FILED
Oct 03 2023, 4:20 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 22S‐CR‐253
Matthew H. Thomas Davis,
Appellant (Defendant below),
–v–
State of Indiana,
Appellee (Plaintiff below).
Argued: September 22, 2022 | Originally Decided: May 3, 2023
Modified on Rehearing: October 3, 2023
Appeal from the Madison Circuit Court
No. 48C04‐1809‐F5‐2346
No. 48C04‐1901‐F6‐79
The Honorable David A. Happe, Judge
On Petition to Transfer from the Indiana Court of Appeals
No. 21A‐CR‐2632
No. 21A‐CR‐2633
Opinion on Rehearing by Justice Molter
Justices Massa and Slaughter concur.
Justice Goff dissents with separate opinion in which Chief Justice Rush joins.
Molter, Justice.
Matthew H. Thomas Davis pled guilty to four theft‐related charges in
exchange for a more lenient sentence. As part of his written, three‐page
plea agreement with the State, which both he and his attorney signed, he
waived his right to appeal that sentence. Davis seeks to appeal his
sentence anyway, arguing the trial court’s statements before accepting his
change of plea misled him to believe that, contrary to his written
agreement, he was retaining his right to appeal his sentence. But if the trial
court’s statements before accepting Davis’s guilty plea misled him to
change his plea, his remedy is to vacate his conviction through post‐
conviction proceedings, not to nullify his appeal waiver through a direct
appeal. We therefore dismiss his appeal.
Facts and Procedural History
In 2018 and 2019, Davis committed various theft‐related offenses. The
State charged him with Level 5 felony burglary and Level 6 felony theft
under Cause Number 48C04‐1809‐F5‐2346 (“F5‐2346”), and it later
charged him with two counts of Level 6 felony receiving stolen auto parts
under Cause Number 48C04‐1901‐F6‐79 (“F6‐79”). Davis then entered into
a plea agreement with the State to resolve both cases. Under the written
agreement, which Davis and his attorney both signed, Davis agreed to
plead guilty to all four charges and waive his right to appeal his
conviction and sentence. The agreement memorialized his decision
waiving the right to appeal his sentence in a paragraph stating:
The Defendant 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 the defendant within the terms
of this plea agreement.
In exchange for Davis’s guilty plea and waiver of rights, the State agreed
to an executed sentence no greater than four years, with no more than two
of those years served in the Indiana Department of Correction.
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Shortly after, the trial court held Davis’s plea hearing. The court began
by confirming with Davis that he signed the three‐page agreement, that he
had “a chance to read through it carefully and discuss it with [his]
lawyer” before signing, and that he understood “all the terms of it.” The
court also explained to Davis that he was agreeing to waive his “right to
appeal any decision made by the court.” But then, contrary to the written
agreement, the court qualified its statement by saying:
The one exception is because you have a plea agreement that
provides the court some discretion about where your sentence
is, in a certain range, you would have the ability to appeal my
use of discretion in that sentencing.
Neither defense counsel nor the prosecutor corrected the trial court’s
misstatement.
The court also confirmed Davis understood the contractual nature of
the plea agreement after explaining:
I need to make sure that you understand my relationship to
your plea agreement. Your plea agreement is a contract
between you and the State about how your case is gonna [be]
resolved. I’m not part of that contract. I have to independently
review it and decide whether it should be accepted or rejected.
If I [accept] it I have to do exactly what it says, but if I reject it
you would be released from it and it would be like you never
signed it.
The next month, the trial court formally accepted Davis’s change of
plea at his sentencing hearing. As to F5‐2346, the trial court sentenced
Davis to four years for burglary and thirty months for theft. It ordered the
two sentences to run concurrently to one another, with two years executed
in the Department of Correction and two years executed in community
corrections. Then, for F6‐79, the trial court sentenced Davis to thirty
months for each count of receiving stolen auto parts, which were to be
served concurrently to one another and suspended to probation. It
Indiana Supreme Court | Case No. 22S‐CR‐253 | October 3, 2023 Page 3 of 12
ordered the total sentence for F6‐79 to run consecutively to the total
sentence for F5‐2346.
Before concluding the sentencing hearing, the trial court again
incorrectly advised Davis that he retained the right to appeal his sentence:
Mr. Davis, you’re a person who’s been sentenced after [a]
contested sentencing hearing where there was some discretion
that was left to the court under the plea agreement. Because of
that you do have the ability to appeal the sentence that was
imposed today . . . . If you wish to appeal and don’t have the
ability to hire a lawyer to do that for you, the court will appoint
a lawyer for you.
Again, neither defense counsel nor the prosecutor corrected the trial
court’s misstatement.
Davis first informed the trial court that he did not wish to appeal his
sentence, but he later changed his mind and pursued separate appeals for
both cause numbers. The Court of Appeals sua sponte issued a
consolidated order dismissing both appeals with prejudice. The order
explained that Davis could not appeal his convictions because he pled
guilty, and he could not appeal his sentence because his plea agreement
waived that right. Davis then petitioned for transfer, which we granted.
Ind. Appellate Rule 58(A).
Discussion and Decision
Davis argues we should nullify his appeal waiver, and his transfer
petition identifies a single issue for our consideration: “Did Davis
knowingly and voluntarily waive his right to appeal his sentence when
the court gave contradictory advisements in violation of his due process
rights?” Pet. to Trans. at 2. Because we cannot nullify Davis’s appeal
waiver through this direct appeal based on the claim that the waiver was
not knowing and voluntary, we must dismiss the appeal. However, Davis
may still seek relief through post‐conviction proceedings.
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I. Davis waived his right to appeal his sentence
through an unambiguous written plea agreement
with the State.
Criminal defendants have a constitutional right to appeal their
sentences, Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998) (citing Ind.
Const. art. VII, §§ 5, 6), but they may waive that right so long as their
waiver is knowing and voluntary, Creech v. State, 887 N.E.2d 73, 74 (Ind.
2008). For example, defendants often plead guilty and agree (among other
things) to waive their right to appeal their sentence in exchange for a more
lenient sentence. These plea agreements are contracts between the
defendant and the State, and once the trial court approves the agreements,
they are binding on the defendant, the State, and the trial court. Archer v.
State, 81 N.E.3d 212, 215–16 (Ind. 2017). Because plea agreements are
contracts, contract law principles generally apply. Berry v. State, 10 N.E.3d
1243, 1247 (Ind. 2014).
Here, both Davis and his defense counsel signed a plea agreement with
the State, which the trial court accepted. In exchange for a lower ceiling on
his sentence, Davis agreed to waive his “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
sentence[d] [him] within the terms of th[e] plea agreement.” Because the
trial court sentenced Davis within the terms of the plea agreement, his
appeal waiver applies here. And as in Creech, Davis “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.” 887 N.E.2d at 76. In
other words, he does not claim that when both he and his attorney signed
the agreement waiving his appeal, he misunderstood what he was
agreeing to or that his agreement was involuntary.
Because Davis’s appeal waiver is unambiguous, this case is not like the
two per curiam opinions the dissent cites, where the written appeal
waivers the State drafted were ambiguous as to whether they covered
only appeals from the convictions or from the sentences too. Johnson v.
State, 145 N.E.3d 785, 786 (Ind. 2020) (per curiam); Williams v. State, 164
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N.E.3d 724, 725 (Ind. 2021) (per curiam). In those situations, we construe
the ambiguity against the State as the agreement’s drafter. State v. Smith,
71 N.E.3d 368, 371 (Ind. 2017) (“Ambiguities are construed against the
drafter; in this case that is the State, which prepared the plea
agreement.”).1
Notwithstanding the unambiguous appeal waiver, Davis argues the
trial judge later misled him by misadvising him that he would retain the
right to appeal his sentence, so we should disregard his appeal waiver as
not knowing and voluntary. But we cannot do so through this direct
appeal.
II. If the trial court’s misstatement misled Davis, his
remedy is to vacate his conviction through post‐
conviction relief proceedings.
A trial court cannot accept a guilty plea without first determining that
the plea is knowing and voluntary. Ind. Code §§ 35‐35‐1‐2, ‐3(a). That
means courts must ensure defendants understand (1) the nature of the
charges against them; (2) that their guilty pleas waive several
constitutional rights, including their rights to a public and speedy jury
trial, to confront and cross‐examine witnesses, to compulsory process, and
to require the State to prove guilt beyond a reasonable doubt without
compelling defendants to testify; and (3) the maximum and minimum
sentences. I.C. § 35‐35‐1‐2(a)(1)–(3).
A defendant claiming a guilty plea was involuntary because the
defendant was not advised (or was advised incorrectly) about the rights
1Neither Johnson nor Williams announced any new law in this regard. Rather, our Court made
clear in those short per curiam opinions that transfer was granted first to “reaffirm the critical
role of the trial court in safeguarding the validity” of appeal waivers, Johnson, 145 N.E.3d at
786, and then “for the sole purpose of reminding trial judges that the plea agreement, guilty
plea and sentencing hearing colloquy, and sentencing order must be clear and consistent as to
whether a defendant waives only the right to appeal the conviction or the right to appeal the
conviction and sentence,” Williams, 164 N.E.3d at 725. All that remains true.
Indiana Supreme Court | Case No. 22S‐CR‐253 | October 3, 2023 Page 6 of 12
being waived may obtain post‐conviction relief to vacate the conviction
and set aside the guilty plea only if the defendant can “prove that any
erroneous or omitted advisement, if corrected, would have changed [the]
decision to enter the plea.” Holliday v. State, 498 N.E.2d 1239, 1240
(Ind. 1986). “A plea entered after the trial judge has reviewed the various
rights which a defendant is waiving and made the inquiries called for in
the statute is unlikely to be found wanting in a collateral attack.” White v.
State, 497 N.E.2d 893, 905 (Ind. 1986). But “defendants who can show that
they were coerced or misled into pleading guilty by the judge, prosecutor
or defense counsel will present colorable claims for relief.” State v. Moore,
678 N.E.2d 1258, 1266 (Ind. 1997). One way a judge may mislead a
defendant into pleading guilty is to mistakenly advise that the defendant
is retaining appeal rights that have been waived in a plea agreement. See,
e.g., Cornelious v. State, 846 N.E.2d 354, 360 (Ind. Ct. App. 2006), trans.
denied; Lineberry v. State, 747 N.E.2d 1151, 1157 (Ind. Ct. App. 2001).
We do not analyze whether a plea agreement’s appeal waiver was
knowing and voluntary in light of a trial court’s misstatement separate
from whether the guilty plea was knowing and voluntary. It is all or
nothing. Either the guilty plea was knowing and voluntary despite the
trial court’s misadvisement, in which case the plea agreement on which
the guilty plea was based remains fully enforceable; or the guilty plea
resulted from confusion about the terms in the written plea agreement, in
which case the conviction must be vacated (if the defendant wishes), and
all the plea agreement terms would be unenforceable.
That is because the plea agreement is a bargain between the defendant
and the State, Archer, 81 N.E.3d at 215–16, and the defendant cannot retain
the benefits of the bargain (a more lenient sentence) while escaping its
burdens (the promise not to appeal for an even more lenient sentence). We
cannot renegotiate the parties’ deal either. While trial judges have
discretion to accept or reject plea agreements, courts are not empowered
to change any of the terms. Creech, 887 N.E.2d at 77 n.3 (explaining that
trial courts cannot accept a guilty plea and then modify the plea
agreement even if the modification is more favorable to the defendant).
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Notably, the Seventh Circuit takes the same approach as our Court
when evaluating the enforceability of appeal waivers. See, e.g., id. at 76
(discussing the Seventh Circuit’s analysis). As that court has explained,
appellate courts cannot “perform surgery” on a plea agreement, excising
only the appeal waiver and enforcing the rest of the bargain. United States
v. Sura, 511 F.3d 654, 655 (7th Cir. 2007). Instead, “[w]aivers of appeal
must stand or fall with the agreements of which they are a part.” United
States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995).
Under our precedent, if Davis wishes to challenge his guilty plea, he
cannot do so through this direct appeal. As we have previously explained,
“the issue of whether [a] defendant’s guilty plea was knowing and
voluntar[y] may not be decided by this court on direct appeal, but instead
should be pursued by filing a petition for post‐conviction relief.” Jones v.
State, 675 N.E.2d 1084, 1090 (Ind. 1996).2
Davis’s appellate counsel acknowledged at oral argument that he does
not know whether the trial court’s misadvisement influenced Davis’s
decision to plead guilty. That is a factual question that will need to be
resolved in a post‐conviction court first, assuming Davis wishes to pursue
post‐conviction relief proceedings to vacate his conviction. Of course, if
his conviction is vacated and the plea agreement is no longer enforceable,
the State will be relieved of its obligations under the agreement too. Either
way, we cannot decide through this direct appeal whether Davis’s guilty
plea was knowing and voluntary, and we must dismiss his appeal.
The dissent understands this analysis as holding that “Davis may not
pursue an appeal of his sentence even if he can prove he did not
2 When a defendant, before sentencing, contends a guilty plea was not knowing and
voluntary, the defendant may file a motion to withdraw the guilty plea. I.C. § 35‐35‐1‐4(b). We
may then review the denial of that motion through a direct appeal. Brightman v. State, 758
N.E.2d 41, 44 (Ind. 2001). But Davis did not file a motion to withdraw his plea, and he has
already been sentenced, so he can only challenge the validity of his plea through post‐
conviction relief proceedings. See I.C. § 35‐35‐1‐4(c) (explaining that after sentencing a
“motion to vacate judgment and withdraw the plea made under this subsection shall be
treated by the court as a petition for postconviction relief under the Indiana Rules of
Procedure for Postconviction Remedies”).
Indiana Supreme Court | Case No. 22S‐CR‐253 | October 3, 2023 Page 8 of 12
knowingly and voluntarily waive his right to do so.” Post, at 1 (Goff, J.,
dissenting) (emphasis added). But we are holding just the opposite—if
Davis can prove in post‐conviction proceedings that he did not knowingly
and voluntarily waive his right to appeal, then his conviction can be
vacated, and he would regain not just the right to appeal any sentence, but
also every other right he waived before pleading guilty. By declining to
skip the proof step, we are simply adhering to our precedent, which
establishes that a defendant’s claim that a guilty plea was based on a
misunderstanding of the rights being waived presents a factual question
to be determined through post‐conviction proceedings. Holliday, 498
N.E.2d at 1240; White, 497 N.E.2d at 905.
To be sure, the remedy of setting aside the conviction would result in
Davis invalidating the entire plea agreement rather than allowing him to
retain its benefits while escaping its burdens. Post, at 5. But that is how our
Court has long handled misadvisements or omissions which mistakenly
lead defendants to change their pleas from not guilty to guilty. For
example, if a defendant’s waiver of a jury right is not knowing and
voluntary, we set aside the conviction through post‐conviction
proceedings, and the parties are returned to the status quo ante. See Ponce
v. State, 9 N.E.3d 1265, 1270 (Ind. 2014) (reviewing post‐conviction
proceedings and explaining that the failure to advise a criminal defendant
of his constitutional rights prior to accepting a guilty plea will result in
reversal of the conviction). We do not allow the defendant to retain the
beneficial parts of the plea agreement—like an agreement to dismiss some
charges or cap a sentence—while regaining other rights the defendant had
previously waived, like a right to a jury trial.
The dissent’s conclusion that the trial court’s misstatement in fact did
not induce Davis’s guilty plea supports rather than undermines this
approach. Post, 4–5. Before the trial court’s misstatement, both Davis and
his attorney signed an unambiguous appeal waiver, and Davis confirmed
that he discussed the short, written plea agreement with his attorney and
understood all its terms. Neither he nor his attorney has ever recanted that
representation. See Youngblood v. State, 542 N.E.2d 188, 188–89 (Ind. 1989)
(affirming the denial of post‐conviction relief where there was no Boykin
advisement at the plea hearing but trial counsel testified at the post‐
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conviction hearing that they had explained these rights to the defendant
before the plea). Of course, the judge’s later statement could not have
impacted Davis’s earlier agreement. So, if the judge’s misstatement also
did not induce Davis’s change of plea, then it had no impact, and there is
no basis for relief at all, whether through post‐conviction proceedings or a
direct appeal. Ind. Appellate Rule 66(A) (“No error or defect in any ruling
or order or in anything done or omitted by the trial court or by any of the
parties is ground for granting relief or reversal on appeal where its
probable impact, in light of all the evidence in the case, is sufficiently
minor so as not to affect the substantial rights of the parties.”).
Finally, we should not treat appeal waivers like illegal contract
provisions, as the dissent proposes in reliance on Lee v. State, 816 N.E.2d
35, 40 (Ind. 2004), a case in which our Court declined to invalidate an
illegal sentence to which the defendant agreed in a plea agreement after
concluding the defendant should be held to his bargain. Since we have
held these appeal waivers are legal, Creech, 887 N.E.2d at 74, we should
not treat them as if they are illegal. And even for an illegal provision in a
contract, a court may only sever the provision if the parties would have
entered the bargain without the illegal portion of the original agreement.
Lee, 816 N.E.2d at 39. We have no way of making that assessment here
without a factual record related to the parties’ negotiations.
In sum, Davis’s written plea agreement with the State, which both he
and his attorney signed, unambiguously waived his right to appeal his
sentence. If Davis’s guilty plea was nevertheless not knowing and
voluntary because the trial judge’s misstatements misled him about which
rights he was waiving, then Davis may demonstrate that through post‐
conviction proceedings, and his conviction can be set aside. That would
restore his right to appeal any sentence and all other rights he waived
through his plea agreement and guilty plea. But we cannot decide in the
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first instance on a direct appeal whether Davis is able to make that
showing.3
Conclusion
For these reasons, we dismiss Davis’s appeal.
Massa and Slaughter, JJ., concur.
Goff, J., dissents with separate opinion in which Rush, C.J., joins.
3 To be sure, there remain circumstances where defendants may pursue a direct appeal of
sentencing issues notwithstanding an appeal waiver. For example, some sentencing appeal
issues are nonwaivable. See Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013) (“In this case we
conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable
where the sentence imposed is contrary to law and the Defendant did not bargain for the
sentence.”). Other issues may also fall outside the scope of the waiver. See Archer v. State, 81
N.E.3d 212, 214, 216 (Ind. 2017) (holding that the defendant’s appeal waiver did not cover her
right to appeal the restitution amount). This appeal does not implicate those issues because
Davis’s transfer petition seeks to nullify the appeal waiver as not knowing and voluntary
rather than to raise a nonwaivable sentencing issue or an issue outside the scope of his appeal
waiver.
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ATTORNEY FOR APPELLANT
Paul J. Podlejski
Law Office of Paul J. Podlejski
Anderson, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Angela Sanchez
Chief Counsel for Appeals
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
AMICUS CURIAE STATE PUBLIC DEFENDER
Amy E. Karozos
Public Defender of Indiana
Meggan E. Smith
Deputy Public Defender
Indianapolis, Indiana
AMICUS CURIAE INDIANA PUBLIC DEFENDER COUNCIL
Bernice Corley
Executive Director
Suzy St. John
Staff Attorney
Indiana Public Defender Council
Indianapolis, Indiana
Brian Karle
Ball Eggleston, PC
Lafayette, Indiana
Indiana Supreme Court | Case No. 22S‐CR‐253 | October 3, 2023 Page 12 of 12
Goff, J., dissenting.
The Court holds today that Matthew Davis may not pursue an appeal
of his sentence even if he can prove he did not knowingly and voluntarily
waive his right to do so. The only course of action left open to him is to
seek to vacate his guilty plea altogether in postconviction. I would hold
instead that the appeal waiver is unenforceable because Davis was
affirmatively advised by the trial court, before entry of his guilty plea, that
he would retain the right to appeal. And, because the appeal waiver can
be severed from the rest of Davis’s plea agreement, he should be allowed
his appeal, rather than having to make an “all or nothing” challenge to his
plea. Allowing Davis to appeal is the only result which fully preserves his
unwaived right to do so.
A criminal defendant has a constitutional right to appeal his sentence.
Ind. Const. art. 7, § 6; Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998). In
Creech v. State, this Court first approved a defendant’s waiver of his right
to appellate review of his sentence as part of a written plea agreement. 887
N.E.2d 73, 75 (Ind. 2008). The waiver needed, however, to be “knowing
and voluntary.” Id. at 74. The defendant in Creech nevertheless failed to
obtain relief because the trial court only misadvised him at the sentencing
hearing that he retained the right to appeal. Id. at 76–77. By that time, he
had already pled guilty under a written agreement that included an
appeal waiver. Id. at 77. Here, by contrast, the trial court advised Davis at
the guilty-plea hearing—before entry of the plea—that he would retain
the right to appeal the discretionary aspect of the court’s sentencing. Tr.,
p. 64. This statement flatly contradicted Davis’s signed waiver of “the
right to appeal any sentence imposed by the Court.” App. Vol. II, p. 108.
Trial courts have a “critical role” in “safeguarding the validity” of
appeal waivers. Johnson v. State, 145 N.E.3d 785, 786 (Ind. 2020) (per
curiam). Indeed, all involved should “treat such provisions with caution
and apprehension” because they forfeit review at a point when the parties
are still “crucially unaware that the court may erroneously sentence the
defendant.” Wihebrink v. State, 192 N.E.3d 167, 168 (Ind. 2022) (David, J.,
dissenting from denial of transfer). This Court has reminded the trial
bench “that the plea agreement, guilty plea and sentencing hearing
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colloquy, and sentencing order must be clear and consistent as to whether
a defendant waives only the right to appeal the conviction or the right to
appeal the conviction and sentence.” Williams v. State, 164 N.E.3d 724, 725
(Ind. 2021) (per curiam).
Relying on the “knowing and voluntary” requirement, this Court has
twice recently invalidated appeal waivers. In Johnson, there was no
knowing and voluntary waiver of a sentencing appeal because the written
waiver language was too vague and general. 145 N.E.3d at 786–87.
Likewise in Williams, where the trial court failed to clarify whether the
defendant meant to waive his right to appeal his sentence in particular.
164 N.E.3d at 725. All the more then, when a trial court outright tells a
defendant at the plea hearing, without correction, that the terms of his
agreement will preserve his right to appeal, there can be no knowing and
intentional waiver. See Ricci v. State, 894 N.E.2d 1089, 1093–94 (Ind. Ct.
App. 2008) (finding no valid waiver because the trial court clearly stated
at the plea hearing that the defendant’s agreement allowed an appeal).
Such an unambiguous statement uttered by the trial court is even more
troubling than ambiguous written terms.
Both Johnson and Williams allowed the defendants’ appeals to go
forward because their waivers were invalid. 145 N.E.3d at 787 (remanding
for a belated appeal); 164 N.E.3d at 725 (affirming the sentence). The same
outcome is appropriate here. However, the Court holds otherwise on the
grounds that Davis’s plea agreement must be taken “all or nothing.” Ante,
at 7. Thus, the majority opinion explains, Davis “cannot retain the
benefits” of his plea agreement “while escaping” the appeal waiver
condition. Id. Instead, he must challenge his guilty plea itself as
unknowing or involuntary. Id. at 7–8. The Court indicates that this result
follows from treating Davis’s plea agreement as a contract. Id. at 5, 7–8.
The decision relies on Seventh Circuit precedent holding that “[w]aivers
of appeal must stand or fall with the agreements of which they are a part.
If the agreement is voluntary, . . . then the waiver of appeal must be
honored. If the agreement is involuntary or otherwise unenforceable, then
the defendant is entitled to appeal.” United States v. Wenger, 58 F.3d 280,
282 (7th Cir. 1995). With the greatest respect to the Court of Appeals for
the Seventh Circuit, Indiana’s constitutional right to appeal requires “a
Indiana Supreme Court | Case No. 22S-CR-253 | October 3, 2023 Page 2 of 5
separate, independent analysis from this Court.” See Marshall v. State, 117
N.E.3d 1254, 1258 (Ind. 2019). And our Court has its own precedents
concerning the enforcement of plea agreements.
In Lee v. State, this Court considered whether all the terms of a plea
agreement stand together or whether individual terms may be severed
without invalidating the entire bargain. 816 N.E.2d 35 (Ind. 2004). The case
involved a defendant’s claim that, because his plea agreement contained
an illegal sentence provision, his entire agreement and conviction were
void. Id. at 37. The Court recognized that “principles of contract law can
provide guidance” for analysis of plea agreements. Id. at 38. One such
principle was that “if a contract contains an illegal provision that can be
eliminated without frustrating the basic purpose of the contract, the court
will enforce the remainder of the contract.” Id. at 39. Similarly, the “‘fact
that one part of an agreement may be void or unenforceable does not
render the entire agreement void, if the prohibited and valid provisions
are severable, and if the parties would have entered the bargain absent the
illegal portion of the original agreement.’” Id. (quoting 17A C.J.S.
Contracts 297 (1999) (emphasis added)). Severing an illegal sentencing
provision did not necessarily do “violence to the remainder” of a plea
agreement “because ‘the consequences of a guilty plea are collateral to the
paramount issue of guilt or innocence.’” Id. (quoting White v. State, 497
N.E.2d 893, 904 (Ind. 1986)). Therefore, in some circumstances, the
“appropriate remedy” is to “sever the illegal sentencing provision from
the plea agreement.” Id. at 40. 1
Davis’s appeal waiver was not illegal, but it is unenforceable. Applying
Lee’s contract principles, I find that the “basic purpose” of a plea
agreement, from the State’s side, is to obtain the defendant’s consent to a
conviction. The defendant waives a trial at which the State would bear the
burden of proving its case beyond a reasonable doubt. Ind. Code § 35-35-
1-2(a)(2)(D) (2018). Doubtless, the State has a legitimate interest in
1Relief was ultimately deemed inappropriate in Lee because the defendant’s plea agreement
called for the illegal sentence and conferred a benefit on him. 816 N.E.2d at 40.
Indiana Supreme Court | Case No. 22S-CR-253 | October 3, 2023 Page 3 of 5
securing a waiver of appeal, which offers the advantages of finality and
economy. But the State can have no true interest in the imposition of an
excessive or inappropriate sentence. See Ind. Professional Conduct Rule
3.8, cmt. 1 (a prosecutor is a “minister of justice and not simply … an
advocate.”). The value of a sentencing appeal is the chance to ensure that a
sentence is not imposed in reliance on reasons that are legally improper or
unsupported by the record, nor in disregard of reasons that are clearly
supported by the record. See Anglemyer v. State, 868 N.E.2d 482, 490–91
(Ind. 2007), clarified on rehearing, 875 N.E.2d 218 (Ind. 2007). Appeals are
also a chance to “leaven the outliers” under a reviewing court’s authority
to revise “inappropriate” sentences. Cardwell v. State, 895 N.E.2d 1219,
1225 (Ind. 2008); Ind. Appellate Rule 7(B). Thus, appeals promote the
interest the State has in the “fair,” as well as the “efficient,”
“administration of justice.” See Wright v. State, 168 N.E.3d 244, 260 (Ind.
2021) (quoting Martinez v. Court of Appeal of California, Fourth Appellate
Dist., 528 U.S. 152, 163 (2000)). Because the State’s interest in foreclosing
appeals is both limited and collateral to the basic purpose of plea-
bargaining, a plea agreement should remain valid even when an appeal
waiver cannot be enforced.
Lee explained that “where a defendant enters a plea of guilty
knowingly, intelligently, and voluntarily, there is no compelling reason to
set aside the conviction on grounds that the sentence is later determined
to be invalid.” 816 N.E.2d at 39. By the same token, the unenforceability of
an appeal waiver does not necessarily infect an otherwise valid guilty plea
or conviction. The case of an invalid jury trial waiver, see ante, at 9, is
different because such a waiver is essential to a guilty plea, I.C. § 35-35-1-
2(a)(2)(A). Without a jury trial waiver, a guilty plea does not support a
valid conviction. Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014). And when
a defendant overturns their guilty plea on this basis, the “basic purpose”
of the plea agreement is frustrated. Conversely, aside from the three
Boykin rights—trial by jury, confrontation of witnesses, and the privilege
against self-incrimination—a defendant challenging a guilty plea must
prove that a misunderstanding of his rights actually “rendered his
decision involuntary or unintelligent.” White, 497 N.E.2d at 905 (citing
Boykin v. Alabama, 395 U.S. 238 (1969)). There is no claim before us on this
Indiana Supreme Court | Case No. 22S-CR-253 | October 3, 2023 Page 4 of 5
appeal that the trial court’s erroneous advisement induced Davis’s guilty
plea. There is no need, therefore, to remit Davis to postconviction
proceedings.
Admittedly, the record does not show whether “the parties would have
entered the bargain absent” the appeal waiver provision. See Lee, 816
N.E.2d at 39 (internal quotation and citation omitted). But this is not fatal
to Davis’s claim. As “helpful” as principles of contract law may be, they
are “not necessarily determinative” in the plea agreement context because
“important due process rights are involved.” Id. at 38. And contract law is
not, ultimately, the most important basis for concluding that Davis is
entitled to appeal. I cannot embrace the rule announced today principally
because it is not “adequate to preserve the defendant’s rights.” See United
States v. Bushert, 997 F.2d 1343, 1353 (11th Cir. 1993) (adopting the remedy
of severing the invalid waiver). It undermines the principle that an appeal
waiver should be enforced only if it was made knowingly and voluntarily.
See Creech, 887 N.E.2d at 74. Under the majority’s approach, Davis must
invalidate his entire plea bargain, exposing himself to the risk of
additional or more serious charges, in order to assert his right to appeal.
Mandating this procedure severely burdens his exercise of a right which
he never properly waived. Conversely, even if the State suffers an injustice
from facing an appeal, it lies in the State’s power to avoid this outcome in
the future by objecting whenever trial courts misadvise defendants on
their right to appeal. And, notably, the State itself argued for severance in
circumstances similar to this case in Crowder v. State. 91 N.E.3d 1040, 1049,
1052 & n.3 (Ind. Ct. App. 2018).
The only way forward that fully preserves Davis’s right to appeal is to
allow him that appeal. Today’s decision of the Court, by contrast,
undermines that right in cases where it has not been knowingly waived.
Therefore, I respectfully dissent.
Rush, C.J., joins.
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