FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID T. A. MATTINGLY GREGORY F. ZOELLER

Lafayette, Indiana Attorney General of Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

RICHARD HAWKINS, )

)

Appellant-Defendant, )

)

vs. ) No. 79A02-1211-CR-958

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Randy J. Williams, Judge

Cause No. 79D01-1109-FA-24

July 3, 2013

OPINION - FOR PUBLICATION

RILEY, Judge
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STATEMENT OF THE CASE

Appellant-Defendant, Richard Hawkins (Hawkins), appeals his sentence following 

a guilty plea to dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1 and 

possession of cocaine, a Class A felony, I.C. § 35-48-4-6. 

We affirm.

ISSUE

Hawkins raises two issues on appeal, one of which we find determinative and 

restate as follows: Whether Hawkins knowingly and voluntarily waived his right to 

appeal the appropriateness of his sentence when he entered into a plea agreement with the 

State. 

FACTS AND PROCEDURAL HISTORY

On or about September 2, 2011, a confidential informant notified the Lafayette 

police department that Hawkins was dealing in crack cocaine. Law enforcement officers 

directed the confidential informant to make arrangements to purchase crack cocaine from 

Hawkins. Thereafter, on September 2, 7, and 26, 2011, the confidential informant made 

three purchases of crack cocaine. Each controlled buy was conducted at the request of 

and monitored by law enforcement officers. On September 27, 2011, law enforcement 

officers obtained a search warrant for Hawkins’ residence. During the search, the 

officers discovered 28.5 grams of cocaine, a legend drug, a Schedule IV controlled 

substance, and 2.4 grams marijuana, as well as digital scales and baggies. 
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On September 21, 2011, the State filed an Information, which was amended on 

November 14, 2011, charging Hawkins with two Counts of dealing in cocaine, Class A 

felonies, I.C. § 35-48-4-1; one Count of possession of cocaine, a Class A felony, I.C. § 

35-48-4-6; one Count of possession of a schedule IV controlled substance, a Class C 

felony, I.C. § 35-48-4-7; one Count of possession of a legend drug, a Class D felony, I.C. 

§ 16-42-19-13; one Count of possession of marijuana, a Class A misdemeanor, I.C. § 35-

48-4-11; one Count of possession of marijuana while having a prior conviction, a Class D 

felony, I.C. § 35-48-4-6; and one Count of being an habitual offender, I.C. § 35-50-2-10. 

On August 2, 2012, Hawkins entered into a plea agreement with the State, in which he 

agreed to plead guilty to one Count of dealing in cocaine as a Class A felony and one 

Count of possession of cocaine as a Class A felony in exchange for the dismissal of the 

other charges. The plea agreement directed that sentencing would be at the discretion of 

the trial court, other than that Hawkins would receive concurrent sentences. In addition, 

the plea agreement contained the following language:

That as a condition of entering this plea agreement, the defendant 

knowingly and voluntarily agrees to waive his right to appeal the sentence 

on the basis that it is erroneous or for any other reason, including the right 

to seek appellate review of the sentence pursuant to Indiana Appellate Rule 

7(B), so long as the [c]ourt sentences the defendant within the terms of the 

plea agreement.

(Appellant’s App. p. 28). On November 1, 2012, the trial court sentenced Hawkins to 

concurrent thirty-four year sentences on each Count, with four years in community 

corrections. 

Hawkins now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION

Hawkins contends that even though his plea agreement contains a clause waiving 

the right to appeal his sentence, he did not knowingly and voluntarily waive this right. In 

particular, Hawkins points to the trial court’s advisement during the plea hearing that he 

is entitled to be represented by an attorney on appeal.

Defendants who bargain to plead guilty in return for favorable outcomes give up a 

plethora of substantive claims and procedural rights. Games v. State, 743 N.E.2d 1132, 

1135 (Ind. 2001). As such, our supreme court has held that 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, 75 (Ind. 2008). The 

content and language of the plea agreement itself, as well as the colloquy where 

necessary, govern the determination as to the validity of the waiver. Id. at 76 (quoting 

United States v. Williams, 184 F. 3d 666, 668 (7th Cir. 1999)). A specific dialogue with 

the trial court is not a necessary prerequisite to a valid waiver of appeal, if there is other 

evidence in the record demonstrating a knowing and voluntary waiver. Id. Inventiveness 

with the aid of hindsight is the principal threat to the stability of plea agreements, and 

therefore the major hazard to the defendants’ ability to obtain concessions for the right 

they surrender. Id. (quoting Williams, 184 F.3d at 669). Defendants should not be freed 

from their bargain merely because the court could imagine potential changes in the 

procedures used or envision a more precise colloquy. See id.

During the hearing on Hawkins’ guilty plea, the trial court read through the 

agreement in open court, including the waiver of his appellate rights. The trial court then 
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advised Hawkins of the rights he was waiving by pleading guilty. Specifically, after 

enumerating the rights waived, the following exchange occurred:

[TRIAL COURT]: Do you understand that by pleading guilty today that 

you are giving up those rights which I have just explained to you?

[HAWKINS]: Yes sir.

[TRIAL COURT]: Do you understand that if you were to have a trial and 

were convicted you would have the right to appeal that conviction to the 

[c]ourt of [a]ppeals or [s]upreme [c]ourt of Indiana?

[HAWKINS]: Yes sir.

[TRIAL COURT]: Furthermore, at paragraph four of the [p]lea 

[a]greement, if the [c]ourt accepts the agreement, that you agree to waive 

your right to appeal the sentence, you understand that?

[HAWKINS]: Yes sir.

[TRIAL COURT]: Do you understand that you have the right to be 

represented by an attorney at all times, including during a trial, or for an 

appeal. If you cannot afford an attorney, the [c]ourt would appoint one for 

you?

[HAWKINS]: Yes sir.

(Tr. pp 9-10). 

By explaining that Hawkins has the right to an attorney, the trial court is not 

contradicting the waiver provision. Instead, read within the context of the hearing, the 

trial court is merely explaining Hawkins’ right of representation—a right clearly distinct 

from his right to appeal his sentence. 

However, Hawkins analogizes his situation to Ricci v. State, 894 N.E.2d 1089 

(Ind. Ct. App. 2008), trans. denied and Bonilla v. State, 907 N.E.2d 586 (Ind. Ct. App. 

2009), trans. denied. Ricci involved a written plea agreement which provided that the 
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defendant waived his right to appeal. Ricci, 894 N.E.2d at 1093. During the plea 

hearing, the trial court unambiguously stated that, according to its reading, Ricci had not 

surrendered the right to appeal his sentence, and the trial court’s statement was not 

contradicted by counsel for either party. Id. In those circumstances, we concluded that 

all parties entered the plea agreement with the understanding that Ricci retained the right 

to appeal his sentence and held the waiver to be a nullity. Id. at 1094.

A similar situation occurred in Bonilla. Bonilla entered into a written plea 

agreement waiving his right to appeal. Bonilla, 907 N.E.2d at 589. At the plea hearing, 

the trial court noted Bonilla “may” have waived his right to appeal his sentence. Id. 

However, the court proceeded to advise Bonilla of his right to appeal and asked if he 

understood that right. Id. Given the contradictory information Bonilla received at the 

plea hearing and the fact that Bonilla was not a native English speaker, we concluded that 

Bonilla did not waive his right to appeal his sentence. Id. at 590. 

Ricci and Bonilla are inapposite to the case at hand as the trial court did not make 

any contradictions or raise any ambiguities with respect to the plea agreement and the 

waiver language. The trial court clearly enumerated the rights Hawkins had foregone by 

pleading guilty and then asked Hawkins if he understood he would have the right to 

appeal if he went to trial, but that by entering into the plea agreement, he had waived that 

right. Hawkins answered affirmatively. Then, after having concluded its advisements on 

the right to appeal, the trial court explained that he had the right to be represented by an 

attorney at any stage of the proceedings. By separating the right to appeal from the right 

to representation, the trial court properly advised Hawkins without contradicting itself or 
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raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived 

his right to appeal his sentence. 

CONCLUSION

Based on the foregoing, we conclude Hawkins waived the right to appeal the 

appropriateness of his sentence.

Affirmed.

BRADFORD, J. and BROWN, J. concur