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Defendants can waive appeal right in bargains

January 1, 2008
Criminal defendants can waive their right to appeal a trial court's sentencing decision as part of a plea agreement, the Indiana Supreme Court ruled today.

In a unanimous ruling in Timothy Ray Creech v. State of Indiana, No. 35S02-0709-CR-376, justices affirmed a decision from Huntington Circuit Judge Thomas M. Hakes.

The case stems from a six-year executed sentence on a child-molesting charge in 2006; Creech had entered a plea agreement that left the sentence up to the trial judge but capped the executed portion at six years. The agreement stated, "I understand that I have a right to appeal my sentence if there is an open plea ... I hereby waive my right to appeal my sentence as long as the Judge sentences me within the terms of my plea agreement."

Creech argued that because the judge didn't question him about that provision, later informed him he had the right to appeal, and that he didn't knowingly and voluntarily waive his right to appellate review, he was able to challenge the sentence. Justices disagreed.

"Acceptance of the plea agreement containing the waiver provision is sufficient to indicate that, in the trial court's view, the defendant knowingly and voluntarily agreed to the waiver," Chief Justice Randall T. Shepard wrote, noting that this ruling doesn't affect the court's long-standing policy that a defendant can argue those points in post-conviction proceedings if the plea was coerced or made unintelligently.

Though justices determined that the trial judge did erroneously advise Creech of a possibility for an appeal, they determined that Creech had already received the benefit of the plea agreement and that advisement likely had no effect on the result.
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