Denial of belated drug-dealing sentence appeal affirmed

The Indiana Court of Appeals affirmed the denial of an Orange County man’s petition to file a belated appeal of his sentence, finding he had waived that right upon agreeing to a plea deal.

After law enforcement pulled over a car in which Brandon Johnson was a passenger, a subsequent search uncovered a digital scale, methamphetamine and hypodermic needles that Johnson admitted were his. Johnson, on probation at the time, also admitted that he had purchased the meth out-of-state so he could sell it in Orange County.

Johnson later agreed to plead guilty to Level 4 felony dealing in methamphetamine and was ultimately sentenced to 12 years in prison. By the time he filed for post-conviction relief more than one year later, his petition was denied as untimely. Johnson was also denied his subsequent petition for permission to file a belated notice of appeal, despite his assertion that he was unaware of his right to appeal a sentence following a plea agreement.

The Indiana Court of Appeals affirmed in Brandon Lawrence Johnson v. State of Indiana, 19A-CR-00334, first noting that Johnson met the requirements of Indiana Evidence Rule 201(c)(2) when he asked the trial court to take judicial notice of its own records and the trial court should have taken notice of its own record.

“But even if the trial court did err by denying Johnson’s request to take judicial notice, any resulting error is harmless,” Judge Paul Mathias wrote for the appellate court.

Turning its focus to Johnson’s main concern — whether the terms of his plea agreement constituted a valid waiver of his appellate rights — the appellate court concluded the state was correct in its argument that the plea agreement’s language should be read to mean that Johnson waived his right to appeal on any grounds, which would necessarily include the right to appeal his sentence.

It further acknowledged that although the waiver provision of Johnson’s plea agreement was not as specific as other waiver provisions, it could not read the language providing that he “waives his right to appeal” to mean anything other than that he waived the right to appeal his sentence.

“For all of these reasons, we hold that, by the terms of his plea agreement, Johnson waived his right to appeal, which necessarily included the right to appeal the sentence imposed by the trial court,” the appellate court wrote. “Because Johnson waived his right to appeal his sentence, he is not an ‘eligible defendant’ for purposes of seeking permission to file a belated notice of appeal under Post-Conviction Rule 2. Accordingly, the trial court did not err in denying Johnson’s petition for permission to file a belated notice of appeal.”

In a last thought, the appellate court acknowledged that its holding conflicted with that of Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013), in which Morris was permitted to challenge the appropriateness of his sentence on direct appeal.

“Here, however, there is no ambiguity in the plea agreement, which simply provides that Johnson waived his right to appeal,” the appellate court concluded. “And, as noted above, if this provision is to mean anything, it must mean that Johnson waived the right to appeal his sentence, as he waived the right to appeal his conviction by the very act of pleading guilty.”

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