Adam Worthington v. State of Indiana (mem. dec.)

A
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                     Dec 28 2020, 10:05 am
court except for the purpose of establishing
                                                                                    CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                      Curtis T. Hill, Jr.
Montgomery Law Office                                   Attorney General
Lafayette, Indiana
                                                        Myriam Serrano
                                                        Deputy Attorney General
                                                        Molly M. McCann
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Adam Worthington,                                       December 28, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A-CR-1382
        v.                                              Appeal from the
                                                        Tippecanoe Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      Sean Persin, Judge
                                                        Trial Court Cause No.
                                                        79C01-1902-F1-3



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020                Page 1 of 5
[1]   Facing seven criminal charges, Adam Worthington entered into a plea

      agreement under which he would plead guilty to one count of Level 1 felony

      burglary resulting in serious bodily injury, the State would dismiss the

      remaining charges, and Worthington’s sentence would be capped at thirty years

      but would otherwise be left to the discretion of the trial court. The plea

      agreement also included the following appeal waiver:


              The Defendant hereby waives the right to appeal any sentence
              imposed by the Court, under any standard of review, including
              but not limited to, an abuse of discretion standard and the
              appropriateness of the sentence under Indiana Appellate Rule
              7(B), so long as the Court sentences the Defendant within the
              terms of the plea agreement.


      Appellant’s App. Vol. II p. 26. The trial court accepted the agreement and

      sentenced Worthington to thirty years, with twenty-eight years to serve in the

      Department of Correction and two years suspended to probation.


[2]   Worthington now appeals. However, he does not challenge his conviction or

      his sentence. He only asks us to find his appeal waiver was not knowing,

      voluntary, and intelligent and to “remand to the trial court.” Appellant’s Br. p.

      20. He does not say what he thinks should happen on remand, but presumably

      he envisions a second appeal concerning the merits of his sentence.


[3]   Worthington relies on Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. App. 2008),

      trans. denied, where we held the defendant’s appeal waiver was not enforceable.

      But the defendant in Ricci challenged the merits of his sentence, in addition to

      the waiver. Here, Worthington only challenges the waiver. As a result, the State
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020   Page 2 of 5
      asks us to dismiss the appeal, arguing that because Worthington “is not asking

      this Court to revise his sentence or remand to the trial court to revise his

      sentence, no actual controversy exists.” Appellee’s Br. p. 9. We could dismiss

      the appeal on this basis, but in the interest of judicial efficiency, we choose to

      address Worthington’s argument.


[4]   In arguing he did not knowingly, voluntarily, and intelligently waive his right to

      appeal his sentence, Worthington relies on the following exchange at the guilty-

      plea hearing:


              THE COURT: Do you understand that if you went to a trial and
              then were convicted you would have an automatic right to appeal
              the convictions to the Indiana Court of Appeals?


              THE DEFENDANT: Yes.


              THE COURT: When you plead guilty to a charge and you say
              judge please enter a conviction because I committed this crime,
              you’re waiving and giving up your right to appeal the conviction.
              Does that make sense?


              THE DEFENDANT: Yeah.


              THE COURT: In fact, if you plead guilty today and you’re
              waiving and giving up all of the rights that we’ve talked about so
              far. You do have the right to be represented by a lawyer both at
              the trial level and on any appeal. If at any point you cannot
              afford a lawyer, I can appoint one to represent you.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020   Page 3 of 5
      Tr. pp. 10-11 (emphasis added). Focusing on the emphasized sentence—“You

      do have the right to be represented by a lawyer both at the trial level and on any

      appeal.”—Worthington contends he was left with the impression he had the

      right to appeal his sentence notwithstanding the appeal waiver in the written

      plea agreement. But that sentence cannot be read in isolation. The complete

      quoted exchange makes clear the trial court was simply informing Worthington

      he would have the right to an attorney at trial and on appeal if he chose not to

      plead guilty.


[5]   Ricci is distinguishable. There, the defendant’s plea agreement included an

      appeal waiver like the one in this case, but during the guilty-plea hearing, the

      trial court stated:


              Now I read the Plea Agreement and if I accept this Plea
              Agreement I read it to say that sentencing is gonna be left to the
              Court. So [ ] your side will make arguments, the State will make
              arguments, and you’ll leave to the Court to decide what the
              appropriate sentence is. So you do not give up your right to
              appeal that sentence, because you are giving that discretion to
              the Court. So I wanna make sure you understand you would
              [have] a right to appeal sentencing, but you could never appeal
              whether you committed this crime or not[.]


      Ricci, 894 N.E.2d at 1090 (emphasis added). Because the defendant was

      expressly told at the guilty-plea hearing he had the right to appeal his sentence,

      we held the appeal waiver in his plea agreement was “a nullity.” Id. at 1094.

      Worthington, unlike the defendant in Ricci, was never told by the trial court he

      had the right to appeal his sentence.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020   Page 4 of 5
[6]   Worthington has failed to establish his appeal waiver was not knowing,

      voluntary, and intelligent.


[7]   Affirmed.


      Brown, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1382 | December 28, 2020   Page 5 of 5

Add comment