Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 1 of 19

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Vickie Yaser

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon L. Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 21, 2019

Court of Appeals Case No.

19A-CR-334

Appeal from the Orange Circuit 

Court

The Honorable Steven L. Owen, 

Judge

Trial Court Cause No.

59C01-1602-F4-160

Mathias, Judge.

[1] Brandon L. Johnson (“Johnson”) pleaded guilty in Orange Circuit Court to 

Level 4 felony possession of methamphetamine and was sentenced to twelve 

years of incarceration. Johnson did not file a timely notice of appeal, but he 

subsequently filed a petition for permission to file a belated notice of appeal, 

which the trial court denied. Johnson appeals and presents two issues, which 
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we restate as: (1) whether the trial court erred by denying Johnson’s motion to 

take judicial notice of certain portions of the record in this case, and (2) whether 

the trial court abused its discretion by denying Johnson’s petition for permission 

to file a belated notice of appeal. 

[2] We affirm. 

Facts and Procedural History

[3] On February 4, 2016, the police pulled over a car in which Johnson, who was 

on probation at the time, was a passenger. A subsequent search of the car 

revealed methamphetamine, two hypodermic needles, and digital scales. 

Johnson later admitted to the police that the scales, the methamphetamine, and 

the needles were his. He also admitted that he purchased methamphetamine in 

Louisville, Kentucky so that he could sell it in Orange County, Indiana. 

[4] On February 8, 2016, the State charged Johnson with Level 4 felony dealing in 

methamphetamine, Level 5 felony possession of methamphetamine, and Class 

B misdemeanor false informing.1 The State also alleged that Johnson was an 

habitual offender. On April 3, 2017, Johnson entered into a plea agreement 

with the State in which he agreed to plead guilty to Level 4 felony dealing in 

methamphetamine, and the State agreed to dismiss the remaining charges and 

the habitual offender allegation. With regard to sentencing, the plea agreement 

provided: “OPEN SENTENCING by the Court, Blind Plea.” Appellant’s App. 

 

1

Johnson initially gave the police a false identity. 
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Vol. 2, p. 107. Among the terms of the written plea agreement was: 

“DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION 

RELIEF.” Id. at 108. 

[5] At the change-of-plea hearing held that same day, the trial court advised 

Johnson of the various rights he would be giving up by pleading guilty, 

including the right to a public and speedy trial by jury, the right to confront 

witnesses, the right to remain silent, and the right to counsel. Johnson indicated 

that he understood he was waiving these rights. With regard to appeal, the trial 

court stated: 

[Court]: Do you understand that if you were to have a trial 

and you were found guilty that you would have the 

right to appeal that conviction and/or sentence –

[Johnson]: Yes.

[Court]: – to the Court of Appeals or Supreme Court, do you 

understand that?

[Johnson]: Yes.

[Court]: And do you understand that you have the right to 

be represented by an attorney at all times including 

your trial, but also, including that Appeal and if you 

couldn’t afford to pay for an attorney to do your 

Appeals, the Court would appoint one for you, do 

you understand that?

[Johnson]: Yes.

[Court]: But, you understand that by pleading guilty here today 

you’re giving up all those rights when it talks about your 

Appellate rights?
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[Johnson]: Yes.

Appellant’s App. Vol. 3, pp. 15–16 (emphases added).2 After some discussion 

about whether Johnson retained the right to seek a modification of his sentence, 

the trial court accepted the plea agreement. 

[6] On May 1, 2017, the trial court held a sentencing hearing. Concluding that the 

aggravating factors outweighed the mitigating factors, the trial court sentenced 

Johnson to the maximum term of twelve years of incarceration. After imposing 

its sentence, the trial court stated: 

And because indeed it was made pursuant to a Plea Agreement, 

the Court, believes in the Plea Agreement itself where it, you 

waive your right to an Appeal[,] the Court interprets that [as] the 

right to appeal the Court’s decision has also been waived. I’ll 

leave that up to Counsel, but, that’s why we’re not going to 

appoint an Attorney to represent you on Appeal. 

Appellant’s App. Vol. 3, p. 82. Not surprisingly, Johnson did not timely file a 

notice of appeal. 

[7] On November 9, 2017, Johnson filed a pro se request to participate in the 

purposeful incarceration program. The trial court denied this request on 

November 15, 2017. On May 14, 2018, Johnson filed a pro se request for 

appellate counsel. One week later, Johnson filed a pro se petition for postconviction relief. On May 29, 2018, in response to these filings, the trial court 

 

2 We have removed verbal hesitation markers such as “um” and “ah” from our quotations of the transcript. 
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referred the matter to the Indiana Public Defender’s office. On June 18, 2018, 

Johnson filed a pro se motion to correct error. The trial court denied this 

untimely motion on June 29, 2018. 

[8] On October 3, 2018, Johnson, now represented by counsel, filed a verified 

petition for permission to file a belated notice of appeal. In this petition, 

Johnson claimed that he was unaware of his right to appeal a sentence 

following a plea agreement until he spoke with a fellow inmate in April 2018. 

He therefore claimed he was not at fault for failing to timely file a notice of 

appeal and that he had been diligent in seeking to appeal. 

[9] The trial court held an evidentiary hearing on this petition on January 14, 2019. 

At the hearing, Johnson’s counsel asked him, “Did the Plea Agreement that 

you signed say anything about you waiving the right to appeal your sentence?” 

Tr. pp. 9–10. Johnson replied, “No, the only thing that the Plea Agreement said 

was that I waive my right to Appeal and Post-Conviction Relief.” Id. at 10. 

Johnson claimed that he was unaware that he could appeal a sentence 

following a plea agreement. Johnson’s trial counsel testified that he did not 

discuss the waiver of appellate rights with Johnson “other than, you know, the 

plea agreement,” because he was also unaware that a defendant could appeal a 

sentence following an open plea. Id. at 22–23. 

[10] At the conclusion of the hearing, the trial court ruled from the bench as follows: 

[The parties] entered into a Plea Agreement that very explicitly 

stated that they were waiving the right of Appeal. At the taking 

of the Plea, the Court had not yet accepted that Plea Agreement 
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and become a party to that Plea Agreement. [A]nd in advising the 

Defendant of his right, very explicitly told him that he would be giving up 

his right to appeal the sentence, looking at that Plea Agreement. [A]nd 

the Defendant still did not want to withdraw that Plea 

Agreement, in fact went in and accepted that Plea Agreement 

and asked the Court to accept that Plea Agreement[.] So at that 

Plea Hearing we set the parameters of what the proposed 

agreement between the Defendant and the State was. [T]he Court 

accepted that Plea Agreement based upon those parameters. [I]f 

the Court looking at, looking at Mr. Johnson’s record in 

determining whether to accept or reject the Plea Agreement and 

after it was fairly explicitly explained by all parties of what the terms of 

those Plea Agreements were, namely, that you couldn’t appeal it. The 

Court accepted it and the Plea Agreement as presented. And again, 

reiterated in its sentencing that it was the Court’s opinion, based upon 

the Plea Agreement, that he had not, he had given up in exchange for the 

Plea Agreement, his right to appeal the sentence. [I]n his testimony he 

very explicitly acknowledged that that was the term of that agreement. 

[H]e thought he had given up his right to appeal his sentence and his 

conviction. [H]e didn’t learn of this Collins case[3]till some jail, he 

talked to some individual at the jail, so when we look at the Plea 

Agreement as entered into all the parties, at the time of the plea, 

thought that they were dismissing certain cases, dismissing 

enhancement to sentences and permitting the Court then to have 

a range of a sentence. And whatever sentence that Court 

delivered would be acceptable. [C]ertainly the Defendant got a 

benefit out of that bargain, and the State of knowing it, at least 

what the sentence, sentencing range and that there was a 

conviction. [S]o, I, I can tell you this much, I accepted it because of that 

condition, [be]cause I’m not going to accept open-ended pleas pursuant to 

Plea Agreements if they’re going to Appeal. It, it, we might as well have a 

trial, we might as well or just dismiss things and have it opened. 

There’s . . . ways where you certainly can Appeal, sentences, but, 

what, the reason why the Court accepts Plea Agreements is for 

 

3

Collins v. State, 817 N.E.2d 230 (Ind. 2004), discussed infra. 
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some sense of finality, it saves the County some money in not 

having a trial, but, I can just sort of be honest that a greater cost 

is Appeals and how far those Appeals can go at County expense. 

So . . . the reason why this Court accepts Plea Agreements is for some 

finality and certainly was the reason why the Court accepted this Plea 

Agreement. And I believe made Mr. Johnson aware of it, because he even 

acknowledged it that he thought that was the terms and conditions of 

Plea Agreement. So, since we are here today, on a Request for 

Belated, filing Belated Notice of Appeal or filing a Belated 

Appeal the Court is going to deny that request because I don’t 

believe that Mr. Johnson is, as pointed by [the prosecutor] is 

entitled to an Appeal. And so that would be the Court’s ruling

and I’ll prepare an Order that reflects it[.]

Tr. pp. 29–31 (emphases added). 

[11] On January 18, 2019, Johnson filed a motion requesting that the trial court take 

judicial notice of the exhibits attached to his petition for permission to file a 

belated notice of appeal, but which were not formally admitted into evidence at 

the hearing on the petition. The trial court denied this motion on January 24, 

2019. Johnson now appeals. 

I. Judicial Notice 

[12] Johnson first argues that the trial court erred by failing to take judicial notice of 

the materials that he failed to formally admit into evidence at the hearing on his 

petition for permission to file a belated notice of appeal. As with all evidentiary 

questions, we review a trial court’s decision regarding judicial notice for an 

abuse of discretion. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016). A trial 

court abuses its discretion only if its decision regarding the admission of 
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evidence is clearly against the logic and effect of the facts and circumstances 

before it, or if the court has misinterpreted the law. Harrison v. State, 32 N.E.3d 

240, 250 (Ind. Ct. App. 2015), trans. denied. 

[13] In his motion for judicial notice, Johnson specifically requested that the trial 

court take judicial notice of: (1) the terms of the plea agreement; (2) the trial 

court’s advisements to Johnson contained in the transcripts; (3) the trial court’s 

sentence as evidenced by the sentencing order and abstract of judgment; and (4) 

the pre-sentence investigation report. Johnson notes that all of these materials 

were already part of the trial court’s record in this case and were attached as 

exhibits to his petition for permission to file a belated notice of appeal.4Johnson 

also claims that both parties relied on these materials in making their argument 

to the trial court. 

[14] “For years, [Evidence] Rule 201 did not permit a trial court to take judicial 

notice of court records, even if they were ‘its own records in another case 

previously before the court on a related subject with related parties.’” Horton, 51 

N.E.3d at 1160 (quoting Gray v. State, 871 N.E.2d 408, 413 (Ind. Ct. App. 

2007), trans. denied). Our supreme court amended Rule 201, effective January 1, 

2010, so that it now permits courts to take judicial notice of records of a court of 

 

4

Johnson attached several exhibits to his petition for permission to file a belated notice of appeal, including: 

the transcript of the April 3, 2017 change-of-plea hearing; the plea agreement; the trial court’s sentencing 

order; the transcript of the May 1, 2017 sentencing hearing; the abstract of judgment; Johnson’s petition for 

post-conviction relief; the pre-sentence investigation report; and the initial assessment submitted at the 

sentencing hearing. Also attached to the petition were Johnson’s affidavit and the affidavit of his trial 

counsel. However, the motion to take judicial notice specifically excluded the latter two items because both 

of these individuals testified at the hearing.
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this state. Id. Indiana Evidence Rule 201(a)(2)(C) now provides that a court 

may take judicial notice of the “records of a court of this state.” A court may 

take judicial notice “at any stage of the proceeding.” Evid. R. 201(d). And Rule 

201(c)(2) provides that a court “must take judicial notice if a party requests it 

and the court is supplied with the necessary information.” (emphasis added). 

[15] Here, Johnson requested that the court take judicial notice of its own records, 

which is permissible, and supplied the court with the necessary information. 

Thus, Johnson met the requirements of Rule 201(c)(2), and the court should 

have taken notice of its own record in the present case. But even if the trial 

court did err by denying Johnson’s request to take judicial notice, any resulting 

error is harmless. 

[16] For one thing, it is clear that the trial court considered its own record in the 

present case when ruling on Johnson’s petition; the court referred to the plea 

agreement and its advisements to Johnson at the change-of-plea hearing and the 

sentencing hearing. In addition, all the materials at issue were already part of 

the trial court’s record in the present case. These materials are therefore part of 

the record on appeal and available to us on review. See Horton, 51 N.E.3d at 

1162 (“Indiana Appellate Rule 27 provides that the Record on Appeal includes 

‘all proceedings before the trial court . . ., whether or not . . . transmitted to the 

Court on Appeal.’” ). Furthermore, this court itself may also take judicial notice 

of the records of a court of this state, and we have therefore taken judicial notice 
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of the relevant materials.5 See Horton, 51 N.E.3d at 1162 (taking judicial notice 

of trial court docket in related case showing that defendant had been previously 

convicted of Class A misdemeanor battery); Cheng Song v. Iatarola, 120 N.E.3d 

1110, 1116 n.2 (Ind. Ct. App. 2019) (taking judicial notice of trial transcript 

obtained via Odyssey case-management system), trans. denied. We therefore 

turn to the merits of Johnson’s claim that the trial court erred in denying his 

petition for permission to file a belated notice of appeal. 

II. Belated Notice of Appeal

[17] Johnson’s main argument is that the trial court erred in denying his petition for 

permission to file a belated notice of appeal. Indiana Post-Conviction Rule 

2(1)(a) provides: 

An eligible defendant convicted after a trial or plea of guilty may

petition the trial court for permission to file a belated notice of 

appeal of the conviction or sentence if;

(1) the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not due to the 

fault of the defendant; and

(3) the defendant has been diligent in requesting permission to 

file a belated notice of appeal under this rule.

An “eligible defendant” is defined as “a defendant who, but for the defendant’s 

failure to do so timely, would have the right to challenge on direct appeal a 

 

5

Johnson filed a motion with this court to take judicial notice, which we have granted by separate order. 
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conviction or sentence after a trial or plea of guilty by filing a notice of appeal, 

filing a motion to correct error, or pursuing an appeal.” P-C.R. 2. 

[18] The trial court here denied Johnson’s petition because it believed that Johnson 

had waived his right to appeal his sentence. If Johnson waived his right to 

appeal his sentence, then he is not an “eligible defendant” under Indiana PostConviction Rule 2. See Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 

2012) (holding that whether the defendant waived her right to appeal her 

sentence in her plea agreement was relevant to the threshold determination of 

whether she was an eligible defendant under Post-Conviction Rule 2), trans. 

denied. The State, like the trial court, reads Johnson’s plea agreement as waiving 

his right to appeal his sentence and therefore argues that Johnson cannot now 

seek to file a belated notice of appeal. 

[19] Johnson contends that he did not waive his right to appeal his sentence. 

Johnson claims that the trial court misadvised him by telling him that he had 

waived his right to appeal his sentence when no such provision was included in 

his plea agreement. When Johnson discovered that he might be able to appeal 

his sentence notwithstanding his plea of guilty, he began to pursue means of 

appealing his sentence. Thus, he claims he was both without fault for failing to 

file a timely notice of appeal and was diligent in his efforts to seek permission to 

file a belated notice of appeal. 

[20] We begin our analysis of this issue by noting several well-settled propositions. 

First, a defendant who voluntarily pleads guilty gives up a panoply of rights. 
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Mapp v. State, 770 N.E.2d 332, 334–35 (Ind. 2002). Included among the rights 

waived by pleading guilty is the right to direct appeal, at least with regard to a 

claim attacking the validity of the plea itself. Tumulty v. State, 666 N.E.2d 394, 

395 (Ind. 1996) (“One consequence of pleading guilty is restriction of the ability 

to challenge the conviction on direct appeal.”). 

[21] However, a defendant who pleads guilty is allowed to contest on direct appeal 

“the merits of a trial court’s sentencing discretion where the court has exercised 

sentencing discretion[.]” Id. at 396. Thus, a defendant who pleads guilty to an 

“open plea” where sentencing is left entirely to the discretion of the trial court is 

entitled to challenge on direct appeal the propriety of the sentence imposed by 

the trial court. Collins v. State, 817 N.E.2d 230, 233 (Ind. 2004). Even when a 

defendant agrees to a sentencing cap or range as part of the plea agreement, 

such a defendant may still challenge the appropriateness of the sentence on 

appeal. Childress v. State, 848 N.E.2d 1073, 1079–80 (Ind. 2006). In contrast, if a 

defendant agrees to a particular sentence as part of his plea, and the trial court 

has no sentencing discretion, then the defendant may not challenge the 

appropriateness of the sentence on appeal. Sholes v. State, 878 N.E.2d 1232, 

1235 (Ind. 2008) (holding that a plea agreement calling for a fixed sentence 

precludes a defendant from challenging his resulting sentence by direct appeal, 

whether timely or belated).

[22] It is also well settled that a defendant may waive the right to appellate review of 

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

6 This is true even if the trial court, after accepting a plea 

agreement containing a provision waiving the right to appeal, misadvises the 

defendant at sentencing that he does have the right to appeal.7Id. at 77.

[23] Although it is clear that the right to challenge one’s sentence may be validly 

waived on appeal, the question presented here is whether the terms of 

Johnson’s plea agreement constituted such a valid waiver of his appellate rights. 

[24] In addressing this claim, we observe that the terms of a plea agreement between 

the State and the defendant are contractual in nature. State v. Smith, 71 N.E.3d 

368, 370 (Ind. 2017) (citing Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004)). When a 

trial court accepts a plea agreement, it too becomes bound by its terms. Id.

(citing Berry v. State, 10 N.E.3d 1243, 1246 (Ind. 2014)). Thus, when 

interpreting a plea agreement, we are guided, but not strictly bound, by contract 

interpretation principles, beginning with the agreement’s plain language and 

determining the intent of the parties at the time the plea was entered. Berry, 10 

N.E.3d at 1247.

 

6 Of course, a defendant who waives the right to appeal his sentence may still argue in a post-conviction 

proceeding that his plea was coerced or unintelligent. Id. And “[p]rovisions in plea agreements that waive a 

defendant’s right to seek post-conviction relief remain void and unenforceable.” Id. at 75–76 (citing Majors v. 

State, 568 N.E.2d 1065, 1067–68 (Ind. Ct. App. 1991), trans. denied). Thus, the provision in Johnson’s plea 

agreement providing that he waived his right to seek post-conviction relief is void and unenforceable. See id.

We find it concerning that such a patently void and unenforceable term is still included in the boilerplate 

language of the plea agreement used in the present case, especially since our courts have held for almost 

thirty years that such a term is invalid.

7

If, however, a trial court advises a defendant at the guilty plea hearing, not at sentencing, that he has a right 

to appeal his sentence, we have held that the defendant does not waive his right to appeal notwithstanding 

language to the contrary in the plea agreement itself. Ricci v. State, 894 N.E.2d 1089, 1093–94 (Ind. Ct. App. 

2008), trans. denied; see also Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied. 
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[25] Here, the relevant provision of Johnson’s plea agreement provides that 

“DEFENDANT WAIVES RIGHT TO APPEAL[.]” Appellant’s App. Vol. 2, 

p. 108. The State argues that this language should be read to mean that Johnson 

waived his right to appeal on any grounds, which would necessarily include the 

right to appeal his sentence. Johnson contends that, because his plea was open, 

he retained his right to appeal his sentence, and the waiver provision of his plea 

agreement merely means that he waived his right to challenge the validity of his 

plea on direct appeal as explained in Tumulty. Johnson claims that the waiver 

provision is, at the very least, ambiguous and misleading and should be 

construed against the State.8Johnson therefore claims that the trial court 

misadvised him that, by pleading guilty, he was giving up his right to appeal. 

We agree with the State. 

[26] By the very act of pleading guilty, Johnson waived his right to appeal his 

conviction. See Tumulty, 666 N.E.2d at 395. There is no need for a provision in 

a plea agreement stating this. Waiver of the right to challenge a conviction on 

direct appeal is simply “one of the consequences of pleading guilty.” Alvey v. 

State, 911 N.E.2d 1248, 1249 (Ind. 2009). Even if a plea agreement states that a 

defendant may challenge his conviction on appeal, such a provision is 

 

8 As part of this argument, Johnson also contends that he did not knowingly or intelligently waive his right to 

appeal. The State claims that this is an attack on the validity of Johnson’s guilty plea, which is impermissible 

on direct appeal. See Creech, 887 N.E.2d at 75 (noting that a defendant who waives the right to appeal in plea 

agreement may still have his conviction set aside if he can establish in a post-conviction proceeding that his 

plea was coerced or unintelligent). We take Johnson’s argument to be that he did not knowingly waive his 

right to appeal and therefore is an eligible defendant to pursue a belated notice of appeal. To the extent that 

Johnson does attack the voluntariness of his plea, a post-conviction proceeding is the proper avenue of relief. 

See id.; Tumulty, 666 N.E.2d at 396. 
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unenforceable. See id. at 1250 (“A trial court lacks the authority to allow 

defendants the right to appeal the denial of a motion to suppress evidence when 

a defendant enters a guilty plea, even where a plea agreement maintains that such an 

appeal is permitted.”) (emphasis added). Accordingly, to mean anything, the 

waiver provision in Johnson’s plea agreement must include wavier of the right 

to challenge his sentence on appeal, as his sentence was the only thing that 

Johnson could have appealed. And the fact that Johnson accepted the plea 

agreement was sufficient for the trial court to find that he knowingly and 

voluntarily agreed to the waiver of his appellate rights. Creech, 887 N.E.2d at 77. 

[27] We acknowledge that, in other cases in which our courts have upheld a waiverof-appeal provision in a plea agreement, the provision was more explicit about 

the waiver of the right to appeal the sentence. See, e.g., Creech, 887 N.E.2d at 74

(holding that defendant waived right to appeal sentence where plea agreement 

provided, “I hereby waive my right to appeal my sentence so long as the Judge 

sentences me within the terms of my plea agreement.”); Starcher v. State, 66 

N.E.3d 621, 621 (Ind. Ct. App. 2016) (holding that defendant waived right to 

appeal sentence where plea agreement provided “As a condition of entering this 

plea agreement, defendant knowingly and voluntarily agrees to waive the right 

to appeal the sentence on the basis that it is erroneous or for any other reason so

long as the Judge sentences him/her within the terms of this agreement.”), 

trans. denied; Westlake v. State, 987 N.E.2d 170, 174 (Ind. Ct. App. 2013)

(holding that defendant waived his right to appeal his sentence as inappropriate 

where his plea agreement stated “you waive your right to have any Court 
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review the reasonableness of the sentence, including but not limited to appeals 

under Indiana Rule of Appellate Procedure 7([B]), and you agree and stipulate 

that the sentence of the Court is reasonable and appropriate in light of your 

nature and character, and the nature and character of the offense.”); Brown v. 

State, 970 N.E.2d 791, 791–92 (Ind. Ct. App. 2012) (holding that defendant 

waived right to appeal sentence where plea agreement provided “[t]he 

Defendant hereby waives his right to appeal his sentence so long as the Judge 

sentences him within the terms of the plea agreement. The Defendant further 

agrees that any sentence within the range provided in the plea agreement is 

reasonable and appropriate, including the maximum sentence, based upon 

aggravating circumstances which are hereby stipulated.”); Bowling, 960 N.E.2d 

at 838 (holding that defendant waived right to appeal sentence where plea 

agreement provided “By pleading guilty you have agreed to waive your right to 

appeal your sentence so long as the Judge sentences you within the terms of 

your plea agreement.”); Brattain v. State, 891 N.E.2d 1055, 1057 (Ind. Ct. App. 

2008) (holding that defendant waived right to appeal sentence, even though trial 

court appointed appellate counsel, where plea agreement provided “Defendant 

further waives the right (under Indiana Appellate Rule 7 and I.C. 35-38-1-15 or 

otherwise) to review of the sentence imposed.”). 

[28] Even though the waiver provision of Johnson’s plea agreement is not as specific 

as the waiver provisions in the above-cited cases, we cannot read the language 

providing that he “waives his right to appeal” to mean anything other than that 

he waived the right to appeal his sentence, as that was the only thing Johnson 
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could have possibly appealed after pleading guilty. Our position is supported by 

the fact that, before the trial court accepted the plea, the court explicitly 

informed Johnson that he was waiving his right to appeal his sentence. See

Appellant’s App. Vol. 3, pp. 14–15. Nor did the trial court misadvise Johnson 

that he had a right to appeal his sentence after the plea was accepted; to the 

contrary, the trial court reaffirmed at the sentencing hearing that Johnson had 

waived his right to appeal and thus declined to appoint appellate counsel. See 

Appellant’s App. Vol. 3, p. 82. 

[29] For all of these reasons, we hold that, by the terms of his plea agreement, 

Johnson waived his right to appeal, which necessarily included the right to 

appeal the sentence imposed by the trial court. Because Johnson waived his 

right to appeal his sentence, he is not an “eligible defendant” for purposes of 

seeking permission to file a belated notice of appeal under Post-Conviction Rule 

2.

9 Accordingly, the trial court did not err in denying Johnson’s petition for 

permission to file a belated notice of appeal.

[30] We recognize that our holding appears to conflict with the opinion in Morris v. 

State, 985 N.E.2d 364 (Ind. Ct. App. 2013), adhered to on reh’g, 2 N.E.3d 7. In 

that case, the defendant entered into a plea agreement which provided that he 

forfeited “‘all grounds for review of any aspect of this case whether by appeal or 

 

9

Still, we strongly recommend that the Orange County Prosecutor’s office update its outdated plea 

agreement form so that it more clearly explains the effect of the waiver of the right to appeal and also 

removes the void and unenforceable language stating that the defendant waives the right to seek postconviction relief. 
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post-conviction relief’ and that he ‘knowingly, intelligently, and voluntarily 

waives her [sic] right to challenge the conviction or sentence on this [sic] basis 

that it is erroneous.’” Id. at 366 (record citations omitted). Despite this 

language, Morris appealed and claimed that his sentence was inappropriate. 

The State argued that Morris had unambiguously waived his right to appeal. 

The Morris court acknowledged that the plea agreement contained a general 

waiver of appellate review and a more specific waiver of the ability to challenge 

an “erroneous” sentence and held that there is a difference between an 

erroneous sentence and an inappropriate sentence. Id. The court therefore 

concluded that the waiver provision was ambiguous as to whether Morris gave 

up his right to challenge his sentence as inappropriate in addition to the right to 

challenge it as erroneous and construed this ambiguity against the State, thereby 

permitting Morris to challenge the appropriateness of his sentence on direct 

appeal. Id. at 367. Here, however, there is no ambiguity in the plea agreement, 

which simply provides that Johnson waived his right to appeal. And, as noted 

above, if this provision is to mean anything, it must mean that Johnson waived 

the right to appeal his sentence, as he waived the right to appeal his conviction 

by the very act of pleading guilty.10

 

10 Cf. Haddock v. State, 112 N.E.3d 763 (Ind. Ct. App. 2018) (holding that, despite language in plea agreement 

that defendant waived the right to appeal his sentence “so long as the Judge sentences me within the terms of 

my plea agreement,” defendant was an “eligible defendant” for purposes of pursuing a belated appeal 

because he claimed his sentence was illegal), trans. denied; Williams v. State, 51 N.E.3d 1205, 1209–10 (Ind. 

Ct. App. 2016) (holding that defendant did not waive the right to appeal her sentence even though the plea 

agreement provided that she waived her right to appeal her sentence because her plea was not an open plea 

when, in fact, her plea was an open plea); Johnson v. State, 903 N.E.2d 472, 475 (Ind. Ct. App. 2009) (holding 

that defendant was an eligible defendant for purposes of Post-Conviction Rule 2 despite language in his plea 
Court of Appeals of Indiana | Opinion 19A-CR-334 | November 21, 2019 Page 19 of 19

Conclusion

[31] Even if the trial court should have granted Johnson’s motion to take judicial 

notice, any resulting error was harmless because the materials at issue were part 

of the record on appeal, the trial court considered them in making its decision, 

and we have taken judicial notice of these materials ourselves. We also 

conclude that Johnson waived his right to appeal his sentence, and the trial 

court therefore properly denied Johnson’s petition for permission to file a 

belated notice of appeal. Accordingly, we affirm the judgment of the trial court. 

[32] Affirmed. 

Robb, J., and Pyle, J., concur. 

 

agreement that stated he was giving up and waiving his right to appeal “any decision made by the Judge,” 

where defendant was not challenging his sentence or the factual basis for his conviction but instead arguing 

that the trial court violated the terms of the plea agreement by imposing a conviction for domestic battery 

whereas defendant agreed to plead guilty to battery); Baysinger v. State, 835 N.E.2d 223, 226 (Ind. Ct. App. 

2005) (holding that defendant did not waive his right to appeal where he pleaded guilty in an “open plea” 

and trial court failed to inform him of his right to appeal his sentence and instead informed him that by 

pleading guilty he was giving up “most” of his grounds for appeal).