Bowling v. State
2012 Ind. App. LEXIS 25
| Ind. Ct. App. | 2012Background
- Bowling pled guilty to class A felony neglect of a dependent with the State agreeing to a 40-year cap on the executed portion of the sentence.
- Bowling signed a Class A Felony Written Advisement and Waiver of Rights containing a waiver of appellate rights if the judge stayed within the plea terms.
- The trial court sentenced Bowling to 40 years, executed.
- Bowling later sought permission to file a belated notice of appeal under Indiana Post-Conviction Rule 2.
- The State argued Bowling waived appellate rights under the Advisement; the trial court agreed.
- The Court of Appeals held the waiver valid and affirmed the denial of permission to file a belated appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the paragraph 10 waiver is valid and enforceable | Bowling argues the waiver misstates the law and is not knowing/voluntary | State argues the waiver in writing is binding as a contract and enforceable | Waiver valid and enforceable |
| Whether Bowling is an eligible defendant for belated appeal | Bowling should be eligible because she would have direct appeal rights but for delay | Eligibility hinges on whether the waiver barred appeal and whether delay is excused | Bowling is not eligible for belated appeal due to valid waiver |
| What governing precedent supports enforcement of such waivers | Bowling distinguishes Creech v. State to argue lack of knowledge | Creech supports enforceability of written waiver accompanying a guilty plea | Waiver enforceable under Creech-style reasoning; written advisement governs |
Key Cases Cited
- Creech v. State, 887 N.E.2d 73 (Ind. 2008) (express waiver language enforceable when knowingly and voluntarily given)
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (discretionary sentencing does not imply implicit waiver of appeal rights)
- Bonilla v. State, 907 N.E.2d 586 (Ind.Ct.App. 2009) (review of waiver when sentencing advisement misstates rights (fact-specific))
- Ricci v. State, 894 N.E.2d 1089 (Ind.Ct.App. 2008) (discusses enforceability of waivers in plea agreements)
- Dawson v. State, 938 N.E.2d 841 (Ind.Ct.App. 2010) (noting eligibility and waiver considerations for Post-Conviction Rule 2)