Court of Appeals of Indiana | Memorandum Decision 91A02

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### 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 Jay T. Hirschauer Logansport, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ma t thew R. Elliot Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Donald E. Morris , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff February 15, 201 7 Court of Appeals Ca se No. 91A02

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- 1363 Appeal from the White Superior Court The Honorable Robert B. Mrzlack, Judge Trial Court Cause No. 91D01

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- FA

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Mathias , Judge
.

[1] Donald E. Morris (“Morris”) pleaded guilty in White Superior Court to Class A felony dealing in methamphetamine

. On appeal, White contends that theCourt of Appeals of Indiana | Memorandum Decision 91A02

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- 1363 | February 15, 201 7 Page 2 of 5 sentence imposed by the tr ial court was inappropriate. Concluding that White waived his right to appeal his sentence, we affirm

. 

### Facts and Procedural History

[2] In June 2014, Morris was a sixty

- two

- year - old disabl ed veteran of the Vietnam War who suffered from post

- traumatic stress di sorder (“PTSD” ). Morris had been given a 70% disability rating due to his PTSD and still had shrapnel in his body as a result of his war injuries. Morris was also addicted to methamphetamine. On June 19, Morris made arrangements with a person with whom he was acquainted to come to his home and give him pseudoephedrine pills in exchange for methamphetamine. In fact, this person was a confidential informant working for the Indiana State Police. The amount of methamphetamine the informant bought was 3.09 grams

.

[3] As a result of this controlled buy, the State charged Morris on March 11, 2014, with Class A felony dealing in methamphetamine. After bonding out of jail, Morris sought treatment for his methamphetamine addiction and PTSD at a facility operated by the U.S. Department of Veterans Affairs. Morris did not do well in outpatient treatment and attempted to commit suicide. Thereafter, he was admitted to an inpatient treatment facility and completed the treatment
program successfully.

[4] On July 17, 2015, Morris entered into a plea agreement that called for him to plead guilty to Class A felony dealing in methamphetamine in exchange for the minimum twenty

- year sentence. In addition, the plea agreement provided thatCourt of Appeals of Indiana | Memorandum Decision 91A02

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- 1363 | February 15, 201 7 Page 3 of 5 the State would make no recommendation as to sen tencing and that the placement for sentencing would be left to the discretion of the trial court. Paragraph 4 of the plea provide d , “[t] he Defendant waives his right to appeal any sentence imposed by the trial court that is within the range set forth in th e plea agreement. Further, Defendant knowingly, intelligently and voluntarily waives his right to challenge the sentence on t he basis that it is erroneous.” Appellant’s App. p. 65.

[5] On May 13, 2016, the trial court accepted the plea and sentenced Morris to the minimum term of twenty years. The trial court ordered Morris to serve ten years executed in the Indiana Department of Correction with the remaining ten
years to be served on home detention

. Morris now appeals.


### Discussion and Decision

[6] Morris claims that his sentence is inappro priate in light of the nature of the offense and the character of the offender. The State argues that, in his plea agreement, Morris waived his right to appeal his sentence

. W e agree with the
State.

[7] Our supreme court has held t hat a defendant can waive the right to appellate review of his sentence as a part of a written plea agreement as long as the waiver is knowingly and voluntarily made

. Creech v. State , 887 N.E.2d 73, 75 (Ind. 2008). Here, Morris makes no argument that his plea was not knowingly and voluntarily made, and if he did, such an argument would be meritless.Court of Appeals of Indiana | Memorandum Decision 91A02

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- 1363 | February 15, 201 7 Page 4 of 5 [8] During the guilty plea hearing, the trial court advised Morris of his rights , explained the rights he would forfeit by pleading guilty, inquired into Morris’s mental ability to ente r into the plea agreement, and e nsured that Morris was neither threatened nor forced to enter into the plea agreement. Tr. pp. 5

- 8. The trial court also explained that by pleading guilty, Morris was admitting to the facts underlying t he charge against him, which Morris acknowledged. When asked, “Is your plea of guilty your own free and voluntary act,” Morris responded, “Yes.” Tr. p. 12. W hen asked, “ And by pleading guilty you are telling the Court that on June 19, 2013, in White County , Indiana, you knowingly delivered a substance known to you to be methamphetamine in an amount that weighed mor e than three grams,” Morris replied, “Yes, sir.” Id

. Thus, there is nothing to suggest that Morris’s decision to plead guilty was anything other than knowingly and voluntarily made.

[9] U nlike in Creech , here the trial court did not mis advise Morris that, despite the
waiver

- of

- appeal provision contained in the plea agreement, he nonetheless had a right to challenge his sentence on appeal. See Creech , 887 N.E.2d at 74. 1 This makes the argument for a valid waiver stronger. See Bowling v. State , 960 N.E.2d 837, 842 (Ind. Ct. App. 2012) (holding that failure of trial court to misadvise defendant of her right to appeal, notwithstanding a clear waiver of the right to appeal contained in the written plea agreement, made the case for waiver

1 The court in Creech held that th e misadvisement did not render the waiver invalid, noting that the erroneous advisement came at the sentencing hearing which occurred after Creech had already pleaded guilty and received the benefit of his bargain. Id . at 77.Court of Appeals of Indiana | Memorandum Decision 91A02

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- 1363 | February 15, 201 7 Page 5 of 5 stronger, not weaker). We note, however, that a specific dialog ue with the trial court is not a prerequisite to a valid waiver of appeal, so long as there is other evidence in the record demonstrating a knowing and voluntary waiver. Id . at 483 (citing Creech , 887 N .E.2d at 74).

[10] As noted above, there is nothing in the record before us that would suggest that Morris’s waiver was anything other than knowingly and voluntarily made. T he language of Paragraph 4 of the plea agree ment is clear and unambiguous: by pleading guilty, Morris waived the right to appeal his sentence so long as the trial court sentenced him within the terms of the plea agreement. T he trial court here sentenced Mo rris within the terms of the ple a agreement. 2 We therefore conclude that Morris waived his right to appeal his sentence. 3

[11] Affirmed.

Baker, J., and Pyle, J., concur.

2 This is distinguishable from the facts in Morris v. State , 985 N.E.2d 364, 366 (Ind. Ct. App. 2013), clarified on reh’g , 2 N.E.3d 7, which held that a provision of written plea agreement provid ing that the defendant waived his right to appeal sentence on basis that it was “erroneous” was ambiguous as to whether he was giving up his right to challenge his sentence as inappropriate under Appellate Rule 7(B), because a non

- erroneous sentence may st ill be considered inappropriate under Rule 7(B). Here, as in Morris , Paragraph 4 does state that Morris waived his right to challenge his sentence as “ erroneous. ” U nlike Morris , though, it also provides more generally that Morris waived his right to appeal his sentence so long as the trial court sentenced him within the terms of the plea agreement, which the trial court here did.
3 Waiver notwithstanding, we note that Morris received the minimum sentence allowed, and the trial court ordered him to serve o nly half of this sentence in incarceration. Assuming Morris receives Class 1 credit for his time served, he will spend five years in prison after admitting to a Class A felony. See Ind. Code § 35

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- 3. This is a comparatively lenient sentence. Morris als o has a criminal history which includes a prior felony conviction for burglary. Thus, even if we reached the merits of Morris’s claim, we would be hard pressed to say that his sentence was inappropriate under Appellate Rule 7(B).