A man convicted of felony drug dealing will now be able to appeal his 12-year sentence after the Indiana Supreme Court on Friday determined his appellate waiver was not knowing and voluntary.
The four majority justices ordered the Orange Circuit Court to grant Brandon Johnson’s motion to file a belated notice of appeal, reversing both the trial court and the Indiana Court of Appeals in Brandon L. Johnson v. State of Indiana, 20S-CR-61.
Johnson pleaded guilty in April 2017 to Level 4 felony dealing in methamphetamine. One of the terms of his plea agreement provided, “DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF.”
The trial court then sentenced Johnson to 12 years, with the same waiver included in the written sentencing order. Thus, the trial judge declined to appoint appellate counsel for Johnson, believing the waiver of his “right to appeal” included the right to appeal his sentence.
But in October 2018, Johnson sought permission to file a belated notice of appeal, claiming he had only recently learned of his right to appeal the sentence. The trial court denied his motion.
The Indiana Court of Appeals affirmed in November 2019, though the panel said it was “concerning” that the plea agreement purported to waive Johnson’s PCR rights, a “patently void and unenforceable term.” Additionally, the COA urged the county prosecutor’s office to “update its outdated plea agreement form so that it more clearly explains the effect of the waiver of the right to appeal … .”
Even so, the COA held, because Johnson accepted the agreement, the waiver of his right to appeal was valid.
“We share the Court of Appeals’ concern about the vagueness of the waiver provision at issue here,” the majority justices — including Chief Justice Loretta Rush and justices Steven David, Mark Massa and Christopher Goff — wrote in a per curiam opinion. They cited to Collins v. State, 817 N.E.2d 230 (Ind. 2004), and Creech v. State, 887 N.E.2d 73 (Ind. 2008), the latter of which emphasized the need for a knowing and voluntary waiver.
“Under these circumstances, we find the general waiver of Johnson’s ‘right to appeal,’ particularly when contained in the same sentence as an unenforceable waiver of post-conviction relief, insufficiently explicit to establish a knowing and voluntary waiver of Johnson’s right to appeal his sentence,” the justices wrote. “We therefore remand to the trial court with instructions to grant Johnson’s motion for permission to file a belated notice of appeal.”
Justice Geoffrey Slaughter, who dissented without a separate opinion, would have expressly adopted the Court of Appeals ruling.