Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 1 of 6

MEMORANDUM DECISION 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case. 

ATTORNEY FOR APPELLANT

James A. Spangler, Jr. 

Lawrence County Public Defender 

Agency 

Bedford, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

J.T. Whitehead 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA 

Joshua Love, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

August 9, 2017 

Court of Appeals Case No. 

47A01-1703-CR-544 

Appeal from the Lawrence 

Superior Court 

The Honorable Michael Robbins, 

Judge 

Trial Court Cause No. 

47D01-1604-F1-399 

Vaidik, Chief Judge. 
Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 2 of 6

Case Summary 

[1] Joshua Love pled guilty to criminal confinement and sexual battery and was 

sentenced to sixteen years. He now appeals his sentence. The State argues that 

Love has waived appellate review of his sentence because of a waiver provision 

in his plea agreement. We agree with the State and therefore affirm Love’s 

sentence. 

Facts and Procedural History 

[2] On January 4, 2017, Love and the State entered into a written plea agreement 

in which Love pled guilty to Level 3 felony criminal confinement and Level 6 

felony sexual battery. In exchange, the State agreed to dismiss the remaining 

counts and another cause number in its entirety. According to the terms of the 

plea agreement, the sentences would run concurrently, and the parties would 

“argue [the] remaining terms of [the] sentence to the Court.” Appellant’s App. 

Vol. II p. 23. The plea agreement contained the following provision concerning 

Love’s right to appeal his sentence: 

As a condition of entering this plea agreement, I knowingly and 

voluntarily agree to waive my right to appeal my sentence on the 

basis that it is erroneous or for any other reason so long as the 

Judge sentences me within the terms of my plea agreement. 

Id. Love also signed an Acknowledgement of Rights. Paragraph 10 similarly 

provided: 
Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 3 of 6

As a condition of entering this plea agreement, I knowingly and 

voluntarily agree to waive my right to appeal my sentence on the 

basis that it is erroneous or for any other reason so long as the 

Judge sentences me within the terms of my plea agreement. 

Id. at 25. 

[3] At the guilty-plea hearing held that same day, the trial court went over the plea 

agreement and the Acknowledgement of Rights with Love. Specifically, the 

court confirmed with Love that he understood he was “waiving certain rights of 

appeal” as explained in paragraphs 6-13 of the Acknowledgement of Rights. 

Tr. Vol. II. p. 5. The court found that a factual basis existed for the offenses 

and set a sentencing hearing. 

[4] At the February sentencing hearing, the trial court sentenced Love to sixteen 

years for criminal confinement and two-and-a-half years for sexual battery, to 

be served concurrently, for an aggregate term of sixteen years. The court 

suspended two years to probation and ordered the last year of incarceration to 

be served on house arrest “in lieu of incarceration.” Id. at 97. The trial court 

then told Love, “you have a right to appeal . . . the sentence . . . that I just 

imposed.” Id. 

[5] Love now appeals his sentence. 
Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 4 of 6

Discussion and Decision 

[6] Love contends that his sentence is inappropriate in light of the nature of the 

offenses and his character. The State responds that Love has waived the right 

to appeal his sentence. 

[7] The Indiana Supreme Court held in Creech v. State that “a defendant may waive 

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

agreement.” 887 N.E.2d 73, 75 (Ind. 2008). The Supreme Court then analyzed 

whether, despite the express language of the waiver in Creech’s plea agreement, 

he knowingly and voluntarily waived the right to appellate review of his 

sentence because the judge advised him at the close of the sentencing hearing 

that he retained the right to appeal. The Court rejected Creech’s argument as 

follows: 

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. 

* * * * * 
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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. 

Id. at 77 (footnotes omitted). As this Court later explained, “under Creech, a 

trial court’s incorrect advisement at the conclusion of a defendant’s sentencing 

hearing has no effect on an otherwise knowing, voluntary, and intelligent 

waiver of the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089, 

1093 (Ind. Ct. App. 2008), trans. denied. 

[8] On appeal, Love makes no argument that the language of his plea agreement 

was unclear or that he misunderstood the terms of the agreement when he 

signed it. As in Creech, although the trial court erroneously advised Love that 

he could appeal his sentence, that erroneous statement occurred only at the 

sentencing hearing and after Love had received the benefit of his plea 

agreement.1

 We therefore find that Love knowingly and voluntarily waived the 

right to appeal his sentence. See Starcher v. State, 66 N.E.3d 621 (Ind. Ct. App. 

 

1

 Love argues that this case is more akin to Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 2009), trans. 

denied, than it is to Creech. Bonilla entered into a written plea agreement waiving the right to appeal his 

sentence. At the guilty-plea hearing, the trial court noted Bonilla “may” have waived the right to 

appeal his sentence. Id. at 588. However, the court proceeded to advise Bonilla of the right to appeal 

his sentence and asked if he understood that right. Id. Given the contradictory information Bonilla 

received at the guilty-plea hearing and the fact that Bonilla was not a native English speaker, we 

concluded that Bonilla did not waive the right to appeal his sentence. Id. at 590. Here, however, the 

trial court did not advise Love at his guilty-plea hearing that he had the right to appeal his sentence; 

rather, the court told Love the opposite—that he was “waiving certain rights of appeal.” Tr. Vol. II p. 

5. 
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2016) (finding defendant waived right to appellate review of sentence in plea 

agreement despite trial court’s advisement at sentencing hearing that defendant 

had right to appeal sentence), trans. denied. We therefore affirm Love’s 

sentence. 

[9] Affirmed. 

Mathias, J., and Crone, J., concur.