MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                May 08 2017, 10:03 am
court except for the purpose of establishing
the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David K. Payne                                           Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Michigan City, IN                                        Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keith L. Johnson,                                        May 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1602-CR-329
        v.                                               Appeal from the LaPorte
                                                         Superior Court
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Michael S.
                                                         Bergerson, Judge

                                                         Trial Court Cause No.
                                                         46D01-1506-F3-523



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017        Page 1 of 10
[1]   Keith L. Johnson appeals his sentence for his conviction for robbery as a level 3

      felony and for being an habitual offender. Johnson raises two issues which we

      revise and restate as whether the trial court abused its discretion in sentencing

      him or whether his sentence is inappropriate. The State cross-appeals and

      raises the issue of whether Johnson has waived the right to appeal his sentence.

      We determine that Johnson has waived the right to appeal his sentence and

      remand for resentencing on the habitual offender enhancement.


                                      Facts and Procedural History

[2]   On June 23, 2015, Johnson and a woman went to a consignment and resale

      business in Michigan City, Indiana, and knowingly or intentionally took

      property from the owner by threat of force while armed with a deadly weapon.

      Johnson knew when he went in with her the woman she was robbing the store,

      and he served as a lookout for her. On June 24, 2015, the State charged him

      with: Count I, robbery as a level 3 felony; and Count II, possession of a firearm

      by a serious violent felon as a level 4 felony. On October 5, 2015, the State

      alleged that Johnson was an habitual offender under Count III.


[3]   Johnson and the State entered into a written plea agreement, pursuant to which

      Johnson agreed to plead guilty to robbery as a level 3 felony as charged under

      Count I and to admit being an habitual offender as alleged under Count III.

      The agreement provided:

              On Count I – Robbery, [Johnson] will be sentenced to ten (10)
              years in the Indiana Department of Correction;


      Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 2 of 10
              On Count III – Habitual Offender, [Johnson] will have an argued
              sentence to determine sentence; . . . .


      Appellant’s Appendix Volume II at 32. The agreement provided that, upon

      sentencing, the remaining count would be dismissed. In addition, the

      agreement stated:

              [Johnson] understands that in consideration of the State’s entry
              into this plea agreement, he expressly waives his right to appeal
              or to contest any sentence and any restitution order imposed or
              the manner in which the conviction or sentence or the restitution
              order was determined or imposed, to the Indiana Court of
              Appeals, the Indiana Supreme Court or any other Court on any
              ground, including any claim of ineffective assistance of counsel
              unless the claimed ineffective assistance of counsel relates
              directly to this waiver or its negotiation, including any
              proceeding under Indiana Post-Conviction Rules 1 and 2 or 28,
              United States Code, Section 2254.


      Id. at 34.


[4]   Pursuant to the plea agreement, Johnson pled guilty to robbery as a level 3

      felony under Count I and admitted to being an habitual offender under Count

      III. The court held a sentencing hearing and sentenced him to ten years for his

      conviction for robbery as a level 3 felony under Count I. With respect to the

      habitual offender allegation the court stated that it had considered the

      presentence investigation report, the arguments at the sentencing hearing, and

      the victim’s statements. It referred to mitigating and aggravating circumstances,

      and sentenced Johnson to twenty years as an habitual offender to be served

      consecutive to the ten-year sentence for robbery. The court advised Johnson

      Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 3 of 10
      “you’re entitled to file an Appeal or file a Motion to Correct Error” and “if you

      cannot afford to hire an attorney one would be appointed for you at the

      county’s expense.” Transcript at 78. The court then asked “[i]s it your

      intention to want to file a Motion to Correct Errors or file a Precipe to Appeal

      the decision of the Court,” and Johnson’s counsel answered affirmatively on

      behalf of Johnson. Id.


[5]   The court’s written sentencing order states the court sentenced Johnson to ten

      years for robbery as a level 3 felony under Count I and, “on Count III, Habitual

      Offender to twenty (20) years.” Appellant’s Appendix Volume II at 63. The

      court further ordered “that the sentences be served consecutively.” Id.

      Additionally, entries in the chronological case summary and the abstract of

      judgment indicate that the court entered a term of ten years for robbery as a

      class 3 felony under Count I and a term of twenty years for being an habitual

      offender 1 and ordered that the sentence for the habitual offender finding be

      served consecutive to the sentence under Count I. Johnson filed a notice of

      appeal. The State filed a motion to dismiss with this Court arguing that

      Johnson waived his right to appeal based on the terms of the plea agreement.

      Johnson filed a response stating that the trial court stated at the guilty plea

      hearing that, by pleading guilty, he would limit his ability to appeal and argues




      1
       While the sentencing order refers to the habitual offender finding under Count III, the abstract of judgment
      and chronological case summary appear to identify the habitual offender designation under Count II.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017                Page 4 of 10
      that his waiver was not made knowingly or voluntarily. We denied the State’s

      motion to dismiss.


                                                  Discussion

[6]   Johnson contends the trial court abused its discretion in imposing a sentence of

      twenty years for being an habitual offender in addition to his sentence for

      robbery, and that his sentence is inappropriate in light of the nature of the

      offense and his character. The State cross-appeals, arguing Johnson specifically

      waived any appeal of his sentence pursuant to his plea agreement, and that,

      waiver notwithstanding, the court properly determined the sanction for the

      habitual offender finding. It states that “[a]t sentencing the parties mistakenly

      believed that being a habitual offender was a crime subject to being sentenced as

      a crime and not the status offense that it actually is,” “[i]n imposing the 20 year

      enhancement, the trial court mistakenly determined the presence of aggravating

      and mitigating circumstances,” and “[h]owever, because aggravating and

      mitigating circumstances do not apply to habitual offender enhancements, the

      trial court’s determination was, in all respects, harmless.” Appellee’s Brief at

      13. The State also notes the trial court treated the habitual offender

      enhancement as a separate sentence and states that we may wish to remand

      with instructions to properly impose the habitual offender enhancement. In

      reply, Johnson asserts that he did not knowingly or voluntarily waive his right

      to appeal and notes that the trial court advised him at the guilty plea proceeding

      that his guilty plea would “somewhat limit your ability to appeal.” Appellant’s

      Reply Brief at 5 (citing Transcript at 30).

      Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 5 of 10
[7]   The 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). In Creech, the Court adopted the view of

      the Seventh Circuit which declared “that defendants ‘may waive their right to

      appeal as part of a written plea agreement . . . as long as 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 Court also indicated

      that a trial court’s statements that led a defendant to believe that he retained the

      right to appeal at the sentencing hearing were not grounds to circumvent the

      terms of the plea agreement. Id. at 76. Specifically, the Court held that, by the

      time the trial court erroneously advised the defendant of the possibility of

      appeal, the defendant had already pled guilty and received the benefit of his

      bargain. Id. at 77.


[8]   Here, the plea agreement provides:


              [Johnson] understands that . . . he expressly waives his right to
              appeal . . . any sentence . . . imposed or the manner in which the
              . . . sentence . . . was determined or imposed . . . on any ground,
              including any claim of ineffective assistance of counsel unless the
              claimed ineffective assistance of counsel relates directly to this
              waiver or its negotiation . . . .


      Appellant’s Appendix Volume II at 34.


[9]   The following exchange between the court and Johnson occurred at the guilty

      plea hearing:


      Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 6 of 10
        Q. In addition, if you were to [sic] of had that trial and you were
        found guilty, you’d also have the right to [a]ppeal your
        conviction to the Supreme Court or the Court of Appeals as the
        case maybe [sic]. Do you understand that by pleading guilty you
        somewhat limit your ability to file that appeal?

        A. Yes, sir.

                                             *****

        Q. And do you understand, the charge to which you are
        pleading guilty is Robbery, as a Level 3 Felony, as charged under
        Count I of the Charging Information? In addition, you’re also
        gonna plead guilty to Count III, habit - as being an Habitual
        Offender as charged under Count III of the Charging
        Information?

        A. Yes, sir.

                                             *****

        Q. Have you seen a copy of the Charging Information?

        A. Yes, I have it right in front of me, sir.

        Q. And do you need to have that reread to you at this point in
        time?

        A. No, sir.

        Q. And do you understand the possible penalties that could be
        attached to those charges if you were found guilty?

        A. Yes, Sir.

                                             *****

        Q. I have before me what purports to be a Plea Agreement with
        your signature on it. First of all, did you sign it?

        A. Yes, sir.

Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 7 of 10
        Q. And did you read it before you signed it?

        A. Yes, I did.

        Q. Did you discuss it with your attorney again before you signed
        it? Af -- I mean are you reaffirming that that’s your signature --

        A. Yes.

        Q. -- and that you want to go through this exercise today?

        A. Yes, Sir.

                                             *****

        Q. And again, what’s -- with respect to the Robbery charge,
        what’s gonna be the, the term of commitment to the Department
        of Correction that’s being proposed?

        A. Ten years.

        Q. And with respect to the Habitual Offender charge, what is
        your understanding as to how that case is gonna be disposed of?

        A. As far as I know I get up to -- from six to 20 years on that
        one.

        Q. And that -- how is that gonna be determined by the, by
        argument?

        A. As far as I know, yes, sir.

        Q. Okay, you’re gonna ar -- you and your -- your attorney and
        you and the State are gonna have a hearing with the Court and
        then I’ll decide at, at some point in the future between that six to
        14 years how much time should be imposed?

        A. Yes, that’s from what I’m understanding.


Transcript at 30-31, 33-36 (emphasis added).


Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 8 of 10
[10]   To the extent the plea agreement states that Johnson waives his right to appeal

       “any sentence . . . on any ground, including any claim of ineffective assistance

       of counsel unless the claimed ineffective assistance of counsel relates directly to

       this waiver or its negotiation,” Appellant’s Appendix Volume II at 34, we

       cannot say that the provision creates an ambiguity or allows Johnson to raise

       the issues of whether the trial court abused its discretion in sentencing him or

       whether his sentence is inappropriate. Further, to the extent the court asked

       Johnson at the guilty plea hearing whether he understood “that by pleading

       guilty you somewhat limit your ability to file that appeal,” Transcript at 30, we

       cannot say that the question created uncertainty regarding the issues Johnson

       was and was not entitled to appeal under the plea agreement. Johnson

       indicated that he read and discussed the plea agreement with his attorney before

       he signed it. Also, we observe that under Creech the fact that the trial court

       made a statement at the sentencing hearing, after imposing a sentence,

       informing Johnson that he was entitled to take an appeal does not invalidate

       Johnson’s plea where he received the benefit of his bargain, or invalidate his

       waiver of his right to appeal.


[11]   Based upon the language in the plea agreement and the trial court’s advisement

       at the guilty plea hearing, we conclude that Johnson waived his right to appeal

       his sentence. See Creech, 887 N.E.2d at 74-75 (holding the defendant waived his

       right to appeal his sentence, including his claim that his sentence was

       inappropriate, pursuant to the express language in his written plea agreement

       stating that he waived his right to appeal his sentence so long as the judge


       Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 9 of 10
       sentenced him within the terms of his plea agreement). We accordingly do not

       address Johnson’s claims that the trial court abused its discretion in sentencing

       him or that his sentence is inappropriate.


[12]   We also observe, as the State acknowledges, that the trial court erroneously

       entered a separate twenty-year sentence for the habitual offender finding to be

       served consecutive to his sentence for robbery. Ind. Code § 35-50-2-8 provides

       that an habitual offender finding does not constitute a separate crime or result

       in a separate sentence. Rather, an habitual offender finding results in a

       sentence enhancement imposed upon the conviction of a subsequent felony.

       Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001). The court’s sentencing

       order entered a sentence of twenty years on the habitual offender count and

       ordered the sentence to be served consecutive to his sentence for robbery.

       Similarly, the abstract of judgment and chronological case summary list a

       separate sentence on the habitual offender count and do not reflect that the

       habitual offender enhancement was attached to Johnson’s sentence for robbery

       as a level 3 felony. We remand for resentencing on the habitual offender

       enhancement.


                                                   Conclusion

[13]   For the foregoing reasons, we remand for resentencing on the habitual offender

       enhancement.


[14]   Remanded.


       Vaidik, C.J., and Bradford, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1602-CR-329 | May 8, 2017   Page 10 of 10
