Case Information
*1 FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: J. DIRK CARNAHAN GREGORY F. ZOELLER Vincennes, Indiana Attorney General of Indiana
ERIC P. BABBS Deputy Attorney General Indianapolis, Indiana IN THE
COURT OF APPEALS OF INDIANA
ADAM MORRIS, )
)
Appellant-Defendant, )
) vs. ) No. 14A05-1209-CR-495
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. ) APPEAL FROM THE DAVIESS SUPERIOR COURT The Honorable Mark R. McConnell, Special Judge Cause No. 14D01-0910-FC-806
April 9, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Adam Morris appeals the one-year sentence and order of restitution imposed following his conviction for Class A misdemeanor operating a vehicle while intoxicated (“OWI”). We affirm in part and reverse in part.
Issues
The restated issues before us are:
I. whether Morris’s guilty plea waived his ability to challenge his sentence on direct appeal;
II. whether Morris’s sentence is inappropriate; and III. whether the trial court properly ordered Morris to pay $14,972.45 in restitution.
Facts
In the early morning of October 4, 2009, Morris was driving an ATV in Daviess County and was involved in an accident with another ATV. Morris’s fiancée, Jennifer Celeste, was riding on the back of Morris’s ATV and had been thrown from it, causing serious head injuries. The first responding officer noticed that Morris smelled of alcohol and had slurred speech, bloodshot eyes, unsteady balance, and poor manual dexterity. Morris agreed to take a portable breath test, which registered an alcohol content of .138. A later blood test indicated Morris had a blood alcohol content of .158. Celeste died from her injuries later in the morning of October 4.
On October 21, 2009, the State charged Morris with Class C felony causing death while operating a vehicle with a blood alcohol equivalent of .08 or more. On July 9, *3 2012, Morris agreed to plead guilty to the lesser included offense of Class A misdemeanor OWI. The plea agreement provided that Morris “shall be sentenced at the discretion of the Court,” but made no mention of restitution. App. p. 33. The agreement also noted certain required terms of probation, including mandatory drug and alcohol testing, although it did not expressly state that Morris would be receiving a term of probation. The agreement further stated that Morris was forfeiting “all grounds for review of any aspect of this case whether by appeal or post-conviction relief” and that he “knowingly, intelligently, and voluntarily waives her [sic] right to challenge the conviction or sentence on this [sic] basis that it is erroneous.” Id. at 35.
On September 28, 2012, the trial court sentenced Morris to a term of one year, fully executed. It also ordered Morris to pay $14,972.45 to Celeste’s family as restitution related to her funeral expenses. Morris now appeals.
Analysis
I. Waiver
Before turning to the merits, we address whether Morris’s guilty plea waived the
ability to challenge his sentence on direct appeal.
[1]
It is clear that “a defendant may waive
the right to appellate review of his sentence as part of a written plea agreement.” Creech
v. State,
The purported waiver of the right to appeal in this case was much less clear than
the waivers in the above cases. There was, first, a general waiver of appellate review “of
any aspect of this case” and a more specific waiver of the ability to challenge an
“erroneous” sentence. App. p. 35. In legal terms, an “erroneous” sentence is not the
same as an “inappropriate” sentence. An “erroneous” sentence, which may be attacked
by a motion to correct erroneous sentence under Indiana Code Section 35-38-1-5, is one
that is erroneous “on its face” without reference to proceedings before, during, or after
trial. Davis v. State,
Plea agreements are contractual in nature, and the general rule is that any ambiguities in such agreements must be construed against the State because the State ordinarily drafts them. Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied. We conclude that the purported waiver provisions in the boilerplate plea agreement drafted by the State here are ambiguous as to whether Morris was giving up his right to challenge his sentence as inappropriate under Rule 7(B). As such, we will construe that ambiguity against the State and give Morris the benefit of the doubt and address the appropriateness of his sentence. [2] We also believe it is clear that any purported waiver could not preclude Morris from challenging a sentencing term that exceeded the scope of the plea agreement, as it would constitute a violation of the agreement itself by the trial court. See id.
II. Appropriateness
Before turning to whether Morris’s sentence is inappropriate, we note that he also
alleges that the trial court abused its discretion in sentencing him. However, it is clear
that abuse of discretion review of a sentence, which concerns a trial court’s duty to issue
a sentencing statement along with its findings of aggravators and mitigators, has no place
*6
in reviewing a misdemeanor sentence. See Cuyler v. State,
We now assess whether Morris’s one-year fully executed sentence is inappropriate under Rule 7(B) in light of his character and the nature of the offense. Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s sentencing decision, we still must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State,
Regarding the nature of the offense, Morris was involved in a very serious ATV accident while he had a blood alcohol content well above the per se legal limit of .08. The minimum facts necessary to support Morris’s conviction for Class A misdemeanor OWI were that he operated a vehicle while intoxicated in a manner that endangered a person. See Ind. Code § 9-30-5-2(b). Morris’s involvement in a very serious accident went well beyond that minimum.
Morris argues that we should not consider the fact of Celeste’s death as evidence of the egregiousness of the offense, because the State agreed to dismiss the charge of operating with a BAC exceeding .08 resulting in death in exchange for his guilty plea. Morris cites Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002), which held that a trial court cannot rely on facts underlying charges that have been dismissed as part of a plea agreement as aggravating circumstances. Our supreme court recently decided Bethea v. State, No. 18S05-1206-PC-304 (Ind. March 12, 2013), in which it effectively overruled Farmer and similar cases, such as Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007). Rather, the court held that unless a plea agreement expressly forecloses the possibility of the trial court enhancing a sentence based on elements or evidence related to charges dismissed in exchange for the plea, “it is not necessary for a trial court to turn *8 a blind eye to the facts of the incident that brought the defendant before them.” Bethea, slip op. at p. 12. Here, there was nothing in Morris’s plea agreement that forbid consideration of the undisputed fact that Celeste died as a result of this accident in considering what sentence to impose. As such, we conclude that the severity of the accident, including Celeste’s death, makes this particular offense very egregious, much more so than the “typical” Class A misdemeanor OWI.
Regarding Morris’s character, it is true as he argues that he pled guilty. However, a guilty plea may not be entitled to much weight in considering a sentence if it is clear the decision to plead guilty was merely a pragmatic one because of the weight of the State’s evidence. Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied. Again, there appears to be no doubt here that the ATV accident resulted in Celeste’s death, and Morris received a significant benefit from the plea agreement in the dismissal of the C felony charge in exchange for an A misdemeanor conviction. Morris also has no prior criminal convictions. He was, however, charged for operating a vehicle with a BAC exceeding .15 twice before, in 2008 and 2003. The 2008 charge was dismissed without explanation, and the 2003 charge was dismissed after Morris successfully completed a pre-trial diversion program. Although those charges do not technically constitute a criminal history because they were never reduced to convictions, they still indicate that Morris had twice before been subjected to the police power of the State and was specifically warned of the dangers of OWI but was not deterred from committing the present offense. See Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). We conclude *9 Morris’s one-year executed sentence is not inappropriate in light of the nature of the offense and his character.
In a related argument, Morris argues that the trial court violated the plea
agreement by failing to suspend any portion of his sentence to probation. He notes that
the plea agreement makes specific reference to required terms of probation and argues
that this necessarily implies that the trial court had to impose a term of probation. We
disagree. The listing of required terms of probation clearly was part of a boilerplate plea
agreement that would apply in the event the trial court decided to exercise its discretion
to impose probation. Regarding that discretion, the plea agreement was very clear in
stating that the trial court had unfettered discretion in choosing what sentence to impose.
To the extent Morris argues that his guilty plea was involuntary because he was under the
impression that the trial court would impose a term of probation, such an argument must
be raised, if at all, through a post-conviction relief proceeding and not on direct appeal.
See Stringer v. State,
III. Restitution
Finally, we address Morris’s challenge to the restitution order of $14,972.45 for Jennifer’s burial expenses. Morris contends there is insufficient evidence to support that order and that it improperly applies to the C felony charge that was dismissed as part of the plea bargain. However, there is a more fundamental problem with that order: the plea agreement was completely silent on whether Morris could be ordered to pay *10 restitution. [3] It is clear that when a plea agreement is silent on the issue of restitution, a trial court may not order the defendant to pay restitution as part of his or her sentence; such an order exceeds the scope of the plea agreement. Sinn v. State, 693 N.E.2d 78, 80 (Ind. Ct. App. 1998). Thus, we reverse the order that Morris pay $14,972.45 in restitution.
Conclusion
Although we decline to find that Morris waived his challenge to the appropriateness of his sentence, we find that sentence to be appropriate. However, we reverse the restitution order against him.
Affirmed in part and reversed in part.
BAKER, J., and RILEY, J., concur.
Notes
[1] The State acknowledges that the ability to seek post-conviction review of a guilty plea cannot be
waived. See Creech v. State,
[2] We need not address whether this waiver could have affected abuse of discretion review of a sentence, given our discussion below.
[3] It does not appear that Morris objected before the trial court to there being any award of restitution.
However, this court will review the propriety of restitution orders on appeal, even where it was entered
without objection by a defendant, because of our duty to correct illegal sentences. Iltzsch v. State, 972
N.E.2d 409, 412 (Ind. Ct. App. 2012), summarily aff’d in relevant part,