MEMORANDUM DECISION
Feb 13 2015, 8:47 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Iquise Taylor, February 13, 2015
Appellant-Defendant, Court of Appeals Cause No.
48A04-1406-CR-254
v. Appeal from the Madison Circuit
Court, The Honorable Thomas
Newman, Jr., Judge
State of Indiana, Cause No. 48C03-1308-FA-1634
Appellee-Plaintiff
Najam, Judge.
Statement of the Case
[1] Iquise Taylor appeals his sentence after he pleaded guilty but mentally ill to
burglary, as a Class A felony; criminal deviate conduct, as a Class B felony;
criminal confinement, as a Class C felony; and strangulation, a Class D felony.
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Taylor presents two issues for our review, but we address only one dispositive
issue, namely, whether Taylor waived his right to appeal his sentence in his
plea agreement. We hold that he did, and, therefore, we affirm.
Facts and Procedural History
[2] During the late-night hours of July 15, 2013, and the early-morning hours of
July 16, seventeen-year-old Taylor forcibly entered the Madison County
residence of ninety-three-year-old Amelia Rudolf, who had lived there for
nearly sixty years. Taylor kicked in the backdoor to Rudolf’s home and made
his way to Rudolf’s bedroom. Once there, Taylor strangled Rudolf and
penetrated her rectum with his penis. Taylor’s assault broke Rudolf’s toe and
left “physical abuse marks” on her face. Tr. at 85. The State recovered
Taylor’s DNA on tissues left in the restroom nearest to Rudolf’s bedroom, and
anal swabs, collected from Rudolf, revealed the presence of Taylor’s DNA in
her rectum. Rudolf’s DNA was also discovered on a pair of Taylor’s shorts,
worn by him that night and later found at his home. Taylor was on probation
for a prior offense at the time he attacked Rudolf.
[3] On August 26, 2013, the State charged Taylor with burglary, as a Class A
felony; criminal deviate conduct, as a Class B felony; criminal confinement, as
a Class C felony; and strangulation, a Class D felony. On April 8, 2014, Taylor
agreed to plead guilty but mentally ill, in an open plea, to all charges, and the
State agreed to recommend concurrent sentences for all charges. The parties
agreed to otherwise leave sentencing to the court’s discretion. Pursuant to the
agreement, if the court sentenced Taylor within the parameters of the plea
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agreement Taylor agreed to waive appellate review of any sentence imposed.
Specifically, the agreement provided:
(3) [Taylor] shall plead guilty but mentally ill as charged.
(4) At the time of taking of the guilty plea [sic], and again at the time
of [Taylor’s] sentencing, the State will recommend as to the sentence
to be imposed as follows:
The sentence shall be open to the Court with all counts
to run concurrently.
All other terms and conditions of the sentencing and
probation are to be set by the Court.
***
(5) [Taylor] understands that the State and Federal Constitutions
guarantee all criminal defendants certain rights . . . . [Taylor] further
understands that the entry of a guilty plea pursuant to this agreement
waives those rights . . . .
(6) [Taylor] hereby waives the right to appeal any sentence imposed by the
Court, including the right to seek appellate review of the sentence pursuant to
Indiana Appellate Rule 7(B), so long as this Court sentences [Taylor] within
the terms of this plea agreement. It is further agreed that the sentence
recommended and/or imposed is the appropriate sentence to be served
pursuant to this agreement and [Taylor] hereby waives any future
request to modify the sentence under I.C.35-38-1-17 [sic].
Appellant’s App. at 30-31 (emphasis added).
[4] Taylor’s counsel reviewed the evidence against Taylor with him, read the plea
agreement to him, and answered any questions Taylor had about its contents or
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Taylor’s legal rights. Taylor then signed the plea agreement in counsel’s
presence. Following a plea colloquy, the trial court determined that Taylor
understood the charges against him and voluntarily entered his plea. Thus, the
court accepted Taylor’s plea of guilty but mentally ill and set the case for
sentencing.
[5] On May 5, the court sentenced him to an aggregate, concurrent sentence of fifty
years. In sentencing Taylor, the court stated:
[T]he court finds in regards to sentencing mitigating circumstances to
be the age of the defendant at the time of the incident. This is
somewhat [m]itigated by the facts and circumstances of the case[,]
which were particularly heinous and aggravated. The fact that he
entered a plea[,] which obviated the time necessary for a trial[,] but he
had benefits from entering the plea in that t[h]e sentences for four
different counts will be running concurrent instead of consecutive.
Aggravating circumstances would be the defendant’s criminal
history[,] and it would appear[,] despite the defendant’s prior criminal
history and attempts of rehabilitation, he’s still unable to abide by the
law and live a criminal[-]free life. Another aggravating circumstance
would be . . . the age of the victim in this case and how the incident
has changed the victim[’]s life to the extent that it’s totally altered her
lifestyle, denied her of one of the great [d]reams that she had to live her
life in the house . . . that she and her husband built and that she had
lived in from that time on.
It is obvious that the defendant is somewhat low functioning and has
somewhat limited capacity[,] but this sort of lends itself to the fact that
the defendant may not appreciate the criminal law and the
wrongfulness of his conduct[,] which logically places innocent citizens
in danger and in so based upon the aggravating circumstance[s]
outweighing the mitigating circumstances the sentence for Court I[] is
fifty years, all executed. Count II, twenty; Count III, eight[;] and
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Count IV, three, all concurrent for a fifty[-]year sentence to the
Department of Correction[].
Tr. at 114-15 (line breaks added).
[6] Despite the language contained in the plea agreement, after the court sentenced
Taylor, it asked whether he would like to appeal his sentence. Taylor’s counsel
responded affirmatively, and the court appointed counsel. This appeal ensued.
Discussion and Decision
[7] Taylor contends that the trial court abused its discretion when it sentenced him
and that the nature of the offense and his character make his sentence
inappropriate. The State, however, responds that Taylor waived his right to
appeal in his plea agreement. We agree with the State, and, therefore, we do
not reach Taylor’s contentions.
[8] In response to the State’s waiver argument, Taylor contends that we should not
enforce the waiver clause in his plea agreement because it is ambiguous. But, as
the State points out, the clause contained in Taylor’s guilty plea is similar to
that present in Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans.
denied. There, Bowling entered in a plea agreement that contained a clause that
read: “By pleading guilty you have agreed to waive your right to appeal your
sentence so long as the Judge sentences you within the terms of your plea
agreement.” Bowling attempted to appeal her sentence, arguing that the waiver
clause in the plea agreement was “confusing and should not be enforced.” Id.
We disagreed and stated:
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A plea agreement in which the trial court has discretion over the length
of the sentence is referred to as an open plea. Where a plea agreement
leaves sentencing to the trial court’s discretion, a defendant is entitled
to contest on direct appeal the merits of a trial court’s sentencing
decision. This includes a plea agreement wherein a defendant agrees
to a sentencing cap or range. However, our supreme court has held
that a defendant can waive the right to appellate review of his sentence
as a part of a written plea agreement as long as such waiver is made
knowingly and voluntarily.
Id. at 841-42 (emphasis added).
[9] The trial court here found that Taylor made his plea knowingly and voluntarily,
and Taylor does not dispute that finding. Further, Taylor’s plea agreement is
similar to that present in Bowling. Paragraph five of Taylor’s plea agreement
indicates that Taylor understood that, as a defendant, he had several rights
available to him under both the federal and Indiana constitutions, and it
additionally declares that Taylor knowingly waived those rights by pleading
guilty. Although the right to appeal his sentence is not included among those
specifically enumerated in paragraph five, in the very next paragraph, Taylor
specifically waived his right to appeal “any sentence imposed by the Court,
including the right to seek appellate review of the sentence pursuant to Indiana
Appellate Rule 7(B), so long as the Court sentence[d him] within the terms of
this plea agreement.” Appellant’s App. at 31. In the same paragraph, Taylor
also agreed to “waive[] any future request to modify [his] sentence.” Id.
[10] Thus, we hold that Taylor knowingly and voluntarily waived his right to appeal
his sentence. We cannot agree with Taylor, as he argues, that paragraph six of
his plea agreement is ambiguous; that paragraph clearly stated that Taylor
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agreed to waive his right to appeal his sentence so long as the court sentenced
him within the parameters of the plea agreement. Those parameters dictated
that the court could sentence Taylor to any term permitted for any of the
charges so long as the court ordered the sentences to be served concurrently.
The court did so, and, thus, the waiver clause in the plea agreement is binding
upon Taylor.
[11] Neither would we agree that the court’s erroneous statement at Taylor’s
sentencing hearing, where it asked Taylor whether he wished to appeal his
sentence, should alter our analysis. Our supreme court has held that erroneous
statements made by a trial court at a sentencing hearing, such as the one made
here, do not abrogate the language of a plea agreement after it has been
accepted by the court and after a defendant has received the benefit of his plea
bargain. See Creech v. State, 887 N.E.2d 73, 76 (Ind. 2008); Bowling, 960 N.E.2d
at 842 n.7. The court in Creech stated:
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. 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. (citations and quotation marks omitted). 1
1
But “[w]here the trial court inaccurately advised the defendant at the guilty plea hearing regarding the right
to appeal his sentence, we have found that the written waiver was unenforceable.” Bowling, 960 N.E.2d at
842 n.7 (emphasis supplied) (citing Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied).
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[12] Here, the court accepted Taylor’s plea agreement on April 8, and it sentenced
him on May 5. The court made its erroneous statement on May 5 after it had
already imposed Taylor’s sentence. In other words, the court made the
statement after it had accepted Taylor’s plea and after Taylor had benefitted
from his plea bargain. Thus, we hold that the trial court’s erroneous statement
is immaterial, and Taylor waived his right to appeal.
[13] Affirmed.
[14] Mathias, J., and Bradford, J., concur.
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