Split COA divided over ‘eligible defendant’ argument in belated sentencing appeal

A split appellate panel has affirmed the denial of a woman’s petition for permission to file a belated notice of appeal of her 30-year sentence, finding she was not an “eligible defendant” because she waived her right to appeal in a plea agreement. But a dissenting judge argued the opposite.

In February 2020, Britni Wihebrink pleaded guilty to Level 1 felony neglect of a dependent resulting in death. The state of Indiana dismissed her other charge, Level 6 felony obstruction of justice, and capped her sentence at 30 years.

Wihebrink agreed to waive the right to appeal any sentence within that cap, but balked when the trial court handed her the maximum 30-year sentence.

Despite not having filed a notice of appeal within 30 days of the sentencing order, Wihebrink in May 2021 filed a pro se petition for permission to file a belated notice of appeal under Indiana Post-Conviction Rule 2. The state objected, arguing Wihebrink was not an “eligible defendant” under the rule because she had waived the right to appeal her sentence under the plea agreement.

When the Delaware Circuit Court denied Wihebrink’s petition, the state’s public defender entered an appearance on her behalf and filed a motion to correct error. The public defender argued Wihebrink was an “eligible defendant” notwithstanding the appeal waiver because the trial court relied on invalid aggravators. Thus, the defense argued, Wihebrink was not sentenced “in accordance with the law.”

The court denied the motion to correct error, prompting Wihebrink to appeal. She again argued that some of the six aggravators found by the trial court were invalid and that she was therefore not sentenced “in accordance with the law.”

Her argument divided the COA, which ultimately affirmed, finding she was not an “eligible defendant” under Post-Conviction Rule 2.

In affirming her sentence, the majority found that nowhere in Crider v. State, 984 N.E.2d 618 (Ind. 2013), did the Indiana Supreme Court suggest that reliance on one or more invalid aggravators makes a sentence “illegal” or “contrary to law.”

“Furthermore, if a defendant who waived the right to appeal their sentence was allowed to appeal on the ground that the trial court found improper aggravators or failed to find proper mitigators, the appeal waiver explicitly sanctioned in (Creech v. State, 887 N.E.2d 73 (Ind. 2008)) would be largely gutted in those cases where a defendant does not agree to a specific sentence as any defendant could make such an argument,” Judge Nancy Vaidik wrote for the majority, joined by Judge Leanna Weissmann.

However, Judge Edward Najam dissented in a separate opinion, writing that the COA has “recently held, on three occasions, that individuals were eligible defendants despite the waiver-of-appeal provisions in their plea agreements where they alleged that their sentences were contrary to law.”

Najam said that, like the defendants in Crouse v. State, 158 N.E.3d 388 (Ind. Ct. App. 2020), trans. not sought, and Fields v. State, 162 N.E.3d 571 (Ind. Ct. App. 2021), trans. denied, the court sentenced Wihebrink to the maximum sentence allowed under the plea agreement.

“But even though Wihebrink agreed to a maximum sentence of thirty years, she did not agree to be sentenced to the full thirty-years based on an improper aggravator. … And Wihebrink asserted in her petition for permission to file a belated notice of appeal that her sentence is contrary to law because it relied on several improper aggravators,” the dissenting judge opined.

“Accordingly, I would reverse the trial court’s order and remand with instructions for the court to grant Wihebrink’s petition for permission to file a belated notice of appeal,” Najam concluded.

The case is Britni N. Wihebrink v. State of Indiana, 21A-CR-1749.

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