MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 19 2017, 8:51 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
George P. Sherman
Logansport, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathaniel J. Caroway, May 19, 2017
Appellant-Defendant, Court of Appeals Case No.
09A02-1611-CR-2518
v. Appeal from the Cass Circuit
Court
State of Indiana, The Honorable Leo T. Burns,
Appellee-Plaintiff. Judge
Trial Court Cause No.
09C01-1511-FA-3
Robb, Judge.
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Case Summary and Issue
[1] Pursuant to the terms of a plea agreement, Nathaniel Caroway pleaded guilty to
one count of child molesting as a Class A felony and was sentenced to forty
years imprisonment. Caroway appeals his sentence, raising the following
restated issue for our review: whether the trial court abused its discretion in
sentencing him. Concluding the trial court did not abuse its discretion in
imposing the maximum sentence allowed by the plea agreement, we affirm.
Facts and Procedural History
[2] On November 20, 2015, the State charged Caroway with four counts of child
molesting as Class A felonies and two counts of child molesting as Class C
felonies based on incidents reported by his step-daughter. On August 23, 2016,
Caroway pleaded guilty to one count of Class A felony child molesting
pursuant to a plea agreement. The plea agreement provided that in exchange
for Caroway’s plea of guilty, the State would dismiss the remaining charges. As
to the sentence, “Parties shall argue and the court shall determine all terms of
sentence. Executed portion of sentence shall not exceed (40) years.”
Appellant’s Appendix, Volume II at 56. The plea agreement also provided:
Defendant understands that if he/she had a trial and was
convicted of these charges, he/she would normally have the right
to appeal the conviction and any sentence received as a result of
said conviction. Because the Defendant is pleading guilty, he/she
understands that there will be no appellate review of the sentence. The
Defendant acknowledges that he/she has discussed this matter
with counsel, and hereby makes a knowing and voluntary waiver
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of appellate review of the sentence imposed by the trial court.
Defendant may still appeal any illegal sentence which may be
imposed.
Id. at 56-57 (emphasis added).
[3] At the plea hearing, before hearing Caroway’s change of plea, the trial court
advised Caroway:
[B]ecause the sentence . . . will be up to the Court, you, your
right to appeal the length of the sentence is preserved. You’re not
giving up your right to appeal, . . . there’s a range of time that is
suggested in this plea agreement and after the Court reaches a
decision on the amount of time, if any, then you would have the
right to appeal that decision.
Transcript, Volume 2 at 9-10. The trial court also advised Caroway that the
penalty range for a Class A felony was twenty to fifty years, with an advisory
sentence of thirty years, but “if I accept this plea agreement, the maximum
penalty will be forty (40) years.” Id. at 12. Caroway indicated he understood
the nature of the charge against him and the possible sentence for his crime, and
further indicated he understood his rights and the effect of pleading guilty upon
those rights. The State established a factual basis and the trial court took
Caroway’s plea of guilty under advisement pending a pre-sentence report.
[4] The parties reconvened for a sentencing hearing on October 13, 2016. The
court began by recounting the events from the plea hearing, including that it
had advised Caroway “that since the sentence was open, that he would have
the ability to appeal the sentence component, but not the conviction component
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of the agreement.” Id. at 20. The trial court then accepted Caroway’s plea of
guilty. After hearing evidence and argument from the parties, the trial court
pronounced Caroway’s sentence, noting first that the “minimum sentence in
this case is twenty (20) years in the Department of Correction be [sic] because it
is an A Felony that’s a non-suspendable sentence on its face.” Id. at 31. The
trial court found the aggravating circumstances outweighed the mitigating
circumstances, and sentenced Caroway to forty years at the Department of
Correction. The trial court subsequently issued a written sentencing order,
which states, in part, “This is an aggravated sentence based on the fact that,
pursuant to statute, the range of sentence in this case is from 30 to 50 years.”
Appellant’s App., Vol. II at 79.
Discussion and Decision
I. Waiver
[5] We begin by briefly addressing the State’s assertion that pursuant to the plea
agreement, Caroway waived his right to appeal his sentence. Anticipating the
possibility of such an argument by the State, Caroway acknowledged the
provision of his plea agreement waiving his right to challenge his sentence, but
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argues that given the trial court’s statements at his plea and sentencing hearings,
the waiver is invalid. We agree with Caroway.1
[6] A defendant may waive the right to appellate review as part of a plea
agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Even if the trial court
erroneously advises the defendant of the possibility of appeal, if such
advisement comes after the defendant has received the benefit of his bargain—
that is, after he has already pleaded guilty and the trial court has accepted the
plea—the waiver is valid. Id. at 77 (trial court advised the defendant at the
close of the sentencing hearing that he retained the right to appeal which did
not alter the defendant’s knowing and voluntary waiver at the time he changed
his plea). However, if the advisement comes before the defendant receives the
benefit of his bargain and no one contradicts or corrects the misstatement, then
“we may confidently say that the trial court accepted the plea agreement, and
the prosecuting attorney, the defense attorney, and [the defendant] entered into
the plea agreement with the understanding that [the defendant] retained the
right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct.
App. 2008), trans. denied.
[7] Here, the trial court advised Caroway he had the right to appeal the length of
his sentence before Caroway entered his guilty plea, see tr., vol. 2 at 9, and again
1
The State, while not explicitly conceding Caroway is entitled to appeal his sentence, acknowledges the trial
court’s statements and “assume[s] for the sake of argument that Caroway retained the right to appeal his
sentence.” Brief of Appellee at 6-7.
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before the trial court accepted the plea, see id. at 20.2 Neither the State nor
Caroway’s defense counsel corrected the trial court’s misstatement.3 Thus, this
situation is akin to Ricci and we conclude Caroway has not waived the right to
appeal his sentence.
II. Sentencing Discretion
[8] Sentencing decisions are within the sound discretion of the trial court and we
review such decisions only for an abuse of that discretion. McElfresh v. State, 51
N.E.3d 103, 107 (Ind. 2016). “An abuse of discretion occurs if the decision is
clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. (citation omitted). A trial court may abuse its discretion by
entering a sentencing statement in which the reasons provided for the sentence
are improper as a matter of law. Ackerman v. State, 51 N.E.3d 171, 193 (Ind.
2016), cert. denied, 137 S.Ct. 475 (2016).
2
The trial court advised Caroway of his right to appeal the sentence two more times after accepting the plea
agreement. See Tr., Vol. II at 25 (stating, immediately after accepting the plea agreement, that “[d]epending
on where we go today, . . . you will still have rights to appeal the sentencing”) and 32 (stating, after
pronouncing the sentence, “Mr. Caroway, if you are in the frame of mind to listen, you have the right to
appeal my sentence”).
3
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. We also take this opportunity to remind counsel
on both sides of the aisle of their obligation of candor to the court in the face of conflicting information being
provided to the defendant.
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[9] Caroway argues the trial court abused its discretion in sentencing him because
the sentence was based on the trial court’s mistaken belief the minimum
sentence for his crime was thirty years. Caroway bases this argument on the
written sentencing order which stated the decision to impose an aggravated
sentence of forty years was “based on the fact that, pursuant to statute, the
range of sentence in this case is from 30 to 50 years.” Appellant’s App., Vol. II
at 79. Caroway acknowledges the trial court correctly stated the minimum
sentence as twenty years when pronouncing the sentence at the sentencing
hearing. He argues, however, the oral statement “should not trump the judge’s
written decision.” Appellant’s Brief at 9.
[10] In reviewing a sentence, we examine both the oral and written sentencing
statements to discern the conclusions of the trial court. Corbett v. State, 764
N.E.2d 622, 631 (Ind. 2002). Neither statement is presumptively correct.
McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of
crediting the statement that accurately pronounces the sentence or remanding
for resentencing. Id.
[11] Generally, a trial court may impose any sentence between twenty and fifty
years for a Class A felony. Ind. Code § 35-50-2-4(a). Here, however, the plea
agreement capped the possible sentence at forty years. At the plea hearing, the
trial court advised Caroway that the range of penalties he faced for his crime
was twenty to fifty years, but if the court accepted the plea agreement, the
maximum penalty would be forty years. See Tr., Vol. 2 at 12. Thus, the trial
court correctly advised Caroway at the plea hearing that the minimum sentence
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it could impose was twenty years. Again at the sentencing hearing, the trial
court advised Caroway that the minimum sentence in his case was twenty
years. See id. at 31. Based on the unambiguous nature of the trial court’s
statements at the plea and sentencing hearings, we conclude the written order
which references a thirty-year minimum sentence contains a scrivener’s error.
[12] We also note that even if the trial court was laboring under a misapprehension
regarding the minimum sentence possible in this case, the trial court’s
statements regarding the aggravating and mitigating circumstances clearly
indicate the trial court’s intention to impose the maximum sentence. The trial
court acknowledged Caroway’s guilty plea and lack of significant criminal
history as mitigating circumstances. But because Caroway “appears to be
trying to express remorse [to the victim but] is also portraying himself as a
victim” and regrets making a statement to the police confessing his crime, the
trial court found his lack of remorse an aggravating circumstance. Id. at 31.
The trial court also found the impact on the victim and Caroway’s position of
trust with her as her step-father to be aggravating circumstances. The court
found the aggravating circumstances outweigh the mitigating circumstances,
that the plea agreement capped the sentence at forty years, “and that is what the
sentence is going to be today.” Id. at 32. In the written sentencing order, the
trial court specifically stated an aggravated sentence was appropriate. The trial
court clearly intended to impose a sentence above the advisory sentence for a
Class A felony, which means it clearly intended to impose a sentence above
thirty years. We therefore conclude that even if the trial court believed the
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minimum sentence was thirty years, it still would have imposed a forty-year
sentence. See Ackerman, 51 N.E.3d at 194 (“When an abuse of discretion
occurs, [we] will remand for resentencing only if we cannot say with confidence
that the trial court would have imposed the same sentence . . . .”).
Conclusion
[13] Caroway did not waive his right to appeal his sentence, but he has failed to
demonstrate the trial court abused its discretion in sentencing him to forty
years. We therefore affirm his sentence, but because the written sentencing
order contains a scrivener’s error, we remand to the trial court for correction of
that error.
[14] Affirmed and remanded.
Vaidik, C.J., and Bailey, J., concur.
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Nathaniel J. Caroway v. State of Indiana (mem. dec)
Combined Opinion