Wihebrink v. State

• Decision Date: 23 August 2022
• Docket Number: Court of Appeals Case No. 21A-CR-01749
• Parties: Britni N. WIHEBRINK, Appellant(s), v. STATE of Indiana, Appellee(s).
• Court: Indiana Supreme Court

192 N.E.3d 167 (Mem)

Britni N. WIHEBRINK, Appellant(s),

v.STATE of Indiana, Appellee(s).

Court of Appeals Case No. 21A-CR-01749

Supreme Court of Indiana.

FILED August 23, 2022

Order

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.

Massa, J., Slaughter, J., and Goff, J., vote to deny 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 our Court's decision to deny transfer. Britni Wihebrink appeals the trial court's sentencing decision, raising an issue often presented in our Court: whether a defendant may challenge a sentence based, in part, on an improper aggravating factor, even though the defendant agreed to waive appellate review of the sentence in the plea agreement with the State. In resolving Wihebrink's appeal, the Court of Appeals further divided legal authority on this issue. Compare Wihebrink v. State , 181 N.E.3d 448 (Ind. Ct. App. 2022), with Haddock v. State , 112 N.E.3d 763 (Ind. Ct. App. 2018), trans. denied ; Crouse v. State , 158 N.E.3d 388 (Ind. Ct. App. 2020) ; Fields v. State , 162 N.E.3d 571 (Ind. Ct. App. 2021), trans. denied. I would grant transfer to reconcile the conflict between this precedent. But I also write separately to voice my concerns regarding these waiver provisions and offer guidance for counsel and trial courts in hopes of further assuring defendants in similar circumstances knowingly and voluntarily waive their right to appellate review of their sentences.

Here, Wihebrink agreed to plead guilty to neglect of a dependent resulting in death in exchange for the State's agreement to refrain from prosecuting a pending charge for obstructing justice. Consistent with the parties’ agreement, sentencing was "left to the discretion of the Court with the exception that any sentence imposed on the [neglect charge] shall not exceed thirty (30) years." Appellant's App. Vol. II at 42. Most significantly, Wihebrink agreed to waive the right to appeal her sentence in a provision stating:

9. As further consideration for this Plea Agreement, the Defendant hereby waives any and all appellate review of a sentence imposed by the court that is consistent with the terms of this Plea Agreement. This waiver of appellate review includes but is not limited to: challenges for abuse of discretion, challenges to the trial court's sentencing statement, and challenges to the appropriateness of the sentence pursuant to Indiana Appellate Rule 7(B). This waiver also includes the waiver of the Defendant's right to have an attorney appointed, at public expense, to prosecute the appeal, as well as the right to have a transcript of the proceedings prepared for the Defendant at public expense.

Id.

At a hearing on the plea agreement, the trial court confirmed with Wihebrink that she gave up certain rights by pleading guilty, including the right to a public trial, to confront and cross-examine witnesses, and to call and subpoena her own witnesses. But—although, unargued by the parties on appeal—the trial court did not inquire further into her additional waiver of significant appellate rights, including the right to appeal the trial court's sentence for an abuse of its discretion and to have an attorney appointed to prosecute her appeal, before accepting her guilty plea. And the trial court also failed to advise Wihebrink that she surrendered the right to appeal her conviction. After accepting the plea agreement, the trial court imposed the maximum sentence—thirty years—allowable under the agreement.

Defendants who plead guilty in return for favorable outcomes "give up a plethora of substantive claims and procedural rights." Creech v. State , 887 N.E.2d 73, 74 (Ind. 2008) (quoting Games v. State , 743 N.E.2d 1132, 1135 (Ind. 2001) ). Because plea agreements are essentially contracts, a valid and enforceable appeal waiver precludes review only of those challenges that fall within its scope. Garza v. Idaho , ––– U.S. ––––, 139 S.Ct. 738, 744, 203 L.Ed.2d 77 (2019). Generally, a defendant may waive the right to appeal her sentence as part of her guilty plea. Creech , 887 N.E.2d at 75. But, as Wihebrink acknowledges, while this sort of waiver "[is] a valid prosecutorial tool to limit sentencing appeals," it is "not without limits." Reply Br. at 4. A defendant's waiver of the right to appeal her sentence must be knowing and voluntary. Creech , 887 N.E.2d at 74.

The very nature of this waiver calls into question whether it is knowing and voluntary. Accordingly, I write separately with hope that trial courts and counsel, alike, will treat such provisions with caution and apprehension, anticipating possible appellate issues well after the parties submit their plea agreement to the trial court in advance of sentencing. Sentencing waivers are, by their nature, prospective: a defendant waives the right to appeal her sentence before the trial court accepts her guilty plea. Supposing a plea...