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

Lawrence M. Hansen

Hansen Law Firm, LLC

Noblesville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jacob McDaniel,

Appellant-Defendant/Cross-Appellee,

v.

State of Indiana,

Appellee-Plaintiff/Cross-Appellant

July 20, 2015

Court of Appeals Case No. 29A04-

1412-CR-599

Appeal from the Hamilton Superior 

Court

The Honorable Daniel J. Pfleging, 

Judge

Case No. 29D02-1312-FC-10137

Crone, Judge.

Case Summary

[1] Jacob McDaniel appeals his sixteen-year aggregate sentence imposed following 

the trial court’s acceptance of his plea agreement with the State, in which he 

Court of Appeals of Indiana | Memorandum Decision 29A04-1412-CR-599 | July 20, 2015 Page 1 of 9
pled guilty to class C felony reckless homicide and class D felony pointing a 

firearm. The State cross-appeals, asserting that pursuant to his plea agreement, 

McDaniel waived his right to directly appeal his sentence. McDaniel argues 

that he did not knowingly and voluntarily agree to waive his right to appeal his 

sentence because the trial court advised him at the sentencing hearing that he 

had the right to appeal his sentence. We conclude that McDaniel knowingly 

and voluntarily waived his right to appeal his sentence and that the trial court’s 

mistaken advisement at the end of the sentencing hearing does not affect the 

validity of McDaniel’s waiver. Accordingly, we dismiss.

Facts and Procedural History

[2] The factual basis supporting McDaniel’s guilty plea follows. One evening in 

December 2013, McDaniel was at his Noblesville home with three friends, 

Dajuan Williams, Skylar Gadd, and Aubrey Peters. McDaniel took Williams 

and Gadd upstairs to his bedroom where he showed them his father’s handgun 

and shotgun. McDaniel took the handgun downstairs to show Peters. 

McDaniel thought that the gun was unloaded because he had removed the 

magazine. While pointing the gun in Peters’s direction, McDaniel pulled the 

trigger and shot her, causing her death. McDaniel told Williams and Gadd to 

say that the gun just fell off the table and fired. During the investigation, police 

learned that two days before the shooting, McDaniel had pointed a shotgun at 

another friend, Haley Graham. 

[3] The State charged McDaniel with one count of class C felony reckless 

homicide, a firearm sentencing enhancement, and four counts of class D felony 

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pointing a firearm. In September 2014, McDaniel and the State entered into a 

plea agreement, wherein McDaniel agreed to plead guilty to class C felony 

reckless homicide, the firearm sentencing enhancement, and one count of class 

D felony pointing a firearm, and the State agreed to dismiss two counts of 

pointing a firearm and all charges in cause number 29D02-1407-F6-5519.1

 The 

parties also agreed that McDaniel’s aggregate sentence was to be no less than 

five years executed on home detention and no more than fifteen years executed 

in the Department of Correction, but otherwise sentencing was left to the 

discretion of the trial court. In addition, the plea agreement contains a series of 

paragraphs with a blank for McDaniel to initial each paragraph. McDaniel 

initialed paragraph 4r, in which he agreed to waive his right to appeal his 

sentence. 

[4] In September 2014, a plea hearing was held at which McDaniel pled guilty to 

class C felony reckless homicide, the firearm sentencing enhancement, and one 

count of class D felony pointing a firearm. The trial court advised McDaniel of 

his rights and discussed the charges, the penalties, and the terms of the plea 

agreement. While under oath, McDaniel specifically told the trial court that he 

read the paragraphs that he initialed. Appellee’s App. at 16.2

 He also stated 

1

 Although the plea agreement calls for the State to dismiss two counts of pointing a firearm, ultimately the 

trial court dismissed all three of the remaining charges for pointing a firearm. In cause number 29D02-1407-

F6-5519, the State charged McDaniel with level 6 felony unlawful possession of a syringe.

2

 McDaniel failed to provide us with the transcript of the guilty plea hearing. We thank the State for 

providing the transcript.

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that his defense counsel was available to discuss the plea agreement with him 

and answer his questions. At no time did the trial court advise McDaniel that 

he had the right to appeal his sentence. The trial court took the plea agreement 

and the State’s motion to dismiss charges under advisement and ordered the 

preparation of a presentence investigation report.

[5] In December 2014, a sentencing hearing was held. The trial court accepted the 

plea agreement and entered judgment of conviction for class C felony reckless 

homicide and class D felony pointing a firearm. The trial court sentenced 

McDaniel to consecutive terms of eight years for reckless homicide plus five 

years for the firearm sentencing enhancement, all executed, and three years for 

pointing a firearm, with two years served in community corrections and one 

year suspended to probation, for an aggregate sentence of sixteen years. After 

McDaniel was sentenced, the trial court advised him that he had the right to 

appeal his sentence and asked him if he would like to appeal his sentence. 

McDaniel’s counsel stated that they wanted to discuss it. The trial court asked 

defense counsel whether he could assist McDaniel with an appeal. Defense 

counsel replied affirmatively. This appeal ensued.

Discussion and Decision

[6] McDaniel argues that the trial court erred in sentencing him. However, we do 

not address the sentencing errors he alleges because we conclude that he waived 

his right to directly appeal his sentence. 

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[7] Although a “person convicted of, or sentenced for, a crime by a court of this 

state has a constitutional right to appeal that conviction or sentence,” Miller v. 

State, 702 N.E.2d 1053, 1058 (Ind. 1998), cert. denied (2000), a person who 

pleads guilty waives the right to appeal the conviction. Collins v. State, 817 

N.E.2d 230, 231 (Ind. 2004). A person may also waive the right to appeal his 

or her sentence pursuant to a written plea agreement. Creech v. State, 887 

N.E.2d 73, 75 (Ind. 2008). To be valid, such a waiver must be agreed to 

knowingly and voluntarily. Id. at 76. “‘[M]ost waivers are effective when set 

out in writing and signed.’” Id. (quoting United States v. Wenger, 58 F.3d 280, 

282 (7th Cir. 1995)). “‘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. (quoting United States v. Williams, 184 F.3d 666, 

668 (7th Cir. 1999)) (alteration in Creech).

[8] Here, paragraph 4r of the plea agreement provides that McDaniel, 

[u]nless otherwise provided for in this plea agreement, hereby waives 

his right to appeal any discretionary portion of the sentence entered 

pursuant to and in accordance with this plea agreement and further 

acknowledges and affirms that this waiver is knowing and made 

voluntarily. He understands that he otherwise would have a right to 

appeal his sentence if there is an open plea. [McDaniel] hereby waives 

his right to appeal the sentence so long as the Court sentences him 

within the terms of the plea agreement. He understands and waives 

his right to appeal the proportionality of the sentence under Article I, 

Section 16 of the Indiana Constitution. Therefore, he knowingly and 

voluntarily agrees to waive his right to appeal his sentence on the basis 

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

sentences him within the terms of this plea agreement.

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Appellant’s App. at 14.

[9] The language of the plea agreement clearly and unambiguously states that 

McDaniel is waiving his right to appeal his sentence as long as he is sentenced 

within the terms of the plea agreement. Both McDaniel and his counsel signed 

the plea agreement. At the guilty plea hearing, McDaniel told the trial court 

that he placed his initials in the blanks next to paragraphs 4a through -u and

that his initials indicated that he “read the paragraphs that came after [his] 

initials.” Appellee’s App. at 16. McDaniel also told the court that his counsel 

was available to answer the questions he had about the plea agreement. Id. 

Defense counsel stated that McDaniel had had several questions over the 

course of the proceedings, and McDaniel stated that counsel had answered his 

questions to the best of his ability. The trial court asked McDaniel if he 

understood the agreement, and McDaniel said that he did. Id. at 18. During 

the guilty plea hearing, the trial court did not advise McDaniel that he had the 

right to appeal his sentence. Accordingly, we conclude that McDaniel 

knowingly and voluntarily waived his right to appeal his sentence. 

[10] However, McDaniel argues that the final discussion between the parties and the 

trial court at the close of the sentencing hearing shows that he did not 

knowingly waive his right to direct appellate review of his sentence. After the 

trial court accepted the plea agreement, ordered that judgment of conviction be 

entered for reckless homicide and pointing a firearm, and dismissed the 

remaining charges, it erroneously advised McDaniel that he had the right to 

appeal his sentence. The trial court asked defense counsel whether he could 

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assist McDaniel with an appeal. Defense counsel replied affirmatively. The 

trial court stated, “I think you set out legal arguments that would assist him in 

that area.” Tr. at 100. The prosecutor then stated that he would like to release 

the victim’s personal property to the family “even if it is on appeal, that would 

be appealing the sentence.” Id. Defense counsel said, “We would only be 

appealing the sentence, so that would be fine,” and the trial court agreed. Id. 

McDaniel contends that this conversation shows that the parties to the plea 

agreement anticipated that he reserved his right to appeal the sentence. He also 

asserts that the prosecutor failed to object and participated in the discussion,

and therefore the State waived any objection to his exercise of his right to 

appellate review of his sentence.

[11] These arguments were addressed and rejected in Creech and Mechling v. State, 16 

N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied (2015), neither of which 

McDaniel acknowledges. In Creech, our supreme court rejected the argument 

that Creech’s waiver was not knowing and voluntary because the trial court 

advised him at the end of the sentencing hearing that he had the right to appeal 

his sentence. 887 N.E.2d at 76. Our supreme court reasoned that the trial 

court’s mistaken advisement at the end of sentencing occurred after Creech had 

pled guilty and received the benefit of the plea agreement, and therefore the 

mistaken advisement presumably had no effect on the transaction. Id. at 77. In 

Mechling, another panel of this Court rejected Mechling’s argument that the 

State was estopped from enforcing the written waiver of his right to appeal his 

sentence by its failure to object or correct the trial court’s mistaken advisement 

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at the end of the sentencing hearing. 16 N.E.3d 1017-18. The Mechling court 

concluded that “[w]hile some sort of objection or correction from the State is 

undoubtedly ideal, we do not believe a duty to speak existed here such that 

application of estoppel is warranted.” Id. Cf. Holloway v. State, 950 N.E.2d 803, 

806 (Ind. Ct. App. 2011) (concluding that Holloway’s waiver of right to appeal 

sentence was not knowing and voluntary where trial court stated at least twice 

at combined guilty plea and sentencing hearing that defendant could appeal 

sentence, before defendant had received benefit of his plea bargain); Bonilla v. 

State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009) (concluding that Bonilla did 

not waive right to appeal sentence where trial court advised him at guilty plea 

hearing and again at sentencing hearing that he had right to appeal sentence)

trans. denied; Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008)

(concluding that Ricci did not waive right to appeal sentence where trial court 

advised him at guilty plea hearing that he had right to appeal sentence), trans 

denied.

[12] As happened in Creech and Mechling, the trial court in this case did not 

mistakenly advise McDaniel at the guilty plea hearing that he had the right to 

appeal his sentence. McDaniel’s counsel at sentencing was the same counsel 

who advised him during plea negotiations, who signed the plea agreement, and 

who represented him at the guilty plea hearing. The trial court’s mistaken 

advisement at the end of the sentencing hearing had no effect on the prior valid 

waiver of McDaniel’s right to appeal his sentence. We also observe that the 

trial court sentenced McDaniel within the terms of the plea agreement. 

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Therefore, we conclude that McDaniel waived the right to appellate review of 

his sentence, and we dismiss his appeal. 

[13] Dismissed.

Brown, J., and Pyle, J., concur.

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