MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 26 2019, 9:26 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Ray Walton, June 26, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3103
v. Appeal from the Shelby Circuit
Court
State of Indiana, The Honorable Trent Meltzer,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
73C01-1610-F6-411
73C01-1708-F5-95
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3103 | June 26, 2019 Page 1 of 5
Statement of the Case
[1] Michael Ray Walton appeals his sentence following his convictions for failure
to register as a sex offender, as a Level 5 felony, and failure of a sex or violent
offender to possess identification, as a Level 6 felony, pursuant to a guilty plea.
Walton presents a single issue for our review, namely, whether his sentence is
inappropriate in light of the nature of the offenses and his character. However,
in his plea agreement, Walton waived his right to appeal his sentence.
Accordingly, we dismiss his appeal.
Facts and Procedural History
[2] The State charged Walton with one count of failure of a sex or violent offender
to possess identification, as a Level 6 felony, and with being a habitual offender.
Thereafter, in a separate cause number, the State also charged Walton with one
count of failure to register as a sex offender, as a Level 5 felony, and one count
of failure to reside at a registered address, as a Level 6 felony. On August 21,
2018, Walton entered into a joint plea agreement. Pursuant to that agreement,
Walton agreed to plead guilty to failure to register as a sex offender, as a Level
5 felony, and failure of a sex or violent offender to possess identification, as a
Level 6 felony. In exchange for his guilty plea, the State agreed to dismiss the
other charges. The plea agreement left sentencing open to the trial court’s
discretion, but the plea provided for a maximum executed sentence of fifty-four
months.
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[3] The plea also included a series of additional provisions with boxes for check
marks next to them. One of those provisions stated that Walton would waive
any right to appellate review of his sentence, but the box next to that provision
was not checked. However, contemporaneous with his plea agreement, and
submitted to the court with his agreement, Walton also signed an advisement of
rights and waiver form. Pursuant to that form, Walton
hereby waive[d] the right to appeal any sentence imposed by the
Court, under any standard of review, including but not limited
to, an abuse of discretion standard and the appropriateness of the
sentence under Indiana Appellate Rule 7(B), so long as the Court
sentences the defendant within the terms of the plea agreement.
Appellant’s App. Vol. II at 56.
[4] The trial court held a hearing on Walton’s guilty plea. During that hearing, the
trial court explained Walton’s rights and clarified the apparent ambiguity
between the plea agreement and the waiver of rights form by expressly
informing Walton that he “do[es] not have the right to appeal the sentences as
long as the Court sentences [him] within the cap.” Tr. Vol. II at 15. Walton
orally stated that he understood. Thereafter, the trial court held a sentencing
hearing during which the court accepted Walton’s guilty plea and entered
judgment of conviction accordingly. The court then sentenced Walton to an
aggregate term of fifty-four months executed. At the conclusion of the
sentencing hearing, the trial court stated that Walton “ha[s] the right to appeal
this sentence imposed herein.” Id. at 43. This appeal ensued.
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Discussion and Decision
[5] Walton contends that his sentence is inappropriate in light of the nature of the
offenses and his character. However, we do not reach the merits of his appeal
because we agree with the State that Walton waived the right to appeal his
sentence at his guilty plea hearing.
[6] Our Supreme Court has held that defendants may waive their right to appeal a
sentence as part of a guilty plea. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).
Walton’s advisement of rights and waiver form, which Walton signed and
submitted to the court along with his guilty plea, 1 included the following
provision:
The defendant hereby waives the right to appeal any sentence
imposed by the Court, under any standard of review, including
but not limited to, an abuse of discretion standard and the
appropriateness of the sentence under Indiana Appellate Rule
7(B), so long as the Court sentences the defendant within the
terms of the plea agreement.
Appellant’s App. Vol. II at 56.
[7] Walton first contends that he did not waive the right to appeal his sentence
because the waiver was “ambiguous” despite the terms in the advisement of
rights and waiver form because the plea agreement did not include a check
mark next to the provision that indicated that Walton would waive the right to
1
The parties do not dispute that the advisement of rights and waiver form was submitted
contemporaneously with the plea agreement and that it was to be considered along with the plea agreement.
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appeal his sentence. Reply Br. at 4. But insofar as his waiver of rights form
conflicted with the precise terms of his guilty plea, at Walton’s guilty plea
hearing the trial court disambiguated those two documents when it orally
informed Walton that he did not have the right to appeal his sentence as long as
the court sentenced him within the terms of the plea agreement. Walton
acknowledged that he understood that he was waiving his right to appeal his
sentence and continued with his guilty plea.
[8] Nonetheless, Walton also contends that he did not waive the right to appeal his
sentence because the trial court informed him at his sentencing hearing that he
had the right to appeal his sentence. But the trial court in Creech made the same
mistake, and our Supreme Court held that it was of no moment. That Court
observed that, “[b]y the time the trial court erroneously advised [the defendant]
of the possibility of appeal, [he] had already pled guilty and received the benefit
of his bargain. Being told at the close of the [sentencing] hearing that he could
appeal presumably had no effect on that transaction.” Creech, 887 N.E.2d at 77.
The same is true here. By the time the trial court erroneously advised Walton
that he had the right to appeal his sentence, Walton had already pleaded guilty
and received the benefit of his bargain. Accordingly, Walton waived the right
to appeal his sentence, and we dismiss his appeal.
[9] Dismissed.
Baker, J., and Robb, J., concur.
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