Adam Worthington 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 Dec 28 2020, 10:05 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General Lafayette, Indiana Myriam Serrano Deputy Attorney General Molly M. McCann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adam Worthington, December 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1382 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Sean Persin, Judge Trial Court Cause No. 79C01-1902-F1-3

Vaidik, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 1 of 5 [1] Facing seven criminal charges, Adam Worthington entered into a plea

agreement under which he would plead guilty to one count of Level 1 felony

burglary resulting in serious bodily injury, the State would dismiss the

remaining charges, and Worthington’s sentence would be capped at thirty years

but would otherwise be left to the discretion of the trial court. The plea

agreement also included the following appeal waiver:

The Defendant hereby waives the right to appeal any sentence imposed by the Court, under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court sentences the Defendant within the terms of the plea agreement.

Appellant’s App. Vol. II p. 26. The trial court accepted the agreement and

sentenced Worthington to thirty years, with twenty-eight years to serve in the

Department of Correction and two years suspended to probation. [2] Worthington now appeals. However, he does not challenge his conviction or

his sentence. He only asks us to find his appeal waiver was not knowing,

voluntary, and intelligent and to “remand to the trial court.” Appellant’s Br. p.

20. He does not say what he thinks should happen on remand, but presumably

he envisions a second appeal concerning the merits of his sentence. [3] Worthington relies on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008),

trans. denied, where we held the defendant’s appeal waiver was not enforceable.

But the defendant in Ricci challenged the merits of his sentence, in addition to

the waiver. Here, Worthington only challenges the waiver. As a result, the State Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 2 of 5

asks us to dismiss the appeal, arguing that because Worthington “is not asking

this Court to revise his sentence or remand to the trial court to revise his

sentence, no actual controversy exists.” Appellee’s Br. p. 9. We could dismiss

the appeal on this basis, but in the interest of judicial efficiency, we choose to

address Worthington’s argument. [4] In arguing he did not knowingly, voluntarily, and intelligently waive his right to

appeal his sentence, Worthington relies on the following exchange at the guilty-

plea hearing:

THE COURT: Do you understand that if you went to a trial and then were convicted you would have an automatic right to appeal the convictions to the Indiana Court of Appeals?

THE DEFENDANT: Yes.

THE COURT: When you plead guilty to a charge and you say judge please enter a conviction because I committed this crime, you’re waiving and giving up your right to appeal the conviction. Does that make sense?

THE DEFENDANT: Yeah.

THE COURT: In fact, if you plead guilty today and you’re waiving and giving up all of the rights that we’ve talked about so far. You do have the right to be represented by a lawyer both at the trial level and on any appeal. If at any point you cannot afford a lawyer, I can appoint one to represent you.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 3 of 5

Tr. pp. 10-11 (emphasis added). Focusing on the emphasized sentence—“You

do have the right to be represented by a lawyer both at the trial level and on any

appeal.”—Worthington contends he was left with the impression he had the

right to appeal his sentence notwithstanding the appeal waiver in the written

plea agreement. But that sentence cannot be read in isolation. The complete

quoted exchange makes clear the trial court was simply informing Worthington

he would have the right to an attorney at trial and on appeal if he chose not to

plead guilty. [5] Ricci is distinguishable. There, the defendant’s plea agreement included an

appeal waiver like the one in this case, but during the guilty-plea hearing, the

trial court stated:

Now I read the Plea Agreement and if I accept this Plea Agreement I read it to say that sentencing is gonna be left to the Court. So [ ] your side will make arguments, the State will make arguments, and you’ll leave to the Court to decide what the appropriate sentence is. So you do not give up your right to appeal that sentence, because you are giving that discretion to the Court. So I wanna make sure you understand you would [have] a right to appeal sentencing, but you could never appeal whether you committed this crime or not[.]

Ricci, 894 N.E.2d at 1090 (emphasis added). Because the defendant was

expressly told at the guilty-plea hearing he had the right to appeal his sentence,

we held the appeal waiver in his plea agreement was “a nullity.” Id. at 1094.

Worthington, unlike the defendant in Ricci, was never told by the trial court he

had the right to appeal his sentence.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 4 of 5 [6] Worthington has failed to establish his appeal waiver was not knowing,

voluntary, and intelligent. [7] Affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020 Page 5 of 5