                                                       Apr 09 2013, 8:51 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

J. DIRK CARNAHAN                             GREGORY F. ZOELLER
Vincennes, Indiana                           Attorney General of Indiana

                                             ERIC P. BABBS
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

ADAM MORRIS,                                 )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )     No. 14A05-1209-CR-495
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE DAVIESS SUPERIOR COURT
                   The Honorable Mark R. McConnell, Special Judge
                          Cause No. 14D01-0910-FC-806



                                   April 9, 2013

                            OPINION - FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Adam Morris appeals the one-year sentence and order of restitution imposed

following his conviction for Class A misdemeanor operating a vehicle while intoxicated

(“OWI”). We affirm in part and reverse in part.

                                            Issues

       The restated issues before us are:

              I.     whether Morris’s guilty plea waived his ability to
                     challenge his sentence on direct appeal;

              II.    whether Morris’s sentence is inappropriate; and

              III.   whether the trial court properly ordered Morris to pay
                     $14,972.45 in restitution.

                                            Facts

       In the early morning of October 4, 2009, Morris was driving an ATV in Daviess

County and was involved in an accident with another ATV. Morris’s fiancée, Jennifer

Celeste, was riding on the back of Morris’s ATV and had been thrown from it, causing

serious head injuries. The first responding officer noticed that Morris smelled of alcohol

and had slurred speech, bloodshot eyes, unsteady balance, and poor manual dexterity.

Morris agreed to take a portable breath test, which registered an alcohol content of .138.

A later blood test indicated Morris had a blood alcohol content of .158. Celeste died

from her injuries later in the morning of October 4.

       On October 21, 2009, the State charged Morris with Class C felony causing death

while operating a vehicle with a blood alcohol equivalent of .08 or more. On July 9,

                                              2
2012, Morris agreed to plead guilty to the lesser included offense of Class A

misdemeanor OWI. The plea agreement provided that Morris “shall be sentenced at the

discretion of the Court,” but made no mention of restitution. App. p. 33. The agreement

also noted certain required terms of probation, including mandatory drug and alcohol

testing, although it did not expressly state that Morris would be receiving a term of

probation. The agreement further stated that Morris was forfeiting “all grounds for

review of any aspect of this case whether by appeal or post-conviction relief” and that he

“knowingly, intelligently, and voluntarily waives her [sic] right to challenge the

conviction or sentence on this [sic] basis that it is erroneous.” Id. at 35.

       On September 28, 2012, the trial court sentenced Morris to a term of one year,

fully executed. It also ordered Morris to pay $14,972.45 to Celeste’s family as restitution

related to her funeral expenses. Morris now appeals.

                                            Analysis

                                           I. Waiver

       Before turning to the merits, we address whether Morris’s guilty plea waived the

ability to challenge his sentence on direct appeal.1 It is clear 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). A waiver of that kind should be given effect if

“‘the record clearly demonstrates that it was made knowingly and voluntarily.’” Id.

(quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999)). The specific
1
 The State acknowledges that the ability to seek post-conviction review of a guilty plea cannot be
waived. See Creech v. State, 887 N.E.2d 73, 75-76 (Ind. 2008).
                                                3
waiver that was upheld in Creech stated, “I hereby waive my right to appeal my sentence

so long as the Judge sentences me within the terms of my plea agreement.” Id. at 74.

Other cases following Creech that have found waiver addressed similar statements in plea

agreements. See Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans.

denied. Still other cases have found waiver where the plea agreement said, “Defendant

further waives the right (under Indiana Appellate Rule 7 and I.C. 35-38-1-15 or

otherwise) to review of the sentence imposed,” Brattain v. State, 891 N.E.2d 1055, 1057

(Ind. Ct. App. 2008), or that the defendant had waived “the right to challenge the

‘reasonableness’ of the Court’s sentence under Appellate Rule 7(B), waived the right to

challenge the Court’s findings as to aggravating and mitigating circumstances, and

waived the right to challenge the weighing of aggravating and mitigating circumstances,”

Buchanan v. State, 956 N.E.2d 124, 125 (Ind. Ct. App. 2011).

      The purported waiver of the right to appeal in this case was much less clear than

the waivers in the above cases. There was, first, a general waiver of appellate review “of

any aspect of this case” and a more specific waiver of the ability to challenge an

“erroneous” sentence. App. p. 35. In legal terms, an “erroneous” sentence is not the

same as an “inappropriate” sentence. An “erroneous” sentence, which may be attacked

by a motion to correct erroneous sentence under Indiana Code Section 35-38-1-5, is one

that is erroneous “on its face” without reference to proceedings before, during, or after

trial. Davis v. State, 937 N.E.2d 8, 10-11 (Ind. Ct. App. 2010). Our supreme court has

recently observed that “the ‘appropriateness’ of a sentence has no bearing on whether a

                                            4
sentence is erroneous . . . .” Kimbrough v. State, 979 N.E.2d 625, 630 (Ind. 2012). Even

when a trial court has acted within its lawful discretion when imposing sentence, that

sentence still may be characterized by an appellate court as “inappropriate” under Indiana

Appellate Rule 7(B). Id. at 629.

       Plea agreements are contractual in nature, and the general rule is that any

ambiguities in such agreements must be construed against the State because the State

ordinarily drafts them. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008),

trans. denied. We conclude that the purported waiver provisions in the boilerplate plea

agreement drafted by the State here are ambiguous as to whether Morris was giving up

his right to challenge his sentence as inappropriate under Rule 7(B). As such, we will

construe that ambiguity against the State and give Morris the benefit of the doubt and

address the appropriateness of his sentence.2            We also believe it is clear that any

purported waiver could not preclude Morris from challenging a sentencing term that

exceeded the scope of the plea agreement, as it would constitute a violation of the

agreement itself by the trial court. See id.

                                       II. Appropriateness

       Before turning to whether Morris’s sentence is inappropriate, we note that he also

alleges that the trial court abused its discretion in sentencing him. However, it is clear

that abuse of discretion review of a sentence, which concerns a trial court’s duty to issue

a sentencing statement along with its findings of aggravators and mitigators, has no place
2
 We need not address whether this waiver could have affected abuse of discretion review of a sentence,
given our discussion below.
                                                  5
in reviewing a misdemeanor sentence. See Cuyler v. State, 798 N.E.2d 243, 246 (Ind. Ct.

App. 2003), trans. denied; see also Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)

(stating that post-Blakely revisions to sentencing statutes included sentencing statement

requirement “whenever imposing sentence for a felony offense”). We will not further

address Morris’s abuse of discretion claims.

       We now assess whether Morris’s one-year fully executed sentence is inappropriate

under Rule 7(B) in light of his character and the nature of the offense. Although Rule

7(B) does not require us to be “extremely” deferential to a trial court’s sentencing

decision, we still must give due consideration to that decision. Rutherford v. State, 866

N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant

bears the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

                                               6
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       Regarding the nature of the offense, Morris was involved in a very serious ATV

accident while he had a blood alcohol content well above the per se legal limit of .08.

The minimum facts necessary to support Morris’s conviction for Class A misdemeanor

OWI were that he operated a vehicle while intoxicated in a manner that endangered a

person. See Ind. Code § 9-30-5-2(b). Morris’s involvement in a very serious accident

went well beyond that minimum.

       Morris argues that we should not consider the fact of Celeste’s death as evidence

of the egregiousness of the offense, because the State agreed to dismiss the charge of

operating with a BAC exceeding .08 resulting in death in exchange for his guilty plea.

Morris cites Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002), which held

that a trial court cannot rely on facts underlying charges that have been dismissed as part

of a plea agreement as aggravating circumstances. Our supreme court recently decided

Bethea v. State, No. 18S05-1206-PC-304 (Ind. March 12, 2013), in which it effectively

overruled Farmer and similar cases, such as Roney v. State, 872 N.E.2d 192 (Ind. Ct.

App. 2007). Rather, the court held that unless a plea agreement expressly forecloses the

possibility of the trial court enhancing a sentence based on elements or evidence related

to charges dismissed in exchange for the plea, “it is not necessary for a trial court to turn

                                             7
a blind eye to the facts of the incident that brought the defendant before them.” Bethea,

slip op. at p. 12.    Here, there was nothing in Morris’s plea agreement that forbid

consideration of the undisputed fact that Celeste died as a result of this accident in

considering what sentence to impose. As such, we conclude that the severity of the

accident, including Celeste’s death, makes this particular offense very egregious, much

more so than the “typical” Class A misdemeanor OWI.

       Regarding Morris’s character, it is true as he argues that he pled guilty. However,

a guilty plea may not be entitled to much weight in considering a sentence if it is clear the

decision to plead guilty was merely a pragmatic one because of the weight of the State’s

evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied.

Again, there appears to be no doubt here that the ATV accident resulted in Celeste’s

death, and Morris received a significant benefit from the plea agreement in the dismissal

of the C felony charge in exchange for an A misdemeanor conviction. Morris also has no

prior criminal convictions. He was, however, charged for operating a vehicle with a

BAC exceeding .15 twice before, in 2008 and 2003.         The 2008 charge was dismissed

without explanation, and the 2003 charge was dismissed after Morris successfully

completed a pre-trial diversion program. Although those charges do not technically

constitute a criminal history because they were never reduced to convictions, they still

indicate that Morris had twice before been subjected to the police power of the State and

was specifically warned of the dangers of OWI but was not deterred from committing the

present offense. See Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). We conclude

                                             8
Morris’s one-year executed sentence is not inappropriate in light of the nature of the

offense and his character.

       In a related argument, Morris argues that the trial court violated the plea

agreement by failing to suspend any portion of his sentence to probation. He notes that

the plea agreement makes specific reference to required terms of probation and argues

that this necessarily implies that the trial court had to impose a term of probation. We

disagree. The listing of required terms of probation clearly was part of a boilerplate plea

agreement that would apply in the event the trial court decided to exercise its discretion

to impose probation. Regarding that discretion, the plea agreement was very clear in

stating that the trial court had unfettered discretion in choosing what sentence to impose.

To the extent Morris argues that his guilty plea was involuntary because he was under the

impression that the trial court would impose a term of probation, such an argument must

be raised, if at all, through a post-conviction relief proceeding and not on direct appeal.

See Stringer v. State, 899 N.E.2d 748, 750 (Ind. Ct. App. 2009).

                                     III. Restitution

       Finally, we address Morris’s challenge to the restitution order of $14,972.45 for

Jennifer’s burial expenses. Morris contends there is insufficient evidence to support that

order and that it improperly applies to the C felony charge that was dismissed as part of

the plea bargain. However, there is a more fundamental problem with that order: the

plea agreement was completely silent on whether Morris could be ordered to pay



                                            9
restitution.3 It is clear that when a plea agreement is silent on the issue of restitution, a

trial court may not order the defendant to pay restitution as part of his or her sentence;

such an order exceeds the scope of the plea agreement. Sinn v. State, 693 N.E.2d 78,

80 (Ind. Ct. App. 1998). Thus, we reverse the order that Morris pay $14,972.45 in

restitution.

                                             Conclusion

        Although we decline to find that Morris waived his challenge to the

appropriateness of his sentence, we find that sentence to be appropriate. However, we

reverse the restitution order against him.

        Affirmed in part and reversed in part.

BAKER, J., and RILEY, J., concur.




3
 It does not appear that Morris objected before the trial court to there being any award of restitution.
However, this court will review the propriety of restitution orders on appeal, even where it was entered
without objection by a defendant, because of our duty to correct illegal sentences. Iltzsch v. State, 972
N.E.2d 409, 412 (Ind. Ct. App. 2012), summarily aff’d in relevant part, 981 N.E.2d 55, 57 (Ind. 2013).
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