MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 27 2019, 5:38 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph D. Wasserman, June 27, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2932
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff. Cleary, Judge
Trial Court Cause No.
15D01-1805-F3-9
Mathias, Judge.
[1] Joseph Wasserman (“Wasserman”) pleaded guilty in Dearborn Superior Court
to Level 3 felony dealing in methamphetamine and admitted to being an
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habitual offender. The trial court sentenced Wasserman to twenty-two years in
the Department of Correction (“DOC”). Wasserman appeals and argues his
sentence is inappropriate in light of the nature of the offense and the character
of the offender. Concluding that Wasserman waived his right to appeal his
sentence, we affirm.
Facts and Procedural History
[2] On May 16, 2018, the Lawrence Police Department executed a search warrant
on Wasserman’s residence after conducting a trash pull that uncovered multiple
items of drug paraphernalia and conducting surveillance that identified
numerous individuals with criminal histories of illegal drug activity visiting
Wasserman’s residence. Tr. p. 34. Wasserman’s room contained three grams of
methamphetamine. Id. at 36. Wasserman’s cellphone contained text messages
indicating he intended to deliver the methamphetamine. Id. at 37–38.
[3] The State charged Wasserman on May 17, 2018 with: (1) Level 3 felony dealing
in methamphetamine, (2) Level 6 felony maintaining a common nuisance, (3)
Level 6 felony possession of methamphetamine, (4) Class C misdemeanor
possession of paraphernalia, and (5) Class C misdemeanor possession of
paraphernalia. Appellant’s App. Vol. II, pp. 12–14. On August 16, 2018, the
State amended the information to allege that Wasserman was a habitual
offender. Id. at 121–123.
[4] Wasserman entered into a plea agreement on September 27, 2017. He pleaded
guilty to Count I, Level 3 felony dealing in methamphetamine and to the
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habitual offender enhancement in exchange for the State’s dismissal of the
remaining counts and agreement to cap his habitual offender enhancement at
10 years. Id. at 175–76. Paragraph 5 of the plea agreement provided,
“[d]efendant hereby waives the right. . . [to] seek appellate review of the
sentence, pursuant to Indiana Appellate Rule 7(B).” Id. at 176.
[5] The trial court accepted the plea agreement on October 16, 2018. Tr. p. 28.
Twenty-four days later, on November 9, 2018, the trial court sentenced
Wasserman to 13 years on Count I and enhanced the sentence by 9 years due to
Wasserman’s habitual offender status. Id. at 78. In addition, the trial court
informed Wasserman that he had a right to appeal; Wasserman now appeals.
Id.
Discussion and Decision
[6] In his Appellant’s brief, Wasserman claims his sentence is inappropriate in light
of the nature of the offense and the character of the offender. However, we
conclude that Wasserman waived his right to appeal his sentence.
[7] A defendant may waive the right to appellate review of his sentence as part of a
written plea agreement as long as the waiver is knowing and voluntary. Creech v.
State, 887 N.E.2d 73, 74 (Ind. 2008). The language of Paragraph 5 of the plea
agreement is clear and unambiguous: by pleading guilty, Wasserman waived
the right to appeal his sentence so long as the trial court sentenced him within
the terms of his plea agreement. Appellant’s App. p. 176.
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[8] During the guilty plea hearing, Wasserman clarified his plea agreement, asking,
“[a]nd then I’m not allowed to appeal the sentence?” Tr. p. 24. The court
responded:
So your question was, can you appeal this sentence, and if I
accept this plea agreement you cannot appeal the sentence so
long as I sentence you between six to ten years on habitual
offender, and sentence you between three and sixteen years on a
Level 3. Is that your understanding of what was going to happen?
Id. at 25. Wasserman responded, “[y]es, Your Honor.” Id. The trial court
further advised Wasserman of his rights and ensured that Wasserman was
neither threatened nor forced to enter into the plea agreement. Tr. pp. 24–26.
Thus, there is nothing in the record before us to suggest that Wasserman’s
waiver was anything other than knowing and voluntary.
[9] After sentencing, the trial court misadvised Wasserman that he had a right to
appeal the sentence. Id. at 78. In Creech, our Supreme Court found that a trial
court’s erroneous statement that the defendant had a right to appeal was not
grounds for allowing the defendant to “circumvent the terms of his plea
agreement.” 887 N.E.2d at 76. The defendant had already pleaded guilty and
received the benefit of his plea bargain; being told at the close of his sentencing
hearing that he could appeal had no effect on his decision to accept the plea
agreement. Id. at 77.
[10] Wasserman received the benefit of his plea agreement: the State dropped four
charges and capped his habitual offender enhancement at ten years. The trial
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court’s statement could not have affected Wasserman’s decision to accept the
plea agreement because the statement occurred over a month after Wasserman
entered into the plea agreement and three weeks after the court accepted the
plea agreement.
[11] As noted above, there is nothing in the record that suggests that Wasserman’s
waiver was anything other than knowing and voluntary. The sentence of
thirteen years for Level 3 felony dealing in methamphetamine and a nine-year
habitual offender enhancement are within the terms of the plea agreement. We
therefore conclude that Wasserman waived his right to appeal his sentence.
[12] Affirmed.
May, J., and Brown, J., concur.
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