Crouse v. State

• Citation: 158 N.E.3d 388
• Decision Date: 08 October 2020
• Docket Number: Court of Appeals Case No. 19A-CR-3008
• Parties: Jay Paul CROUSE, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

158 N.E.3d 388

Jay Paul CROUSE, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-3008

Court of Appeals of Indiana.

FILED October 8, 2020

Attorney for Appellant: Jennifer G. Shircliff, Anderson, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Courtney Staton, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] In this belated appeal, Jay Paul Crouse Jr. appeals his aggregate forty-year sentence for four convictions of Class B felony armed robbery. He argues the trial court abused its discretion when it ordered his four ten-year sentences to be served consecutive to one another. The State cross-appeals, arguing the trial court abused its discretion when it permitted Crouse to file a belated appeal. We affirm the trial court's decision to grant Crouse's petition for permission to file a belated appeal and we affirm Crouse's sentence.

Facts and Procedural History

[2] On February 6, 2013, the State charged Crouse with four counts of Class B felony robbery¹ based on four separate robberies committed on January 22, 23, 27, and February 1, 2013. On April 8, 2013, Crouse pled guilty as charged via a plea agreement that capped his sentence at forty years. As part of the plea agreement, Crouse waived the right to appeal his sentence as long as "the Court sentence[d] defendant within the terms" of the plea agreement. (App. Vol. II at 89.)

[3] On May 6, 2013, the trial court held a sentencing hearing. During the sentencing hearing, the State argued Crouse should be sentenced to ten years for each robbery count, to be served consecutive to one another. To support its recommendation, the State presented evidence of Crouse's drug use, his "high risk to re-offend[,]" and his commission of "four (4) separate violent offenses on four (4) separate occasions." (Id. at 109.) Crouse recommended an aggregate sentence of fifteen years with six years executed "[g]iven the fact that he has no felony convictions. He has one misdemeanor conviction. He has always worked, [and] he has custody of his kids." (Id. at 110.) When the trial court sentenced Crouse, it stated:

Each one of these counts had a separate victim and I think to go along with [the] recommendation [of Defense Counsel] would really dilute the impact of the crimes that Mr. Crouse has committed here. Umm, fifteen (15) years sentence with four (4) victims would amount to three (3) and three (3) plus years. Umm, and you don't right, you don't look with the past fact that it – things appear sometimes to be very lethal and very dangerous. May not be and the traumatic and emotional impact incidents like this have on victims is sometimes saddlery [sic]. I think that the State's recommendation is correct. Ten (10) years on each one consecutive all executed to the Department of Corrections.

(Id. at 111-2) (errors in original).

[4] On January 30, 2014, Crouse filed a pro se petition for post-conviction relief. On June 18, 2019, Crouse, with the aid of post-conviction counsel, filed a petition for permission to file a belated notice of appeal. With that petition, Crouse filed an affidavit averring he "first learned that [he] could appeal [his] sentence if the judge failed to follow sentencing procedures and guidelines on April 29, 2019, at a client conference with Deputy Public Defender Victoria Christ." (Id. at 115.) The State responded to Crouse's petition, arguing he had "shown no good cause with supporting facts that he would be eligible for the filing of an appeal" and the "matter is too far removed in time for a belated appeal ... [and Crouse] has not shown that he was diligent in seeking an appeal." (Id. at 117.) The trial court scheduled a hearing on the matter for August 7, 2019, but then denied Crouse's petition for permission to file a belated appeal on August 1, 2019, stating: "The Court sentenced the defendant [sic] within the terms of the plea agreement." (Id. at 120.) The trial court canceled the scheduled hearing.

[5] On August 30, 2019, Crouse filed a motion to correct error. The trial court held a hearing on the matter on September 27, 2019. On November 19, 2019, the trial court granted Crouse's motion to correct error and gave him permission to file a belated appeal.

Discussion and Decision

1. Permission to File a Belated Appeal

[6] As an initial matter, the State contends the trial court abused its discretion when it granted his petition for permission to file a belated appeal. To file a belated appeal, a defendant must be an "eligible defendant" as defined by Indiana Post-Conviction Rule 2, which provides, in relevant part:²

An "eligible defendant" for purposes of this Rule is 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.

The State contends that Crouse waived his right to appeal his sentence as part of the language of his plea agreement, and thus he is not an "eligible defendant" under Indiana Post-Conviction Rule 2 because he does not have the right to challenge his sentence on appeal.

[7] Crouse's plea agreement stated, "[d]efendant hereby waives the right to appeal any sentence imposed by the court, including the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the court sentences the defendant within the terms of his plea agreement." (App. Vol. II at 65.) The State contends we have long upheld a defendant's waiver of his right to appeal his sentence based on similar language. (See Br. of Appellee at 12) (citing Creech v. State , 887 N.E.2d 73, 74 (Ind. 2008) (holding defendant's right to appeal his sentence waived based on this statement in his plea agreement: "I hereby waive my right to appeal my sentence as long as the Judge sentences me within the terms of my plea agreement"); and see Brown v. State , 970 N.E.2d 791, 791 (Ind. Ct. App. 2012) (holding defendant's right to appeal his sentence waived based on the following statement in his plea agreement: "The Defendant hereby waives his right to appeal his sentence so long as the Judge sentences him within the terms of the plea agreement").

[8] However, our Indiana Supreme Court has held that unless "a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences," a waiver of appeal set forth as part of a plea agreement "applie[s] only to sentences imposed in accordance with the law." Crider v. State , 984 N.E.2d 618, 625 (Ind. 2013). While the trial court's discretion in determining a sentence when it is capped by a plea agreement is not as great as an open plea wherein sentencing is left to the trial court's discretion, the trial court maintains a level of discretion when sentencing based on a sentencing cap. Childress v. State , 848 N.E.2d 1073, 1078 (Ind. 2006). Here, Crouse's plea agreement capped his sentence at forty years, but gave the court discretion to determine the length of his aggregate sentence and how that sentence was to be structured and served. Thus, under Crider , Crouse's waiver of appeal may not be a barrier to appeal of his sentence if he believes the trial court sentenced him illegally. Contra Lee v. State , 816 N.E.2d 35, 40 (Ind. 2004) (Lee could not agree to a fixed sentence as part of a plea agreement and then argue it was illegal).

[9] During the hearing on his motion to correct error stemming from the denial of his petition for permission to file a belated appeal and in the appeal before us, Crouse relies primarily on Haddock v. State , 112 N.E.3d 763 (Ind. Ct. App. 2018). The facts in Haddock are similar to those here. On January 5, 2016, Haddock pled guilty to Level 3 felony dealing in a narcotic drug and his plea agreement included a provision which stated: "I understand that I have a right to appeal my sentence. As a condition of entering into this plea agreement, I hereby knowingly and voluntarily waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement." Id. at 765 (citation to the record omitted). At Haddock's sentencing hearing on February 2, 2016, the trial court noted Haddock's criminal history and also that the "factual basis for this particular offense specifically includes that it took place in the physical presence of a child less than eighteen (18) years of age." Id. (citation to the record omitted). Based thereon, the trial court sentenced Haddock to fourteen years, which is more than the advisory sentence for a Level 3 felony. See Ind. Code § 35-50-2-5(b) (sentencing range for a Level 3 felony is between three and sixteen years, with an advisory sentence of nine years).

[10] Haddock pursued a petition for post-conviction relief six months later alleging he received ineffective assistance of trial counsel. The trial court stayed his petition because the Indiana Public Defender's office was unable to investigate Haddock's claims. On January 8, 2018, another Deputy Public Defender filed an appearance on Haddock's behalf and filed a petition for permission to file a belated appeal. In that petition, Haddock argued that "the trial court's use of a fact that Haddock had committed the offense while in the presence of a child was an improper aggravator because that was also an element of the offense to which Haddock had pleaded guilty." Id. at 766. He claimed he did not learn that his "waiver of appellate rights did not apply if the Judge failed to follow sentencing procedure and guidelines" and he "first learned of this option on February 27, 2018, at a client conference" with his Deputy Public Defender. Id. (citation to the record omitted). The trial court denied Haddock's petition for permission to file a belated appeal without a hearing.

[11] On appeal, the State argued that Haddock had unequivocally waived his right to appeal his...