      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Feb 02 2015, 9:08 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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                                       Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Constantine D. Mills, Jr.,                               February 2, 2015

      Appellant-Defendant,                                     Court of Appeals Cause Nos.
                                                               90A05-1406-CR-291
              v.                                               Appeal from the Wells Circuit
                                                               Court, The Honorable Michael J.
                                                               Lewis, Judge
      State of Indiana,                                        Cause Nos. 90C01-1306-FC-10 and
      Appellee-Plaintiff                                       90C01-1401-FA-1




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Constantine D. Mills, Jr. pled guilty to Class A felony child molesting and

      Class B felony sexual misconduct with a minor and was sentenced to fifty years


      Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 1 of 9
      in the Department of Correction. On appeal, Mills argues that the trial court

      abused its discretion in its treatment of aggravating and mitigating factors and

      his sentence is inappropriate. We do not reach these claims, however, because

      we conclude that Mills waived the right to appeal his sentence. We therefore

      dismiss this appeal.



                            Facts and Procedural History
[2]   Mills had sexual intercourse with his biological daughter, B.M., when she was

      between twelve and fourteen years old. B.M. became pregnant and gave birth

      to a child in July 2013. Genetic testing confirmed that Mills was the child’s

      father. The State charged Mills with Class A felony child molesting and Class

      B felony incest. Mills also had intercourse with B.D., a child unrelated to him,

      when she was fifteen years old. For these actions, the State charged Mills with

      Class B felony sexual misconduct with a minor and Class C felony sexual

      misconduct with a minor.


[3]   The State entered into a plea agreement with Mills that resolved both cases.

      Mills agreed to plead guilty to Class A felony child molesting (B.M.) and Class

      B felony sexual misconduct with a minor (B.D.), and the State agreed to

      dismiss the remaining counts. Sentencing was left to the trial court’s discretion

      with the limitation that the sentences would be served concurrently. See

      Appellant’s App. p. 55. The plea agreement required Mills to waive the right to

      appeal his sentence:



      Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 2 of 9
              13. I hereby specifically waive 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 me within the terms of the plea agreement. Also I hereby
              waive the right to any future request to modify the sentence imposed
              by the Court at the time of sentencing . . . .


                                       *        *       *        *       *


              36. I hereby waive the right to challenge the reasonableness of the
              sentence I receive in this cause under Appellate Rule 7(B). I also
              specifically waive the right to challenge the sentence on the basis that it
              is erroneous.


      Id. at 54, 58.


[4]   Mills’ guilty-plea hearing took place on March 12, 2014. Before accepting the

      plea agreement, the trial court advised Mills of his rights:

              TRIAL COURT: Do you understand that if you would have had a
              trial and been found guilty, you would have the right to appeal your
              conviction to the Indiana Supreme Court or the Indiana Court of
              Appeals[,] whatever the case may be?


              MILLS: Yes.


              TRIAL COURT: And do you understand that by pleading guilty you
              would be waiving and giving up that appeal right?


              MILLS: Yes.


              TRIAL COURT: Do you understand that you have the right to be
              represented by an attorney at all times, including during a trial or for
              any appeal which you might wish to pursue and if you cannot afford to

      Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 3 of 9
        pay an attorney now or in the future, the Court would appoint counsel
        to represent you?


        MILLS: Yes.


                                 *        *       *        *       *


        TRIAL COURT: I have before me, Mr. Mills, what appears to be a
        plea agreement with your signature. Did you in fact sign it, sir?


        MILLS: Yes.


        TRIAL COURT: Did you read it before you signed it?


        MILLS: Yes.


        TRIAL COURT: Did you discuss it with your attorney . . . before you
        signed it?


        MILLS: Yes.


        TRIAL COURT: And did he answer all of your questions that you
        had about this document?


        MILLS: Yes.


                                 *        *       *        *       *


        TRIAL COURT: Do you have any other questions though that you
        want to ask?


        MILLS: No, I’m okay.



Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 4 of 9
      Tr. p. 18-23. The court then accepted the plea agreement. Id. at 25-26.


[5]   Two weeks later, the trial court sentenced Mills to fifty years in the Department

      of Correction: fifty years executed for Class A felony child molesting and eight

      years executed for Class B felony sexual misconduct with a minor, to run

      concurrently. Id. at 47. In doing so, the court stated that Mills was “the worst

      of the worst”:

              [I] don’t know how else you describe someone [who] impregnates their
              12[-]year[-]old daughter as not being among the worst of the worst.
              You are, sir, the worst of the worst. You deserve every single day of
              the [fifty]-year sentence I am giving you. . . . If I could give you more,
              I would.


      Id.


[6]   At the conclusion of the sentencing hearing, the court addressed Mills’ right to

      appeal, saying:

              Because the court sentenced you to an open sentence in this case [] you have the
              right to appeal the sentence that was imposed here today. In order to do so,
              you must either file a Notice of Appeal or Motion to Correct Error
              within 30 days of this date. If you elect to file a Motion to Correct
              Error, you must file your Notice of Appeal within 30 days of an
              adverse ruling on that Motion. Failure to comply with these
              requirements will result in the forfeiture [of] your right to an appeal.
              You have the right to be represented by counsel at all stages of these
              proceedings including any appeal which you may wish to pursue. If
              you are unable to afford an attorney, I am obligated to appoint one to
              represent you at no cost to you. Do you understand that you have a right
              to appeal your sentence today, sir?


      Id. at 48 (emphases added).

      Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015     Page 5 of 9
[7]    Mills indicated that he understood the court’s instructions and wished to appeal

       his sentence. Id. (Trial counsel: “He would like to appeal his sentence, Judge.”

       Trial court: “Yep. I am going to appoint [counsel].”). The State said nothing

       during this exchange.


[8]    Mills now appeals.



                                  Discussion and Decision
[9]    On appeal, Mills argues that the trial court erred in sentencing him. We do not

       reach this issue, however, because we conclude that Mills waived the right to

       appeal his sentence.


[10]   Our Supreme Court has held that “a defendant may waive the right to appellate

       review of his sentence as part of a written plea agreement.” Creech v. State, 887

       N.E.2d 73, 75 (Ind. 2008). Further, as the Court observed:

               [N]either the Indiana Rules of Criminal Procedure nor Indiana Code
               requires trial courts that accept plea agreements to make express
               findings regarding a defendant’s intention to waive his appellate
               rights. Acceptance of the plea agreement containing the waiver
               provision is sufficient to indicate that, in the trial court’s view, the
               defendant knowingly and voluntarily agreed to the waiver.


       Id. at 77.


[11]   The Court also indicated in Creech that a trial court’s statements that led a

       defendant to believe that he retained the right to appeal at the sentencing

       hearing were not grounds to circumvent the terms of the plea agreement: “By

       Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 6 of 9
       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.


[12]   Mills waived the right to appeal his sentence. The language of the plea

       agreement itself is not ambiguous. Paragraph thirteen of the agreement

       explicitly states that Mills waived his right to challenge his sentence “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) . . .

       .” Appellant’s App. p. 53. Mills “concedes that the plea agreement –

       specifically, paragraph [thirteen] – specifies he waived his right to appeal his

       sentence . . . .” Appellant’s Reply Br. p. 4. Even if we were persuaded by

       Mills’ argument that paragraph thirty-six is ambiguous, we cannot say that the

       plea agreement as a whole is ambiguous or misleading in light of paragraph

       thirteen’s express statement that Mills agreed to waive his right to appeal his

       sentence under any standard of review. Furthermore, the trial court’s

       statements at the guilty-plea hearing were not improper—the court was correct

       in stating that Mills had the right to appeal his conviction. Although Mills

       forfeited his right to appeal his sentence, he retained the right to challenge his

       conviction. The court did err, however, when it advised Mills at his sentencing

       hearing that he could appeal his sentence. But the court made this erroneous

       statement at the end of the sentencing hearing—well after it had accepted the

       plea agreement and entered Mills’ fifty-year sentence. By this time, Mills had


       Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 7 of 9
       already agreed to waive the right to appeal his sentence and had received the

       benefit of his bargain.


[13]   Mills additionally argues that waiver should not apply because the State failed

       to object when—at the end of the sentencing hearing—the trial court

       erroneously advised him that he could appeal his sentence. See Appellant’s Br.

       p. 17 (“[T]he State is estopped from claiming the affirmative defense of

       waiver.”). This Court recently rejected such an argument, noting that “while

       some sort of objection or correction from the State is undoubtedly ideal, we do

       not believe a duty to speak existed here such that application of estoppel is

       warranted.” Mechling v. State, 16 N.E.3d 1015, 1017-18 (Ind. Ct. App. 2014),

       trans. denied.1 Trial-court actions that follow a defendant’s plea

       “are presumed to have no effect on the plea transaction, even in cases where a

       defendant is erroneously advised that he has a right to appeal.” Id. (citing

       Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 2008) & Creech, 887

       N.E.2d at 77)). Because the State had no duty to object to a statement with no




       1 Mills argues that Mechling is factually distinguishable because the trial court in this case advised him
       improperly at the guilty-plea hearing and at sentencing, whereas in Mechling, the trial court only erred at the
       end of the defendant’s sentencing hearing. We disagree. As we have already stated, the trial court did not err
       in its advisements at the guilty-plea hearing. And to the extent Mills suggests that the court erred by not
       discussing the agreement’s waiver provisions, the court was not required to do so. See Creech, 887 N.E.2d at
       77; see also Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 2008) (rejecting claim that waiver in plea
       agreement must be accompanied by trial-court advisement, citing Creech).

       Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015             Page 8 of 9
legal effect, its silence does not bar waiver in this case. We therefore dismiss

this appeal.


Dismissed.


Baker, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 90A05-1406-CR-291 | February 2, 2015   Page 9 of 9
