Johnson v. State

140 N.E.3d 854

Brandon L. JOHNSON, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-CR-334

Court of Appeals of Indiana.

Filed November 21, 2019

Attorneys for Appellant: Stephen T. Owens, Public Defender of Indiana, Vickie Yaser, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. MacKenzie, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Brandon L. Johnson ("Johnson") pleaded guilty in Orange Circuit Court to Level 4 felony possession of methamphetamine and was sentenced to twelve years of incarceration. Johnson did not file a timely notice of appeal, but he subsequently filed a petition for permission to file a belated notice of appeal, which the trial court denied. Johnson appeals and presents two issues, which we restate as: (1) whether the trial court erred by denying Johnson's motion to take judicial notice of certain portions of the record in this case, and (2) whether the trial court abused its discretion by denying Johnson's petition for permission to file a belated notice of appeal.

[2] We affirm.

Facts and Procedural History

[3] On February 4, 2016, the police pulled over a car in which Johnson, who was on probation at the time, was a passenger. A subsequent search of the car revealed methamphetamine, two hypodermic needles, and digital scales. Johnson later admitted to the police that the scales, the methamphetamine, and the needles were his. He also admitted that he purchased methamphetamine in Louisville, Kentucky so that he could sell it in Orange County, Indiana.

[4] On February 8, 2016, the State charged Johnson with Level 4 felony dealing in methamphetamine, Level 5 felony possession of methamphetamine, and Class B misdemeanor false informing.¹ The State also alleged that Johnson was an habitual offender. On April 3, 2017, Johnson entered into a plea agreement with the State in which he agreed to plead guilty to Level 4 felony dealing in methamphetamine, and the State agreed to dismiss the remaining charges and the habitual offender allegation. With regard to sentencing, the plea agreement provided: "OPEN SENTENCING by the Court, Blind Plea." Appellant's App. Vol. 2, p. 107. Among the terms of the written plea agreement was: "DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF." Id . at 108.

[5] At the change-of-plea hearing held that same day, the trial court advised Johnson of the various rights he would be giving up by pleading guilty, including the right to a public and speedy trial by jury, the right to confront witnesses, the right to remain silent, and the right to counsel. Johnson indicated that he understood he was waiving these rights. With regard to appeal, the trial court stated:

[Court]: Do you understand that if you were to have a trial and you were found guilty that you would have the right to appeal that conviction and/or sentence –

[Johnson]: Yes.

[Court]: – to the Court of Appeals or Supreme Court, do you understand that?

[Johnson]: Yes.

[Court]: And do you understand that you have the right to be represented by an attorney at all times including your trial, but also, including that Appeal and if you couldn't afford to pay for an attorney to do your Appeals, the Court would appoint one for you, do you understand that?

[Johnson]: Yes.

[Court]: But, you understand that by pleading guilty here today you're giving up all those rights when it talks about your Appellate rights?

[Johnson]: Yes.

Appellant's App. Vol. 3, pp. 15–16 (emphases added).² After some discussion about whether Johnson retained the right to seek a modification of his sentence, the trial court accepted the plea agreement.

[6] On May 1, 2017, the trial court held a sentencing hearing. Concluding that the aggravating factors outweighed the mitigating factors, the trial court sentenced Johnson to the maximum term of twelve years of incarceration. After imposing its sentence, the trial court stated:

And because indeed it was made pursuant to a Plea Agreement, the Court, believes in the Plea Agreement itself where it, you waive your right to an Appeal[,] the Court interprets that [as] the right to appeal the Court's decision has also been waived. I'll leave that up to Counsel, but, that's why we're not going to appoint an Attorney to represent you on Appeal.

Appellant's App. Vol. 3, p. 82. Not surprisingly, Johnson did not timely file a notice of appeal.

[7] On November 9, 2017, Johnson filed a pro se request to participate in the purposeful incarceration program. The trial court denied this request on November 15, 2017. On May 14, 2018, Johnson filed a pro se request for appellate counsel. One week later, Johnson filed a pro se petition for post-conviction relief. On May 29, 2018, in response to these filings, the trial court referred the matter to the Indiana Public Defender's office. On June 18, 2018, Johnson filed a pro se motion to correct error. The trial court denied this untimely motion on June 29, 2018.

[8] On October 3, 2018, Johnson, now represented by counsel, filed a verified petition for permission to file a belated notice of appeal. In this petition, Johnson claimed that he was unaware of his right to appeal a sentence following a plea agreement until he spoke with a fellow inmate in April 2018. He therefore claimed he was not at fault for failing to timely file a notice of appeal and that he had been diligent in seeking to appeal.

[9] The trial court held an evidentiary hearing on this petition on January 14, 2019. At the hearing, Johnson's counsel asked him, "Did the Plea Agreement that you signed say anything about you waiving the right to appeal your sentence?" Tr. pp. 9–10. Johnson replied, "No, the only thing that the Plea Agreement said was that I waive my right to Appeal and Post-Conviction Relief." Id. at 10. Johnson claimed that he was unaware that he could appeal a sentence following a plea agreement. Johnson's trial counsel testified that he did not discuss the waiver of appellate rights with Johnson "other than, you know, the plea agreement," because he was also unaware that a defendant could appeal a sentence following an open plea. Id. at 22–23.

[10] At the conclusion of the hearing, the trial court ruled from the bench as follows:

[The parties] entered into a Plea Agreement that very explicitly stated that they were waiving the right of Appeal. At the taking of the Plea, the Court had not yet accepted that Plea Agreement and become a party to that Plea Agreement. [A]nd in advising the Defendant of his right, very explicitly told him that he would be giving up his right to appeal the sentence, looking at that Plea Agreement. [A]nd the Defendant still did not want to withdraw that Plea Agreement, in fact went in and accepted that Plea Agreement and asked the Court to accept that Plea Agreement[.] So at that Plea Hearing we set the parameters of what the proposed agreement between the Defendant and the State was. [T]he Court accepted that Plea Agreement based upon those parameters. [I]f the Court looking at, looking at Mr. Johnson's record in determining whether to accept or reject the Plea Agreement and after it was fairly explicitly explained by all parties of what the terms of those Plea Agreements were, namely, that you couldn't appeal it. The Court accepted it and the Plea Agreement as presented. And again, reiterated in its sentencing that it was the Court's opinion, based upon the Plea Agreement, that he had not, he had given up in exchange for the Plea Agreement, his right to appeal the sentence. [I]n his testimony he very explicitly acknowledged that that was the term of that agreement. [H]e thought he had given up his right to appeal his sentence and his conviction. [H]e didn't learn of this Collins case^{[3 ]} till some jail, he talked to some individual at the jail, so when we look at the Plea Agreement as entered into all the parties, at the time of the plea, thought that they were dismissing certain cases, dismissing enhancement to sentences and permitting the Court then to have a range of a sentence. And whatever sentence that Court delivered would be acceptable. [C]ertainly the Defendant got a benefit out of that bargain, and the State of knowing it, at least what the sentence, sentencing range and that there was a conviction. [S]o, I, I can tell you this much, I accepted it because of that condition, [be]cause I'm not going to accept open-ended pleas pursuant to Plea Agreements if they're going to Appeal. It, it, we might as well have a trial, we might as well or just dismiss things and have it opened. There's ... ways where you certainly can Appeal, sentences, but, what, the reason why the Court accepts Plea Agreements is for some sense of finality, it saves the County some money in not having a trial, but, I can just sort of be honest that a greater cost is Appeals and how far those Appeals can go at County expense. So ... the reason why this Court accepts Plea Agreements is for some finality and certainly was the reason why the Court accepted this Plea Agreement. And I believe made Mr. Johnson aware of it, because he even acknowledged it that he thought that was the terms and conditions of Plea Agreement. So, since we are here today, on a Request for Belated, filing Belated Notice of Appeal or filing a Belated Appeal the Court is going to deny that request because I don't believe that Mr. Johnson is, as pointed by [the prosecutor] is entitled to an Appeal. And so that would be the Court's ruling and I'll prepare an Order that reflects it[.]

Tr. pp. 29–31 (emphases added).

[11] On January 18, 2019, Johnson filed a motion requesting that the trial court take judicial notice of the exhibits attached to his petition for permission to file a belated notice of appeal, but which were not formally admitted into evidence at the hearing on the petition. The trial court denied this motion on January 24, 2019. Johnson now appeals.

I. Judicial Notice

[12]...