Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 1 of 5

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

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Joseph D. Wasserman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 27, 2019

Court of Appeals Case No.

18A-CR-2932

Appeal from the Dearborn 

Superior Court

The Honorable Jonathan N. 

Cleary, Judge

Trial Court Cause No.

15D01-1805-F3-9

Mathias, Judge.

[1] Joseph Wasserman (“Wasserman”) pleaded guilty in Dearborn Superior Court 

to Level 3 felony dealing in methamphetamine and admitted to being an
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 2 of 5

habitual offender. The trial court sentenced Wasserman to twenty-two years in 

the Department of Correction (“DOC”). Wasserman appeals and argues his 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender. Concluding that Wasserman waived his right to appeal his 

sentence, we affirm. 

Facts and Procedural History

[2] On May 16, 2018, the Lawrence Police Department executed a search warrant 

on Wasserman’s residence after conducting a trash pull that uncovered multiple 

items of drug paraphernalia and conducting surveillance that identified 

numerous individuals with criminal histories of illegal drug activity visiting 

Wasserman’s residence. Tr. p. 34. Wasserman’s room contained three grams of 

methamphetamine. Id. at 36. Wasserman’s cellphone contained text messages 

indicating he intended to deliver the methamphetamine. Id. at 37–38. 

[3] The State charged Wasserman on May 17, 2018 with: (1) Level 3 felony dealing 

in methamphetamine, (2) Level 6 felony maintaining a common nuisance, (3) 

Level 6 felony possession of methamphetamine, (4) Class C misdemeanor 

possession of paraphernalia, and (5) Class C misdemeanor possession of 

paraphernalia. Appellant’s App. Vol. II, pp. 12–14. On August 16, 2018, the 

State amended the information to allege that Wasserman was a habitual 

offender. Id. at 121–123. 

[4] Wasserman entered into a plea agreement on September 27, 2017. He pleaded

guilty to Count I, Level 3 felony dealing in methamphetamine and to the 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 3 of 5

habitual offender enhancement in exchange for the State’s dismissal of the 

remaining counts and agreement to cap his habitual offender enhancement at 

10 years. Id. at 175–76. Paragraph 5 of the plea agreement provided, 

“[d]efendant hereby waives the right. . . [to] seek appellate review of the 

sentence, pursuant to Indiana Appellate Rule 7(B).” Id. at 176. 

[5] The trial court accepted the plea agreement on October 16, 2018. Tr. p. 28.

Twenty-four days later, on November 9, 2018, the trial court sentenced 

Wasserman to 13 years on Count I and enhanced the sentence by 9 years due to 

Wasserman’s habitual offender status. Id. at 78. In addition, the trial court 

informed Wasserman that he had a right to appeal; Wasserman now appeals. 

Id. 

Discussion and Decision

[6] In his Appellant’s brief, Wasserman claims his sentence is inappropriate in light 

of the nature of the offense and the character of the offender. However, we 

conclude that Wasserman waived his right to appeal his sentence. 

[7] A defendant may waive the right to appellate review of his sentence as part of a 

written plea agreement as long as the waiver is knowing and voluntary. Creech v. 

State, 887 N.E.2d 73, 74 (Ind. 2008). The language of Paragraph 5 of the plea 

agreement is clear and unambiguous: by pleading guilty, Wasserman waived 

the right to appeal his sentence so long as the trial court sentenced him within 

the terms of his plea agreement. Appellant’s App. p. 176. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2932 | June 27, 2019 Page 4 of 5

[8] During the guilty plea hearing, Wasserman clarified his plea agreement, asking, 

“[a]nd then I’m not allowed to appeal the sentence?” Tr. p. 24. The court 

responded:

So your question was, can you appeal this sentence, and if I 

accept this plea agreement you cannot appeal the sentence so 

long as I sentence you between six to ten years on habitual 

offender, and sentence you between three and sixteen years on a 

Level 3. Is that your understanding of what was going to happen?

Id. at 25. Wasserman responded, “[y]es, Your Honor.” Id. The trial court 

further advised Wasserman of his rights and ensured that Wasserman was 

neither threatened nor forced to enter into the plea agreement. Tr. pp. 24–26. 

Thus, there is nothing in the record before us to suggest that Wasserman’s 

waiver was anything other than knowing and voluntary. 

[9] After sentencing, the trial court misadvised Wasserman that he had a right to 

appeal the sentence. Id. at 78. In Creech, our Supreme Court found that a trial 

court’s erroneous statement that the defendant had a right to appeal was not 

grounds for allowing the defendant to “circumvent the terms of his plea 

agreement.” 887 N.E.2d at 76. The defendant had already pleaded guilty and 

received the benefit of his plea bargain; being told at the close of his sentencing 

hearing that he could appeal had no effect on his decision to accept the plea 

agreement. Id. at 77.

[10] Wasserman received the benefit of his plea agreement: the State dropped four 

charges and capped his habitual offender enhancement at ten years. The trial 
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court’s statement could not have affected Wasserman’s decision to accept the 

plea agreement because the statement occurred over a month after Wasserman 

entered into the plea agreement and three weeks after the court accepted the 

plea agreement. 

[11] As noted above, there is nothing in the record that suggests that Wasserman’s 

waiver was anything other than knowing and voluntary. The sentence of 

thirteen years for Level 3 felony dealing in methamphetamine and a nine-year 

habitual offender enhancement are within the terms of the plea agreement. We 

therefore conclude that Wasserman waived his right to appeal his sentence. 

[12] Affirmed. 

May, J., and Brown, J., concur.