MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                May 19 2017, 8:51 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Curtis T. Hill, Jr.
Leeman Law Office and                                   Attorney General of Indiana
Cass County Public Defender
                                                        George P. Sherman
Logansport, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel J. Caroway,                                   May 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        09A02-1611-CR-2518
        v.                                              Appeal from the Cass Circuit
                                                        Court
State of Indiana,                                       The Honorable Leo T. Burns,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        09C01-1511-FA-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017               Page 1 of 9
                                Case Summary and Issue
[1]   Pursuant to the terms of a plea agreement, Nathaniel Caroway pleaded guilty to

      one count of child molesting as a Class A felony and was sentenced to forty

      years imprisonment. Caroway appeals his sentence, raising the following

      restated issue for our review: whether the trial court abused its discretion in

      sentencing him. Concluding the trial court did not abuse its discretion in

      imposing the maximum sentence allowed by the plea agreement, we affirm.



                            Facts and Procedural History
[2]   On November 20, 2015, the State charged Caroway with four counts of child

      molesting as Class A felonies and two counts of child molesting as Class C

      felonies based on incidents reported by his step-daughter. On August 23, 2016,

      Caroway pleaded guilty to one count of Class A felony child molesting

      pursuant to a plea agreement. The plea agreement provided that in exchange

      for Caroway’s plea of guilty, the State would dismiss the remaining charges. As

      to the sentence, “Parties shall argue and the court shall determine all terms of

      sentence. Executed portion of sentence shall not exceed (40) years.”

      Appellant’s Appendix, Volume II at 56. The plea agreement also provided:

              Defendant understands that if he/she had a trial and was
              convicted of these charges, he/she would normally have the right
              to appeal the conviction and any sentence received as a result of
              said conviction. Because the Defendant is pleading guilty, he/she
              understands that there will be no appellate review of the sentence. The
              Defendant acknowledges that he/she has discussed this matter
              with counsel, and hereby makes a knowing and voluntary waiver
      Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 2 of 9
              of appellate review of the sentence imposed by the trial court.
              Defendant may still appeal any illegal sentence which may be
              imposed.


      Id. at 56-57 (emphasis added).


[3]   At the plea hearing, before hearing Caroway’s change of plea, the trial court

      advised Caroway:


              [B]ecause the sentence . . . will be up to the Court, you, your
              right to appeal the length of the sentence is preserved. You’re not
              giving up your right to appeal, . . . there’s a range of time that is
              suggested in this plea agreement and after the Court reaches a
              decision on the amount of time, if any, then you would have the
              right to appeal that decision.


      Transcript, Volume 2 at 9-10. The trial court also advised Caroway that the

      penalty range for a Class A felony was twenty to fifty years, with an advisory

      sentence of thirty years, but “if I accept this plea agreement, the maximum

      penalty will be forty (40) years.” Id. at 12. Caroway indicated he understood

      the nature of the charge against him and the possible sentence for his crime, and

      further indicated he understood his rights and the effect of pleading guilty upon

      those rights. The State established a factual basis and the trial court took

      Caroway’s plea of guilty under advisement pending a pre-sentence report.


[4]   The parties reconvened for a sentencing hearing on October 13, 2016. The

      court began by recounting the events from the plea hearing, including that it

      had advised Caroway “that since the sentence was open, that he would have

      the ability to appeal the sentence component, but not the conviction component

      Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 3 of 9
      of the agreement.” Id. at 20. The trial court then accepted Caroway’s plea of

      guilty. After hearing evidence and argument from the parties, the trial court

      pronounced Caroway’s sentence, noting first that the “minimum sentence in

      this case is twenty (20) years in the Department of Correction be [sic] because it

      is an A Felony that’s a non-suspendable sentence on its face.” Id. at 31. The

      trial court found the aggravating circumstances outweighed the mitigating

      circumstances, and sentenced Caroway to forty years at the Department of

      Correction. The trial court subsequently issued a written sentencing order,

      which states, in part, “This is an aggravated sentence based on the fact that,

      pursuant to statute, the range of sentence in this case is from 30 to 50 years.”

      Appellant’s App., Vol. II at 79.



                                Discussion and Decision
                                                I. Waiver
[5]   We begin by briefly addressing the State’s assertion that pursuant to the plea

      agreement, Caroway waived his right to appeal his sentence. Anticipating the

      possibility of such an argument by the State, Caroway acknowledged the

      provision of his plea agreement waiving his right to challenge his sentence, but




      Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 4 of 9
      argues that given the trial court’s statements at his plea and sentencing hearings,

      the waiver is invalid. We agree with Caroway.1


[6]   A defendant may waive the right to appellate review as part of a plea

      agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Even if the trial court

      erroneously advises the defendant of the possibility of appeal, if such

      advisement comes after the defendant has received the benefit of his bargain—

      that is, after he has already pleaded guilty and the trial court has accepted the

      plea—the waiver is valid. Id. at 77 (trial court advised the defendant at the

      close of the sentencing hearing that he retained the right to appeal which did

      not alter the defendant’s knowing and voluntary waiver at the time he changed

      his plea). However, if the advisement comes before the defendant receives the

      benefit of his bargain and no one contradicts or corrects the misstatement, then

      “we may confidently say that the trial court accepted the plea agreement, and

      the prosecuting attorney, the defense attorney, and [the defendant] entered into

      the plea agreement with the understanding that [the defendant] retained the

      right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct.

      App. 2008), trans. denied.


[7]   Here, the trial court advised Caroway he had the right to appeal the length of

      his sentence before Caroway entered his guilty plea, see tr., vol. 2 at 9, and again




      1
        The State, while not explicitly conceding Caroway is entitled to appeal his sentence, acknowledges the trial
      court’s statements and “assume[s] for the sake of argument that Caroway retained the right to appeal his
      sentence.” Brief of Appellee at 6-7.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017                Page 5 of 9
      before the trial court accepted the plea, see id. at 20.2 Neither the State nor

      Caroway’s defense counsel corrected the trial court’s misstatement.3 Thus, this

      situation is akin to Ricci and we conclude Caroway has not waived the right to

      appeal his sentence.


                                     II. Sentencing Discretion
[8]   Sentencing decisions are within the sound discretion of the trial court and we

      review such decisions only for an abuse of that discretion. McElfresh v. State, 51

      N.E.3d 103, 107 (Ind. 2016). “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 reasonable, probable, and actual deductions to be drawn

      therefrom.” Id. (citation omitted). A trial court may abuse its discretion by

      entering a sentencing statement in which the reasons provided for the sentence

      are improper as a matter of law. Ackerman v. State, 51 N.E.3d 171, 193 (Ind.

      2016), cert. denied, 137 S.Ct. 475 (2016).




      2
       The trial court advised Caroway of his right to appeal the sentence two more times after accepting the plea
      agreement. See Tr., Vol. II at 25 (stating, immediately after accepting the plea agreement, that “[d]epending
      on where we go today, . . . you will still have rights to appeal the sentencing”) and 32 (stating, after
      pronouncing the sentence, “Mr. Caroway, if you are in the frame of mind to listen, you have the right to
      appeal my sentence”).


      3
       As our supreme court stated in Creech, “we take this opportunity to emphasize the importance of avoiding
      confusing remarks in a plea colloquy.” 887 N.E.2d at 76. We also take this opportunity to remind counsel
      on both sides of the aisle of their obligation of candor to the court in the face of conflicting information being
      provided to the defendant.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017                    Page 6 of 9
[9]    Caroway argues the trial court abused its discretion in sentencing him because

       the sentence was based on the trial court’s mistaken belief the minimum

       sentence for his crime was thirty years. Caroway bases this argument on the

       written sentencing order which stated the decision to impose an aggravated

       sentence of forty years was “based on the fact that, pursuant to statute, the

       range of sentence in this case is from 30 to 50 years.” Appellant’s App., Vol. II

       at 79. Caroway acknowledges the trial court correctly stated the minimum

       sentence as twenty years when pronouncing the sentence at the sentencing

       hearing. He argues, however, the oral statement “should not trump the judge’s

       written decision.” Appellant’s Brief at 9.


[10]   In reviewing a sentence, we examine both the oral and written sentencing

       statements to discern the conclusions of the trial court. Corbett v. State, 764

       N.E.2d 622, 631 (Ind. 2002). Neither statement is presumptively correct.

       McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of

       crediting the statement that accurately pronounces the sentence or remanding

       for resentencing. Id.


[11]   Generally, a trial court may impose any sentence between twenty and fifty

       years for a Class A felony. Ind. Code § 35-50-2-4(a). Here, however, the plea

       agreement capped the possible sentence at forty years. At the plea hearing, the

       trial court advised Caroway that the range of penalties he faced for his crime

       was twenty to fifty years, but if the court accepted the plea agreement, the

       maximum penalty would be forty years. See Tr., Vol. 2 at 12. Thus, the trial

       court correctly advised Caroway at the plea hearing that the minimum sentence

       Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 7 of 9
       it could impose was twenty years. Again at the sentencing hearing, the trial

       court advised Caroway that the minimum sentence in his case was twenty

       years. See id. at 31. Based on the unambiguous nature of the trial court’s

       statements at the plea and sentencing hearings, we conclude the written order

       which references a thirty-year minimum sentence contains a scrivener’s error.


[12]   We also note that even if the trial court was laboring under a misapprehension

       regarding the minimum sentence possible in this case, the trial court’s

       statements regarding the aggravating and mitigating circumstances clearly

       indicate the trial court’s intention to impose the maximum sentence. The trial

       court acknowledged Caroway’s guilty plea and lack of significant criminal

       history as mitigating circumstances. But because Caroway “appears to be

       trying to express remorse [to the victim but] is also portraying himself as a

       victim” and regrets making a statement to the police confessing his crime, the

       trial court found his lack of remorse an aggravating circumstance. Id. at 31.

       The trial court also found the impact on the victim and Caroway’s position of

       trust with her as her step-father to be aggravating circumstances. The court

       found the aggravating circumstances outweigh the mitigating circumstances,

       that the plea agreement capped the sentence at forty years, “and that is what the

       sentence is going to be today.” Id. at 32. In the written sentencing order, the

       trial court specifically stated an aggravated sentence was appropriate. The trial

       court clearly intended to impose a sentence above the advisory sentence for a

       Class A felony, which means it clearly intended to impose a sentence above

       thirty years. We therefore conclude that even if the trial court believed the


       Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 8 of 9
       minimum sentence was thirty years, it still would have imposed a forty-year

       sentence. See Ackerman, 51 N.E.3d at 194 (“When an abuse of discretion

       occurs, [we] will remand for resentencing only if we cannot say with confidence

       that the trial court would have imposed the same sentence . . . .”).



                                               Conclusion
[13]   Caroway did not waive his right to appeal his sentence, but he has failed to

       demonstrate the trial court abused its discretion in sentencing him to forty

       years. We therefore affirm his sentence, but because the written sentencing

       order contains a scrivener’s error, we remand to the trial court for correction of

       that error.


[14]   Affirmed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1611-CR-2518 | May 19, 2017   Page 9 of 9
