                                                         May 07 2013, 9:29 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

GILDA W. CAVINESS                             GREGORY F. ZOELLER
Caviness Law Office, LLC                      Attorney General of Indiana
Rushville, Indiana
                                              JAMES B. MARTIN
                                              Deputy Attorney General
                                              Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

RYAN WESTLAKE,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )     No. 73A01-1209-CR-433
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE SHELBY SUPERIOR COURT
                           The Honorable Jack A. Tandy, Judge
                    Cause Nos. 73D01-1201-FA-1 and 73D01-1201-FB-4



                                     May 7, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                        Case Summary

          Ryan Westlake was charged under two cause numbers with various offenses stemming

from his sexual relationships with two teenage girls. Westlake entered a plea agreement

whereby he pled guilty to class A felony child molesting and class B felony sexual

misconduct with a minor in exchange for the dismissal of four other charges. Sentencing was

left to the trial court’s discretion. The trial court identified one aggravating factor,

Westlake’s criminal and juvenile record, and one mitigating factor, his mental health issues.

Finding the factors to be of equal weight, the trial court imposed concurrent advisory

sentences.

          Westlake appeals his sentence, arguing that the trial court abused its discretion by

failing to identify his guilty plea as a mitigating factor and that his sentence is inappropriate.

The State argues that Westlake waived his right to appeal his sentence by signing a document

titled “Advisement of Rights and Waiver” that was submitted to the court along with his plea

agreement. We conclude that the waiver clearly forecloses Westlake’s right to challenge his

sentence pursuant to Indiana Appellate Rule 7(B), but does not prohibit him from raising the

issue of whether the trial court abused its discretion. However, because Westlake had

already confessed to having sexual intercourse with the victims and received a substantial

benefit in the form of dismissed charges, he has not persuaded us that the trial court abused

its discretion by failing to identify his guilty plea as a mitigating factor. Therefore, we

affirm.




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                              Facts and Procedural History

       In January 2012, R.E. reported that her fourteen-year-old daughter, C.E., had run away

and might be with Westlake at an abandoned residence on West Washington Street in

Shelbyville. Officer Dan McCarty went to the residence and found C.E. and Westlake there.

       According to the probable cause affidavit filed in cause number 73D01-1201-FB-4

(“FB-4”), police determined that the residence belonged to Christopher Lux, who had not

given C.E. or Westlake permission to be there. Officer McCarty ordered Westlake to come

out of the house several times before he complied. In a subsequent interview, Westlake, who

was twenty-two years old at the time, admitted that he knew that C.E. was fourteen and

admitted to having sexual intercourse with C.E. on three occasions during January 2012. As

a result, Westlake was charged under this cause number with class B felony sexual

misconduct with a minor, class C felony sexual misconduct with a minor, class D felony

residential entry, and class A misdemeanor resisting law enforcement.

       According to the probable cause affidavit filed in cause number 73D01-1201-FA-1

(“FA-1”), on January 13, 2012, the Department of Child Services informed the Shelbyville

Police Department that it had received a report that Westlake had been involved in a sexual

relationship with a thirteen-year-old girl, B.B. After his arrest on the charges in FB-4,

Westlake was also questioned about this report. Westlake admitted that he had had sexual

intercourse with B.B. on three occasions and that she had told him prior to the second and

third occasions that she was thirteen. As a result, Westlake was charged with child molesting

as a class A and as a class C felony.


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       On May 25, 2012, Westlake and the State filed a joint motion to enter guilty plea

concerning the charges in FA-1 and FB-4. Westlake agreed to plead guilty to class A felony

child molesting in FA-1 and class B felony sexual misconduct with a minor in FB-4, and the

State agreed to dismiss the remaining charges. Sentencing was left to the court’s discretion.

The parties also filed a document titled “Advisement of Rights and Waiver,” which includes

the following language:

       If you are pleading guilty to an offense with sentencing to be determined by
       the Court, you waive your right to have any Court review the reasonableness of
       the sentence, including but not limited to appeals under Indiana Rule of
       Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of
       the Court is reasonable and appropriate in light of your nature and character,
       and the nature and character of the offense. Creech v. State, 887 N.E.2d 73
       (Ind. 2008).

Appellant’s App. at 43. At the guilty plea hearing, the trial court gave Westlake the

following advisement concerning his right to appeal:

             THE COURT: Do you understand if you went to trial and you were
       convicted that you would have the right to appeal your conviction?

              MR. WESTLAKE: Yes, sir.

             THE COURT: Do you understand that by pleading guilty you’re giving
       up most of your rights associated with your right of appeal?

              MR. WESTLAKE: Yes, sir.

Tr. at 6-7.

       After advising Westlake of his rights, the court questioned Westlake about the factual

basis for his plea. The court asked Westlake how he knew B.B., and Westlake said, “I

mentored her there for a little bit and I took her to church” because her father had “asked me


                                              4
to find an activity for her to keep out of trouble.” Id. at 14. Westlake stated that B.B. “was

giving me looks and stuff and like, pretty much made a move and I let it happen.” Id.

       Westlake said that he met C.E. through B.B. Westlake stated that the night that he ran

away with C.E., he had been smoking marijuana and got into an argument with his sister.

His sister said that she was going to call the police, and Westlake left because he did not

want to get caught with drugs in his system. He went to a friend’s house and smoked some

more marijuana. Then he went to C.E.’s house and told her that he needed help getting out of

town because the police were after him, and she took him to an abandoned house. Westlake

claimed that after a while, C.E. started “looking” at him, and he “made a move.” Id. at 16.

       The trial court took the plea agreement under advisement and scheduled a sentencing

hearing. At the sentencing hearing on July 27, 2012, the trial court accepted the plea and

heard testimony from Westlake’s mother, Angela Spears. Spears stated that Westlake had

been in special education classes in school and was typically four to five grades behind other

students his age. She said that on an emotional level, Westlake is “younger than an adult,”

and his “brain capacity” is comparable to children twelve to fourteen years old. Id. at 23.

Because of this, Westlake tended to associate with children that age. Spears testified that

Westlake is capable of following rules “to an extent” and does better if his day is structured.

Id. at 24. She felt that Westlake has trouble with drugs and alcohol and is susceptible to peer

pressure. Westlake made a statement to the court in which he apologized for his actions and

acknowledged that what he had done was wrong.




                                              5
       The presentence investigation report (“PSI”) indicates that Westlake committed his

first delinquent act – class D felony theft if committed by an adult – in 2000 at the age of ten.

He was placed on probation and ordered to participate in mental health treatment. In 2002,

he committed what would be class A misdemeanor battery if committed by an adult. He was

again placed on probation. He underwent a mental health evaluation and was diagnosed with

bipolar disorder, post-traumatic stress disorder, and disruptive behavior disorder. In 2003, he

committed what would be class C felony child molesting if committed by an adult. The

victim was a four-year-old girl whom his mother was babysitting. He was again placed on

probation and ordered to participate in counseling. Westlake violated probation twice by

running away and possessing pornography. In 2005, he was arrested and charged with being

a runaway and what would be class A misdemeanor conversion, class D felony intimidation,

and class A misdemeanor battery resulting in bodily injury if committed by an adult. The PSI

does not reflect which of these resulted in true findings, but Westlake was placed in the

Indiana Boys School. Westlake was placed on parole at some point, but he violated parole

and was returned to the Indiana Boys School. Westlake was released in 2009 at the age of

nineteen. In 2011, Westlake was convicted of class C misdemeanor operating a vehicle

having never received a license, his only adult offense other than the instant offenses.

       The PSI reflects that Westlake has received mental health treatment from at least five

different facilities. Although he denied having been abused as a child, other information in

the PSI suggests that he was. Westlake’s IQ is 82, and he never received a diploma or GED.

Westlake admitted that he had been smoking marijuana heavily over the previous two years.


                                               6
When the interviewer asked Westlake about the instant offenses, he admitted that he was “in

the wrong,” but also blamed the girls’ parents for not supervising them more carefully.

Appellant’s App. at 80.

        The trial court found Westlake’s criminal and juvenile record to be aggravating,

placing particular emphasis on the adjudication for child molesting. As a mitigating factor,

the court found that Westlake has significant mental health issues that impact his ability to

conform his behavior to the law. The court found that the aggravating and mitigating factors

were of equal weight and imposed concurrent advisory sentences – thirty years on the class A

felony and ten years on the class B felony.1 The court suspended five years of the thirty-year

sentence, giving Westlake an aggregate sentence of twenty-five years executed and five

suspended. Westlake now appeals his sentence.

                                        Discussion and Decision

        Westlake argues that the trial court abused its discretion by failing to identify his

guilty plea as a mitigating factor and that his sentence is inappropriate. The State argues that

Westlake has waived his right to appeal these issues. Because the State’s argument is

potentially dispositive, we will address it first.

                                                 I. Waiver

        Along with his plea agreement, Westlake signed a document titled “Advisement of

Rights and Waiver.” That document contains the following provision:

        If you are pleading guilty to an offense with sentencing to be determined by

        1
          See Ind. Code § 35-50-2-4 (advisory sentence for a class A felony is thirty years); Ind. Code § 35-50-
2-5 (advisory sentence for class B felony is ten years).

                                                       7
       the Court, you waive your right to have any Court review the reasonableness of
       the sentence, including but not limited to appeals under Indiana Rule of
       Appellate Procedure 7(b) [sic], and you agree and stipulate that the sentence of
       the Court is reasonable and appropriate in light of your nature and character,
       and the nature and character of the offense. Creech v. State, 887 N.E.2d 73
       (Ind. 2008).

Appellant’s App. at 43.

       In Creech, our supreme court held that a defendant may, as part of a plea agreement,

waive the right to appellate review of his sentence, as long as the waiver is knowing and

voluntary. 887 N.E.2d at 75. In determining whether a defendant has made a knowing and

voluntary waiver, our courts have typically considered the advisement given by the trial court

at the guilty plea hearing. See, e.g., Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App.

2008) (finding no waiver where, despite language in the plea agreement that defendant

waived his right to appeal the sentence, court advised defendant at the plea hearing that he

had not surrendered his right to appeal the sentence), trans. denied. At the guilty plea

hearing, the trial court advised Westlake as follows:

             THE COURT: Do you understand if you went to trial and you were
       convicted that you would have the right to appeal your conviction?

              MR. WESTLAKE: Yes, sir.

             THE COURT: Do you understand that by pleading guilty you’re giving
       up most of your rights associated with your right of appeal?

              MR. WESTLAKE: Yes, sir.

Tr. at 6-7.

       The written waiver clearly states that Westlake waived his right to challenge his

sentence pursuant to Indiana Appellate Rule 7(B). Although the trial court’s advisement was

                                              8
not very specific, nothing in the advisement contradicts the language of the waiver.

Therefore, we conclude that Westlake has waived his right to challenge his sentence pursuant

to Appellate Rule 7(B).

       An abuse of discretion claim, however, is distinct from review pursuant to Appellate

Rule 7(B). See King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (inappropriate

sentence and abuse of discretion claims are to be analyzed separately). The waiver provision

states that he cannot challenge the “reasonableness” of the sentence, a term which appears to

be used as a synonym for “appropriateness,” the linchpin of our analysis pursuant to

Appellate Rule 7(B). The waiver provision does not specifically address abuse of discretion

claims or include any “catchall” language completely foreclosing the possibility of appeal.

The trial court’s advisement also suggested that some relief might still be available on appeal.

As to abuse of discretion claims, the waiver provision is ambiguous at best and should be

construed against the State as the drafter. See Valenzuela v. State, 898 N.E.2d 480, 483-84

(Ind. Ct. App. 2008) (ambiguous plea agreement should be strictly construed against the

State), trans. denied (2009). We conclude that Westlake has not waived his abuse of

discretion claim.

                                   II. Abuse of Discretion

       Sentencing decisions are within the sound discretion of the trial court and are

reviewed only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the court, or the


                                               9
reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial court may

abuse its discretion in sentencing by failing to enter a sentencing statement, entering a

sentencing statement that explains reasons for imposing a sentence which the record does not

support, omitting reasons that are clearly supported by the record and advanced for

consideration, or giving reasons that are improper as a matter of law. Id. at 490-91.

       Westlake argues that the trial court abused its discretion by failing to identify his

guilty plea as a mitigating factor. “An allegation that the trial court failed to identify or find a

mitigating factor requires the defendant to establish that the mitigating evidence is both

significant and clearly supported by the record.” Id. at 493. A guilty plea does not

automatically amount to a significant mitigating factor. Wells v. State, 836 N.E.2d 475, 479

(Ind. Ct. App. 2005), trans. denied (2006). “For instance, a guilty plea does not rise to the

level of significant mitigation where the defendant has received a substantial benefit from the

plea or where the evidence against him is such that the decision to plead guilty is merely a

pragmatic one.” Id.

       Westlake notes that he pled guilty a few months after being arrested, he pled guilty to

the most serious charge under each cause number, and his plea agreement contained no cap

on the sentence that could be imposed. However, he obtained a substantial benefit in that

four additional charges were dismissed, three of which were felonies. In addition, Westlake

admitted to having sexual intercourse with each victim multiple times after being discovered

in an abandoned home with one of the victims. Given the strength of the evidence against

him and the benefit that Westlake received from the plea agreement, Westlake has not


                                                10
persuaded us that the trial court abused its discretion by failing to identify his guilty plea as a

mitigating factor. We therefore affirm his sentence.

       Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.




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