James J. Leffler, II v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 30 2017, 10:34 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James J. Leffler, II, October 30, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1702-CR-265 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-1511-F3-2713

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017 Page 1 of 6

Case Summary and Issue [1] James Leffler II pleaded guilty to dealing in methamphetamine, a Level 4

felony, and the trial court sentenced him to nine years executed in the Indiana

Department of Correction. On appeal, Leffler raises two issues for our review.

The State cross-appeals arguing Leffler waived his right to appeal his sentence.

Concluding Leffler waived his right to appeal his sentence, we dismiss his

appeal.

Facts and Procedural History [2] In late 2015, Leffler was arrested and charged with dealing in

methamphetamine, a Level 3 felony; dealing in methamphetamine, a Level 4

felony; possession of methamphetamine, a Level 6 felony; and two counts of

maintaining a common nuisance, a Level 6 felony. The State also alleged

Leffler was an habitual offender. [3] On July 15, 2016, Leffler and the State entered into a written plea agreement

pursuant to which Leffler agreed to plead guilty to dealing in

methamphetamine, a Level 4 felony, in exchange for the State’s dismissal of the

remaining charges. Additionally, the plea agreement provided,

The parties have no agreement regarding sentencing except that such sentence shall not exceed nine (9) years. The parties shall argue sentencing before the Court. The defendant shall waive the right to have any aggravating circumstances to be found beyond a reasonable doubt by a jury and said aggravating circumstances

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would be determined by the Judge. . . . The defendant waives the right to appeal the sentence imposed in this matter.

Appellant’s Appendix, Volume II at 56. At the guilty plea hearing, the trial court advised Leffler of the various rights he was giving up by pleading guilty, including his right to appeal his sentence. The relevant colloquy went as follows:

[Trial Court]: You’re waiving your right to appeal the sentence imposed in this matter.

***

[Trial Court]: If the case went to trial and you were convicted, you’d have a right to appeal your conviction and any sentence imposed by this Court to a higher court; understand you have this appeal right?

[Leffler]: Yes sir.

[Trial Court]: Understand that by entering into this plea agreement, you’re giving up your appeal right with both respect to the finding of guilt and any sentence imposed by this Court?

[Leffler]: Yes. Transcript, Volume VI at 5-9. The trial court accepted Leffler’s plea and entered judgment of conviction. At the sentencing hearing, the trial court sentenced Leffler to nine years in the Department of Correction. The trial court also advised Leffler that “[y]ou have a right to appeal the sentence imposed in Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017 Page 3 of 6

this case Mr. Leffler[,]” and appointed a public defender to represent him. Tr.,

Vol. VII at 89. [4] Leffler now appeals.

Discussion and Decision [5] We first address the State’s cross-appeal. The State argues Leffler cannot

challenge his sentence because he waived his right to do so pursuant to the

terms of the plea agreement. Leffler counters that the plea agreement is

ambiguous and notes the trial court advised Leffler of his right to appeal. We

agree with the State. [6] Leffler first argues the plea agreement is ambiguous and unenforceable. The

validity 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. McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct.

App. 2008). [7] As noted above, the plea agreement provides,

The parties have no agreement regarding sentencing except that such sentence shall not exceed nine (9) years. The parties shall argue sentencing before the Court. The defendant shall waive the right to have any aggravating circumstances to be found beyond a reasonable doubt by a jury and said aggravating circumstances would be determined by the Judge. . . . The defendant waives the right to appeal the sentence imposed in this matter.

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Appellant’s App., Vol. II at 56. Leffler alleges the first sentence, which states

the parties “have no agreement regarding sentencing[,]” conflicts with the

remaining provisions of the paragraph stating Leffler waives certain rights.

Contrary to Leffler’s argument, the first sentence of the paragraph only refers to

the parties’ agreement that the trial court will determine the sentence imposed,

and that the trial court’s sentence may not exceed nine years. The agreement

unambiguously waives Leffler’s right to appeal. [8] Leffler also asserts the trial court advised him he may appeal his sentence. In

Creech v. State, the defendant executed a plea agreement in which sentencing

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

887 N.E.2d 73, 74 (Ind. 2008). 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.” Id. The court imposed a six-year sentence.

On appeal, the defendant sought to challenge the appropriateness of his

sentence. Our supreme court concluded the “express language” of the plea

agreement established a valid waiver of the defendant’s right to appeal his

sentence. Id. at 76. Further, although the trial judge erroneously advised the

defendant at the end of the sentencing hearing that he had a right to appeal, our

supreme court concluded the advisement had no effect on his plea because “[the

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defendant] had already pled guilty and received the benefit of his bargain.” Id.

at 77.1 [9] Here, Leffler executed a valid waiver of his right to appeal his sentence and the

trial court advised him that he was waiving this right at the guilty plea hearing.

Leffler answered in the affirmative that he understood he was forfeiting his right

to appeal his sentence. Further, as in Creech, the trial court’s mistaken

advisement that Leffler had the right to an appeal occurred after Leffler had

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

has waived his right to appeal his sentence and grant the State’s cross-appeal 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 [10] For the reasons stated above, we dismiss Leffler’s appeal.

[11] Appeal dismissed.

Riley, J., and Pyle, J., concur.

1 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.

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