      MEMORANDUM DECISION
                                                                            Jul 20 2015, 10:39 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Lawrence M. Hansen                                        Gregory F. Zoeller
      Hansen Law Firm, LLC                                      Attorney General of Indiana
      Noblesville, Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jacob McDaniel,                                           July 20, 2015

      Appellant-Defendant/Cross-Appellee,                       Court of Appeals Case No. 29A04-
                                                                1412-CR-599
              v.
                                                                Appeal from the Hamilton Superior
                                                                Court
      State of Indiana,
                                                                The Honorable Daniel J. Pfleging,
      Appellee-Plaintiff/Cross-Appellant                        Judge
                                                                Case No. 29D02-1312-FC-10137




      Crone, Judge.


                                               Case Summary
[1]   Jacob McDaniel appeals his sixteen-year aggregate sentence imposed following

      the trial court’s acceptance of his plea agreement with the State, in which he


      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015           Page 1 of 9
      pled guilty to class C felony reckless homicide and class D felony pointing a

      firearm. The State cross-appeals, asserting that pursuant to his plea agreement,

      McDaniel waived his right to directly appeal his sentence. McDaniel argues

      that he did not knowingly and voluntarily agree to waive his right to appeal his

      sentence because the trial court advised him at the sentencing hearing that he

      had the right to appeal his sentence. We conclude that McDaniel knowingly

      and voluntarily waived his right to appeal his sentence and that the trial court’s

      mistaken advisement at the end of the sentencing hearing does not affect the

      validity of McDaniel’s waiver. Accordingly, we dismiss.


                                  Facts and Procedural History
[2]   The factual basis supporting McDaniel’s guilty plea follows. One evening in

      December 2013, McDaniel was at his Noblesville home with three friends,

      Dajuan Williams, Skylar Gadd, and Aubrey Peters. McDaniel took Williams

      and Gadd upstairs to his bedroom where he showed them his father’s handgun

      and shotgun. McDaniel took the handgun downstairs to show Peters.

      McDaniel thought that the gun was unloaded because he had removed the

      magazine. While pointing the gun in Peters’s direction, McDaniel pulled the

      trigger and shot her, causing her death. McDaniel told Williams and Gadd to

      say that the gun just fell off the table and fired. During the investigation, police

      learned that two days before the shooting, McDaniel had pointed a shotgun at

      another friend, Haley Graham.


[3]   The State charged McDaniel with one count of class C felony reckless

      homicide, a firearm sentencing enhancement, and four counts of class D felony
      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 2 of 9
      pointing a firearm. In September 2014, McDaniel and the State entered into a

      plea agreement, wherein McDaniel agreed to plead guilty to class C felony

      reckless homicide, the firearm sentencing enhancement, and one count of class

      D felony pointing a firearm, and the State agreed to dismiss two counts of

      pointing a firearm and all charges in cause number 29D02-1407-F6-5519. 1 The

      parties also agreed that McDaniel’s aggregate sentence was to be no less than

      five years executed on home detention and no more than fifteen years executed

      in the Department of Correction, but otherwise sentencing was left to the

      discretion of the trial court. In addition, the plea agreement contains a series of

      paragraphs with a blank for McDaniel to initial each paragraph. McDaniel

      initialed paragraph 4r, in which he agreed to waive his right to appeal his

      sentence.


[4]   In September 2014, a plea hearing was held at which McDaniel pled guilty to

      class C felony reckless homicide, the firearm sentencing enhancement, and one

      count of class D felony pointing a firearm. The trial court advised McDaniel of

      his rights and discussed the charges, the penalties, and the terms of the plea

      agreement. While under oath, McDaniel specifically told the trial court that he

      read the paragraphs that he initialed. Appellee’s App. at 16. 2 He also stated




      1
         Although the plea agreement calls for the State to dismiss two counts of pointing a firearm, ultimately the
      trial court dismissed all three of the remaining charges for pointing a firearm. In cause number 29D02-1407-
      F6-5519, the State charged McDaniel with level 6 felony unlawful possession of a syringe.
      2
        McDaniel failed to provide us with the transcript of the guilty plea hearing. We thank the State for
      providing the transcript.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015                Page 3 of 9
      that his defense counsel was available to discuss the plea agreement with him

      and answer his questions. At no time did the trial court advise McDaniel that

      he had the right to appeal his sentence. The trial court took the plea agreement

      and the State’s motion to dismiss charges under advisement and ordered the

      preparation of a presentence investigation report.


[5]   In December 2014, a sentencing hearing was held. The trial court accepted the

      plea agreement and entered judgment of conviction for class C felony reckless

      homicide and class D felony pointing a firearm. The trial court sentenced

      McDaniel to consecutive terms of eight years for reckless homicide plus five

      years for the firearm sentencing enhancement, all executed, and three years for

      pointing a firearm, with two years served in community corrections and one

      year suspended to probation, for an aggregate sentence of sixteen years. After

      McDaniel was sentenced, the trial court advised him that he had the right to

      appeal his sentence and asked him if he would like to appeal his sentence.

      McDaniel’s counsel stated that they wanted to discuss it. The trial court asked

      defense counsel whether he could assist McDaniel with an appeal. Defense

      counsel replied affirmatively. This appeal ensued.


                                     Discussion and Decision
[6]   McDaniel argues that the trial court erred in sentencing him. However, we do

      not address the sentencing errors he alleges because we conclude that he waived

      his right to directly appeal his sentence.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 4 of 9
[7]   Although a “person convicted of, or sentenced for, a crime by a court of this

      state has a constitutional right to appeal that conviction or sentence,” Miller v.

      State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied (2000), a person who

      pleads guilty waives the right to appeal the conviction. Collins v. State, 817

      N.E.2d 230, 231 (Ind. 2004). A person may also waive the right to appeal his

      or her sentence pursuant to a written plea agreement. Creech v. State, 887

      N.E.2d 73, 75 (Ind. 2008). To be valid, such a waiver must be agreed to

      knowingly and voluntarily. Id. at 76. “‘[M]ost waivers are effective when set

      out in writing and signed.’” Id. (quoting United States v. Wenger, 58 F.3d 280,

      282 (7th Cir. 1995)). “‘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. (quoting United States v. Williams, 184 F.3d 666,

      668 (7th Cir. 1999)) (alteration in Creech).


[8]   Here, paragraph 4r of the plea agreement provides that McDaniel,

              [u]nless otherwise provided for in this plea agreement, hereby waives
              his right to appeal any discretionary portion of the sentence entered
              pursuant to and in accordance with this plea agreement and further
              acknowledges and affirms that this waiver is knowing and made
              voluntarily. He understands that he otherwise would have a right to
              appeal his sentence if there is an open plea. [McDaniel] hereby waives
              his right to appeal the sentence so long as the Court sentences him
              within the terms of the plea agreement. He understands and waives
              his right to appeal the proportionality of the sentence under Article I,
              Section 16 of the Indiana Constitution. Therefore, he knowingly and
              voluntarily agrees to waive his right to appeal his sentence on the basis
              that it is erroneous or for any other reason so long as the Judge
              sentences him within the terms of this plea agreement.



      Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 5 of 9
       Appellant’s App. at 14.


[9]    The language of the plea agreement clearly and unambiguously states that

       McDaniel is waiving his right to appeal his sentence as long as he is sentenced

       within the terms of the plea agreement. Both McDaniel and his counsel signed

       the plea agreement. At the guilty plea hearing, McDaniel told the trial court

       that he placed his initials in the blanks next to paragraphs 4a through -u and

       that his initials indicated that he “read the paragraphs that came after [his]

       initials.” Appellee’s App. at 16. McDaniel also told the court that his counsel

       was available to answer the questions he had about the plea agreement. Id.

       Defense counsel stated that McDaniel had had several questions over the

       course of the proceedings, and McDaniel stated that counsel had answered his

       questions to the best of his ability. The trial court asked McDaniel if he

       understood the agreement, and McDaniel said that he did. Id. at 18. During

       the guilty plea hearing, the trial court did not advise McDaniel that he had the

       right to appeal his sentence. Accordingly, we conclude that McDaniel

       knowingly and voluntarily waived his right to appeal his sentence.


[10]   However, McDaniel argues that the final discussion between the parties and the

       trial court at the close of the sentencing hearing shows that he did not

       knowingly waive his right to direct appellate review of his sentence. After the

       trial court accepted the plea agreement, ordered that judgment of conviction be

       entered for reckless homicide and pointing a firearm, and dismissed the

       remaining charges, it erroneously advised McDaniel that he had the right to

       appeal his sentence. The trial court asked defense counsel whether he could

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 6 of 9
       assist McDaniel with an appeal. Defense counsel replied affirmatively. The

       trial court stated, “I think you set out legal arguments that would assist him in

       that area.” Tr. at 100. The prosecutor then stated that he would like to release

       the victim’s personal property to the family “even if it is on appeal, that would

       be appealing the sentence.” Id. Defense counsel said, “We would only be

       appealing the sentence, so that would be fine,” and the trial court agreed. Id.

       McDaniel contends that this conversation shows that the parties to the plea

       agreement anticipated that he reserved his right to appeal the sentence. He also

       asserts that the prosecutor failed to object and participated in the discussion,

       and therefore the State waived any objection to his exercise of his right to

       appellate review of his sentence.


[11]   These arguments were addressed and rejected in Creech and Mechling v. State, 16

       N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied (2015), neither of which

       McDaniel acknowledges. In Creech, our supreme court rejected the argument

       that Creech’s waiver was not knowing and voluntary because the trial court

       advised him at the end of the sentencing hearing that he had the right to appeal

       his sentence. 887 N.E.2d at 76. Our supreme court reasoned that the trial

       court’s mistaken advisement at the end of sentencing occurred after Creech had

       pled guilty and received the benefit of the plea agreement, and therefore the

       mistaken advisement presumably had no effect on the transaction. Id. at 77. In

       Mechling, another panel of this Court rejected Mechling’s argument that the

       State was estopped from enforcing the written waiver of his right to appeal his

       sentence by its failure to object or correct the trial court’s mistaken advisement


       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 7 of 9
       at the end of the sentencing hearing. 16 N.E.3d 1017-18. The Mechling court

       concluded that “[w]hile some sort of objection or correction from the State is

       undoubtedly ideal, we do not believe a duty to speak existed here such that

       application of estoppel is warranted.” Id. Cf. Holloway v. State, 950 N.E.2d 803,

       806 (Ind. Ct. App. 2011) (concluding that Holloway’s waiver of right to appeal

       sentence was not knowing and voluntary where trial court stated at least twice

       at combined guilty plea and sentencing hearing that defendant could appeal

       sentence, before defendant had received benefit of his plea bargain); Bonilla v.

       State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009) (concluding that Bonilla did

       not waive right to appeal sentence where trial court advised him at guilty plea

       hearing and again at sentencing hearing that he had right to appeal sentence)

       trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008)

       (concluding that Ricci did not waive right to appeal sentence where trial court

       advised him at guilty plea hearing that he had right to appeal sentence), trans

       denied.


[12]   As happened in Creech and Mechling, the trial court in this case did not

       mistakenly advise McDaniel at the guilty plea hearing that he had the right to

       appeal his sentence. McDaniel’s counsel at sentencing was the same counsel

       who advised him during plea negotiations, who signed the plea agreement, and

       who represented him at the guilty plea hearing. The trial court’s mistaken

       advisement at the end of the sentencing hearing had no effect on the prior valid

       waiver of McDaniel’s right to appeal his sentence. We also observe that the

       trial court sentenced McDaniel within the terms of the plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 8 of 9
       Therefore, we conclude that McDaniel waived the right to appellate review of

       his sentence, and we dismiss his appeal.


[13]   Dismissed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015   Page 9 of 9
