William E. Schini v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 07 2016, 9:45 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Michael E. Boring Gregory F. Zoeller Christopher R. Taylor Attorney General of Indiana Boring & Boring, P.C. Justin F. Roebel New Palestine, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William E. Schini, December 7, 2016 Appellant-Defendant, Court of Appeals Case No. 30A01-1603-CR-418 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard D. Culver, Appellee-Plaintiff. Judge Trial Court Cause No. 30C01-1412-FA-2038

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-418 | December 7, 2016 Page 1 of 8

Case Summary and Issue [1] William Schini pleaded guilty to child molesting as a Class A felony and the

trial court sentenced him to forty years executed in the Indiana Department of

Correction. On appeal, Schini raises the sole issue of whether the trial court

abused its discretion in sentencing him. Concluding Schini has waived his right

to appeal his sentence, we affirm.

Facts and Procedural History [2] For nearly three years, Schini molested his stepdaughter, S.F. In December

2014, the State charged Schini with eleven counts related to the molestation,

including two counts of child molesting as a Class A felony. On the eve of trial,

Schini signed a written plea agreement whereby he agreed to plead guilty to one

count of child molesting as a Class A felony in exchange for the State

dismissing the remaining counts. The plea agreement included a waiver

provision and also stated Schini “shall plead open and the court shall determine

the sentence after argument by the parties.” Appellant’s Appendix at 79. The

plea agreement did not provide for a capped sentence. [3] At the plea hearing, the trial court notified Schini the plea agreement was

entered into after the trial court’s plea deadline and therefore “the plea would

not be pursuant to a plea agreement and it would be considered an open

plea[.]” Supplemental Transcript at 5. The trial court further explained an

“open plea means . . . any . . . sentence that would be appropriate under the law

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within the range allowed by the statute.” Id. Schini indicated he understood

the trial court, offered a factual basis for the offense, and pleaded guilty. The

trial court accepted the plea and entered judgment of conviction. The trial

court later sentenced Schini to forty years executed in the Indiana Department

of Correction and stated Schini had a right to appeal his sentence. This appeal

ensued.

Discussion and Decision [4] The State argues Schini cannot challenge his sentence because he waived his

right to do so pursuant to the terms of the plea agreement. Schini counters he

did not waive his right to appeal because the trial court stated his sentence

would not be pursuant to the plea agreement. In the alternative, Schini claims

he did not knowingly or voluntarily waive his right to appeal. We agree with

the State. [5] Generally, where a plea agreement contains no waiver clause and provides a

specific sentence, the defendant may not challenge the sentence on direct

appeal. Blanck v. State, 988 N.E.2d 817, 819 (Ind. Ct. App. 2013). However,

where a plea agreement contains no waiver clause and “the guilty plea is an

‘open plea,’ that is, a plea agreement under which the trial court exercised

sentencing discretion, direct appeal challenges to sentences have been

permitted.” Id. (citation omitted).

Where a defendant pleads guilty to what has been characterized as an open plea the freedom and latitude of the trial court to

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impose a particular sentence is readily apparent. Under such circumstances, the trial court’s discretion is limited only by the Constitution and relevant statutes. In an open plea situation, the sentence must be challenged, if at all, by way of a direct appeal.

Williams v. State, 51 N.E.3d 1205, 1209 (Ind. Ct. App. 2016) (citations and

internal quotation marks omitted). At the same time, a plea agreement is

contractual in nature, and upon its acceptance by the trial court, it binds the

defendant, the State, and the trial court. Id. at 1208. A defendant may waive

the right to appellate review of his sentence as part of a written plea agreement.

Id. [6] Here, the waiver provision provides,

[Schini] 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 [Schini] within the terms of this plea agreement.

Appellant’s App. at 79-80 (emphasis added). The crux of Schini’s position is

that he only waived his right to appeal if the trial court sentenced him pursuant

to the plea agreement, and because the trial court stated it would not sentence him

pursuant to the plea agreement, he claims his sentence was not within the terms

of his plea agreement and he has therefore not waived his right to appeal. We

do not agree the trial court’s statement, in and of itself, means the sentence was

not pursuant to the plea agreement. On the eve of trial, the State and Schini

entered into a plea agreement whereby Schini agreed to plead open in exchange

for the State dismissing the remaining ten counts. Because Schini did not plead

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guilty before the plea deadline, however, the trial court—albeit unnecessarily—

stated his “plea would not be pursuant to a Plea Agreement and it would be

considered an open plea[.]” Supp. Tr. at 5. Notwithstanding the trial court’s

erroneous statement, the plea agreement also required Schini to plead open,

which means Schini already had agreed to give the trial court the discretion to

sentence him within the parameters set by statutory authority, see Williams, 51

N.E.3d at 1209, and Schini does not argue his sentence is illegal. We further

note, if we were to accept Schini’s argument that he is not bound by the waiver

provision, then the State would not be bound by its agreement to dismiss the

remaining ten counts. We conclude the waiver provision is enforceable in this

regard. [7] Schini also argues he did not knowingly or voluntarily waive his right to appeal.

Specifically, he contends the trial court’s statement noted above, coupled with

its statement at the sentencing hearing that Schini had a right to appeal his

sentence, led him to believe he retained the right to appeal his sentence. Again,

we disagree. Although the trial court’s statement regarding the open plea could

be loosely interpreted to mean the waiver provision contained within the plea

agreement is unenforceable, Schini’s counsel—as an officer of the court—could

have brought any confusion regarding the plea agreement and the right to

appeal to the trial court’s attention. Counsel did not raise any concerns with

the trial court and the trial court accepted the plea. In addition, despite the trial

court erroneously advising Schini of the possibility of an appeal at the

sentencing hearing, Schini had already pleaded guilty and received the benefit

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of the State dismissing the remaining ten counts by the time the trial court made

this erroneous statement. See Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008)

(noting a trial court’s erroneous statement advising a defendant of a right to

appeal a sentence despite a waiver provision in the plea agreement does not

negate a defendant’s waiver when a defendant has already pleaded guilty and

received the benefit of the plea agreement). Thus, this latter statement had no

effect on the plea agreement. We conclude Schini knowingly and voluntarily

waived the right to appeal his sentence.

Conclusion [8] Schini entered into a plea agreement with the State whereby he agreed to plead

open and waive his right to appeal. In return, the State agreed to dismiss the

remaining ten counts. We conclude Schini cannot now challenge his sentence.

Accordingly, we affirm. [9] Affirmed.

Mathias, J., concurs.

Brown, J., dissents with separate opinion.

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IN THE COURT OF APPEALS OF INDIANA

William E. Schini, Court of Appeals Case No. 30A01-1603-CR-418 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Brown, Judge, dissenting. [10] I respectfully dissent from the majority’s conclusion that Schini waived his right

to appeal his sentence. At the guilty plea hearing, the court specifically advised

Schini that “by pleading guilty because [the plea agreement] was submitted after

the deadline the Court established [] for the taking of a plea [] that the plea

would not be pursuant to a Plea Agreement and it would be considered an open

plea,” and Schini responded that he understood. Supplemental Transcript at 4-

5. To the extent that a discrepancy might exist between the language of the plea

agreement and the court’s specific statements at the guilty plea hearing, I would

err on the side of reviewing the merits of Schini’s arguments because this court

prefers to decide cases and issues on the merits. See Shoultz v. State, 995 N.E.2d

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647, 659 (Ind. Ct. App. 2013) (noting that this court prefers “to decide cases

and issues on the merits” and that the defendant did not waive his claim). [11] Because the court did not accept Schini’s plea pursuant to the plea agreement, I

would not enforce the provision in that agreement whereby Schini waived his

right to appeal his sentence and would address the merits of Schini’s argument.

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