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.

A TTORNEY FOR A PPELLANT James A. Spangler, Jr. Lawrence County Public Defender Agency Bedford, Indiana A TTORNEYS FOR A PPELLEE 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, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -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 app eals 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 Stat e 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, th e State agreed to dismiss the remaining counts and another cause number in its en tirety. According to the terms of the plea agreement, the sentences would run concurrently, and the parties would “argue [the] remaining terms of [the] sent ence to the Court.” Appellant’s App. Vol. II p. 23. The plea agreement contai ned 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 te rms of my plea agreement.

Id. Love also signed an Ac knowledgement 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 th e terms of my plea agreement.

Id. at 25.

[3] At the guilty-plea hearing he ld that same day, the tria l court went over the plea agreement and the Acknowledgement of Ri ghts with Love. Specifically, the court confirmed with Love that he underst ood 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, th e trial court sentenced Love to sixteen years for criminal confinement and two-an d-a-half years for sexual battery, to be served concurrently, for an aggregat e term of sixteen years. The court suspended two years to probation and orde red the last year of incarceration to be served on house arrest “i n 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 ina ppropriate in light of the nature of the offenses and his character. The State re sponds 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 th e 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 gr ounds 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 ra ther claims that his otherwise knowing and voluntary plea lost its knowing and voluntary status because the judge told him at th e end of the sentencing hearing that he could appeal.

* * * * *Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 5 of 6 By the time the trial court er roneously advised Creech of the possibility of appeal, Creech had al ready pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumab ly 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 th at 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 er roneously advised Love that he could appeal his sentence, that e rroneous statement o ccurred only at the sentencing hearing and after Love ha d received the benefit of his plea agreement. 1 We therefore find that Love kn owingly 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 “m ay” 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 th at 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 he aring that he had the right to appeal his sentence; rather, the court told Love the opposite—that he was “w aiving certain rights of appeal.” Tr. Vol. II p. 5.Court of Appeals of Indiana | Memorandum Decision 47A01-1703-CR-544 | August 9, 2017 Page 6 of 6 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.