Indiana Sentencing Appeal Waivers…Again

In May 2023, the Supreme Court held that where a plea agreement has a clear appeal waiver, it does not matter whether the trial court misadvised the defendant or not about the waiver. Instead, the waiver stands, and a defendant who felt misled by the court’s misadvisement could pursue relief through a post-conviction action. I wrote about this decision in Davis v. State here.

Earlier this month the Indiana Supreme Court returned to the topic of appeal waivers in plea agreements, clarifying some things but muddying the waters on others.

I thought the Davis opinion closed the matter. But even after Davis, trial courts continued to appoint appellate attorneys to perfect sentencing appeals where there were clear appeal waivers. What to do in that situation was debated among the public defense community. Some believed the right approach was to proceed on appeal like normal and review the record on appeal to see whether the appeal waiver was indeed valid. If there was a clear appeal waiver and the parties did not modify that provision in the plea agreement, then appellate counsel would dismiss the appeal so the client could proceed to post-conviction relief proceedings immediately.

The other approach was to try to argue around the waiver by arguing appeal waivers should not be allowed. This claim was almost never successful because our case law was clear: Indiana allows a defendant to waive the right to appeal a sentence imposed after a guilty plea. If the defendant did not enter into the waiver knowingly and voluntarily, his relief can only be found through the post-conviction process.

The Indiana Supreme Court’s recent decision in Kimberly Anderson v. State reaffirms its prior holding in Davis and provides additional clarity on appeal waivers. The Court reminded practitioners that appeal waivers, no matter how broad, are not absolute. There is one sentencing claim that cannot be waived: when a sentence is “illegal.” The Court defines an illegal sentence as either a sentence that falls outside the permitted range or that is unconstitutional. What is an “unconstitutional” sentence was not clearly explained, and the court left the question for another day. But it would likely require a pretty egregious error to circumvent an appeal waiver. Run-of-the-mill sentencing claims will not suffice.

The Court in Anderson reaffirmed another holding in Davis as well. The appeal waiver is still valid, even when the trial court mistakenly advises the defendant that she may appeal the sentence.

This reaffirmation is notable, given the Supreme Court’s recent order in Devin Powell v. State. In Powell, the defendant entered into a plea agreement with the State, where he waived his right to appeal his sentence. But at sentencing when the court misadvised the defendant that he could appeal his sentence, the prosecutor interjected and agreed. So the defendant appealed.

The State moved to dismiss Powell’s appeal, citing to the appeal waiver. Powell responded, arguing that by speaking up at the sentencing hearing the prosecutor effectively waived the appeal waiver. The Court of Appeals disagreed and granted the State’s motion to dismiss the appeal. Powell sought transfer of his case to the Indiana Supreme Court.

In a published order, the Court granted transfer, vacated the order dismissing Powell’s appeal, and remanded the case to the Court of Appeals so the parties could fully brief the issue of whether the State waived the appeal waiver.

From a practitioner’s standpoint, the law now seems fairly clear with respect to appeal waivers: unless the sentence imposed was illegal, or the prosecutor waived enforcement of the waiver, a defendant who enters into a plea agreement with a comprehensive appeal waiver cannot appeal his sentence. Yet the debate in the public defense community will continue for two reasons: Garza v. Idaho and Mosley v. State.

In Garza, the U.S. Supreme Court held that an attorney who fails to file a notice of appeal when a client indicates a desire to appeal renders ineffective assistance of counsel, regardless of whether the plea agreement contained a comprehensive appeal waiver. What’s more, the defendant in Garza had entered into a fixed plea agreement, meaning the court had no discretion as to the sentence once it accepted the plea agreement.

In Mosley, the Indiana Supreme Court held that “in any direct criminal appeal as a matter of right, counsel must submit an advocative brief.” A direct criminal appeal, while not defined in Mosley, is generally understood to be the first opportunity a defendant has to challenge his conviction or sentence.

So if Garza requires counsel to file a notice of appeal if the defendant wishes to appeal, and Mosley requires appointed appellate counsel to file an advocative brief in every direct criminal appeal, what does counsel do in a case with a comprehensive appeal waiver?

Counsel can easily satisfy the requirement under Garza by filing the notice of appeal and reviewing the transcript to determine whether the prosecutor waived or forfeited the appeal waiver. If the prosecutor did, then counsel has an issue to raise in the advocative brief required under Mosley.

But what if the prosecutor did not waive/forfeit the appeal waiver? How does counsel comply with Mosley? Some would say that appellate counsel must argue for the Supreme Court to overrule precedent upholding the validity of appeal waivers. But at this point it seems to be a waste of time and resources; the Court has repeatedly rejected this argument.

Perhaps it is Mosley that should be revisited.