Jeffrey P. Zbyrowski v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 27 2019, 5:26 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell W. Brown, Jr. Curtis T. Hill, Jr. King, Brown & Murdaugh, LLC Attorney General of Indiana Merrillville, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffrey P. Zbyrowski, June 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1847 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Jeffrey W. Clymer, Appellee-Plaintiff. Judge Trial Court Cause No. 64D02-1311-FB-10121

Mathias, Judge. [1] Jeffrey Zbyrowski (“Zybrowski”) appeals the Porter Superior Court’s denial of

his request to file a belated appeal pursuant to Post Conviction Rule 2.

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We affirm.

Facts and Procedural History [2] Zbyrowski was charged with two counts of Class B felony rape, two counts of

Class C felony incest, and two counts of Class D felony criminal confinement.

On February 6, 2015, Zbyrowski entered into a plea agreement where he

pleaded guilty to two counts of incest as a class C felony and two counts of

criminal confinement as a class D felony, and the two counts of rape were

dismissed. The plea agreement set a cap of eight years incarceration but

otherwise provided for probation sentencing by the trial court with the only

limitation being that statutory sentences would run consecutively. Appellant’s

App. p. 57. The plea agreement also provided, “I waive all right to appeal my

conviction, my sentence, any restitution order imposed, or the manner in which

my conviction, my sentence, or the restitution order was determined or

imposed on any grounds in this cause.” Id. at 59. [3] At the hearing in which the trial court accepted the guilty plea, the following

exchange occurred:

THE COURT: If you do that, you’ll waive certain rights. You’ll waive your right to [a] public and speedy trial by court or by jury. There will be no trial. You’ll waive the presumption of innocence. The State will not have to prove anything. You’ll waive your right to face and cross-examine the State’s witnesses, as well as the right to have me subpoena witnesses to testify in your favor. You’ll waive your right to remain silent and, in fact, you will be testifying against yourself. If we went to trial and if you were convicted, you could appeal that decision to the

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Indiana Appellate Court System. Do you understand that you are, in fact, waiving all of those rights?

ZBYROWSKI: Yes.

Plea Tr. p. 3. The trial court then scheduled a sentencing hearing to be held on

a later date. At the sentencing hearing, Zbyrowski was sentenced to twenty-two

years, with fourteen years suspended. At the conclusion of the sentencing

hearing, held over a month after the plea was accepted, the trial court told

Zbyrowski,

you’re entitled to take an appeal or file a motion to correct error with regard to the sentence; not the convictions, but the sentence. If you wish to file a motion to correct error, it must be done within 30 days of today’s date. If you wish to take an appeal, you must file a notice of appeal stating what it is you want included in the record on appeal, and that must also be done within 30 days of today’s date. If you’re financially unable to employ an attorney to carry out that process, we will inquire into your resources and appoint a public defender if that’s what you wish.

Sentencing Tr. pp. 12–13. Before the end of the sentencing hearing, the trial

court then informed Zbyrowski once again that he had thirty days to file either

a notice of appeal or motion to correct error. Id. at 13. [4] Zbyrowski was then transferred to the Department of Correction (“DOC”).

While in the DOC, he wrote two letters to his trial counsel asking whether

appellate counsel had been appointed to file an appeal on his behalf. He

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received no response from trial counsel, but received his file in October of 2015

and learned that no appeal had been filed on his behalf. [5] In January of 2016, Zbyrowski, acting pro se, filed a Petition for Post-

Conviction Relief. The Public Defender’s office was then appointed to represent

Zbyrowski, but this representation ended when Zbyrowski was released from

incarceration on or about March 11, 2018. Zbyrowski, through private counsel,

then filed a Verified Petition for Permission to fie a Belated Notice of Appeal

pursuant to Indiana Post Conviction Rule 2 on June 14, 2018. The State

objected, and the trial court denied the petition without a hearing. Zbyrowski

now appeals the denial of his Verified Petition for Permision to file a Belated

Notice of Appeal.

Discussion and Decision [6] “[A] defendant may waive their right to appellate review of his sentence as part

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

However, a “defendant who can establish in a post-conviction proceeding that

his plea was coerced or unintelligent is entitled to have his conviction set

aside.” Id. When the issue on appeal is a pure question of law, the court should

review the matter de novo. Kibbey v. State, 733 N.E.2d 991, 995 (Ind. Ct. App.

2000) [7] This court has repeatedly addressed the issue of whether a defendant can appeal

after waiving his or her right to appeal as a part of a plea agreement. In Creech,

the Indiana Supreme Court explained that:

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While we take this opportunity to emphasize the importance of avoiding confusing remarks in a plea colloquy, we think the statements at issue are not grounds for allowing Creech to circumvent the terms of his plea agreement.

Creech does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it, but rather claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at the end of the sentencing hearing that he could appeal.

***

By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction.

887 N.E.2d at 76-77. Cf. Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008)

(holding that the trial court’s erroneous statements regarding ability to appeal

made at the time of the entry of the plea did negate the waiver of the right to

appeal in the plea), trans. denied. [8] Zbyrowski waived his right to appeal “on any grounds” as a part of the

negotiated plea. Appellant’s App. p. 59. Because the terms of the plea

agreement clearly state that Zbyrowski waived his right to appeal on any

grounds, and because this was the court’s understanding of the agreement at the

time the plea was accepted by the court, the statement by the court regarding

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appeal rights at the sentencing hearing well after the plea was negotiated and

accepted does not negate Zbyrowski’s waiver of his appeal right.1

Conclusion [9] We take this opportunity to remind trial courts of the dangers of reciting

improper boilerplate at any point in court proceedings and especially during

plea bargains and sentencings2. However, as the language used by the trial court

at sentencing in this matter did not change Zbyrowski’s initial waiver of his

right to appeal in his plea agreement, we affirm the trial court’s denial of his

motion to file a belated appeal. [10] Affirmed.

Vaidik, C.J., and Crone, J., concur.

1 Because we determine that Zbyrowski waived his right to appeal, we do not reach whether Indiana Post- Conviction Rule 2 would have allowed him the ability to file a belated appeal in this matter. 2 The judge who sentenced Zbyrowski retired prior to Zbyrowski’s filing of the Verified Petition for Permission to file a Belated Notice of Appeal. The specific petition on appeal was decided by the current judge, who did not sentence Zbyrowski.

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