MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 07 2016, 9:45 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Boring Gregory F. Zoeller
Christopher R. Taylor Attorney General of Indiana
Boring & Boring, P.C.
Justin F. Roebel
New Palestine, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Schini, December 7, 2016
Appellant-Defendant, Court of Appeals Case No.
30A01-1603-CR-418
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable Richard D. Culver,
Appellee-Plaintiff. Judge
Trial Court Cause No.
30C01-1412-FA-2038
Robb, Judge.
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Case Summary and Issue
[1] William Schini pleaded guilty to child molesting as a Class A felony and the
trial court sentenced him to forty years executed in the Indiana Department of
Correction. On appeal, Schini raises the sole issue of whether the trial court
abused its discretion in sentencing him. Concluding Schini has waived his right
to appeal his sentence, we affirm.
Facts and Procedural History
[2] For nearly three years, Schini molested his stepdaughter, S.F. In December
2014, the State charged Schini with eleven counts related to the molestation,
including two counts of child molesting as a Class A felony. On the eve of trial,
Schini signed a written plea agreement whereby he agreed to plead guilty to one
count of child molesting as a Class A felony in exchange for the State
dismissing the remaining counts. The plea agreement included a waiver
provision and also stated Schini “shall plead open and the court shall determine
the sentence after argument by the parties.” Appellant’s Appendix at 79. The
plea agreement did not provide for a capped sentence.
[3] At the plea hearing, the trial court notified Schini the plea agreement was
entered into after the trial court’s plea deadline and therefore “the plea would
not be pursuant to a plea agreement and it would be considered an open
plea[.]” Supplemental Transcript at 5. The trial court further explained an
“open plea means . . . any . . . sentence that would be appropriate under the law
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within the range allowed by the statute.” Id. Schini indicated he understood
the trial court, offered a factual basis for the offense, and pleaded guilty. The
trial court accepted the plea and entered judgment of conviction. The trial
court later sentenced Schini to forty years executed in the Indiana Department
of Correction and stated Schini had a right to appeal his sentence. This appeal
ensued.
Discussion and Decision
[4] The State argues Schini cannot challenge his sentence because he waived his
right to do so pursuant to the terms of the plea agreement. Schini counters he
did not waive his right to appeal because the trial court stated his sentence
would not be pursuant to the plea agreement. In the alternative, Schini claims
he did not knowingly or voluntarily waive his right to appeal. We agree with
the State.
[5] Generally, where a plea agreement contains no waiver clause and provides a
specific sentence, the defendant may not challenge the sentence on direct
appeal. Blanck v. State, 988 N.E.2d 817, 819 (Ind. Ct. App. 2013). However,
where a plea agreement contains no waiver clause and “the guilty plea is an
‘open plea,’ that is, a plea agreement under which the trial court exercised
sentencing discretion, direct appeal challenges to sentences have been
permitted.” Id. (citation omitted).
Where a defendant pleads guilty to what has been characterized
as an open plea the freedom and latitude of the trial court to
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impose a particular sentence is readily apparent. Under such
circumstances, the trial court’s discretion is limited only by the
Constitution and relevant statutes. In an open plea situation, the
sentence must be challenged, if at all, by way of a direct appeal.
Williams v. State, 51 N.E.3d 1205, 1209 (Ind. Ct. App. 2016) (citations and
internal quotation marks omitted). At the same time, a plea agreement is
contractual in nature, and upon its acceptance by the trial court, it binds the
defendant, the State, and the trial court. Id. at 1208. A defendant may waive
the right to appellate review of his sentence as part of a written plea agreement.
Id.
[6] Here, the waiver provision provides,
[Schini] 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 the
Court sentences [Schini] within the terms of this plea agreement.
Appellant’s App. at 79-80 (emphasis added). The crux of Schini’s position is
that he only waived his right to appeal if the trial court sentenced him pursuant
to the plea agreement, and because the trial court stated it would not sentence him
pursuant to the plea agreement, he claims his sentence was not within the terms
of his plea agreement and he has therefore not waived his right to appeal. We
do not agree the trial court’s statement, in and of itself, means the sentence was
not pursuant to the plea agreement. On the eve of trial, the State and Schini
entered into a plea agreement whereby Schini agreed to plead open in exchange
for the State dismissing the remaining ten counts. Because Schini did not plead
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guilty before the plea deadline, however, the trial court—albeit unnecessarily—
stated his “plea would not be pursuant to a Plea Agreement and it would be
considered an open plea[.]” Supp. Tr. at 5. Notwithstanding the trial court’s
erroneous statement, the plea agreement also required Schini to plead open,
which means Schini already had agreed to give the trial court the discretion to
sentence him within the parameters set by statutory authority, see Williams, 51
N.E.3d at 1209, and Schini does not argue his sentence is illegal. We further
note, if we were to accept Schini’s argument that he is not bound by the waiver
provision, then the State would not be bound by its agreement to dismiss the
remaining ten counts. We conclude the waiver provision is enforceable in this
regard.
[7] Schini also argues he did not knowingly or voluntarily waive his right to appeal.
Specifically, he contends the trial court’s statement noted above, coupled with
its statement at the sentencing hearing that Schini had a right to appeal his
sentence, led him to believe he retained the right to appeal his sentence. Again,
we disagree. Although the trial court’s statement regarding the open plea could
be loosely interpreted to mean the waiver provision contained within the plea
agreement is unenforceable, Schini’s counsel—as an officer of the court—could
have brought any confusion regarding the plea agreement and the right to
appeal to the trial court’s attention. Counsel did not raise any concerns with
the trial court and the trial court accepted the plea. In addition, despite the trial
court erroneously advising Schini of the possibility of an appeal at the
sentencing hearing, Schini had already pleaded guilty and received the benefit
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of the State dismissing the remaining ten counts by the time the trial court made
this erroneous statement. See Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008)
(noting a trial court’s erroneous statement advising a defendant of a right to
appeal a sentence despite a waiver provision in the plea agreement does not
negate a defendant’s waiver when a defendant has already pleaded guilty and
received the benefit of the plea agreement). Thus, this latter statement had no
effect on the plea agreement. We conclude Schini knowingly and voluntarily
waived the right to appeal his sentence.
Conclusion
[8] Schini entered into a plea agreement with the State whereby he agreed to plead
open and waive his right to appeal. In return, the State agreed to dismiss the
remaining ten counts. We conclude Schini cannot now challenge his sentence.
Accordingly, we affirm.
[9] Affirmed.
Mathias, J., concurs.
Brown, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016 Page 6 of 8
IN THE
COURT OF APPEALS OF INDIANA
William E. Schini, Court of Appeals Case No.
30A01-1603-CR-418
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Brown, Judge, dissenting.
[10] I respectfully dissent from the majority’s conclusion that Schini waived his right
to appeal his sentence. At the guilty plea hearing, the court specifically advised
Schini that “by pleading guilty because [the plea agreement] was submitted after
the deadline the Court established [] for the taking of a plea [] that the plea
would not be pursuant to a Plea Agreement and it would be considered an open
plea,” and Schini responded that he understood. Supplemental Transcript at 4-
5. To the extent that a discrepancy might exist between the language of the plea
agreement and the court’s specific statements at the guilty plea hearing, I would
err on the side of reviewing the merits of Schini’s arguments because this court
prefers to decide cases and issues on the merits. See Shoultz v. State, 995 N.E.2d
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647, 659 (Ind. Ct. App. 2013) (noting that this court prefers “to decide cases
and issues on the merits” and that the defendant did not waive his claim).
[11] Because the court did not accept Schini’s plea pursuant to the plea agreement, I
would not enforce the provision in that agreement whereby Schini waived his
right to appeal his sentence and would address the merits of Schini’s argument.
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William E. Schini v. State of Indiana (mem. dec.)
Combined Opinion