MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Oct 30 2017, 10:34 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James J. Leffler, II,                                    October 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1702-CR-265
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable David R. Bolk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1511-F3-2713



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017              Page 1 of 6
                                Case Summary and Issue
[1]   James Leffler II pleaded guilty to dealing in methamphetamine, a Level 4

      felony, and the trial court sentenced him to nine years executed in the Indiana

      Department of Correction. On appeal, Leffler raises two issues for our review.

      The State cross-appeals arguing Leffler waived his right to appeal his sentence.

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

      appeal.



                            Facts and Procedural History
[2]   In late 2015, Leffler was arrested and charged with dealing in

      methamphetamine, a Level 3 felony; dealing in methamphetamine, a Level 4

      felony; possession of methamphetamine, a Level 6 felony; and two counts of

      maintaining a common nuisance, a Level 6 felony. The State also alleged

      Leffler was an habitual offender.


[3]   On July 15, 2016, Leffler and the State entered into a written plea agreement

      pursuant to which Leffler agreed to plead guilty to dealing in

      methamphetamine, a Level 4 felony, in exchange for the State’s dismissal of the

      remaining charges. Additionally, the plea agreement provided,


              The parties have no agreement regarding sentencing except that
              such sentence shall not exceed nine (9) years. The parties shall
              argue sentencing before the Court. The defendant shall waive the
              right to have any aggravating circumstances to be found beyond
              a reasonable doubt by a jury and said aggravating circumstances


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 2 of 6
        would be determined by the Judge. . . . The defendant waives
        the right to appeal the sentence imposed in this matter.


Appellant’s Appendix, Volume II at 56. At the guilty plea hearing, the trial

court advised Leffler of the various rights he was giving up by pleading guilty,

including his right to appeal his sentence. The relevant colloquy went as

follows:


        [Trial Court]:            You’re waiving your right to appeal the
                                  sentence imposed in this matter.

        ***

        [Trial Court]:            If the case went to trial and you were
                                  convicted, you’d have a right to appeal your
                                  conviction and any sentence imposed by this
                                  Court to a higher court; understand you have
                                  this appeal right?

        [Leffler]:                Yes sir.

        [Trial Court]:            Understand that by entering into this plea
                                  agreement, you’re giving up your appeal right
                                  with both respect to the finding of guilt and
                                  any sentence imposed by this Court?

        [Leffler]:                Yes.



Transcript, Volume VI at 5-9. The trial court accepted Leffler’s plea and

entered judgment of conviction. At the sentencing hearing, the trial court

sentenced Leffler to nine years in the Department of Correction. The trial court

also advised Leffler that “[y]ou have a right to appeal the sentence imposed in



Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 3 of 6
      this case Mr. Leffler[,]” and appointed a public defender to represent him. Tr.,

      Vol. VII at 89.


[4]   Leffler now appeals.



                                 Discussion and Decision
[5]   We first address the State’s cross-appeal. The State argues Leffler cannot

      challenge his sentence because he waived his right to do so pursuant to the

      terms of the plea agreement. Leffler counters that the plea agreement is

      ambiguous and notes the trial court advised Leffler of his right to appeal. We

      agree with the State.


[6]   Leffler first argues the plea agreement is ambiguous and unenforceable. The

      validity and interpretation of a plea agreement is a question of law. We

      evaluate questions of law under a de novo standard and owe no deference to

      the trial court's determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct.

      App. 2008).


[7]   As noted above, the plea agreement provides,


              The parties have no agreement regarding sentencing except that
              such sentence shall not exceed nine (9) years. The parties shall
              argue sentencing before the Court. The defendant shall waive the
              right to have any aggravating circumstances to be found beyond
              a reasonable doubt by a jury and said aggravating circumstances
              would be determined by the Judge. . . . The defendant waives
              the right to appeal the sentence imposed in this matter.



      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 4 of 6
      Appellant’s App., Vol. II at 56. Leffler alleges the first sentence, which states

      the parties “have no agreement regarding sentencing[,]” conflicts with the

      remaining provisions of the paragraph stating Leffler waives certain rights.

      Contrary to Leffler’s argument, the first sentence of the paragraph only refers to

      the parties’ agreement that the trial court will determine the sentence imposed,

      and that the trial court’s sentence may not exceed nine years. The agreement

      unambiguously waives Leffler’s right to appeal.


[8]   Leffler also asserts the trial court advised him he may appeal his sentence. In

      Creech v. State, the defendant executed a plea agreement in which sentencing

      was left to the discretion of the trial judge, subject to a cap of six years executed.

      887 N.E.2d 73, 74 (Ind. 2008). The agreement further provided, “I hereby

      waive my right to appeal my sentence so long as the Judge sentences me within

      the terms of my plea agreement.” Id. The court imposed a six-year sentence.

      On appeal, the defendant sought to challenge the appropriateness of his

      sentence. Our supreme court concluded the “express language” of the plea

      agreement established a valid waiver of the defendant’s right to appeal his

      sentence. Id. at 76. Further, although the trial judge erroneously advised the

      defendant at the end of the sentencing hearing that he had a right to appeal, our

      supreme court concluded the advisement had no effect on his plea because “[the




      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017   Page 5 of 6
       defendant] had already pled guilty and received the benefit of his bargain.” Id.

       at 77.1


[9]    Here, Leffler executed a valid waiver of his right to appeal his sentence and the

       trial court advised him that he was waiving this right at the guilty plea hearing.

       Leffler answered in the affirmative that he understood he was forfeiting his right

       to appeal his sentence. Further, as in Creech, the trial court’s mistaken

       advisement that Leffler had the right to an appeal occurred after Leffler had

       pleaded guilty and had received the benefit of his bargain. We conclude Leffler

       has waived his right to appeal his sentence and grant the State’s cross-appeal for

       dismissal of the appeal. See Starcher v. State, 66 N.E.3d 621, 623 (Ind. Ct. App.

       2016) (enforcing written waiver of right to appeal sentence despite trial court’s

       erroneous advisement at sentencing that defendant had a right to appeal), trans.

       denied.



                                                Conclusion
[10]   For the reasons stated above, we dismiss Leffler’s appeal.


[11]   Appeal dismissed.


       Riley, J., and Pyle, J., concur.




       1
        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.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017          Page 6 of 6
