MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         Nov 15 2016, 11:43 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
Adam C. James                                           Gregory F. Zoeller
Shelbyville, Indiana                                    Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Lamont Swanson,                                  November 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1604-CR-967
        v.                                              Appeal from the Shelby Superior
                                                        Court
State of Indiana,                                       The Honorable Chris D. Monroe,
Appellee-Plaintiff.                                     Senior Judge
                                                        Trial Court Cause No.
                                                        73D02-1603-F6-116



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016   Page 1 of 4
                                           Statement of the Case
[1]   Andrew Lamont Swanson appeals his sentence following his convictions for

      identity deception, as a Level 6 felony, and driving while license suspended, as

      a Class A misdemeanor, pursuant to a guilty plea. Swanson presents two issues

      for our review, namely, whether his sentence and placement in the Department

      of Correction (“DOC”) are inappropriate in light of the nature of the offenses

      and his character. We hold that, because Swanson agreed to a two-year

      executed sentence in the DOC as part of his plea agreement, Swanson may not

      challenge the appropriateness of his sentence or his placement in this direct

      appeal. We affirm.


                                     Facts and Procedural History
[2]   On March 28, 2016, in open court, Swanson pleaded guilty to identity

      deception, as a Level 6 felony, and driving while license suspended, as a Class

      A misdemeanor.1 In exchange for that plea, the State agreed to an aggregate

      sentence of two years executed in the DOC, and the State granted Swanson

      “immunity from a further perjury charge.” Appellant’s Br. at 13. Swanson

      agreed to those terms, and the trial court entered judgment of conviction and

      sentence accordingly. This appeal ensued.




      1
          A third charge for false informing was dismissed.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016   Page 2 of 4
                                       Discussion and Decision
[3]   Swanson contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. However, as our supreme court has held, where a

      plea agreement includes a defendant’s agreement to a specific sentence, such

      defendant may not challenge the sentence by means of a timely or belated direct

      appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). Again, here, in open

      court, the State offered Swanson a plea agreement whereby he would be

      sentenced to “two years executed at the [DOC],” and Swanson agreed. Tr. at

      7. Further, the trial court expressly advised Swanson that “when you accept a

      plea offer . . . for a specific executed sentence, you also give up the right to

      appeal the sentence itself.” Id. at 15. The trial court asked Swanson whether he

      understood that, and Swanson stated that he did. Swanson accepted the plea

      agreement, including the two-year executed sentence in the DOC, and,

      therefore, “his sentence is not available for Rule 7(B) review.” Hole v. State, 851

      N.E.2d 302, 304 (Ind. 2006).2


[4]   Finally, Swanson is also precluded from challenging “his placement at the

      Indiana Department of Correction [as] inappropriate in light of the nature of

      the offense and his character.” Appellant’s Br. at 10. Again, the plea



      2
         We note that the written sentencing order indicates that Swanson’s plea was “open.” Appellant’s App. at
      13. However, because the transcript unambiguously shows that Swanson’s plea agreement was closed in that
      it provided for an executed two-year sentence in the DOC, the notation in the written sentencing statement is
      an error. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (holding that, “[r]ather than presuming the
      superior accuracy of the oral statement, we examine it alongside the written sentencing statement to assess
      the conclusions of the trial court. This Court has the option of crediting the statement that accurately
      pronounces the sentence or remanding for resentencing.”).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016           Page 3 of 4
      agreement here specified Swanson’s placement at the DOC. Tr. at 7.

      Accordingly, his placement was not subject to the trial court’s discretion, and

      the issue is not available on direct appeal. See Hole, 851 N.E.2d at 304 n.4

      (noting that placement is subject to Appellate Rule 7(B) review where plea

      agreement gives trial court discretion to sentence defendant to community

      corrections program or the Department of Correction).


[5]   Affirmed.


      Vaidik, C.J., and Baker, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-967 | November 15, 2016   Page 4 of 4
