COA: Trial court’s erroneous statement did not change terms of plea agreement

December 29, 2016

A man convicted of drug-related charges must adhere to the waiver of his right  to appeal his sentence as part of his plea deal after the Indiana Court of Appeals found Thursday that the trial court’s erroneous statement did not change the terms of that agreement.

In William M. Starcher v. State of Indiana, 79A05-1605-CR-1135, William Starcher was charged with multiple counts in June 2015: maintaining a common nuisance, taking a child to a nuisance, possession of paraphernalia, possession of a synthetic drug and possession of marijuana. He pleaded guilty to the maintaining a common nuisance charge, a Level 6 felony, and the possession of a synthetic drug charge, a Class A misdemeanor, in exchange for the dismissal of the remaining charges.

Also as part of his plea deal, Starcher agreed to a section of the agreement that read, in part, “defendant knowingly and voluntarily agrees to waive the right to appeal the sentence on the basis that it is erroneous or for any other reason so long as the judge sentences him/her within the terms of the agreement.” Those terms left the sentencing “open” to the Tippecanoe Superior Court’s discretion.

Starcher was sentenced to two years executed in the Department of Correction, and the court then stated that Starcher had “the right to appeal this sentence.” Accordingly, Starcher did appeal, but the state argued that he had waived such a right when he agreed to the plea deal.

The Indiana Court of Appeal agreed Thursday, with Judge Edward Najam referencing the case of Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). In that case, the Indiana Supreme Court held that, “By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction.”

Similarly, in Starcher’s case, Najam wrote that the plain terms of Starcher’s plea agreement showed that he knowingly and voluntarily waived his right to appeal his sentence and further noted that the Tippecanoe Superior Court’s erroneous statement occurred only at the sentencing hearing and after he had received the benefit of his plea deal.

“Accordingly, we agree with that State that Starcher has knowingly and intelligently waived his right to appeal his sentence,” Najam wrote. “We also reject Starcher’s argument that the record does not demonstrate an effective waiver of his right to appeal his sentence, as well as his argument that the State failed to preserve this issue for our review.”


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