MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 30 2017, 10:34 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James J. Leffler, II, October 30, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1702-CR-265
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1511-F3-2713
Robb, Judge.
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Case Summary and Issue
[1] James Leffler II pleaded guilty to dealing in methamphetamine, a Level 4
felony, and the trial court sentenced him to nine years executed in the Indiana
Department of Correction. On appeal, Leffler raises two issues for our review.
The State cross-appeals arguing Leffler waived his right to appeal his sentence.
Concluding Leffler waived his right to appeal his sentence, we dismiss his
appeal.
Facts and Procedural History
[2] In late 2015, Leffler was arrested and charged with dealing in
methamphetamine, a Level 3 felony; dealing in methamphetamine, a Level 4
felony; possession of methamphetamine, a Level 6 felony; and two counts of
maintaining a common nuisance, a Level 6 felony. The State also alleged
Leffler was an habitual offender.
[3] On July 15, 2016, Leffler and the State entered into a written plea agreement
pursuant to which Leffler agreed to plead guilty to dealing in
methamphetamine, a Level 4 felony, in exchange for the State’s dismissal of the
remaining charges. Additionally, the plea agreement provided,
The parties have no agreement regarding sentencing except that
such sentence shall not exceed nine (9) years. The parties shall
argue sentencing before the Court. The defendant shall waive the
right to have any aggravating circumstances to be found beyond
a reasonable doubt by a jury and said aggravating circumstances
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would be determined by the Judge. . . . The defendant waives
the right to appeal the sentence imposed in this matter.
Appellant’s Appendix, Volume II at 56. At the guilty plea hearing, the trial
court advised Leffler of the various rights he was giving up by pleading guilty,
including his right to appeal his sentence. The relevant colloquy went as
follows:
[Trial Court]: You’re waiving your right to appeal the
sentence imposed in this matter.
***
[Trial Court]: If the case went to trial and you were
convicted, you’d have a right to appeal your
conviction and any sentence imposed by this
Court to a higher court; understand you have
this appeal right?
[Leffler]: Yes sir.
[Trial Court]: Understand that by entering into this plea
agreement, you’re giving up your appeal right
with both respect to the finding of guilt and
any sentence imposed by this Court?
[Leffler]: Yes.
Transcript, Volume VI at 5-9. The trial court accepted Leffler’s plea and
entered judgment of conviction. At the sentencing hearing, the trial court
sentenced Leffler to nine years in the Department of Correction. The trial court
also advised Leffler that “[y]ou have a right to appeal the sentence imposed in
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this case Mr. Leffler[,]” and appointed a public defender to represent him. Tr.,
Vol. VII at 89.
[4] Leffler now appeals.
Discussion and Decision
[5] We first address the State’s cross-appeal. The State argues Leffler cannot
challenge his sentence because he waived his right to do so pursuant to the
terms of the plea agreement. Leffler counters that the plea agreement is
ambiguous and notes the trial court advised Leffler of his right to appeal. We
agree with the State.
[6] Leffler first argues the plea agreement is ambiguous and unenforceable. The
validity and interpretation of a plea agreement is a question of law. We
evaluate questions of law under a de novo standard and owe no deference to
the trial court's determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct.
App. 2008).
[7] As noted above, the plea agreement provides,
The parties have no agreement regarding sentencing except that
such sentence shall not exceed nine (9) years. The parties shall
argue sentencing before the Court. The defendant shall waive the
right to have any aggravating circumstances to be found beyond
a reasonable doubt by a jury and said aggravating circumstances
would be determined by the Judge. . . . The defendant waives
the right to appeal the sentence imposed in this matter.
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Appellant’s App., Vol. II at 56. Leffler alleges the first sentence, which states
the parties “have no agreement regarding sentencing[,]” conflicts with the
remaining provisions of the paragraph stating Leffler waives certain rights.
Contrary to Leffler’s argument, the first sentence of the paragraph only refers to
the parties’ agreement that the trial court will determine the sentence imposed,
and that the trial court’s sentence may not exceed nine years. The agreement
unambiguously waives Leffler’s right to appeal.
[8] Leffler also asserts the trial court advised him he may appeal his sentence. In
Creech v. State, the defendant executed a plea agreement in which sentencing
was left to the discretion of the trial judge, subject to a cap of six years executed.
887 N.E.2d 73, 74 (Ind. 2008). The agreement further provided, “I hereby
waive my right to appeal my sentence so long as the Judge sentences me within
the terms of my plea agreement.” Id. The court imposed a six-year sentence.
On appeal, the defendant sought to challenge the appropriateness of his
sentence. Our supreme court concluded the “express language” of the plea
agreement established a valid waiver of the defendant’s right to appeal his
sentence. Id. at 76. Further, although the trial judge erroneously advised the
defendant at the end of the sentencing hearing that he had a right to appeal, our
supreme court concluded the advisement had no effect on his plea because “[the
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defendant] had already pled guilty and received the benefit of his bargain.” Id.
at 77.1
[9] Here, Leffler executed a valid waiver of his right to appeal his sentence and the
trial court advised him that he was waiving this right at the guilty plea hearing.
Leffler answered in the affirmative that he understood he was forfeiting his right
to appeal his sentence. Further, as in Creech, the trial court’s mistaken
advisement that Leffler had the right to an appeal occurred after Leffler had
pleaded guilty and had received the benefit of his bargain. We conclude Leffler
has waived his right to appeal his sentence and grant the State’s cross-appeal for
dismissal of the appeal. See Starcher v. State, 66 N.E.3d 621, 623 (Ind. Ct. App.
2016) (enforcing written waiver of right to appeal sentence despite trial court’s
erroneous advisement at sentencing that defendant had a right to appeal), trans.
denied.
Conclusion
[10] For the reasons stated above, we dismiss Leffler’s appeal.
[11] Appeal dismissed.
Riley, J., and Pyle, J., concur.
1
As our supreme court stated in Creech, “we take this opportunity to emphasize the importance of avoiding
confusing remarks in a plea colloquy.” 887 N.E.2d at 76.
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