FILED
Dec 29 2016, 9:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Gregory F. Zoeller
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William M. Starcher, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
79A05-1605-CR-1135
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Laura W. Zeman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D04-1506-F6-110
Najam, Judge.
Statement of the Case
[1] William M. Starcher appeals his two-year sentence after he pleaded guilty,
pursuant to a written plea agreement, to maintaining a common nuisance, a
Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor.
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Starcher raises a single issue for our review, namely, whether the trial court
abused its discretion when it sentenced him. However, we agree with the State
that the plain terms of Starcher’s plea agreement demonstrate that he waived
his right to appellate review of his sentence. Accordingly, we grant the State’s
motion to dismiss this appeal.
[2] Dismissed.
Facts and Procedural History
[3] On June 2, 2015, the State charged Starcher with maintaining a common
nuisance, a Level 6 felony; taking a child to a nuisance, as a Class A
misdemeanor; possession of paraphernalia, as a Class A misdemeanor;
possession of a synthetic drug, as a Class A misdemeanor; and possession of
marijuana, as a Class B misdemeanor. Thereafter, Starcher pleaded guilty,
pursuant to a written plea agreement, to maintaining a common nuisance, a
Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor.
In exchange for his guilty plea, the State agreed to dismiss the remaining
charges.
[4] According to Starcher’s plea agreement: “As a condition of entering this plea
agreement, defendant knowingly and voluntarily agrees to waive the right to
appeal the sentence on the basis that it is erroneous or for any other reason so
long as the Judge sentences him/her within the terms of this agreement.”
Appellant’s App. at 26. The terms of the agreement left sentencing “open” to
the trial court’s discretion. Id.
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[5] At the ensuing guilty plea hearing, Starcher established a factual basis for his
plea and the court took the agreement under advisement. Later, at the
sentencing hearing, the court formally accepted the plea and sentenced Starcher
to two years executed in the Department of Correction. The court then stated
that Starcher had “the right to appeal this sentence . . . .” Tr. at 35. This appeal
ensued.
Discussion and Decision
[6] Starcher appeals his two-year sentence. However, we agree with the State that
Starcher has waived our review of his sentence.1
[7] In Bonilla v. State, we explained the law on this issue clearly:
The Indiana Supreme Court held in Creech v. State that a
defendant may waive the right to appellate review of his sentence
as part of a written plea agreement. 887 N.E.2d 73, 75 (Ind.
2008). The Court then analyzed whether, despite the express
language of the waiver in Creech’s plea agreement, he knowingly
and voluntarily waived his right to appellate review of his
sentence because the judge advised him at the close of the sentencing
hearing that he retained the right to appeal. The Court rejected
Creech’s argument, explaining:
While we take this opportunity to emphasize the
importance of avoiding confusing remarks in a plea
colloquy, we think the statements at issue are not grounds
1
Prior to the completion of briefing on appeal, the State moved to dismiss the appeal in light of the language
of Starcher’s plea agreement. We held the State’s motion to dismiss in abeyance pending our review of the
parties’ briefs, in which the parties also included argument on this issue.
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for allowing Creech to circumvent the terms of his plea
agreement.
Creech does not claim that the language of the plea
agreement was unclear or that he misunderstood the terms
of the agreement at the time he signed it, but rather claims
that his otherwise knowing and voluntary plea lost its
knowing and voluntary status because the judge told him
at the end of the sentencing hearing that he could appeal.
***
By the time the trial court erroneously advised Creech of
the possibility of appeal, Creech had already pled guilty
and received the benefit of his bargain. Being told at the
close of the hearing that he could appeal presumably had
no effect on that transaction.
Id. at 76-77 (footnote omitted).
After Creech, this Court decided Ricci v. State, 894 N.E.2d 1089
(Ind. Ct. App. 2008), trans. denied. In Ricci, Ricci’s plea
agreement contained a provision that he knowingly, intelligently,
and voluntarily waived his right to appeal or challenge the
sentence imposed by the court on the basis that it was erroneous
or for any other reason. At the guilty plea hearing, however, the
trial court advised Ricci that he had the right to appeal his
sentence, and neither the prosecutor nor the defense spoke up.
On appeal, this Court distinguished Creech:
While it is clear that under Creech, a trial court’s incorrect
advisement at the conclusion of a defendant’s sentencing
hearing has no effect on an otherwise knowing, voluntary,
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and intelligent waiver of the right to appeal his sentence,
Creech does not address how a trial court’s misstatements
at the plea hearing impact the determination of whether a
defendant’s waiver was knowing, voluntary, and
intelligent. Unlike Creech, the trial court here clearly and
unambiguously stated at the plea hearing that it read the
plea agreement and that, according to its reading of the
agreement, Ricci had not surrendered the right to appeal
his sentence. Neither the prosecutor nor the defense
attorney contradicted this statement. Given these
circumstances, we may confidently say that the trial court
accepted the plea agreement, and the prosecuting attorney,
the defense attorney, and Ricci entered into the plea
agreement with the understanding that Ricci retained the
right to appeal his sentence. Accordingly, we conclude
that paragraph 2V is a nullity, and Ricci has not waived
the right to appeal his sentence.
Ricci, 894 N.E.2d at 1093-94 (footnotes omitted).
907 N.E.2d 586, 588-89 (Ind. Ct. App. 2009) (emphases added; footnotes
omitted), trans. denied.
[8] Starcher’s appeal falls squarely within Creech and outside Ricci. As in Creech,
here the plain terms of Starcher’s plea agreement demonstrate that he
knowingly and voluntarily waived his right to appeal his sentence. Further,
also as in Creech, although the trial court erroneously advised Starcher that he
could appeal his sentence that erroneous statement occurred only at the
sentencing hearing and after Starcher had received the benefit of his plea
agreement. Unlike in Ricci, the trial court did not erroneously advise Starcher
at the guilty plea hearing that he could appeal his sentence.
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[9] Accordingly, we agree with the State that Starcher has knowingly and
intelligently waived his right to appeal his sentence. We also reject Starcher’s
argument that the record does not demonstrate an effective waiver of his right
to appeal his sentence as well as his argument that the State failed to preserve
this issue for our review. See, e.g., Creech, 887 N.E.2d at 77. Thus, we agree
with the State that this appeal must be dismissed.
[10] Dismissed.
Bailey, J., and May, J., concur.
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