                                                                                                   FILED
                                                                                               Aug 21 2020, 8:56 am

                                                                                                   CLERK
                                                                                               Indiana Supreme Court
                                                                                                  Court of Appeals
                                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy J. Burns                                           Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Marjorie Lawyer-Smith
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Nehemiah Merriweather,                                     August 21, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A-CR-565
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Barbara Cook-
      Appellee-Plaintiff                                         Crawford, Judge
                                                                 Trial Court Cause No.
                                                                 49G01-1808-MR-28764



      Crone, Judge.


                                              Case Summary
[1]   Nehemiah Merriweather appeals the thirty-year aggregate sentence imposed by

      the trial court following his guilty plea to three counts of level 4 felony burglary.

      He contends that his sentence is inappropriate in light of the nature of the


      Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020                        Page 1 of 11
      offenses and his character. Concluding that he has not met his burden to

      demonstrate that his sentence is inappropriate, we affirm.


                                  Facts and Procedural History
[2]   On November 20, 2017, then seventeen-year-old Merriweather and three

      cohorts broke into three Indianapolis homes with the intent to commit theft

      therein. Dr. Kevin Rodgers was shot and killed during one of the burglaries.

      Following the burglaries and the murder, Merriweather and his cohorts

      recorded videos on their cellphones celebrating their crimes.


[3]   In February 2019, the State ultimately charged Merriweather with murder, one

      count of level 1 felony burglary, and three counts of level 4 felony burglary. On

      January 9, 2020, the parties entered into a plea agreement in which

      Merriweather agreed to plead guilty to three counts of level 4 felony burglary in

      exchange for dismissal of the murder and the level 1 felony burglary charges.

      The plea agreement provides that Merriweather was not the shooter, and he

      denies knowing which of his cohorts shot Dr. Rodgers. Pursuant to the

      agreement, sentencing was capped at thirty years.


[4]   On February 6, 2020, the trial court held a sentencing hearing. The court

      imposed a ten-year sentence on each burglary count, to run consecutively, for

      an aggregate sentence of thirty years. This appeal ensued.




      Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020       Page 2 of 11
                                      Discussion and Decision

      Section 1 – Merriweather did not waive his right to appeal his
                               sentence.
[5]   As an initial matter, we address the State’s assertion that Merriweather waived

      his right to appeal his sentence when he executed his plea agreement, and

      therefore dismissal of the appeal is warranted. Specifically, the plea agreement

      here provided, “Defendant hereby waives the right to appeal any erroneous

      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 the plea agreement.” Appellant’s

      App. Vol. 2 at 168. The State emphasizes that Merriweather placed his initials

      next to the provision in question, and when asked by the trial court during his

      guilty plea hearing whether he understood each of the rights he was waiving

      pursuant to the terms of the plea agreement, Merriweather answered in the

      affirmative. However, there is much more to this story.


[6]   While conducting an oral review of the rights that Merriweather was waiving

      pursuant to the agreement, and prior to the trial court’s acceptance of his guilty

      plea, the court advised Merriweather, “Since the sentence that is being imposed

      is one that the Court decides its [sic] discretionary within thirty (30) years. You

      do have the right to appeal the sentence if you feel it is fundamentally unfair.

      Do you understand that sir?” Tr. Vol. 2 at 9. Merriweather answered in the

      affirmative. Neither the deputy prosecutor nor defense counsel objected to

      these statements. Subsequently, during the sentencing hearing, the court again

      Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020         Page 3 of 11
      advised Merriweather, “[S]ince the Court had discretion in announcing your

      sentence; you have the right to appeal the Court’s sentence.” Id. at 65. The

      trial court went on to explain the timeline for filing a notice of appeal and, after

      Merriweather indicated that he did, in fact, wish to appeal his sentence,

      appointed appellate counsel. Again, neither the prosecutor nor defense counsel

      objected.


[7]   In advocating for dismissal of this appeal, the State relies on our supreme

      court’s opinion in Creech v. State, 887 N.E.2d 73 (Ind. 2008), in which the court

      held that 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.” Id. at 75 (quoting United States v.

      Williams, 184 F.3d 666, 668 (7th Cir. 1999)). In Creech, the defendant argued

      that he did not knowingly, voluntarily, and intelligently waive his right to

      appeal his sentence because the trial court made statements at the close of the

      sentencing hearing that indicated that he had retained the right. Our supreme

      court rejected his argument with the following analysis:


              While we take this opportunity to emphasize the importance of
              avoiding confusing remarks in a plea colloquy, we think the
              statements at issue are not grounds for allowing Creech to
              circumvent the terms of his plea agreement.


              Creech does not claim that the language of the plea agreement
              was unclear or that he misunderstood the terms of the agreement
              at the time he signed it, but rather claims that his otherwise
              knowing and voluntary plea lost its knowing and voluntary status


      Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020          Page 4 of 11
              because the judge told him at the end of the sentencing hearing
              that he could appeal.


              ....


              By the time the trial court erroneously advised Creech of the
              possibility of appeal, Creech had already pled guilty and received
              the benefit of his bargain. Being told at the close of the hearing
              that he could appeal presumably had no effect on that
              transaction.


      Id. at 76-77 (footnote omitted). Accordingly, the court concluded that the trial

      court’s statements at the sentencing hearing that led the defendant to believe

      that he retained the right to appeal were not grounds to circumvent the terms of

      the plea agreement. Id. at 77.


[8]   Creech is distinguishable and does not address how a trial court’s misstatements

      at the guilty plea hearing, rather than the sentencing hearing, impact the

      determination of whether a defendant’s waiver was knowing, voluntary, and

      intelligent. This Court addressed that very issue in Ricci v. State, 894 N.E.2d

      1089, 1093-94 (Ind. Ct. App. 2008), trans. denied. In contrast to Creech, the trial

      court in Ricci had unambiguously stated at the plea hearing that according to its

      reading of the plea agreement, the defendant had not surrendered the right to

      appeal his sentence, and the court’s statement was not contradicted by counsel

      for either party. Id. In those circumstances, this Court concluded that all parties

      “entered into the plea agreement with the understanding that Ricci retained the




      Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020         Page 5 of 11
       right to appeal his sentence” and held the written waiver “a nullity.” Id. at

       1094.


[9]    Even more on point, in Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009),

       trans. denied, the defendant entered into a written agreement waiving his right to

       appeal. Id. at 590. At the plea hearing the trial court advised that the defendant

       “may” have waived his right to appeal his sentence, but promptly advised the

       defendant of his right to appeal and asked if he understood that right. Id.

       Given the contradictory information the defendant received at the plea hearing

       and the fact that the defendant was not a native English speaker, we concluded

       that the defendant did not waive his right to appeal his sentence. Id. at 590. In

       Bonilla, we noted that the trial court repeated the same advisement at the

       sentencing hearing. Id. at 590 n.2.


[10]   This case is much more akin to Ricci and Bonilla than to Creech. As our supreme

       court very recently reaffirmed, the trial court plays a critical role “in

       safeguarding the validity of such waivers.” Johnson v. State, 145 N.E.3d 785,

       786 (Ind. 2020). Given the court’s unequivocal advisement to Merriweather, at

       the plea hearing before he had received the benefit of any bargain, and then

       again at the sentencing hearing, that he retained the right to appeal his sentence,

       we find his written waiver of that right a nullity. Merriweather did not waive

       appellate review of his sentence.


[11]   We must note that had we not found Merriweather’s waiver of the right to

       appeal his sentence invalid, an argument could be made that the State waived


       Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020           Page 6 of 11
       the ability to enforce the waiver provision and seek dismissal of this appeal by

       sitting idly by during the plea hearing, and again at the sentencing hearing,

       while the trial court gave the erroneous advisements. Indeed, we have rejected

       the State’s request to dismiss an appeal under circumstances when it failed to

       object to the trial court’s erroneous statements regarding the right to appeal

       pursuant to a plea agreement. See Williams v. State, 51 N.E.3d 1205, 1210 (Ind.

       Ct. App. 2016) (declining to dismiss appeal and noting that State did not object

       to trial court’s erroneous advisement of appeal rights or correct record pursuant

       to plea agreement). However, we must observe that defense counsel here was

       just as idle as the State during the trial court’s erroneous advisements. Neither

       party should be rewarded for behavior that is contrary to the administration of

       justice. See Ind. Prof. Cond. Rule 8.4(d) (it is professional misconduct for a

       lawyer to engage in conduct prejudicial to the administration of justice).


                 Section 2 – Merriweather has not met his burden to
                   demonstrate that his sentence is inappropriate. 1
[12]   Merriweather requests that we reduce his sentence pursuant to Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the



       1
         Merriweather clearly conflates the abuse-of-discretion standard with the inappropriateness standard,
       arguing that his sentence is “inappropriate” because the trial court abused its discretion by not giving “proper
       weight” to the mitigating factors of his young age and recent positive changes of behavior. Appellant’s Br. at
       10-11. This conflation of arguments is improper as it is well settled that the two types of claims are distinct
       and are to be analyzed separately. King v. State, 894 N.E.2d 265, 266 (Ind. Ct. App. 2008). Because the
       relative weight or value assignable to mitigating factors is not subject to appellate review for an abuse of
       discretion, Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218, we will
       analyze Merriweather’s argument solely within the framework of Indiana Appellate Rule 7(B).

       Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020                                   Page 7 of 11
       sentence “is inappropriate in light of the nature of the offense and the character

       of the offender.” The defendant bears the burden to persuade this Court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Indiana’s flexible sentencing scheme allows trial courts to tailor an

       appropriate sentence to the circumstances presented, and the trial court’s

       judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to

       “leaven the outliers.” Id. at 1225. Whether we regard a sentence as

       inappropriate at the end of the day turns on “our sense of the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other facts that come to light in a given case.” Id. at 1224. “The question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” Fonner v. State,

       876 N.E.2d 340, 344 (Ind. Ct. App. 2007). Appellate review “should focus on

       the forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Cardwell, 895 N.E.2d at 1225.


[13]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Merriweather was

       convicted of three level 4 felonies, which carry a sentencing range between two

       and twelve years, with the advisory sentence being six years. Ind. Code § 35-

       50-2-5.5. In accordance with the plea agreement sentencing cap, the trial court

       Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020        Page 8 of 11
       here imposed three consecutive ten-year sentences, for an aggregate sentence of

       thirty years, which is six years below the statutory maximum allowable

       aggregate sentence. 2


[14]   When reviewing the nature of the offenses, this Court considers “the details and

       circumstances of the commission of the offense[s].” Washington v. State, 940

       N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Merriweather does not

       even mention the details and circumstances of his offenses, and any attempt to

       downplay them would certainly have fallen on deaf ears. His offenses are

       troubling, to say the least. Merriweather and his cohorts, while armed with a

       deadly weapon, broke into multiple homes during daytime hours with the

       intent to commit thefts therein. A homeowner was senselessly shot and killed

       during one of the burglaries. This harm greatly exceeded the basic statutory

       elements necessary to simply prove the offenses. If not for the plea agreement

       sentencing cap, the nature of these offenses would warrant a sentence increase

       rather than a reduction.


[15]   Merriweather fares no better when we consider his character. The character of

       the offender is found in what we learn of his life and conduct. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is a review

       of an offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.



       2
         Although we have permitted this appeal to proceed on the merits, we are compelled to emphasize that “a
       defendant’s conscious choice to enter a plea agreement that limits the trial court’s discretion to a sentence less
       than the statutory maximum should usually be understood as strong and persuasive evidence of sentence
       reasonableness and appropriateness” and appellate relief should be granted “only in the most rare,
       exceptional cases.” Childress, 848 N.E.2d at 1081 (Dickson, J., concurring).

       Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020                                    Page 9 of 11
App. 2015), trans. denied (2016). As noted by the trial court, this is far from

Merriweather’s first criminal activity. His juvenile criminal history began at age

eleven, and his crimes have been escalating in number and severity ever since.

He had at least six true findings as a juvenile, and, prior to the instant offenses,

he had already been waived into adult court on charges of level 3 felony

burglary resulting in bodily injury, level 3 felony robbery, and level 5 felony

criminal confinement. 3 After acknowledging Merriweather’s young age at the

time of these offenses, the trial court aptly observed,


        [Y]ou made some bad choices Mr. Merriweather and the only
        time you understood the seriousness of those choices was when
        you were caught. After you knew you were going to have to pay
        and face the consequences. What is surprising to me, is given as
        someone as bright as both your mother and grandmother believe
        you are and shown evidence that you are finishing your high
        school diploma while you’ve been in jail; that none of your other
        experiences with the criminal justice system either as a juvenile
        or as a young adult ever…. You ever got that message. I mean it
        wasn’t like it was your first time. If this was your first time, I
        might have a different idea about this, but this was something
        that you had been through before. This was a crime that you had
        committed before and none of it got to you and that’s what’s
        disturbing for somebody as young as you; to have [amassed] such
        criminal history [in] such a short lifetime.




3
 He was convicted of level 3 felony burglary only in that case and sentenced to community
corrections/home detention.

Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020                           Page 10 of 11
       Tr. Vol. 2 at 63. Merriweather’s criminal history overshadows any recent

       positive changes in his behavior while incarcerated. Merriweather has not

       persuaded us that a sentence reduction is warranted based upon his character.


[16]   In sum, Merriweather has not met his burden to demonstrate that his sentence

       is inappropriate in light of the nature of his offenses or his character.

       Accordingly, we affirm the thirty-year aggregate sentence imposed by the trial

       court.


[17]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-565| August 21, 2020           Page 11 of 11
