MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Mar 06 2019, 10:27 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Caroline B. Briggs                                       Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Angela Sanchez
                                                         Josiah Swinney
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rex Allen Duke, Sr.,                                     March 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1963
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1801-F5-13



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019             Page 1 of 4
                                       Statement of the Case
[1]   Rex Allen Duke, Sr. appeals his sentence following his conviction for burglary,

      as a Level 5 felony, and his adjudication as a habitual offender. Duke presents

      a single issue for our review, namely, whether his sentence is inappropriate in

      light of the nature of the offense and his character. However, in his plea

      agreement, Duke waived his right to appeal his sentence. Accordingly, we

      dismiss his appeal.


                                 Facts and Procedural History
[2]   On January 10, 2018, Duke broke and entered a garage at Margaret Hicks’

      residence in Lafayette. Duke took some items he found in the garage and

      inside a parked van and put them in a bag. At some point, Hicks and her

      neighbor Jose Gaeta entered the garage, turned on the light, and found Duke.

      Gaeta called 9-1-1, and Duke did not leave but waited for law enforcement.


[3]   The State charged Duke with burglary, as a Level 5 felony; theft, as a Level 6

      felony; theft, as a Class A misdemeanor; and being a habitual offender. On

      May 31, 2018, Duke pleaded guilty to burglary, as a Level 5 felony, and

      admitted to being a habitual offender. In exchange for his plea, the State

      dismissed the remaining charges and dismissed a probation revocation petition

      pending in another cause. By his plea agreement, Duke


              waive[d] the right to appeal any sentence imposed by the Court,
              under any standard of review, including but not limited to, an
              abuse of discretion standard and the appropriateness of the
              sentence under Indiana Appellate Rule 7(B), so long as the Court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019   Page 2 of 4
              sentence[d] the Defendant within the terms of the plea
              agreement.


      Appellant’s App. Vol. 2 at 18. The plea agreement left sentencing open to the

      trial court’s discretion. Following a sentencing hearing, the trial court imposed

      an aggregate eight-year term. This appeal ensued.


                                     Discussion and Decision
[4]   Duke contends that his sentence is inappropriate in light of the nature of the

      offense and his character. However, we do not reach the merits of his appeal

      because, as the State correctly points out, Duke waived his right to appeal his

      sentence. In particular, Duke’s plea agreement left his sentence to the trial

      court’s discretion and included the following provision:


              The Defendant hereby waives the right to appeal any sentence
              imposed by the Court, under any standard of review, including
              but not limited to, an abuse of discretion standard and the
              appropriateness of the sentence under Indiana Appellate Rule
              7(B), so long as the Court sentences the Defendant within the
              terms of the plea agreement.


      Id. Our Supreme Court has held that such a waiver is enforceable. See Creech v.

      State, 887 N.E.2d 73, 75 (Ind. 2008). Indeed, here, at Duke’s guilty plea

      hearing, the trial court made certain that Duke understood that the court had

      discretion in sentencing him and that he was giving up his right to appeal his

      sentence.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019   Page 3 of 4
[5]   Still, in his Reply Brief, Duke asserts that “the State has waived its right to

      challenge Mr. Duke’s right to appeal the sentencing” because the State did not

      object when, at the conclusion of sentencing, the trial court inadvertently

      advised Duke that he had a right to appeal his sentence. Appellant’s Br. at 7.

      But the trial court in Creech made the same mistake, and our Supreme Court

      held that it was of no moment. The Court observed that, “[b]y 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.” Creech, 887 N.E.2d at 77. The same is true here.


[6]   Duke does not suggest that his waiver was not knowing and voluntary. Duke

      merely contends that the State waived its right to enforce his waiver when it did

      not object to the trial court’s statement at the conclusion of sentencing that

      Duke could appeal his sentence. We hold that Duke’s waiver of his right to

      appeal his sentence is valid and enforceable. Accordingly, we dismiss Duke’s

      appeal.


[7]   Dismissed.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1963 | March 6, 2019   Page 4 of 4
