abused its sentencing

       discretion.


[10]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1612-CR-2830 | May 31, 2017   Page 5 of 5
