MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Dec 05 2016, 8:45 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert Summerfield Gregory F. Zoeller
CGS Law Group Attorney General of Indiana
Indianapolis, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Eugene Shaw, December 5, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1512-CR-2051
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
48C03-1402-FB-335
Robb, Judge.
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Case Summary and Issue
[1] Jason Shaw pleaded guilty to two counts of armed robbery, Class B felonies,
and the trial court sentenced him to ten years executed in the Indiana
Department of Correction. On appeal, Shaw raises the sole issue of whether
the trial court abused its discretion in failing to enter a sentencing statement.
Concluding Shaw waived his right to appeal his sentence, we dismiss his
appeal.
Facts and Procedural History
[2] On February 19, 2014, Shaw and an accomplice broke into the home of Leroy
Smith. Shaw was armed with a rifle, and the pair attempted to rob Smith and
his friend. Thereafter, Smith and his friend thwarted the robbery by attacking
Shaw and his accomplice, causing them to flee. Law enforcement later
apprehended Shaw and the State charged him with two counts of armed
robbery, both Class B felonies.
[3] On January 26, 2015, Shaw and the State entered into a written plea agreement
pursuant to which Shaw agreed to plead guilty to two counts of armed robbery
in exchange for a cap of ten years on any portion of the sentence ordered
executed by the trial court. In addition, the plea agreement provided,
[Shaw] hereby waives the right to appeal any sentence imposed
by the Court, including the right to seek appellate review of the
sentence pursuant to Appellate Rule 7(B), so long as the Court
sentences [Shaw] within the terms of this plea agreement. It is
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further agreed that the sentence recommended and/or imposed is
the appropriate sentence to be served pursuant to this agreement.
Appellant’s Appendix at 50. At the plea hearing, the trial court advised Shaw
of the various rights he was giving up by pleading guilty, and Shaw offered a
factual basis for his offense. The trial court accepted Shaw’s plea, entered
judgment of conviction, and sentenced Shaw to twenty years on each count,
with ten of those years suspended to probation. The trial court ordered the
sentences to run concurrently, making Shaw’s total executed sentence ten years.
[4] In November of 2015, Shaw petitioned the trial court to file a belated appeal.
The trial court granted his petition and on December 2, 2015, Shaw filed his
Notice of Appeal with the Clerk of the Indiana Supreme Court, Court of
Appeals, and Tax Court. The State subsequently filed a motion to dismiss
Shaw’s appeal arguing, pursuant to his plea agreement, Shaw waived his right
to appeal his sentence. This issue was presented to the motions panel of this
Court, and on August 29, 2016, the motions panel denied the State’s motion to
dismiss and ordered the State to file its appellee’s brief.
Discussion and Decision
[5] Shaw argues the trial court abused its discretion by failing to enter a sentencing
statement. The State cross-appeals and asks us to reconsider the motions
panel’s decision denying its motion to dismiss Shaw’s appeal. In Miller v. Hague
Ins. Agency, 871 N.E.2d 406, 407 (Ind. Ct. App. 2007), this court stated,
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[e]ven though our motions panel has already ruled on this issue,
[the appellee] is not precluded from presenting its arguments to
us. Smith v. Deem, 834 N.E.2d 1100, 1103 (Ind. Ct. App. 2005),
trans. denied. “It is well established that we may reconsider a
ruling by the motions panel.” Cincinnati Ins. Co. v. Young, 852
N.E.2d 8, 12 (Ind. Ct. App. 2006), trans. denied. While we are
reluctant to overrule orders decided by the motions panel, this
court has inherent authority to reconsider any decision while an
appeal remains in fieri. See Davis v. State, 771 N.E.2d 647, 649 n. 5
(Ind. 2002); State v. Moore, 796 N.E.2d 764, 766 (Ind. Ct. App.
2003), trans. denied.
[6] We agree with the State this appeal should be dismissed. Generally, “[w]here .
. . a defendant pleads guilty to what has been characterized as an ‘open plea’
the freedom and latitude of the trial court to impose a particular sentence is
readily apparent.” Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006)
(footnote omitted). Moreover, even where a plea agreement sets forth a
sentencing cap, the trial court still must exercise discretion in determining the
sentence. Id. As a result, in either case, the defendant is “entitled to contest the
merits of a trial court’s sentencing discretion.” Id. at 1078-79 (citation omitted);
cf. Sholes v. State, 878 N.E.2d 1232, 1234 (Ind. 2008) (a plea agreement for a
fixed sentence precludes a defendant from challenging his resulting sentence by
direct appeal). However, a provision waiving the right to appellate review as
part of a written plea agreement is enforceable “as long as the record clearly
demonstrates that it was made knowingly and voluntarily.” Creech v. State, 887
N.E.2d 73, 75 (Ind. 2008) (quoting United States v. Williams, 184 F.3d 666, 668
(7th Cir. 1999)). Acceptance of a plea agreement containing a waiver
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provision is sufficient to indicate that, in the trial court’s view, the defendant
knowingly and voluntarily agreed to the waiver. Id. at 77.
[7] Shaw’s plea agreement provides,
[Shaw] shall plead guilty as charged with a cap of ten (10) years
on any part of the sentence ordered executed by the court.
***
[Shaw] hereby waives the right to appeal any sentence imposed
by the Court, including the right to seek appellate review of the
sentence pursuant to Appellate Rule 7(B), so long as the Court
sentences [Shaw] 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.
Appellant’s App. at 49-50. Shaw’s plea agreement specifically provides he
waives the right to appeal any sentence imposed by the trial court, provided the
trial court sentences him within the terms of the plea agreement. The trial court
sentenced Shaw to ten years executed on both counts of armed robbery, with
the sentences to run concurrently. Therefore, Shaw will serve a total of ten years
executed in the Department of Correction, precisely the amount of
executed time allowed by the plea agreement. Because the trial court sentenced
Shaw within the terms of his plea agreement, Shaw has waived his right to
appeal his sentence.
Conclusion
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[8] Shaw waived his right to appeal his sentence, and his appeal is therefore
dismissed.
[9] Dismissed.
Mathias, J., and Brown, J., concur.
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