Opinion
22A-CR-41
08-29-2022
Jose Luis Santana, Appellant/Cross-Appellee/Defendant, v. State of Indiana, Appellee/Cross-Appellant/Plaintiff.
Attorney for Appellant Nancy A. McCaslin McCaslin & McCaslin Elkhart, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-1801-FA-2
Attorney for Appellant
Nancy A. McCaslin
McCaslin & McCaslin
Elkhart, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE.
Case Summary
[¶1] Jose Santana appeals his sentence for two counts of child molesting. Santana's plea agreement explicitly waives his right to appeal. Accordingly, his appeal is not properly before us, and we dismiss it.
Issue
[¶2] We find a single issue to be dispositive: whether Santana waived his right to appeal his sentence.
Facts
[¶3] Santana's eleven-year-old victim reported to her mother that Santana had been molesting her for five years. As a result, the State charged Santana with multiple counts of child molesting on January 22, 2018. Santana entered into a plea agreement wherein he pleaded guilty to two counts of child molesting as Class A felonies on September 6, 2018. One of the terms of that plea agreement, initialed and signed by Santana, is as follows:
The Defendant understands that he may have the right to appeal his sentence under Indiana Appellate Rule 7B. Notwithstanding that right, by pleading guilty under this agreement, the Defendant knowingly, intelligently, and voluntarily waives his right to challenge the sentence on the basis that it is erroneous and waives his right to have appellate review of his sentence under Indiana Appellate Rule 7B.
Appellant's App. Vol. II p. 34. The trial court sentenced Santana to an aggregate of thirty years in the Department of Correction. On December 2, 2021, Santana sought-and was granted-permission to file this belated appeal.
Discussion and Decision
[¶4] "[I]t is well settled that a defendant can waive his right to appeal a sentence." Fields v. State, 162 N.E.3d 571, 575 (Ind.Ct.App. 2021) (citing Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013)), trans. denied. "A waiver of that kind should be given effect if 'the record clearly demonstrates that it was made knowingly and voluntarily.'" Morris v. State, 985 N.E.2d 364, 366 (Ind.Ct.App. 2013), on reh'g, 2 N.E.3d 7 (Ind.Ct.App. 2013) (quoting Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008)); see also Brown v. State, 970 N.E.2d 791, 793 (Ind.Ct.App. 2012) ("Brown signed a clearly stated written waiver of the right to appeal his sentence"). "But even where the waiver appears to be unqualified, a defendant retains the right to appeal his sentence under certain circumstances. A defendant's waiver of appellate review is only valid if the sentence is imposed in accordance with the law." Id. at 575-76.
[¶5] Here, Santana purports to challenge the legality of his sentence. See Appellant's App. Vol. II pp. 66-67. Such a challenge, he contends, constitutes an exception to the absolute and unequivocal waiver of his right to appeal. Indeed, were he not challenging the legality of his sentence, he would not be an "eligible defendant" pursuant to Post-Conviction Rule 2, under which he brings this belated appeal. See, e.g., Bowling v. State, 960 N.E.2d 837, 841 (Ind.Ct.App. 2012). The reality, however, as the State correctly points out, is that Santana is not challenging the legality of his sentence.
An "eligible defendant" is defined under the rule as "a defendant who, but for the defendant's 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." P-C.R. 2. As we explain infra, Santana would not have had the right to challenge his sentence because he knowingly waived that right.
[¶6] Santana argues that "[w]ithout supporting evidence that the victim was actually under the age of fourteen, the trial court erred when it found Santana to be a credit-restricted felon." Appellant's Br. pp. 8-9. Regardless of how the claim is styled, the core of Santana's argument is that there was insufficient evidence for the trial court's factual finding that the victim's age rendered Santana a credit-restricted felon. Even if we were to agree, Santana's sentence would still not be illegal. The credit-restricted-felon statutes affect the credit time that a defendant receives against his sentence, not the sentence itself. Credit time is a bonus created by statute, and the deprivation of credit time does nothing more than take that bonus away; it does not render a sentence contrary to law, even if the deprivation is the result of a trial court's error. State v. Mullins, 647 N.E.2d 676, 678 (Ind.Ct.App. 1995). The deprivation of credit time does not lengthen the fixed term of a defendant's sentence. Id. This is precisely the type of claim that Santana knowingly waived as a part of his plea agreement. Accordingly, the issue is waived, and the appeal is dismissed.
A probable cause affidavit listing the victim's age was attached to the pre-sentence investigation report that the trial considered for sentencing. Santana had an explicit opportunity to contest or correct the report and made no attempt to argue that the victim's age was listed incorrectly. To the extent that Santana contests the probable cause affidavit now, his arguments are waived due to Santana's failure to raise them in the trial court.
Conclusion
[¶7] Santana has waived his right to appeal. Accordingly, we dismiss.
[¶8] Dismissed.
Riley, J., and May, J., concur.