MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Dec 05 2016, 8:45 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert Summerfield                                       Gregory F. Zoeller
CGS Law Group                                            Attorney General of Indiana
Indianapolis, Indiana                                    Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Jason Eugene Shaw,                                       December 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1512-CR-2051
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1402-FB-335



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016      Page 1 of 6
                                Case Summary and Issue
[1]   Jason Shaw pleaded guilty to two counts of armed robbery, Class B felonies,

      and the trial court sentenced him to ten years executed in the Indiana

      Department of Correction. On appeal, Shaw raises the sole issue of whether

      the trial court abused its discretion in failing to enter a sentencing statement.

      Concluding Shaw waived his right to appeal his sentence, we dismiss his

      appeal.



                            Facts and Procedural History
[2]   On February 19, 2014, Shaw and an accomplice broke into the home of Leroy

      Smith. Shaw was armed with a rifle, and the pair attempted to rob Smith and

      his friend. Thereafter, Smith and his friend thwarted the robbery by attacking

      Shaw and his accomplice, causing them to flee. Law enforcement later

      apprehended Shaw and the State charged him with two counts of armed

      robbery, both Class B felonies.


[3]   On January 26, 2015, Shaw and the State entered into a written plea agreement

      pursuant to which Shaw agreed to plead guilty to two counts of armed robbery

      in exchange for a cap of ten years on any portion of the sentence ordered

      executed by the trial court. In addition, the plea agreement provided,


              [Shaw] hereby waives the right to appeal any sentence imposed
              by the Court, including the right to seek appellate review of the
              sentence pursuant to Appellate Rule 7(B), so long as the Court
              sentences [Shaw] within the terms of this plea agreement. It is

      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016   Page 2 of 6
               further agreed that the sentence recommended and/or imposed is
               the appropriate sentence to be served pursuant to this agreement.


      Appellant’s Appendix at 50. At the plea hearing, the trial court advised Shaw

      of the various rights he was giving up by pleading guilty, and Shaw offered a

      factual basis for his offense. The trial court accepted Shaw’s plea, entered

      judgment of conviction, and sentenced Shaw to twenty years on each count,

      with ten of those years suspended to probation. The trial court ordered the

      sentences to run concurrently, making Shaw’s total executed sentence ten years.


[4]   In November of 2015, Shaw petitioned the trial court to file a belated appeal.

      The trial court granted his petition and on December 2, 2015, Shaw filed his

      Notice of Appeal with the Clerk of the Indiana Supreme Court, Court of

      Appeals, and Tax Court. The State subsequently filed a motion to dismiss

      Shaw’s appeal arguing, pursuant to his plea agreement, Shaw waived his right

      to appeal his sentence. This issue was presented to the motions panel of this

      Court, and on August 29, 2016, the motions panel denied the State’s motion to

      dismiss and ordered the State to file its appellee’s brief.



                                 Discussion and Decision
[5]   Shaw argues the trial court abused its discretion by failing to enter a sentencing

      statement. The State cross-appeals and asks us to reconsider the motions

      panel’s decision denying its motion to dismiss Shaw’s appeal. In Miller v. Hague

      Ins. Agency, 871 N.E.2d 406, 407 (Ind. Ct. App. 2007), this court stated,



      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016   Page 3 of 6
              [e]ven though our motions panel has already ruled on this issue,
              [the appellee] is not precluded from presenting its arguments to
              us. Smith v. Deem, 834 N.E.2d 1100, 1103 (Ind. Ct. App. 2005),
              trans. denied. “It is well established that we may reconsider a
              ruling by the motions panel.” Cincinnati Ins. Co. v. Young, 852
              N.E.2d 8, 12 (Ind. Ct. App. 2006), trans. denied. While we are
              reluctant to overrule orders decided by the motions panel, this
              court has inherent authority to reconsider any decision while an
              appeal remains in fieri. See Davis v. State, 771 N.E.2d 647, 649 n. 5
              (Ind. 2002); State v. Moore, 796 N.E.2d 764, 766 (Ind. Ct. App.
              2003), trans. denied.


[6]   We agree with the State this appeal should be dismissed. Generally, “[w]here .

      . . a defendant pleads guilty to what has been characterized as an ‘open plea’

      the freedom and latitude of the trial court to impose a particular sentence is

      readily apparent.” Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006)

      (footnote omitted). Moreover, even where a plea agreement sets forth a

      sentencing cap, the trial court still must exercise discretion in determining the

      sentence. Id. As a result, in either case, the defendant is “entitled to contest the

      merits of a trial court’s sentencing discretion.” Id. at 1078-79 (citation omitted);

      cf. Sholes v. State, 878 N.E.2d 1232, 1234 (Ind. 2008) (a plea agreement for a

      fixed sentence precludes a defendant from challenging his resulting sentence by

      direct appeal). However, a provision waiving the right to appellate review as

      part of a written plea agreement is enforceable “as long as the record clearly

      demonstrates that it was made knowingly and voluntarily.” Creech v. State, 887

      N.E.2d 73, 75 (Ind. 2008) (quoting United States v. Williams, 184 F.3d 666, 668

      (7th Cir. 1999)). Acceptance of a plea agreement containing a waiver



      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016   Page 4 of 6
      provision is sufficient to indicate that, in the trial court’s view, the defendant

      knowingly and voluntarily agreed to the waiver. Id. at 77.


[7]   Shaw’s plea agreement provides,

              [Shaw] shall plead guilty as charged with a cap of ten (10) years
              on any part of the sentence ordered executed by the court.


              ***


              [Shaw] hereby waives the right to appeal any sentence imposed
              by the Court, including the right to seek appellate review of the
              sentence pursuant to Appellate Rule 7(B), so long as the Court
              sentences [Shaw] within the terms of this plea agreement. It is
              further agreed that the sentence recommended and/or imposed is
              the appropriate sentence to be served pursuant to this agreement.


      Appellant’s App. at 49-50. Shaw’s plea agreement specifically provides he

      waives the right to appeal any sentence imposed by the trial court, provided the

      trial court sentences him within the terms of the plea agreement. The trial court

      sentenced Shaw to ten years executed on both counts of armed robbery, with

      the sentences to run concurrently. Therefore, Shaw will serve a total of ten years

      executed in the Department of Correction, precisely the amount of

      executed time allowed by the plea agreement. Because the trial court sentenced

      Shaw within the terms of his plea agreement, Shaw has waived his right to

      appeal his sentence.



                                              Conclusion

      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016   Page 5 of 6
[8]   Shaw waived his right to appeal his sentence, and his appeal is therefore

      dismissed.


[9]   Dismissed.


      Mathias, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2051 | December 5, 2016   Page 6 of 6
