Montgomery v. State
| Decision Date | 25 August 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-02331 |
| Parties | Julie A. MONTGOMERY, Appellant(s), v. STATE of Indiana, Appellee(s). |
| Court | Indiana Supreme Court |
This matter has come before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petition.
Being duly advised, the Court DENIES the petition to transfer.
David, J., dissents from the denial of transfer with separate opinion in which Rush, C.J., joins.
David, J., dissenting from the denial of transfer.
I respectfully dissent from my colleagues’ decision to deny transfer in Montgomery v. State , 21A-CR-02331, 192 N.E.3d 169 (Ind.2022), and Philhower v. State , 21A-CR-02470, 192 N.E.3d 173 (Ind.2022). Both appellants challenge their sentences on appeal, even though each agreed by plea agreement to waive the right to appeal their sentences. Once again, these waiver provisions deserve this Court's attention and scrutiny. Accordingly, I write separately to reiterate many of the sentiments expressed in my dissent from the Court's denial of transfer in Wihebrink v. State , 21A-CR-01749, 192 N.E.3d 167 (Ind.2022), and continue to stress the necessity of developing a clear and meaningful record as trial judges advise defendants of their rights in cases in which the parties submit a written plea agreement and the trial court imposes a sentence upon its acceptance of the agreement.
As I explained in my dissent for Wihebrink , a defendant may waive the right to appeal her sentence as part of the plea agreement, so long as such waiver is knowing and voluntary. Creech v. State , 887 N.E.2d 73, 74 (Ind. 2008). But because such appellate waivers are inherently prospective, questions naturally arise as to whether a defendant knowingly and voluntarily assented to such waiver. This is because a defendant's frontend waiver of her appellate rights requires that she surrender the ability to appeal various errors potentially committed by the trial judge at the sentencing hearing, such as a misstatement of law, inflammatory or prejudicial commentary, or, as we saw in Wihebrink's appeal, reliance on improper aggravators in reaching a sentencing decision, all of which are simply unknown and unanticipated by the party that risks the most in the face of such uncertainty, the defendant. Therefore, additional assurance as to the validity of the waiver is necessary. Trial courts may provide such assurance by developing a clear record demonstrating a defendant understands the terms and conditions of the plea agreement and the rights, including appellate rights, surrendered by pleading guilty.
Under the circumstances before the Court, I would grant Montgomery's and Philhower's petitions to transfer because the record is simply inadequate for me to conclude that either defendant knowingly and voluntarily waived their appellate rights. Here, Montgomery and Philhower, like Wihebrink, signed plea agreements containing provisions waiving "[t]he right to appeal an adverse decision of the Trial Court," as well as the "right to appeal any sentence imposed by the Court that is within the range of penalties set forth in th[e] plea agreement." Montgomery App. Vol. II at 55; Philhower App. Vol. II at 86.
However, each defendant received different advisements—with varying detail—at the hearings for their respective plea agreements. For example, the trial court advised Montgomery of the rights she gave up by pleading guilty, but the colloquy made no reference to the fact that she waived the right to appeal her conviction and sentence. At the hearing for Philhower's plea agreement, the same trial judge provided similar advisement. And to the trial court's credit, the judge further questioned, "Do you understand that if we had a trial and you were found guilty you would have certain appeal rights and by pleading guilty today you will be giving up those appeal rights?" Philhower Tr. at 6. But the judge did not specify the nature of these "certain" rights or whether such rights included the right to appeal his conviction or sentence, or both.
This Court previously rejected the argument that trial courts are required to make express findings that a defendant intended to waive their appellate rights because "neither the Indiana Rules of Criminal Procedure nor Indiana Code requires trial courts that accept plea agreements to make express findings regarding a defendant's intention to waive his appellate rights." Creech , 887 N.E.2d at 77. Rather, "[a]cceptance of the plea agreement containing the waiver provision is sufficient to indicate that, in the trial court's view, the defendant knowingly and voluntarily agreed to the waiver." Id.
But I am not convinced a written waiver, standing alone, adequately assures that a defendant knowingly and voluntarily waived their appellate rights. And I strain to reason how a trial judge may conclude that such waiver is knowing and voluntary if it does not actually inquire into the defendant's understanding of the rights otherwise waived by the plea agreement. Instead, I am persuaded by the decisions from other jurisdictions requiring that the record demonstrates the defendant's understanding of the terms and conditions, including any waiver provisions, of the plea agreement. See, e.g., People v. Lopez , 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145,...
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Philhower v. State
...dissenting from the denial of transfer.I respectfully dissent from my colleagues’ decision to deny transfer in Montgomery v. State , 21A-CR-02331, 192 N.E.3d 169 (Ind.2022), and Philhower v. State , 21A-CR-02470, 192 N.E.3d 173 (Ind.2022). Both appellants challenge their sentences on appeal......