Christopher L. McAllister v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jul 21 2017, 6:57 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer D. Wilson Reagan Curtis T. Hill, Jr. Wilson & Wilson Attorney General Greenwood, Indiana Elizabeth M. Littlejohn Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher L. McAllister, July 21, 2017

Appellant-Defendant, Court of Appeals Case No. 41A04-1701-CR-46 v. Appeal from the Johnson Superior Court. The Honorable Lance Hamner, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 41D03-1610-CM-1159

Barteau, Senior Judge

Statement of the Case [1] Christopher L. McAllister executed a plea agreement with the State and appeals

the sentence the trial court imposed for his conviction of driving while

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intoxicated in a manner endangering a person, a Class A misdemeanor. We

dismiss this appeal.

Issues [2] McAllister raises one issue, which we restate as: whether McAllister’s sentence

is inappropriate in light of the nature of the offense and the character of the

offender. On cross-appeal, the State asks the Court to dismiss McAllister’s

appeal, claiming he has waived his right to appeal his sentence.

Facts and Procedural History [3] On July 3, 2016, Deputy Reese of the Johnson County Sheriff’s Department

was dispatched to investigate a report of a dangerous motorcyclist on Highway

31. A concerned citizen had called 911 to say he or she saw a motorcyclist

driving on the shoulder of the road. Reese saw the motorcyclist, later identified

as McAllister, weaving and driving fifty-five miles per hour in a forty-five mile

per hour zone. [4] Deputy Reese stopped McAllister and approached the motorcycle. The

motorcycle’s engine was still running, so Reese asked McAllister to put the

motorcycle on its kickstand and turn it off. Reese asked McAllister for his

license. He could smell the odor of an alcoholic beverage on McAllister. In

addition, McAllister’s eyes were bloodshot and glassy, and his speech was slow.

He denied consuming alcohol, and when Reese told McAllister he could smell

an alcoholic beverage, McAllister said he was on his way home from work.

Court of Appeals of Indiana | Memorandum Decision 41A04-1701-CR-46 | July 21, 2017 Page 2 of 6 [5] Deputy Reese administered three sobriety tests: the horizontal gaze nystagmus,

the nine step walk and turn, and the one leg stand. McAllister failed all three

tests, displaying poor manual dexterity and difficulty with balance. Next, Reese

offered to administer a portable breath test. McAllister took the test, which

revealed a blood alcohol content of 0.157. [6] Deputy Reese asked McAllister to take a certified blood test, and McAllister

refused. Reese took McAllister to jail and held him there while seeking a search

warrant for a blood draw. The Johnson County Circuit Court issued the search

warrant, and Reese took McAllister to a hospital for the blood draw. The blood

test showed a blood alcohol content of 0.15. [7] The State charged McAllister with operating a vehicle while intoxicated in a

manner endangering a person, a Class A misdemeanor; operating a vehicle with

an alcohol concentration of at least 0.15, a Class A misdemeanor; operating a

vehicle while intoxicated, a Class C misdemeanor; and operating a vehicle with

an alcohol concentration of less than 0.15 but more than 0.08, a Class C

misdemeanor. The parties began negotiating a plea agreement. McAllister was

initially released on bond, but the State moved to revoke his bond after he was

arrested in Kentucky on a charge of operating while intoxicated. [8] McAllister and the State executed a plea agreement. McAllister agreed to plead

guilty to operating a vehicle while intoxicated in a manner endangering a

person, a Class A misdemeanor. The remaining counts would merge into the

Class A misdemeanor. The parties agreed to an “open sentence,” meaning the

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sentence would be left up to the court. Appellant’s App. Vol. 2, p. 13.

McAllister wrote his initials next to each term of the agreement, including the

following clause: “I acknowledge that I may have the right to challenge this

agreement and the resulting conviction and sentence. By entering into this plea

agreement I hereby waive any right to appeal the conviction and/or sentence in

this cause by direct appeal so long as the Judge sentences me within the terms

of my plea agreement.” Id. at 12. [9] The trial court held a guilty plea hearing, during which it considered the State’s

motion to revoke bond. The court read through the plea agreement with

McAllister, and McAllister acknowledged that he had read, understood, and

signed the agreement. McAllister conceded he had no grounds to contest the

bond revocation and suggested that he be sentenced that day. The court

accepted the plea agreement but declined to sentence McAllister at that time,

scheduling the sentencing hearing for a later date. [10] At the sentencing hearing, the court sentenced McAllister to a year in jail, the

maximum possible sentence. In addition, the court suspended his driver’s

license for two years. Finally, the court advised McAllister of his right to

appeal and appointed counsel to represent him. This appeal followed.

Discussion and Decision [11] We first address the State’s cross-appeal claim because waiver of the right to

appeal, if established, will dispose of the case. The State argues McAllister

waived his right to appeal pursuant to the parties’ plea agreement. The validity

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and interpretation of a plea agreement is a question of law. We evaluate

questions of law under a de novo standard and owe no deference to the trial

court’s determinations. Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App.

2012), trans. denied. [12] A defendant may waive the right to appellate review of a sentence as part of a

written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). The

waiver must be made knowingly and voluntarily. Bowling, 960 N.E.2d at 841. [13] In Creech, the appellant executed a plea agreement in which sentencing was left

to the discretion of the trial judge, subject to a cap of six years executed. The

agreement further provided, “I hereby waive my right to appeal my sentence so

long as the Judge sentences me within the terms of my plea agreement.” 887

N.E.2d at 74. The court imposed a six-year sentence. [14] On appeal, Creech sought to challenge the appropriateness of his sentence. The

Indiana Supreme Court concluded the “express language” of the plea

agreement established waiver of Creech’s right to appeal the sentence. Id. at 76.

Further, although the trial judge erroneously advised Creech at the end of the

sentencing hearing that he had a right to appeal, the Court concluded the

advisement did not make a difference because “Creech had already pled guilty

and received the benefit of his bargain.” Id. at 77. [15] In the current case, the waiver clause in the parties’ plea agreement closely

tracks the waiver clause in Creech. Further, as in Creech, the trial court’s

mistaken advisement that McAllister had the right to an appeal occurred after

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McAllister had pleaded guilty and had received the benefit of his bargain. We

conclude McAllister has waived his right to appeal his sentence and grant the

State’s request for dismissal of the appeal. See Starcher v. State, 66 N.E.3d 621,

623 (Ind. Ct. App. 2016) (enforcing written waiver of right to appeal sentence

despite trial court’s erroneous advisement at sentencing that defendant had a

right to appeal), trans. denied.

Conclusion [16] For the reasons stated above, we dismiss this appeal.

[17] Appeal dismissed.

Bailey, J., and Robb, J., concur.

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