FOR PUBLICATION
                                                        FILED
                                                      Jul 17 2012, 9:05 am


                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER                        GREGORY F. ZOELLER
Clark County Chief Public Defender            Attorney General of Indiana
Jeffersonville, Indiana
                                              AARON J. SPOLARICH
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DARRELL LARUE BROWN,                          )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 10A04-1109-CR-551
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                     APPEAL FROM THE CLARK CIRCUIT COURT
                        The Honorable Vicki L. Carmichael, Judge
                             Cause No. 10C04-1003-FA-48


                                     July 17, 2012

                             OPINION – FOR PUBLICATION

DARDEN, Judge
                                STATEMENT OF THE CASE

          Darrell Larue Brown attempts to appeal the appropriateness of the sentence

imposed after he pled guilty to two counts of child molesting as class B felonies.1

          We affirm on the basis that Brown waived his right to appeal.

                                            ISSUE

          Whether Brown knowingly and voluntarily waived his right to a direct
          appeal of his sentence.

                                           FACTS

          On March 5, 2010, the State charged Brown with nine counts of child molesting.

On August 22, 2011, Brown pled guilty to two counts of child molesting as class B

felonies in exchange for the dismissal of the other counts.           As described below,

sentencing was left to the discretion of the court.

          Paragraph 12 of the plea agreement provided:

          The Defendant understands that he has the right to a direct appeal of any
          sentence handed down by the Judge if there is an open plea. An open plea
          is any plea which leaves all or part of sentencing to the discretion of the
          Judge. The Defendant hereby waives his right to appeal his sentence so
          long as the Judge sentences him within the terms of the plea agreement.
          The Defendant further agrees that any sentence within the range provided in
          the plea agreement is reasonable and appropriate, including the maximum
          sentence, based upon aggravating circumstances which are hereby
          stipulated.

(App. 28-29).

          Paragraph 14 of the plea agreement provided:

1
    Ind. Code § 35-42-4-3.
                                               2
       Upon the Defendant entering a blind or open plea of guilty to child
       molesting (Class B felony) as charged in Count I of the Amended
       Information filed against him, the Court shall have complete discretion in
       sentencing the defendant pursuant to I.C. 35-50-2-5 (Class B felony) to a
       fixed term of between six (6) and twenty (20) years at the Indiana
       Department of Correction.

(App. 29). This provision, as it applied to Count II, was repeated in Paragraph 16.

       At the guilty plea hearing, the following exchange occurred:

       THE COURT:           And you understand that under this plea agreement,
                            this is a blind plea or what’s called an open plea and
                            you will not have the right to appeal your conviction,
                            but you would have the right to appeal any sentence.
                            It says he’s waiving his right to appeal the sentence. Is
                            that right [Assistant Public Defender] Mr. Adams?
       MR. ADAMS:           I believe so Your Honor.
       THE COURT:           Okay. So you understand that you’re waiving your
                            right also to appeal any sentence imposed by the trial
                            court as long as the sentence is within the range of a
                            Class B felony?
       DEFENDANT:           Yes ma’am.

(Tr. 9).

       Later in the hearing, the trial court reaffirmed Brown’s waiver:

       THE COURT:           You indicated that you waive your right to seek
                            modification in the judgment entered and waive your
                            right to appeal the sentence imposed in this case as
                            long as it’s within that range, you understand that?

       DEFENDANT:           Yes ma’am.

(Tr. 14-16).


                                             3
       The trial court subsequently accepted the plea agreement, and it sentenced Brown

to two twenty-year concurrent terms with four years suspended to probation.


                                        DECISION

       Brown attempts to appeal his sentence as inappropriate. The State counters that

Brown has waived his right to directly appeal his sentence.

       In Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008), our supreme court held that

Creech, by signing a plea agreement containing a sentencing waiver provision,

knowingly and voluntarily waived his right to appellate review of the sentence. The

court held that the waiver provision was valid even though Creech was not orally advised

of the provision by the trial court. The waiver in Creech was materially similar to the one

contained in the present case.

       In Bowling v. State, 960 N.E.2d 837, 843-44 (Ind. Ct. App. 2012), trans. denied,

this court held that such a waiver provision was effective even though the provision was

contained in an written advisement of rights and was not contained in either the guilty

plea or mentioned by the trial court at the guilty plea hearing.

       In Holloway v. State, 950 N.E.2d 803 (Ind. Ct. App. 2011), Bonilla v. State, 907

N.E.2d 586 (Ind. Ct. App. 2009), trans. denied, and Ricci v. State, 894 N.E.2d 1089 (Ind.

Ct. App. 2008), trans. denied, waivers of the right to appeal the sentence were signed.

The trial court judge in each case, however, erroneously informed the defendant that he

retained the right to appeal his sentence. We held in each case that because of the trial

                                              4
court’s statements the defendant did not knowingly and voluntarily waive the right to

appeal his sentence.

       In the present case, like in Creech, Brown signed a clearly stated written waiver of

the right to appeal his sentence. Also, unlike in Holloway, Bonilla, and Ricci, Brown was

accurately advised by the trial court concerning the effect of his waiver. Furthermore, the

trial court imposed a sentence that was within the terms of the plea agreement. The

evidence supports the conclusion that Brown knowingly and voluntarily waived his right

to raise the propriety of his sentence on direct appeal.

       We affirm the sentence imposed by the trial court.

RILEY, J., and NAJAM, J., concur.




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