FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID T. A. MATTINGLY GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
Jul 03 2013, 8:55 am
IN THE
COURT OF APPEALS OF INDIANA
RICHARD HAWKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1211-CR-958
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1109-FA-24
July 3, 2013
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Richard Hawkins (Hawkins), appeals his sentence following
a guilty plea to dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1 and
possession of cocaine, a Class A felony, I.C. § 35-48-4-6.
We affirm.
ISSUE
Hawkins raises two issues on appeal, one of which we find determinative and
restate as follows: Whether Hawkins knowingly and voluntarily waived his right to
appeal the appropriateness of his sentence when he entered into a plea agreement with the
State.
FACTS AND PROCEDURAL HISTORY
On or about September 2, 2011, a confidential informant notified the Lafayette
police department that Hawkins was dealing in crack cocaine. Law enforcement officers
directed the confidential informant to make arrangements to purchase crack cocaine from
Hawkins. Thereafter, on September 2, 7, and 26, 2011, the confidential informant made
three purchases of crack cocaine. Each controlled buy was conducted at the request of
and monitored by law enforcement officers. On September 27, 2011, law enforcement
officers obtained a search warrant for Hawkins’ residence. During the search, the
officers discovered 28.5 grams of cocaine, a legend drug, a Schedule IV controlled
substance, and 2.4 grams marijuana, as well as digital scales and baggies.
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On September 21, 2011, the State filed an Information, which was amended on
November 14, 2011, charging Hawkins with two Counts of dealing in cocaine, Class A
felonies, I.C. § 35-48-4-1; one Count of possession of cocaine, a Class A felony, I.C. §
35-48-4-6; one Count of possession of a schedule IV controlled substance, a Class C
felony, I.C. § 35-48-4-7; one Count of possession of a legend drug, a Class D felony, I.C.
§ 16-42-19-13; one Count of possession of marijuana, a Class A misdemeanor, I.C. § 35-
48-4-11; one Count of possession of marijuana while having a prior conviction, a Class D
felony, I.C. § 35-48-4-6; and one Count of being an habitual offender, I.C. § 35-50-2-10.
On August 2, 2012, Hawkins entered into a plea agreement with the State, in which he
agreed to plead guilty to one Count of dealing in cocaine as a Class A felony and one
Count of possession of cocaine as a Class A felony in exchange for the dismissal of the
other charges. The plea agreement directed that sentencing would be at the discretion of
the trial court, other than that Hawkins would receive concurrent sentences. In addition,
the plea agreement contained the following language:
That as a condition of entering this plea agreement, the defendant
knowingly and voluntarily agrees to waive his right to appeal the sentence
on the basis that it is erroneous or for any other reason, including the right
to seek appellate review of the sentence pursuant to Indiana Appellate Rule
7(B), so long as the [c]ourt sentences the defendant within the terms of the
plea agreement.
(Appellant’s App. p. 28). On November 1, 2012, the trial court sentenced Hawkins to
concurrent thirty-four year sentences on each Count, with four years in community
corrections.
Hawkins now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
Hawkins contends that even though his plea agreement contains a clause waiving
the right to appeal his sentence, he did not knowingly and voluntarily waive this right. In
particular, Hawkins points to the trial court’s advisement during the plea hearing that he
is entitled to be represented by an attorney on appeal.
Defendants who bargain to plead guilty in return for favorable outcomes give up a
plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132,
1135 (Ind. 2001). As such, 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 as long as the
waiver is knowing and voluntary. 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 (quoting
United States v. Williams, 184 F. 3d 666, 668 (7th Cir. 1999)). A specific dialogue with
the trial court 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. Inventiveness
with the aid of hindsight is the principal threat to the stability of plea agreements, and
therefore the major hazard to the defendants’ ability to obtain concessions for the right
they surrender. Id. (quoting Williams, 184 F.3d at 669). Defendants should not be freed
from their bargain merely because the court could imagine potential changes in the
procedures used or envision a more precise colloquy. See id.
During the hearing on Hawkins’ guilty plea, the trial court read through the
agreement in open court, including the waiver of his appellate rights. The trial court then
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advised Hawkins of the rights he was waiving by pleading guilty. Specifically, after
enumerating the rights waived, the following exchange occurred:
[TRIAL COURT]: Do you understand that by pleading guilty today that
you are giving up those rights which I have just explained to you?
[HAWKINS]: Yes sir.
[TRIAL COURT]: Do you understand that if you were to have a trial and
were convicted you would have the right to appeal that conviction to the
[c]ourt of [a]ppeals or [s]upreme [c]ourt of Indiana?
[HAWKINS]: Yes sir.
[TRIAL COURT]: Furthermore, at paragraph four of the [p]lea
[a]greement, if the [c]ourt accepts the agreement, that you agree to waive
your right to appeal the sentence, you understand that?
[HAWKINS]: Yes sir.
[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 an
appeal. If you cannot afford an attorney, the [c]ourt would appoint one for
you?
[HAWKINS]: Yes sir.
(Tr. pp 9-10).
By explaining that Hawkins has the right to an attorney, the trial court is not
contradicting the waiver provision. Instead, read within the context of the hearing, the
trial court is merely explaining Hawkins’ right of representation—a right clearly distinct
from his right to appeal his sentence.
However, Hawkins analogizes his situation to Ricci v. State, 894 N.E.2d 1089
(Ind. Ct. App. 2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App.
2009), trans. denied. Ricci involved a written plea agreement which provided that the
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defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea
hearing, the trial court unambiguously stated that, according to its reading, Ricci had not
surrendered the right to appeal his sentence, and the trial court’s statement was not
contradicted by counsel for either party. Id. In those circumstances, we concluded that
all parties entered the plea agreement with the understanding that Ricci retained the right
to appeal his sentence and held the waiver to be a nullity. Id. at 1094.
A similar situation occurred in Bonilla. Bonilla entered into a written plea
agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing,
the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id.
However, the court proceeded to advise Bonilla of his right to appeal and asked if he
understood that right. Id. Given the contradictory information Bonilla received at the
plea hearing and the fact that Bonilla was not a native English speaker, we concluded that
Bonilla did not waive his right to appeal his sentence. Id. at 590.
Ricci and Bonilla are inapposite to the case at hand as the trial court did not make
any contradictions or raise any ambiguities with respect to the plea agreement and the
waiver language. The trial court clearly enumerated the rights Hawkins had foregone by
pleading guilty and then asked Hawkins if he understood he would have the right to
appeal if he went to trial, but that by entering into the plea agreement, he had waived that
right. Hawkins answered affirmatively. Then, after having concluded its advisements on
the right to appeal, the trial court explained that he had the right to be represented by an
attorney at any stage of the proceedings. By separating the right to appeal from the right
to representation, the trial court properly advised Hawkins without contradicting itself or
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raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived
his right to appeal his sentence.
CONCLUSION
Based on the foregoing, we conclude Hawkins waived the right to appeal the
appropriateness of his sentence.
Affirmed.
BRADFORD, J. and BROWN, J. concur
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