In a pair of opinions dissenting from the Indiana Supreme Court’s denial of transfer to two cases involving plea deals, Justice Steven David asserted the records are “simply inadequate” to show that the defendants knowingly and voluntarily waived their rights to appeal.
The dissents were written in Kenneth Robert Philhower, IV v. State of Indiana, 21A-CR-02470, and Julie A. Montgomery v. State of Indiana, 21A-CR-02331. A majority of the justices denied transfer to both cases, but David was joined in his dissents by Chief Justice Loretta Rush.
Appellants in both cases challenged their sentences after signing plea agreements where they gave up their right to appeal their terms of incarceration. David’s dissent echoed the one he made in Wihebrink v. State, 21A-CR-01749, and continues to call for trial courts to provide “a clear and meaningful record” that demonstrates the defendants understood the terms and conditions of the agreement to plead guilty.
In Philhower and Montgomery, David noted both signed plea agreements that contained similar provisions but each defendant received different advisement at their hearings.
“But I am not convinced a written waiver, standing alone, adequately assures that a defendant knowingly and voluntarily waived their appellate rights,” David wrote. “And I strain to reason how a trial judge may conclude that such waiver is knowing and voluntary if it does not actually inquire into the defendant’s understanding of the rights otherwise waived by the plea agreement.”
David maintained the trial courts “must be the gatekeepers” of a defendant’s waiver. In particular, the trial judges should ensure the defendant understands and voluntarily surrenders the significant right to appeal. Also, judges must pay attention so they do not misinform the defendant about the consequences of the plea agreement, he wrote.
“Accordingly, Montgomery and Philhower argue a party may waive the right to enforce a contractual provision by failing to speak when they have a duty to do so, and because the prosecutors, as drafters of the agreement, failed to fulfill their duty of making a contemporaneous objection at the sentencing hearing, the State waived its right to enforce the waiver provision,” David wrote. “I find this argument compelling, and I encourage the Court to give it serious consideration in future appeals that will inevitably arise without more careful attention paid to establishing a clear and meaningful record detailing a defendant’s knowing and voluntary waiver of their appellate rights.”