Appeal Waivers . . . Again

Over the last several years, the Indiana Supreme Court has repeatedly returned to the topic of appeal waivers. I have written about this topic numerous times, including the last post on the topic found here. Last month, the Court again weighed in on the matter.

Carlos Ortiz pleaded guilty to murder. The plea agreement contained an appeal waiver. The trial court sentenced Ortiz to 63-1/2 years. Thirteen years later, Ortiz sought permission to file a belated direct appeal.

The trial court denied Ortiz’s request, but the Court of Appeals reversed. The two courts’ different decisions relied upon a split in authority. The Supreme Court granted transfer to resolve the split in authority.

The Court first reaffirmed its prior holding that a broad appeal waiver precludes all sentencing challenges with the exception of one: whether the sentence was illegal. A sentence is illegal if it falls outside the statutory sentencing range or if it is unconstitutional.

The Court reiterated that a trial court’s reliance on an improper aggravating circumstance does not make a sentence illegal. However, the Court noted that the following scenarios could result in an illegal sentence:

• if consecutive sentences were based solely on an improper aggravating circumstance, since the resulting sentence would be outside the statutory range; or

• if a sentence was based on an impermissible criterion, such as race, rendering the sentence unconstitutional.

Other than these grounds, the appeal waiver bars a defendant from seeking a direct appeal of the sentence.