Richard M. Statler v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2018, 8:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan M. Truitt Curtis T. Hill, Jr. Bertig and Associates Attorney General of Indiana Valparaiso, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard M. Statler, July 31, 2018 Appellant/Cross-Appellee-Defendant, Court of Appeals Case No. 18A-CR-182 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Appellee/Cross-Appellant-Plaintiff. William E. Alexa, Judge The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-1605-F5-4905

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018 Page 1 of 7 [1] Following his plea of guilty to two counts of Level 5 felony sexual misconduct

with a minor,1 Richard M. Statler (“Statler”) appeals his sentence contending

that the trial court abused its discretion and that his sentence is inappropriate in

light of the nature of the offenses and his character. The State cross appeals,

arguing that Statler has waived his right to appeal his sentence by the terms of

his plea agreement. We find the State’s issue to be dispositive. [2] We affirm.

Facts and Procedural History [3] From June 16 through June 18, 2015, Statler’s fourteen-year-old granddaughter,

K.C., and her fifteen-year-old friend, R.M., stayed at Statler’s home in

Chesterton, Indiana. During that visit, Statler committed various improper

acts, including: (1) supplying the girls with alcohol and giving them money and

transportation to buy marijuana; (2) holding K.C. tightly and kissing and

sucking her breasts; (3) kissing K.C. on the lips and fondling her vagina; (4)

touching R.M.’s breasts over her clothes; (5) touching R.M.’s “butt” and

making her touch his penis over his clothes; (6) asking the girls to have sex with

each other so he could watch; (7) asking R.M. if she would give him a “blow

job”; and (8) giving the girls some of his medicine, advising that it would calm

them down. Appellant’s App. Vol. 2 at 19-20.

1 See Ind. Code § 35-42-4-9(b).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-182 | July 31, 2018 Page 2 of 7 [4] The State charged Statler with two counts of Level 5 felony sexual misconduct

with a minor, two counts of Level 5 felony child solicitation, and two counts of

Level 5 felony contributing to the delinquency of a minor. By written plea

agreement, Statler pleaded guilty to two counts of Level 5 felony sexual

misconduct with a minor in exchange for the State dismissing the remaining

four counts. The plea agreement required Statler to register as a sex offender

and capped his executed sentence at five years. Within those limits, the trial

court had discretion in sentencing; there was no limit on probation, except as

provided by statute. Id. at 53. Included among the provisions to which Statler

agreed was Paragraph (10), which provided:

I waive all right to appeal my conviction, my sentence, any restitution order imposed, and/or the manner in which my conviction, my sentence, and/or the restitution order was/were determined or imposed on any grounds in this cause.

Id. at 55. [5] Statler and his attorney each signed the plea agreement, thereby agreeing to its

terms. During the guilty plea hearing, the trial court advised Statler that he was

waiving certain rights, including the right to “appeal to the Indiana appellate

court.”2 Tr. Vol. 2 at 15. Statler withdrew his previous plea of not guilty and

entered a plea of guilty to two counts of Level 5 felony sexual misconduct with

2 Statler did not include the transcript of his guilty plea hearing with the record on appeal; however, during the sentencing hearing, the trial court reiterated that Statler had been informed during the initial change of plea hearing that he was waiving certain rights, including the right to a direct appeal. Tr. Vol. 2 at 15.

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a minor, and the State moved to dismiss the remaining four counts. The trial

court subsequently accepted the plea agreement. Appellant’s App. Vol. 2 at 6. [6] During the October 2017 sentencing hearing, the trial court considered the

aggravating and mitigating factors set out in the pre-sentence investigation

report, including, Statler’s age, his poor health, the fact that he had no prior

criminal history or substance abuse history, the fact that Statler later

downplayed the acts to which he had pleaded guilty, the fact that he violated a

position of trust, and the harm he caused to the victims. The trial court

sentenced him to consecutive sentences of four years for each of Count I and

Count II, with Count I executed and Count II fully suspended to probation, for

an aggregate executed sentence of four years. Tr. Vol. 2 at 13. At the close of

the sentencing hearing, the trial court incorrectly advised Statler that he had the

right to appeal his sentence. Id. at 15-16. Thereafter, Statler unsuccessfully

challenged his sentence in a motion to correct error. This appeal ensued.

Discussion and Decision [7] Statler contends that the trial court abused its discretion during sentencing and

that his sentence is inappropriate in light of the nature of the offenses and his

character. In its cross appeal, the State argues that Statler waived his right to

appeal his sentence pursuant to Paragraph (10) of his plea agreement. Finding

the State’s cross appeal to be dispositive, we address only that issue. [8] In the instant case, Statler did not file a reply brief or otherwise respond to the

State’s allegation on cross appeal that he has waived his right to appeal his

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sentence pursuant to his plea agreement. Under such circumstances, if we find

prima facie error, the State may prevail. Amphonephong v. State, 32 N.E.3d 825,

830 (Ind. Ct. App. 2015). Prima facie error is error at first sight, on first

appearance, or on the face of it. Id. [9] To support its claim, the State cites to Creech v. State, 887 N.E.2d 73, 74 (Ind.

2008), where the defendant argued on transfer that “he did not knowingly and

voluntarily waive his right to appellate review and that his sentence was

inappropriate.” In Creech, our Supreme Court held that “a defendant may

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

agreement.” 887 N.E.2d at 75.3 Specifically, in Creech, the defendant’s plea

agreement left his sentence to the trial court’s discretion, and he agreed to waive

his right to appeal the sentence so long as he was sentenced within the terms of

his plea agreement. Id. at 74. After the defendant had already entered his plea

of guilty and been sentenced, the trial court erroneously advised the defendant

at the close of the sentencing hearing that he retained the right to appeal his

sentence. Id. Our Supreme Court held that provisions waiving the right to

appellate review of a sentence are enforceable as part of a written plea

agreement.4 Id. at 75. The Court further determined that after a defendant

3 Our Supreme Court subsequently noted that in Indiana, a defendant can even waive his right to appeal an illegal sentence. Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013) (“Absent due process concerns to the contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, whether or not the sentence or method is authorized by the law, he cannot later appeal such sentence on the ground that it is illegal.”). 4 In Archer v. State, 81 N.E.3d 212, 215-16 (Ind. 2017), our Supreme Court recently noted:

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pleads guilty and receives the benefit of the plea bargain, subsequent actions by

the trial court do not affect that waiver, recognizing that “[m]ost waivers are

effective when set out in writing and signed.” Id. at 76 (alteration in original)

(quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995), superseded by

statute on other grounds). Therefore, the Creech Court held that the trial court’s

erroneous advisement at the conclusion of the sentencing hearing had no effect

on an otherwise knowing, voluntary, and intelligent waiver of the right to

appeal and was not grounds for allowing the defendant to circumvent the terms

of his plea agreement.5 Id. at 76. [10] Under his plea agreement, Statler agreed to plead guilty to two counts of Level

5 felony sexual misconduct with a minor and to “waive all right to appeal [his] .

. . sentence . . . on any grounds in this cause.” Appellant’s App. Vol. 2 at 53, 54.

In exchange, the State dismissed four Level 5 felony counts and agreed to cap

Statler’s executed sentence to five years. Statler received the benefit of his

Plea agreements are contracts and once the trial court accepts it, a plea agreement and its terms are binding upon the trial court, the State and the defendant. Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013). Because a plea agreement is a contract, the principles of contract law can provide guidance when considering plea agreements. Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001). A defendant may waive his or her right to appeal a sentence as part of a plea agreement and such waivers are valid and enforceable. Creech v. State, 887 N.E.2d 73, 74-75 (Ind. 2008). 5 Since Creech, this Court has repeatedly held that a trial court’s erroneous advisement of a right to appeal during a sentencing hearing does not invalidate an otherwise knowing, voluntary, and intelligent waiver of the right to appeal. See, e.g., Mechling v. State, 16 N.E.3d 1015, 1017 (Ind. Ct. App. 2014), trans. denied; Ivy v. State, 947 N.E.2d 496, 499 (Ind. Ct. App. 2011); Akens v. State, 929 N.E.2d 265, 266 (Ind. Ct. App. 2010). But see Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013); Bonilla v. State, 907 N.E.2d 586, 589 (Ind. Ct. App. 2009), trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093 (Ind. Ct. App. 2008), trans. denied (cases distinguishing Creech and finding waiver of right to appeal unenforceable on other grounds).

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bargain when the four counts were dismissed, and he was sentenced to just four

years executed. [11] Consistent with Creech, we conclude that Statler’s waiver of his right to appeal is

enforceable as part of his written plea agreement. The trial court’s erroneous

advisement to Statler concerning a right to appeal, given, as it was, at the

conclusion of the sentencing hearing, had no effect on his prior waiver of that

right. Creech, 887 N.E.2d at 76. The trial court’s statement that Statler could

appeal his sentence was not made until after the court had accepted the plea

agreement and ordered his sentence. Tr. Vol. 2 at 15. Indeed, Statler had

already received the benefit of his bargain prior to the trial court’s misstatement.

Moreover, as noted above, Statler failed to respond to the State’s cross appeal,

so he makes no claim that the waiver of his right to appeal was not otherwise

knowing, voluntary, or intelligent. Statler signed a clearly stated written waiver

of the right to appeal his sentence “on any grounds.” Appellant’s App. Vol. 2 at

55. Accordingly, we conclude that Statler waived the right to appeal his

sentence. [12] Affirmed. [13] Baker, J., and Bradford, J., concur.

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