MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Jun 29 2017, 10:46 am
regarded as precedent or cited before any
                                                                       CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan                               Curtis T. Hill, Jr.
Wilson & Wilson                                         Attorney General of Indiana
Greenwood, Indiana
                                                        Laura R. Anderson
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brianna C. Petrarca,                                    June 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A05-1702-CR-296
        v.                                              Appeal from the Johnson Circuit
                                                        Court
State of Indiana,                                       The Honorable K. Mark Loyd,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        41C01-1511-F4-69



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017        Page 1 of 6
                                        Statement of the Case
[1]   Brianna C. Petrarca (“Petrarca”) appeals the sentence imposed by the trial court

      following her guilty plea to two counts of Level 4 felony dealing in

      methamphetamine.1 Petrarca argues that her aggregate sentence of eight (8)

      years with seven (7) years executed and one (1) year suspended on probation is

      inappropriate. Petrarca’s plea agreement contained a provision that she was

      waiving her right to appeal her sentence so long as the trial court sentenced her

      within the terms of her plea agreement. Because the trial court sentenced

      Petrarca within the terms of her plea agreement, we conclude that she has

      waived her right to appeal her sentence. Accordingly, we dismiss this appeal.


[2]   We dismiss.


                                                       Issue
              Whether Petrarca has waived her right to appeal her sentence
              pursuant to her written plea agreement.


                                                       Facts
[3]   On August 25, 2015, and, one week later, on August 31, 2015, Petrarca

      knowingly or intentionally delivered methamphetamine, which had a weight




      1
       IND. CODE § 35-48-4-1.1. We note that, since the time of Petrarca’s offense, the dealing in
      methamphetamine statute has been twice amended, with effective dates of July 1, 2016, and July 1, 2017.
      These amendments have no effect on this appeal.

      Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017             Page 2 of 6
      between one and five grams. Thereafter, the State charged Petrarca with two

      counts of Level 4 felony dealing in methamphetamine.


[4]   In November 2016, Petrarca entered into a written plea agreement. The terms

      of the agreement required her to plead guilty as charged. In exchange, the State

      would recommend that the sentences on the two charges be served

      concurrently. Finally, a cap of eight years would be placed on any executed

      time, with any additional time to be suspended. Petrarca’s plea agreement also

      contained a provision, which provided, in relevant part, as follows:

              17. I acknowledge that I may have the right to challenge this
              agreement and the resulting conviction and sentence. By
              entering into this plea agreement I hereby waive any right to
              appeal the conviction and/or sentence in this cause by direct
              appeal so long as the Judge sentences me within the terms of my
              plea agreement.

      (App. Vol. 2 at 19) (emphasis added). During the plea hearing, the trial court

      established that Petrarca had read the plea agreement and had reviewed it with

      her attorney. Additionally, the trial court confirmed that Petrarca had signed

      the plea agreement with the understanding that she was “[w]aiv[ing] [her] rights

      and entitlements as contained throughout and entering into the plea based on

      the prosecutor’s [sentencing] recommendation[.]” (Tr. 6).


[5]   For each conviction, the trial court sentenced Petrarca to a term of eight (8)

      years with seven (7) years executed and one (1) year on probation, and it

      ordered these sentences to be served concurrently. Thus, the trial court

      sentenced Petrarca within the terms of her plea agreement. The trial court also

      Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017   Page 3 of 6
      recommended that Petrarca be placed in Purposeful Incarceration, and it noted

      that it would consider a modification of her executed sentenced if she

      successfully completed a Therapeutic Community Program. Petrarca now

      attempts to appeal her sentence.2


                                                      Decision
[6]   Petrarca argues that her aggregate sentence of eight (8) years with seven (7)

      years executed and one (1) year on probation for her two Level 4 felony dealing

      in methamphetamine convictions was inappropriate.


[7]   Our 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). The Creech Court adopted the view of the

      Seventh Circuit “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 Creech Court also noted the benefit of such

      a waiver:

               [D]efendants are free to waive their rights, to exchange them for
               other things that they value more highly. They exchange jury
               trials for lower sentences—and there is no reason why defendants
               cannot do the same with rights to appeal. An appeal requires the



      2
        The trial court did not inform Petrarca that she had a right to appeal her sentence. Petrarca filed a petition
      seeking permission to file a belated notice of appeal. Prior to receiving a response from the State, the trial
      court granted the petition.

      Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017                   Page 4 of 6
              prosecutor’s office to spend time researching the record, writing a
              brief, and attending oral argument. All of this time could be
              devoted to other prosecutions; and a promise that frees up time
              may induce a prosecutor to offer concessions. A defendant who
              values these concessions will waive his rights in order to obtain
              them. The process makes both society and the defendant better
              off. To make a given right ineligible for waiver would stifle this
              process and imprison the defendant in his privileges.


      Id. (quoting United States v. Hare, 269 F.3d 859, 861 (7th Cir. 2001)). The Creech

      Court held that a trial court is not required to make an “express finding” that a

      defendant has waived his appellate rights and that “[a]cceptance 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.” Id. at 77.


[8]   Here, Petrarca’s written plea agreement contained a recommendation from the

      State that the sentences for the charges to which she was pleading guilty be

      served concurrently and have a cap of eight years on any executed time. Her

      plea agreement contained a specific provision that she was waiving her right to

      appeal her sentence “so long as the Judge sentence[d] [her] within the terms of

      [her] plea agreement.” (App. Vol. 2 at 19). The trial court sentenced

      Petrarca—within the terms of her plea agreement—to a term of eight (8) years

      with seven (7) years executed and one (1) year on probation, and it ordered

      these sentences to be served concurrently.


[9]   Based upon the language in the plea agreement and the fact that the trial court

      sentenced Petrarca according to the terms of her plea agreement, we conclude

      Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017   Page 5 of 6
       that Petrarca has waived her right to appeal her sentence. See Creech, 887

       N.E.2d at 74-75 (holding the defendant had 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 sentence[d] [him] within the

       terms of [his] plea agreement”); Starcher v. State, 66 N.E.3d 621, 623 (Ind. Ct.

       App. 2016) (dismissing the defendant’s appeal of his sentence based on the

       provision in his guilty plea waiving appellate review “so long as the Judge

       sentences him . . . within the terms of []his agreement”), trans. denied.

       Accordingly, we will not address Petrarca’s argument that her sentence was

       inappropriate, and we dismiss this appeal.


[10]   Dismissed.


       May, J., concurs in result.


       Brown, J., concurs.




       Court of Appeals of Indiana | Memorandum Decision 41A05-1702-CR-296 | June 29, 2017   Page 6 of 6
