MEMORANDUM DECISION                                                                FILED
                                                                              08/28/2017, 10:30 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                   CLERK
this Memorandum Decision shall not be                                          Indiana Supreme Court
                                                                                  Court of Appeals
regarded as precedent or cited before any                                           and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Michael Anthony Torrence                                 Curtis T. Hill, Jr.
Branchville, Indiana                                     Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Anthony Torrence,                                August 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1611-CR-2542
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Renner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1504-F4-13115



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017           Page 1 of 9
                                                Case Summary
[1]   Michael Anthony Torrence (“Torrence”), pro se, appeals his sentence,

      following a guilty plea, for his conviction of unlawful possession of a firearm by

      a serious violent felon, as a Level 4 felony.1 He raises two issues on appeal.

      However, because he waived his right to appeal his sentence, we dismiss.



                                 Facts and Procedural History
[2]   On April 14, 2015, the State charged Torrence with Count I, unlawful

      possession of a firearm by a serious violent felon, as a Level 4 felony; 2 Count II,

      possession of cocaine, as a Level 5 felony;3 Count III, maintaining a common

      nuisance, as a Level 6 felony;4 and Count IV, possession of paraphernalia, as a

      Class A misdemeanor.5 Torrence posted bond and was released from the

      Marion County Jail on September 1, 2015. On May 5, 2016, Torrence and the

      State entered into a plea agreement which stated, in relevant part, as follows:

                 2.    Defendant enters into this agreement knowing that the
                 Court has the authority to accept or reject the agreement and
                 understands that the Court may take the Defendant’s criminal




      1
          Ind. Code § 35-47-4-5(c) (2015).
      2
        Torrence had previously been convicted of dealing in cocaine or a narcotic drug, I.C. § 35-48-4-1, which is
      a serious violent felony. I.C. § 35-47-4-5(b)(24).
      3
          I.C. § 35-48-4-6(a).
      4
          I.C. § 35-48-4-13(b)(1) (current version at I.C. § 35-45-1-5).
      5
          I.C. § 35-48-4-8.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017             Page 2 of 9
        record into consideration in determining whether to accept or
        reject this plea agreement.


        3.  The Defendant agrees to plead guilty to: UNLAWFUL
        POSSESSION OF A FIREARM BY A SERIOUS VIOLENT
        FELON, a level 4 felony, as charged in Count I.


        4.    At the time of sentencing, the State will dismiss: [the
        remaining charges].


        5.      At the time of the taking of the guilty plea and again at the
        time of the Defendant’s sentencing, the State reserves the right to question
        witnesses and comment on any evidence presented upon which the Court
        may rely to determine the sentence to be imposed; to present testimony
        or statements from the victim(s) or victim representative(s), and
        the State of Indiana and the Defendant agree[] that the Court
        shall impose the following sentence:


                a. A total of ten (10) years, with an initial executed
                sentence of five (5) years executed placement open to the
                Court. The State agrees to make no recommendation as to
                placement. The remaining five (5) years suspended …


                b. All remaining terms to be determined by the Court, after
                argument by the parties.


                                                ***


        6.     Defendant hereby waives the right to appeal any sentence imposed
        by the Court, including the right to seek appellate review of the
        sentence pursuant to Indiana Appellate Rule 7(B), so long as the
        Court sentences the defendant within the terms of this plea agreement.



Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017   Page 3 of 9
        7.     The Defendant acknowledges that the State’s
        recommendation, or agreement to make no recommendation, is
        based on the Defendant’s criminal history known to the Deputy
        Prosecutor representing the State at the time this agreement is
        executed and who entered into the agreement. In the event that
        such information is incomplete, that a further or more accurate
        criminal history is discovered prior to the entry of judgment or
        the Defendant is charged with the commission of another offense
        prior to sentencing, the State reserves the right to unilaterally
        withdraw from this agreement at any time prior to the entry of
        judgment herein.


        8.      The Defendant understands and acknowledges by his/her
        initials that if this agreement is accepted by the Court, the
        Defendant will give up the following rights:


                                                    ***


                (g) the right to appeal the conviction(s).


                                                    ***


        10. The Defendant acknowledges satisfaction with Defense
        Counsel’s representation and competency in this matter. The
        Defendant believes this agreement to be in the Defendant’s best
        interest.


        11. The Defendant acknowledges that he/she has a right to pursue
        post-conviction relief, if there is a legal and factual basis to do so,
        and that entering a guilty plea herein does not operate as a
        waiver of that right.


Appellant’s App. at 14-15 (emphases added).


Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017   Page 4 of 9
[3]   Torrence initialed sections 5(a) and sections six through twelve of the plea

      agreement, and he and his counsel signed the plea agreement. The trial court

      held a guilty plea hearing on that same date, at which Torrence informed the

      court that he had read the plea agreement with his attorney, and that his

      attorney had explained to him all of the terms of the agreement and answered

      all his questions. The trial court informed Torrence of the constitutional rights

      he would waive by entering into the plea agreement, and Torrence stated that

      he understood and was “willing to give up those rights.” Tr. at 4-5. Torrence

      also admitted to the facts necessary to find that he committed the offense.

      Torrence stated that he understood and agreed to the plea agreement, and the

      trial court accepted his guilty plea.


[4]   On August 22, 2016, the trial court held a sentencing hearing at which the

      prosecutor informed the court that there was one change to Torrence’s

      presentence investigation report (“PSI”), namely, that he had been arrested on a

      new offense on August 4, 2016. The prosecutor asked the court to add the

      pending charges to the PSI.


[5]   After Torrence testified on his own behalf, he asked the trial court to place him

      on work release for the executed portion of his sentence. In response, the

      following colloquy occurred:


              STATE: No questions. I just want to point out a few things. I
              know I cannot make the recommendation as to placement –


              COURT: Okay.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017   Page 5 of 9
              STATE: -- but I would still like to make note of a couple of
              items.


                                                      ***


              STATE: Thank you. I just wanted to note that Mr. Torrence
              had been on Marion County Community Correction for 21 days
              when he picked up the arrest on this matter. He was out on bond
              pending sentencing when he picked up the most recent case,
              which the State noted that addition to the PSI. … I would also
              like to note that this is his 11th felony conviction, so –


              TORRENCE: I give up.


              STATE: I will leave it at that.


      Tr. Vol. II at 23-24.


[6]   The trial court then sentenced Torrence as follows:


              COURT: All right. Well, in considering the sentence in this
              case, I’ve considered the Pre-Sentence Investigation, the
              testimony of the Defendant, the argument of the Parties. I do
              find one mitigating circumstance that Defendant has entered into
              a plea of guilty in this case. I think that is a mitigating factor.
              Aggravating factor would be that he is – was on community
              corrections at the time this offense was committed for another
              case. He was convicted in 2005—I’m sorry, he does have a
              history of—a prior history of delinquency or criminal
              convictions. And again, I’m referring to the pre-sentence.


                                                      ***



      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017   Page 6 of 9
                 I do find the aggravating outweigh the mitigating circumstances
                 in this case. I’ll enter a conviction for a serious violent felony as
                 a—possession of a firearm, a serious violent felon a Level 4
                 felony. I’m going to sentence him to ten years in the Indiana
                 Department of Corrections. Five years of those—five years of
                 that sentence will be executed in the Indiana Department of
                 Correction. The remaining will be suspended with the exception
                 of one-day non-reporting probation.


      Id. at 25-26. The trial court also granted the State’s motion to dismiss the

      remaining charges. Torrence now appeals his sentence.



                                     Discussion and Decision
[7]   Torrence appeals his sentence6 on the grounds that the prosecutor engaged in

      misconduct and his defense counsel was ineffective for failing to object to that

      misconduct. However, Torrence entered into a plea agreement with the State

      under which he explicitly waived his right to appeal his sentence “so long as the

      Court sentences the defendant within the terms of this plea agreement.”

      Appellant’s App. at 15. Because the trial court’s sentence was within the terms

      of Torrence’s plea agreement, we hold that Torrence waived his right to appeal

      that sentence.7




      6
          He does not, as the State maintains, appeal his convictions. See Appellant’s Br. at 14.
      7
          Thus, we do not address Torrence’s other claims.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017        Page 7 of 9
[8]   Our Supreme Court has held that “a defendant may waive the right to appellate

      review of his sentence as part of a written plea agreement,” so long as the

      waiver is knowing and voluntary.8 Creech v. State, 887 N.E.2d 73, 75 (Ind.

      2008). Torrence does not address the waiver issue at all on appeal. However,

      he seems to contend that the trial court did not sentence him “within the terms

      of the plea agreement,” because the prosecutor made statements at his

      sentencing hearing which amounted to a “recommendation as to placement” in

      violation of provision 5(a) of the plea agreement. Appellant’s Br. at 13.


[9]   The only statements about which Torrence complains are the prosecutor’s

      statements that “the Defendant was out on bond, the Defendant violated

      community corrections.” Id. Torrence contends that those statements

      “impl[ied] that the defendant should serve his executed sentence with the

      Indiana Department of Corrections.” Id. We disagree. Those statements are

      not recommendations as to Torrence’s placement; rather they are comments on

      the evidence of Torrence’s criminal history that was already before the court 9

      and upon which the Court could rely to determine the sentence to be imposed.

      Such comments were explicitly allowed under provision 5 of the plea

      agreement. Appellant’s App. at 14.




      8
          Torrence does not claim that his waiver of his right to appeal was not knowing and voluntary.
      9
        See Appellant’s App. at 26-27 (PSI) regarding Torrence’s violation of community corrections due to his
      arrest for the charges in this case, and Appellant’s App. at 6 (CCS) regarding Torrence being released on
      bond in this case at the time he was arrested for a new offense.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017              Page 8 of 9
[10]   Because the sentence imposed by the trial court was within the terms of

       Torrence’s plea agreement, he waived his right to a direct appeal of that

       sentence.


[11]   Dismissed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2542 | August 28, 2017   Page 9 of 9
