Bowling v. State

960 N.E.2d 837

Jessica BOWLING, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 35A04–1107–CR–407.

Court of Appeals of Indiana.

Jan. 24, 2012.

Stephen T. Owens, Public Defender of Indiana, Cory J. Lightner, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

In 2006, Jessica Bowling agreed to plead guilty to class A felony neglect of a dependent, and the State agreed to a cap of forty years on the executed portion of her sentence. Along with the plea agreement, Bowling signed a written advisement and waiver of rights that contained the following provision: “By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.” Appellant's App. at 22. The trial court sentenced Bowling to forty years, executed.

In 2011, Bowling filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post–Conviction Rule 2. The State argued that Bowling waived her right to appeal her sentence pursuant to the aforementioned provision. The trial court agreed with the State and denied Bowling's petition. Bowling appeals, arguing that the waiver should not be enforced because it is a misstatement of law. We conclude that the waiver is valid and therefore affirm the trial court.

Facts and Procedural History

On August 21, 2006, Bowling and the State entered into a plea agreement, in which Bowling agreed to plead guilty to class A felony neglect of a dependent and the State agreed to dismiss all other pending counts in the cause and to a cap on the executed portion of her sentence of forty years. Id. at 16.¹ In relevant part, Bowling's plea agreement provided as follows:

7. I understand that I may, if I so choose, plead NOT GUILTY to any offense charged against me; and that if I choose to plead NOT GUILTY, the Constitution guarantees me: (a) the right to a speedy and public trial by jury in this Court; (b) the right, subject to certain exceptions, to be released on reasonable bail until my trial occurs; (c) the right to see and hear, confront and cross-examine all witnesses against me at my trial; (d) the right to use the power of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor at my trial; (e) the right to the assistance of an attorney at every stage of the proceedings including an appeal if I am convicted; (f) the right to testify and also the right not to testify without prejudice; (g) that in the event that I should be found guilty of the charges against me, I would have the right to appeal my conviction upon such charges to a higher court; (h) the right to remain silent, and that the burden is on this State to prove me guilty beyond all reasonable doubt; and (i) the right to be defended in this cause by an attorney. I have the right to employ the attorney of my choice to defend me; I also understand that if I cannot afford to employ an attorney, the Court will provide an attorney for me in this cause. I further understand that I have the right to have an attorney provided by the Court even if I am guilty of the offenses as charged. I understand that by pleading guilty, I specifically WAIVE all of my rights as set out above.

....

18. I hereby state that I understand all of the rights and information contained in this Motion to Enter a Plea of Guilty, and I acknowledge the same by placing my signature on this Motion.

Id. at 15, 18–19.

Prior to entering the guilty plea, Bowling received and signed a “Class A Felony Written Advisement and Waiver of Rights” (“the Advisement”). Id. at 21–23. In relevant part, the Advisement read,

7. You have the right to a public and speedy trial by jury, the right to confront and cross examine the witnesses against you, the right to subpoena witnesses to testify on your behalf at no cost; the right to require the State to prove you guilty beyond a reasonable doubt at trial at which you do not have to testify, but in which you may testify if you wish; and, the right to appeal any decision made by the judge or jury. By pleading guilty, you will give up and waive each and every one of these rights.

....

10. You understand that you have a right to appeal your sentence if there is an open plea. An open plea is an agreement which leaves your sentence to the Judge's discretion. By pleading guilty you have agreed to waive your right to appeal your sentence so long as the Judge sentences you within the terms of your plea agreement.

Id. at 22 (emphasis added). At the guilty plea hearing, the trial court asked Bowling whether she had received the Advisement, whether she had read it, whether she had gone over it with her attorney, whether there was any portion that she did not understand, and whether she had signed it. Bowling answered these questions affirmatively. Id. at 43–44. On September 19, 2006, the trial court sentenced Bowling to forty years, executed. ²

On April 28, 2009, Bowling filed a pro-se petition for post-conviction relief ³ The trial court appointed the State Public Defender Office to represent Bowling. On April 29, 2011, Bowling, by counsel, filed a petition for permission to file a belated notice of appeal pursuant to Indiana Post–Conviction Rule 2. Bowling presented the following allegations in her petition: at her sentencing hearing she was not advised of her right to appeal her sentence; she asked her guilty plea attorney to appeal her sentence; her parents asked her guilty plea attorney to appeal her sentence; paragraph 10 of the Advisement was rejected in Childress v. State, 848 N.E.2d 1073 (Ind.2006); paragraph 10 misstates the law in that it provides that by simply pleading guilty she waived her right to appeal her sentence; she sought and received appellate review of her sentences in two other criminal cases, in which the advisements and waiver of rights contained language identical to paragraph 10 in the Advisement; and she was not at fault for failing to file an appeal and had been diligent in seeking an appeal after learning that an appeal had not been filed. Id. at 9–12. The State filed a response to Bowling's petition, in which it asserted that pursuant to paragraph 10 in the Advisement, Bowling had waived her right to appeal her sentence. Id. at 101–03.

On June 21, 2011, the trial court held a hearing on Bowling's petition, during which each side presented argument but no evidence. On June 30, 2011, the trial court entered its order finding that Bowling voluntarily waived her right to appeal her sentence and denying her petition for permission to file a belated notice of appeal. Bowling appeals the denial of her petition.

Discussion and Decision

The failure to file a timely notice of appeal forfeits the right to a direct appeal except as provided by Indiana Post–Conviction Rule 2. Ind. Appellate Rule 9(A)(5). Indiana Post–Conviction Rule 2 permits an “eligible defendant” to petition the trial court for permission to file a belated notice of appeal. An “eligible defendant” for purposes of Post–Conviction Rule 2 “is a defendant who, but for the defendants failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.” To successfully obtain permission to file a belated notice of appeal, an eligible defendant is required to prove “by a preponderance of the evidence” that “the failure to file a timely notice of appeal was not due to the fault of the defendant [and] the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.” ⁴ Ind. Post–Conviction Rules 1(5) and 2(1)(a).

The parties frame their arguments in terms of fault and diligence, but their arguments regarding fault ultimately rest on whether Bowling waived her right to appeal her sentence pursuant to paragraph 10 of the Advisement. See Appellants Br. at 7–8; Appellees Br. at 6–8. The trial court denied Bowling's petition without reference to fault or diligence because it found that Bowling waived her right to appeal her sentence pursuant to paragraph 10 of the Advisement. We think that the issue of whether Bowling waived her right to appeal her sentence pursuant to the terms of paragraph 10 is relevant to the threshold determination of whether Bowling is an “eligible defendant” under Post–Conviction Rule 2. See Dawson v. State, 938 N.E.2d 841, 844–45 (Ind.Ct.App.2010) (noting that plain definition of eligible defendant encompasses those who possessed right but failed to file timely direct appeal of conviction or sentence after trial or plea of guilty), trans. granted, opinion adopted, 943 N.E.2d 1281 (Ind.2011). We observe that the validity of paragraph 10 involves a pure question of law. We evaluate questions of law under a de novo standard and owe no deference to the trial court's determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind.Ct.App.2008).

Turning now to the merits of Bowling's appeal, we note that in exchange for Bowling's guilty plea to class A felony neglect of a dependent, the State dismissed the other counts and agreed to a forty-year cap on the executed portion of her sentence. A plea agreement in which the trial court has discretion over the length of the sentence is referred to as an “open plea.” Johnson v. State, 898 N.E.2d 290, 291 (Ind.2008) (citation and quotation marks omitted). Where a plea agreement leaves sentencing to the trial court's discretion, a defendant is entitled to contest on direct appeal the merits of a trial court's sentencing decision. Collins v. State, 817 N.E.2d 230, 231 (Ind.2004). This includes a plea agreement wherein a defendant agrees to a sentencing cap or range. Childress, 848 N.E.2d at...