ILNews

COA: Man didn't waive right to appeal sentence

Jennifer Nelson
January 1, 2009
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
Because the trial court may have made confusing remarks at a man's guilty plea hearing indicating he "may" have waived the right to appeal, only to later inform him of his right to appeal, the Indiana Court of Appeals concluded the defendant hadn't waived that right to appeal. The appellate court did affirm the defendant's 30-year advisory sentence for dealing in cocaine, finding he failed to prove it was inappropriate.

In Luis Ruiz Bonilla v. State of Indiana, No. 20A05-0902-CR-85, the Court of Appeals found Bonilla's situation to fall somewhere in between Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008), and Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008), both of which dealt with whether a defendant waived his right to appellate review of a sentence based on conflicting remarks from judges stating the defendant may be able to appeal the sentence.

"Unlike Creech, here the trial court's advisement that Bonilla had the right to appeal occurred at the guilty plea hearing, which, as explained in Ricci, is significant," wrote Judge Nancy Vaidik. "But unlike Ricci, the trial court in this case acknowledged that Bonilla 'may' have waived the right to appeal his sentence."

Telling a defendant at his guilty plea hearing that he may have waived the right to appeal but then proceeding to advise him of the right to appeal is the precise scenario the Supreme Court warned against in Creech, when it emphasized the importance of avoiding confusing remarks in a plea colloquy, the judge continued.

In light of the contradicting and confusing information Bonilla received at his guilty plea hearing, and the fact he is not a native English speaker, the appellate court ruled he didn't waive his right to appeal his sentence.

But the Court of Appeals affirmed his advisory 30-year sentence for dealing in cocaine. Although he had received authorization to work here after entering the U.S. illegally, he failed to abide by the laws once he was here. He drove without a valid driver's license and had a misdemeanor conviction for criminal conversion. He was on probation for that conviction when he was arrested for dealing cocaine. Even though he held a steady job, and dealt cocaine because of a drug problem, his sentence is not inappropriate, wrote Judge Vaidik.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT