Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                              Aug 14 2013, 9:44 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHARLES W. LAHEY                                 GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL BURNETT,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A05-1304-CR-161
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                           The Honorable J. Jerome Frese, Judge
                             Cause No. 71D03-0910-FB-111


                                      August 14, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

       Michael Burnett appeals the sentence the trial court imposed upon him following a

guilty plea. Concluding that Burnett waived his right to appeal his sentence, we affirm.

                                          ISSUE

       Burnett raises five issues, but an issue raised by the State is dispositive: whether

Burnett waived his right to appeal his sentence.

                        FACTS AND PROCEDURAL HISTORY

       On September 25, 2009, four men confronted Colton Davis and Andrew McNish,

took their wallets and phones, beat them after they tried to flee, and forced them into the

trunk of Davis’s car. Next, the four men drove around in the car. Burnett became

involved when the assailants asked him to help them use Davis’s ATM card to remove

money from an ATM. An ATM security camera recorded Burnett and another man using

Davis’s card. Burnett left the men and their captives after helping them at the ATM.

Later, a police officer initiated a traffic stop of the car, and the four men ran away from

the car after crashing it. The officer freed Davis and McNish from the trunk. Other

officers subsequently arrested several of the men, who implicated Burnett in the incident.

       The State charged Burnett with two counts of robbery as Class B felonies, two

counts of criminal confinement as Class B felonies, and one count of carjacking as a

Class B felony. Burnett and the State executed a plea agreement. Pursuant to the

agreement, Burnett pleaded guilty to both counts of robbery and both counts of criminal

confinement, and the State dismissed the carjacking count. In addition, the State and

Burnett agreed that the executed portion of his sentence would be capped at thirty years.

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Burnett further agreed to waive his right to appeal his sentence “so long as the Judge

sentence[d] [him] within the terms of [the] plea agreement.” Appellant’s App. p. 21.

       The court accepted Burnett’s guilty plea. After a hearing, the court sentenced

Burnett to an aggregate executed term of twenty-eight years. The subject of an appeal

was not addressed at the sentencing hearing. Subsequently, Burnett requested a free

transcript of the sentencing hearing for purposes of appeal, and the court granted his

request. This appeal followed.

                             DISCUSSION AND DECISION

       Burnett claims the trial court failed to provide a sufficiently detailed sentencing

statement, engaged in inappropriate judicial fact-finding during sentencing, and

improperly considered during sentencing: (1) the contents of a post on Burnett’s page on

a social media website, (2) Burnett’s potential for earning credit time while incarcerated,

and (3) an allegation that Burnett belonged to a gang. The State responds that Burnett

waived all of these claims. We first address the State’s argument.

       A defendant may waive the right to appellate review of his or her sentence as part

of a written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). The content

and language of the plea agreement itself, as well as the colloquy where necessary,

govern the determination as to the validity of the waiver. Id. at 76. A specific dialogue

with the judge is not a necessary prerequisite to a valid waiver of appeal if there is other

evidence in the record demonstrating a knowing and voluntary waiver. Id.

       In Creech, the parties executed a plea agreement that capped the executed portion

of Creech’s sentence at six years. The plea agreement contained the following provision:

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       I understand that I have a right to appeal my sentence if there is an open
       plea. An open plea is an agreement which leaves my sentence to the
       Judge’s discretion. I hereby waive my right to appeal my sentence so long
       as the Judge sentences me within the terms of my plea agreement.

Id. at 74. In reviewing this provision, our Supreme Court noted that Creech did not claim

it was unclear or that he misunderstood it. Consequently, the Court concluded that the

provision was valid, and so was Creech’s waiver of his right to appeal. The Court thus

declined to address the merits of Creech’s claim.

       In Burnett’s case, he acknowledged in his plea agreement that if he pleaded not

guilty, he had “the right, in the event that I should be found guilty of the charge against

me, to appeal my conviction on such a charge to a higher court.” Appellant’s App. p. 19.

The plea agreement further states, “I understand also that if I plead GUILTY I waive the

right to a speedy public trial by jury and all of the attendant constitutional rights.” Id. In

addition, the agreement set forth the possible range of sentences Burnett faced. Finally,

the agreement states:

       I understand that I have a right to appeal my sentence if there is an open
       plea. An open plea is an agreement which leaves my sentence to the
       Judge’s discretion. I hereby waive my right to appeal my sentence under
       Creech v. State, 887 N.E.2d 73 (Ind. 2008), so long as the Judge sentences
       me within the terms of my plea agreement.

Id. at 21.

       The plea agreement’s citation to Creech appears to have little value in determining

the validity of Burnett’s waiver. There is nothing in the agreement that indicates anyone

explained to Burnett the citation to Creech or the significance of that case. Nevertheless,

the language of the waiver provision otherwise tracks verbatim the waiver provision at


                                              4
issue in Creech. Furthermore, Burnett does not claim that he failed to understand the

provision or that it was unclear. We thus conclude that Burnett waived his right to appeal

his sentence.    See Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 2008)

(determining that Brattain’s plea agreement included a valid waiver of his right to appeal

his sentence).

       Waiver notwithstanding, Burnett’s challenges to his sentence are without merit.

He claims the trial court failed to provide a sufficiently detailed sentencing statement.

Whenever imposing a sentence for a felony offense, the trial court must enter a

sentencing statement that includes a reasonably detailed recitation of the court’s reasons

for imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (2007). Here, the trial court, over the course of a

lengthy discussion, identified the factors it considered in sentencing, including Burnett’s

“significant role” in the offenses, tr. p. 35, “the circumstances of the offense,” id. at 37,

Burnett’s criminal and juvenile history, id. at 39, and Burnett’s cooperation with the

police after the crimes, which caused unidentified individuals to retaliate against him, id.

This is a sufficiently detailed statement of the court’s reasons.

       Next, Burnett argues that the trial court engaged in impermissible judicial fact-

finding at sentencing, in violation of the United States Supreme Court’s holding in

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Specifically, he says the court considered as an aggravating factor comments on Burnett’s

Facebook page, which had not been submitted to a jury. We disagree. The court

admitted a copy of the comments into evidence at the hearing, but there is no evidence

                                              5
that the court considered those comments in identifying aggravating and mitigating

factors. To the contrary, the court did not refer to the comments after admitting them into

evidence.

       Burnett further argues that the Facebook comments were impermissible hearsay.

He concedes that he did not object to the admission of the comments, but he claims that

their admission into evidence was fundamentally erroneous because they unfairly

depicted him as a dangerous criminal. A claim waived by a defendant’s failure to raise a

contemporaneous objection can be reviewed on appeal if the reviewing court determines

that fundamental error occurred. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).

The fundamental error exception is extremely narrow and applies only when the error

constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process. Id.

This exception is available only in egregious circumstances. Id.

       In this case, the court admitted the Facebook comments into evidence but did not

refer to them in the course of identifying aggravating and mitigating circumstances. We

cannot say that the admission of the comments constituted a blatant violation of basic

principles or substantially harmed him. Consequently, admission of the comments was

not fundamental error.

       Next, Burnett claims the court erred by considering during sentencing the amount

of credit time he could earn during his term of incarceration. We do not agree that the

court considered credit time as a factor in calculating Burnett’s sentence.        To the

contrary, the court discussed credit time only after announcing Burnett’s sentence, in the

                                            6
context of encouraging Burnett to reduce the executed portion of his sentence by

participating in programs while incarcerated.

         Finally, Burnett contends the court “improperly considered unsupported

allegations of gang membership.” Appellant’s Br. p. 10. However, the court did not

discuss gang membership in the course of weighing aggravating or mitigating

circumstances. Instead, the prosecutor argued to the court that Burnett was a gang

member, along with the other individuals who participated in these crimes. Burnett did

not timely object to the prosecutor’s statement, and he does not argue on appeal that the

prosecutor’s statement amounted to misconduct. We find no error on the part of the trial

court.

                                       CONCLUSION

         For the reasons stated above, we affirm the judgment of the trial court.

         Affirmed.

KIRSCH, J., and BROWN, J., concur.




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