MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Jan 06 2016, 8:49 am
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
Mark K. Leeman                                           Gregory F. Zoeller
Leeman Law Offices                                       Attorney General of Indiana
Logansport, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Amanda Pearson,                                          January 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A05-1508-CR-1182
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Rick Maughmer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         09D02-1206-FB-17



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016    Page 1 of 13
                               Case Summary and Issues
[1]   Amanda Pearson entered a plea of guilty to burglary, a Class B felony, and was

      sentenced to 7,300 days of incarceration with 3,650 days suspended to

      probation. On appeal, Pearson raises two issues regarding her sentence:

      whether the trial court abused its discretion in sentencing her and whether her

      sentence is inappropriate in light of the nature of her offense and her character.

      The State cross-appeals, contending Pearson entered into a plea agreement

      waiving her right to appeal her sentence. Concluding Pearson waived her right

      to appeal her sentence, we affirm.



                            Facts and Procedural History
[2]   In 2012, Pearson was romantically involved and living with Jeremiah Kelley.

      Their relationship was volatile and marked by drug use. In April 2012, Kelley,

      his friend, Clifton Stone, and Pearson engaged in a series of residential

      burglaries in Carroll, Cass, Howard, and Tipton Counties. In particular, on

      April 4, 2012, the trio burglarized a home in Cass County. Pearson acted as

      lookout and remained in the car while Kelley and Stone entered the home and

      took a television and several items of jewelry. When making entry, they

      damaged the door from the garage into the house.




      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 2 of 13
[3]   The State charged Pearson with burglary, a Class B felony, and theft, a Class D

      felony.1 On August 25, 2014, two days before a jury trial was scheduled to

      begin, Pearson and the State filed a written plea agreement which provided

      Pearson would plead guilty to burglary and the State would dismiss the theft

      count. With regard to the sentence, the agreement provided there would be

      “[o]pen argument by the parties as to sentence,” and restitution to the victims

      would be determined at sentencing. Appellant’s Appendix at 140. As part of

      the plea agreement, Pearson acknowledged that she:

                 (2) has been informed that by his plea he/she waives his/her
                 rights to:
                 ***
                 (e) Waiver of appellate review of this sentence imposed by the
                 court. Defendant acknowledges that he/she has discussed this
                 matter with counsel, and hereby makes a knowing and voluntary
                 waiver of appellate review of the sentence imposed by the trial
                 court. Defendant may appeal any illegal sentence which may be
                 imposed.
                 ***
                 (9) The defendant hereby waives any right to challenge the trial
                 court’s finding on sentencing, including the balancing of
                 mitigating and aggravating factors and further waives his right to
                 have the Indiana Court of Appeals review his sentence under
                 Indiana Appellate Rule 7(B).


      Id. at 140-41.




      1
          Pearson also faced charges for burglaries occurring in the other counties.


      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 3 of 13
[4]   Also on August 25, 2014, the trial court held a plea hearing:


              [Court]: [W]e are here today because there was a plea
              agreement, proposed plea agreement filed in this cause of action.
              [Pearson is placed under oath.]
              ***
              [Court]: It is my understanding you wish to enter a plea of guilty
              pursuant to a plea agreement that you have negotiated with the
              Prosecutor, is that correct?
              [Pearson]: Yes.
              ***
              [Court]: I have before [me] here what purports to be a plea
              agreement with your signature on it. Did you sign this?
              [Pearson]: Yes, I did.
              [Court]: Did you read it before you signed it?
              [Pearson]: Yes, I did.
              [Court]: Did you discuss it with your Attorney . . . before you
              signed it?
              [Pearson]: Yes, we did.
              [Court]: I think it just simply says that your [sic] pleading guilty
              straight up to count one (1), the class B felony, six (6) to twenty
              (20) years, and a fine of nothing up to ten (10) thousand dollars,
              and the State is going to dismiss count two (2). Parties are free to
              argue in sentencing and if I do accept, the plea agreement there
              will be a no contact order with the alleged victims and restitution
              to be determined at the sentencing hearing. . . . Is that your
              agreement?
              [Pearson]: Yes.
              ***
              [Court]: Hum, counsel is that the agreement . . .
              [State]: Yes.
              ***
              [Defense Counsel]: Yes.


      Appellee’s App. at 3, 9-10. A factual basis was established and the trial court

      took the plea under advisement pending preparation of a pre-sentence
      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 4 of 13
      investigation report. A sentencing hearing was scheduled for October 13, 2014,

      but ultimately was not held until July of 2015.2


[5]   The parties appeared in court for a sentencing hearing on July 14, 2015. The

      victims had not been properly notified of the date, so the trial court agreed to

      start the sentencing hearing but defer ruling so the victims could be notified of

      their right to be present and the State could present evidence regarding

      restitution at a later date. Pearson testified, as did several witnesses on her

      behalf. The court reconvened on July 23, 2015, at which time the victims

      appeared and gave testimony regarding their loss. At the conclusion of the

      hearing, the trial court sentenced Pearson to 7,300 days, all but 3,650 days

      suspended to probation, and ordered her to pay $23,928 in restitution. The trial

      court then stated,

               I need to advise you of your rights even though this was a plea
               agreement . . . . Do you understand that if you wish to take an
               appeal you must file a notice of appeal designating what is to be
               included in the record on appeal within thirty days after
               sentencing . . . ?
               [Pearson]: Yes, Your Honor.
               ***
               [Court]: Now the rule says that I inquire of you whether or not
               you wish to appeal or file a motion to correct error. I don’t know
               if you waived that in your plea agreement.
               [State]: There is no plea agreement, Judge, this was just an open
               ...



      2
       It appears Pearson’s sentencing was delayed until after Kelley’s case was resolved due to the possibility of
      her testifying in that case.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016             Page 5 of 13
              [Court]: Straight up sentence? No, there is an acknowledgement
              and waiver of rights filed August 25th. Let’s just go ahead and
              say that it wasn’t done. All right, do you wish to file an appeal or
              motion to correct error at this time? If you don’t know, you can
              talk to counsel.
              [Defense counsel]: She does, Judge.


      Transcript, Volume 2, at 57-59. The trial court appointed counsel for Pearson

      and entered a sentencing order which indicated a plea agreement had been

      filed, a judgment of conviction for the crime of burglary, a Class B felony, was

      entered, and Pearson was sentenced to 7,300 days. See Appellant’s App. at 179.

      In addition, the abstract of judgment prepared by the trial court shows Pearson

      was charged with burglary and theft, with the disposition being “plea by

      agreement” to burglary and dismissal of the theft charge. See id. at 181.



                                 Discussion and Decision
[6]   Pearson contends the trial court abused its discretion in sentencing her and that

      her sentence is inappropriate. The State argues that Pearson waived the right to

      appeal her sentence pursuant to her plea agreement. Given the nature of the

      State’s argument, we address it first.


[7]   The State contends Pearson specifically agreed in her plea agreement not to

      appeal her sentence, except for an illegal sentence. As the trial court sentenced

      her within the terms of the plea agreement, and neither an abuse of discretion in

      sentencing nor an inappropriate sentence constitute an illegal sentence, the

      State urges this appeal be dismissed. Pearson acknowledges she signed a


      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 6 of 13
      document entitled “plea agreement” advising her that if the agreement was

      accepted by the trial court, she waived her right to appeal. Appellant’s Brief at

      12. She contends, however, that “the parties and the trial court all concede that

      Pearson entered a straight guilty plea and received no consideration for her plea

      agreement and, therefore, did not waive her right to appeal her sentence.” Id.

      In support of this assertion, Pearson notes the trial court did not sign the plea

      agreement document and the State said at sentencing there was no plea

      agreement. In addition, Pearson interprets the trial court saying, “let’s just go

      ahead and say it wasn’t done” to mean that “a waiver of the right to appeal

      ‘wasn’t done’ in this case.” Id.


[8]   In Creech v. State, 887 N.E.2d 73 (Ind. 2008), the defendant’s plea agreement left

      his sentence to the trial court’s discretion, and he agreed to waive his right to

      appeal the sentence so long as he was sentenced within the terms of his plea

      agreement. After the defendant had entered his plea of guilty and been

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

      appeal his sentence. Our supreme court held first that provisions waiving the

      right to appellate review of a sentence are enforceable as part of a written plea

      agreement. Id. at 75. The court further determined that after a defendant

      pleads guilty and receives the benefit of the plea bargain, subsequent actions by

      the trial court do not affect that waiver, recognizing that “[m]ost waivers are

      effective when set out in writing and signed.” Id. at 76-77 (alteration in

      original) (quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995),

      superseded by statute on other grounds). Therefore, the court held the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 7 of 13
      erroneous advisement at the conclusion of the sentencing hearing had no effect

      on an otherwise knowing, voluntary, and intelligent waiver of the right to

      appeal and was not grounds for allowing the defendant to circumvent the terms

      of his plea agreement. Id. at 76.


[9]   We have since addressed this issue in various iterations. In Brattain v. State, 891

      N.E.2d 1055 (Ind. Ct. App. 2008), the trial court appointed appellate counsel

      for the defendant at his request more than a week after his sentencing hearing.

      We held, based on the reasoning in Creech, that this action did not invalidate the

      provision of the defendant’s plea agreement waiving appellate review of his

      sentence. Id. at 1057. In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008),

      trans. denied, the trial court advised the defendant at his plea hearing that

      according to its reading of the plea agreement, the defendant had not waived

      the right to appeal his sentence. Neither the State nor the defendant

      contradicted or corrected the trial court by drawing its attention to the waiver

      provision in the plea agreement. Therefore, we held the waiver provision was a

      nullity because “the trial court accepted the plea agreement, and [all parties]

      entered into the plea agreement with the understanding that [defendant]

      retained the right to appeal his sentence.” Id. at 1094. And in Mechling v. State,

      16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, we addressed the defendant’s

      argument that the State was estopped from enforcing the waiver provision of a

      plea agreement because it did not correct the trial court when the trial court

      mistakenly advised him at his sentencing hearing that he had the right to appeal

      and offered to appoint appellate counsel. Because the trial court’s misstatement


      Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 8 of 13
       came at the conclusion of the sentencing hearing, we held the State had no duty

       “to object to a statement that carried no legal effect” and therefore application

       of estoppel was not warranted. Id. at 1017-18. We also noted that if there was

       a duty to correct the trial court, as officers of the court, the State and defense

       counsel would have an equal duty to do so. Id. at 1018.


[10]   Thus, the timing of an advisement or action conflicting with the waiver

       provision of a plea agreement is the crucial factor in determining whether it

       effectively waived appeal rights. Here, the plea agreement was referenced

       repeatedly at the guilty plea hearing, and Pearson acknowledged having read

       and signed it. Unlike Ricci, Pearson’s right to appeal was never mentioned at

       the guilty plea hearing, and therefore Pearson could not have proceeded with

       the understanding that provision of her plea agreement was void.3 Instead, as

       in Creech, it was not until the conclusion of Pearson’s sentencing hearing, after

       her plea had been accepted and her sentence imposed, that the trial court

       advised her an appeal must be initiated within thirty days and asked if she

       wished to appeal. It is difficult to know exactly what the trial court was

       referring to when it said, “Let’s just go ahead and say that it wasn’t done.” Tr.

       Vol. 2 at 59 (emphasis added). However, as the trial court made that statement

       after accepting the plea agreement and sentencing Pearson, and as the trial




       3
         A trial court is not required to inform a defendant of the right to appeal a sentence before accepting a guilty
       plea. See Ind. Code § 35-35-1-2. Nor is a trial court required to make an express finding about a defendant’s
       intention to waive appellate rights. Creech, 887 N.E.2d at 77 (“Acceptance of the plea agreement containing
       the waiver provision is sufficient to indicate that, in the trial court’s view, the defendant knowingly and
       voluntarily agreed to the waiver.”).

       Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016               Page 9 of 13
       court is bound by the terms of a plea agreement once it is accepted, Ind. Code §

       35-35-3-3(e), whatever the trial court’s intent, the statement had no legal effect

       on the terms of Pearson’s plea.


[11]   Finally, the fact the State represented at the conclusion of the sentencing

       hearing that there was no plea agreement is of no consequence. First, the trial

       court immediately corrected the State and referred to the written plea

       agreement filed in August 2014. Second, even if the trial court had not done so,

       it is important to note the timing of the State’s representation: it came after

       sentence was imposed pursuant to the plea agreement and could not have had

       any effect on Pearson’s decision to plead guilty or her understanding of the

       terms under which she was pleading guilty. And third, Pearson’s counsel—

       who had advised her regarding the plea agreement, signed the agreement, and

       represented at the guilty plea hearing that the trial court had accurately

       represented the terms of the agreement between the State and Pearson—also

       had an obligation to speak up to correct any misstatements or

       misunderstandings about the course of the proceedings. See Mechling, 16

       N.E.3d at 1018. The nearly one-year delay in sentencing Pearson after her plea

       agreement was filed may have contributed to the confusion at the conclusion of

       her sentencing hearing. As in Creech, we again “emphasize the importance of

       avoiding confusing remarks in a plea colloquy,” 887 N.E.2d at 76, and remind

       trial courts they “would be well advised to determine whether such a [waiver]

       provision is part of any plea agreement that comes before them[,]” Ricci, 894




       Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 10 of 13
       N.E.2d at 1093 n.7. The plea agreement was clearly part of the trial court’s

       record and available for review before and during the sentencing hearing.


[12]   Pearson argues she actually received no benefit from the plea agreement

       because the dismissed charge was a lesser-included offense and her sentence

       was left open to the trial court’s discretion. It is likely the outcome would have

       been no different if Pearson had walked into court and said, “I plead guilty,”

       without first having any conversations with the State and agreeing to waive

       rights over and above those inherently waived by a guilty plea. But the fact of

       the matter is, she did have conversations with the State and she did knowingly

       and voluntarily sign a plea agreement that included a provision allowing

       appellate review only of an illegal sentence. The trial court sentenced her

       within the terms of the plea agreement and within the statutory limits. See Ind.

       Code § 35-50-2-5. Pearson’s sentence was not illegal and we therefore conclude

       Pearson has waived the issues raised in this appeal.


[13]   Waiver notwithstanding, Pearson’s challenge to her sentence fails on its merits.

       She contends the trial court abused its discretion in sentencing her by failing to

       find as mitigating circumstances that her involvement in the crime was less

       culpable than her co-defendants and that she was scared and simply following

       an abusive boyfriend. The finding of mitigating circumstances is within the

       discretion of the trial court, and to prove an abuse of that discretion, the

       defendant must show on appeal that the mitigating evidence is significant and

       clearly supported by the record. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.

       App. 2012), trans. denied. Pearson’s testimony in support of her proffered

       Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 11 of 13
       mitigating circumstances was equivocal. There was evidence of an abusive

       relationship with Kelley and that she felt pressured to assist in the crime.

       However, Pearson also testified that she was a “somewhat” willing participant

       in the burglaries, Tr. Vol. 1 at 25, and that the “biggest part” of why she helped

       was to get money for drugs, id. at 43. As to her involvement in the crime, she

       did not enter the house but stayed in the car to act as lookout and driver should

       they need to leave quickly. She was involved in a string of residential burglaries

       across multiple counties, so it was not a one-time event that caught her

       unaware. “A trial court does not err in failing to find a mitigating factor where

       that claim is highly disputable in nature, weight, or significance.” Healey, 969

       N.E.2d at 616.


[14]   Finally, as to Pearson’s claim that her twenty-year sentence is inappropriate, we

       may revise a sentence “if, after due consideration of the trial court’s decision,

       the Court finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Ind. Appellate Rule 7(B). The

       principal role of appellate review is to “leaven the outliers, . . . not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). Therefore, the question “is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007)

       (emphasis in original). This crime was committed as part of a series of similar

       crimes, and the damage and loss to the victims exceeded $20,000. Pearson has

       a criminal history dating back several years and a history of drug use which at


       Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 12 of 13
       least in part prompted her participation in this crime. We may not have

       imposed the same sentence the trial court did, but the sentence is not

       inappropriate.



                                               Conclusion
[15]   Pearson entered into a written plea agreement with a provision waiving her

       appellate rights. Although there was a confusing colloquy at her sentencing

       hearing, it occurred after her plea agreement was accepted and her sentence was

       imposed and thus, none of the statements, misstatements, or omissions had an

       effect on her decision to accept the plea agreement’s terms. She has thus

       waived her right to appeal her sentence. In any event, her sentence was neither

       an abuse of discretion nor inappropriate. We therefore affirm the sentence.


[16]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1508-CR-1182 | January 6, 2016   Page 13 of 13
