MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                FILED
court except for the purpose of establishing                        Aug 09 2017, 7:58 am
the defense of res judicata, collateral                                  CLERK
estoppel, or the law of the case.                                    Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Spangler, Jr.                                   Curtis T. Hill, Jr.
Lawrence County Public Defender                          Attorney General of Indiana
Agency
Bedford, Indiana                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Love,                                             August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         47A01-1703-CR-544
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable Michael Robbins,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         47D01-1604-F1-399



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017         Page 1 of 6
                                          Case Summary
[1]   Joshua Love pled guilty to criminal confinement and sexual battery and was

      sentenced to sixteen years. He now appeals his sentence. The State argues that

      Love has waived appellate review of his sentence because of a waiver provision

      in his plea agreement. We agree with the State and therefore affirm Love’s

      sentence.



                            Facts and Procedural History
[2]   On January 4, 2017, Love and the State entered into a written plea agreement

      in which Love pled guilty to Level 3 felony criminal confinement and Level 6

      felony sexual battery. In exchange, the State agreed to dismiss the remaining

      counts and another cause number in its entirety. According to the terms of the

      plea agreement, the sentences would run concurrently, and the parties would

      “argue [the] remaining terms of [the] sentence to the Court.” Appellant’s App.

      Vol. II p. 23. The plea agreement contained the following provision concerning

      Love’s right to appeal his sentence:

              As a condition of entering this plea agreement, I knowingly and
              voluntarily agree to waive my right to appeal my sentence on the
              basis that it is erroneous or for any other reason so long as the
              Judge sentences me within the terms of my plea agreement.


      Id. Love also signed an Acknowledgement of Rights. Paragraph 10 similarly

      provided:



      Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017   Page 2 of 6
              As a condition of entering this plea agreement, I knowingly and
              voluntarily agree to waive my right to appeal my sentence on the
              basis that it is erroneous or for any other reason so long as the
              Judge sentences me within the terms of my plea agreement.


      Id. at 25.


[3]   At the guilty-plea hearing held that same day, the trial court went over the plea

      agreement and the Acknowledgement of Rights with Love. Specifically, the

      court confirmed with Love that he understood he was “waiving certain rights of

      appeal” as explained in paragraphs 6-13 of the Acknowledgement of Rights.

      Tr. Vol. II. p. 5. The court found that a factual basis existed for the offenses

      and set a sentencing hearing.

[4]   At the February sentencing hearing, the trial court sentenced Love to sixteen

      years for criminal confinement and two-and-a-half years for sexual battery, to

      be served concurrently, for an aggregate term of sixteen years. The court

      suspended two years to probation and ordered the last year of incarceration to

      be served on house arrest “in lieu of incarceration.” Id. at 97. The trial court

      then told Love, “you have a right to appeal . . . the sentence . . . that I just

      imposed.” Id.


[5]   Love now appeals his sentence.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017   Page 3 of 6
                                   Discussion and Decision
[6]   Love contends that his sentence is inappropriate in light of the nature of the

      offenses and his character. The State responds that Love has waived the right

      to appeal his sentence.

[7]   The Indiana Supreme Court held in Creech v. State that “a defendant may waive

      the right to appellate review of his sentence as part of a written plea

      agreement.” 887 N.E.2d 73, 75 (Ind. 2008). The Supreme Court then analyzed

      whether, despite the express language of the waiver in Creech’s plea agreement,

      he knowingly and voluntarily waived the right to appellate review of his

      sentence because the judge advised him at the close of the sentencing hearing

      that he retained the right to appeal. The Court rejected Creech’s argument as

      follows:

              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
              because the judge told him at the end of the sentencing hearing
              that he could appeal.


                                                   *****




      Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017   Page 4 of 6
               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 77 (footnotes omitted). As this Court later explained, “under Creech, a

      trial court’s incorrect advisement at the conclusion of a defendant’s sentencing

      hearing has no effect on an otherwise knowing, voluntary, and intelligent

      waiver of the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089,

      1093 (Ind. Ct. App. 2008), trans. denied.


[8]   On appeal, Love makes no argument that the language of his plea agreement

      was unclear or that he misunderstood the terms of the agreement when he

      signed it. As in Creech, although the trial court erroneously advised Love that

      he could appeal his sentence, that erroneous statement occurred only at the

      sentencing hearing and after Love had received the benefit of his plea

      agreement.1 We therefore find that Love knowingly and voluntarily waived the

      right to appeal his sentence. See Starcher v. State, 66 N.E.3d 621 (Ind. Ct. App.




      1
        Love argues that this case is more akin to Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans.
      denied, than it is to Creech. Bonilla entered into a written plea agreement waiving the right to appeal his
      sentence. At the guilty-plea hearing, the trial court noted Bonilla “may” have waived the right to
      appeal his sentence. Id. at 588. However, the court proceeded to advise Bonilla of the right to appeal
      his sentence and asked if he understood that right. Id. Given the contradictory information Bonilla
      received at the guilty-plea hearing and the fact that Bonilla was not a native English speaker, we
      concluded that Bonilla did not waive the right to appeal his sentence. Id. at 590. Here, however, the
      trial court did not advise Love at his guilty-plea hearing that he had the right to appeal his sentence;
      rather, the court told Love the opposite—that he was “waiving certain rights of appeal.” Tr. Vol. II p.
      5.

      Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017                  Page 5 of 6
      2016) (finding defendant waived right to appellate review of sentence in plea

      agreement despite trial court’s advisement at sentencing hearing that defendant

      had right to appeal sentence), trans. denied. We therefore affirm Love’s

      sentence.

[9]   Affirmed.

      Mathias, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017   Page 6 of 6
