FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DAVID T. A. MATTINGLY                        GREGORY F. ZOELLER
Lafayette, Indiana                           Attorney General of Indiana

                                             BRIAN REITZ
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                                                                       Jul 03 2013, 8:55 am
                            IN THE
                  COURT OF APPEALS OF INDIANA

RICHARD HAWKINS,                             )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )     No. 79A02-1211-CR-958
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                        The Honorable Randy J. Williams, Judge
                            Cause No. 79D01-1109-FA-24


                                    July 3, 2013

                            OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

         Appellant-Defendant, Richard Hawkins (Hawkins), appeals his sentence following

a guilty plea to dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1 and

possession of cocaine, a Class A felony, I.C. § 35-48-4-6.

         We affirm.

                                         ISSUE

         Hawkins raises two issues on appeal, one of which we find determinative and

restate as follows: Whether Hawkins knowingly and voluntarily waived his right to

appeal the appropriateness of his sentence when he entered into a plea agreement with the

State.

                        FACTS AND PROCEDURAL HISTORY

         On or about September 2, 2011, a confidential informant notified the Lafayette

police department that Hawkins was dealing in crack cocaine. Law enforcement officers

directed the confidential informant to make arrangements to purchase crack cocaine from

Hawkins. Thereafter, on September 2, 7, and 26, 2011, the confidential informant made

three purchases of crack cocaine. Each controlled buy was conducted at the request of

and monitored by law enforcement officers. On September 27, 2011, law enforcement

officers obtained a search warrant for Hawkins’ residence.        During the search, the

officers discovered 28.5 grams of cocaine, a legend drug, a Schedule IV controlled

substance, and 2.4 grams marijuana, as well as digital scales and baggies.




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       On September 21, 2011, the State filed an Information, which was amended on

November 14, 2011, charging Hawkins with two Counts of dealing in cocaine, Class A

felonies, I.C. § 35-48-4-1; one Count of possession of cocaine, a Class A felony, I.C. §

35-48-4-6; one Count of possession of a schedule IV controlled substance, a Class C

felony, I.C. § 35-48-4-7; one Count of possession of a legend drug, a Class D felony, I.C.

§ 16-42-19-13; one Count of possession of marijuana, a Class A misdemeanor, I.C. § 35-

48-4-11; one Count of possession of marijuana while having a prior conviction, a Class D

felony, I.C. § 35-48-4-6; and one Count of being an habitual offender, I.C. § 35-50-2-10.

On August 2, 2012, Hawkins entered into a plea agreement with the State, in which he

agreed to plead guilty to one Count of dealing in cocaine as a Class A felony and one

Count of possession of cocaine as a Class A felony in exchange for the dismissal of the

other charges. The plea agreement directed that sentencing would be at the discretion of

the trial court, other than that Hawkins would receive concurrent sentences. In addition,

the plea agreement contained the following language:

       That as a condition of entering this plea agreement, the defendant
       knowingly and voluntarily agrees to waive his right to appeal the sentence
       on the basis that it is erroneous or for any other reason, including the right
       to seek appellate review of the sentence pursuant to Indiana Appellate Rule
       7(B), so long as the [c]ourt sentences the defendant within the terms of the
       plea agreement.

(Appellant’s App. p. 28). On November 1, 2012, the trial court sentenced Hawkins to

concurrent thirty-four year sentences on each Count, with four years in community

corrections.

       Hawkins now appeals. Additional facts will be provided as necessary.



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                             DISCUSSION AND DECISION

       Hawkins contends that even though his plea agreement contains a clause waiving

the right to appeal his sentence, he did not knowingly and voluntarily waive this right. In

particular, Hawkins points to the trial court’s advisement during the plea hearing that he

is entitled to be represented by an attorney on appeal.

       Defendants who bargain to plead guilty in return for favorable outcomes give up a

plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132,

1135 (Ind. 2001). As such, our supreme court has held that 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, 75 (Ind. 2008). The

content and language of the plea agreement itself, as well as the colloquy where

necessary, govern the determination as to the validity of the waiver. Id. at 76 (quoting

United States v. Williams, 184 F. 3d 666, 668 (7th Cir. 1999)). A specific dialogue with

the trial court is not a necessary prerequisite to a valid waiver of appeal, if there is other

evidence in the record demonstrating a knowing and voluntary waiver. Id. Inventiveness

with the aid of hindsight is the principal threat to the stability of plea agreements, and

therefore the major hazard to the defendants’ ability to obtain concessions for the right

they surrender. Id. (quoting Williams, 184 F.3d at 669). Defendants should not be freed

from their bargain merely because the court could imagine potential changes in the

procedures used or envision a more precise colloquy. See id.

       During the hearing on Hawkins’ guilty plea, the trial court read through the

agreement in open court, including the waiver of his appellate rights. The trial court then


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advised Hawkins of the rights he was waiving by pleading guilty. Specifically, after

enumerating the rights waived, the following exchange occurred:

       [TRIAL COURT]: Do you understand that by pleading guilty today that
       you are giving up those rights which I have just explained to you?

       [HAWKINS]: Yes sir.

       [TRIAL COURT]: Do you understand that if you were to have a trial and
       were convicted you would have the right to appeal that conviction to the
       [c]ourt of [a]ppeals or [s]upreme [c]ourt of Indiana?

       [HAWKINS]: Yes sir.

       [TRIAL COURT]:           Furthermore, at paragraph four of the [p]lea
       [a]greement, if the [c]ourt accepts the agreement, that you agree to waive
       your right to appeal the sentence, you understand that?

       [HAWKINS]: Yes sir.

       [TRIAL COURT]: Do you understand that you have the right to be
       represented by an attorney at all times, including during a trial, or for an
       appeal. If you cannot afford an attorney, the [c]ourt would appoint one for
       you?

       [HAWKINS]: Yes sir.

(Tr. pp 9-10).

       By explaining that Hawkins has the right to an attorney, the trial court is not

contradicting the waiver provision. Instead, read within the context of the hearing, the

trial court is merely explaining Hawkins’ right of representation—a right clearly distinct

from his right to appeal his sentence.

       However, Hawkins analogizes his situation to Ricci v. State, 894 N.E.2d 1089

(Ind. Ct. App. 2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App.

2009), trans. denied. Ricci involved a written plea agreement which provided that the


                                            5
defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea

hearing, the trial court unambiguously stated that, according to its reading, Ricci had not

surrendered the right to appeal his sentence, and the trial court’s statement was not

contradicted by counsel for either party. Id. In those circumstances, we concluded that

all parties entered the plea agreement with the understanding that Ricci retained the right

to appeal his sentence and held the waiver to be a nullity. Id. at 1094.

       A similar situation occurred in Bonilla.      Bonilla entered into a written plea

agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing,

the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id.

However, the court proceeded to advise Bonilla of his right to appeal and asked if he

understood that right. Id. Given the contradictory information Bonilla received at the

plea hearing and the fact that Bonilla was not a native English speaker, we concluded that

Bonilla did not waive his right to appeal his sentence. Id. at 590.

       Ricci and Bonilla are inapposite to the case at hand as the trial court did not make

any contradictions or raise any ambiguities with respect to the plea agreement and the

waiver language. The trial court clearly enumerated the rights Hawkins had foregone by

pleading guilty and then asked Hawkins if he understood he would have the right to

appeal if he went to trial, but that by entering into the plea agreement, he had waived that

right. Hawkins answered affirmatively. Then, after having concluded its advisements on

the right to appeal, the trial court explained that he had the right to be represented by an

attorney at any stage of the proceedings. By separating the right to appeal from the right

to representation, the trial court properly advised Hawkins without contradicting itself or


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raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived

his right to appeal his sentence.

                                    CONCLUSION

       Based on the foregoing, we conclude Hawkins waived the right to appeal the

appropriateness of his sentence.

       Affirmed.

BRADFORD, J. and BROWN, J. concur




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