ILNews

COA: Man didn't waive right to appeal sentence

Jennifer Nelson
January 1, 2009
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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.
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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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