Darden, S.J.
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The State charged Williams with one count of Class D felony theft, and later added an allegation that Williams was an habitual offender. Williams and the State entered into a plea agreement whereby Williams would plead guilty to Class D felony theft and the State would dismiss the habitual offender allegation. …
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Williams agreed that a fair sentence for her offense would be thirty-six months incarceration in the Department of Correction, but asked the trial court to order that the sentence be executed on home detention. The probation department recommended a three-year sentence to the Department of Correction with two years executed and one year suspended to probation. The State agreed with the probation department’s recommendation. After considering the evidence and argument of counsel, the trial court sentenced Williams to three years executed in the Department of Correction.
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The State contends that Williams cannot challenge the sentence she received because she waived the right to do so, pursuant to [the following waiver provision in] her plea agreement[:]. …
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The Defendant understands that he/she has a right to appeal his [sic] sentence if there is an open plea. An open plea is an agreement which leaves the sentence entirely to the Judge’s discretion, without any limitations or the dismissal of any charges. The Defendant acknowledges that his [sic] plea is not an open plea and the Defendant hereby waives his [sic] right to appeal his [sic] sentence so long as the Judge sentences the Defendant within the terms of the plea agreement.
[Record citations omitted throughout.]
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The terms of Williams’ plea agreement are in conflict and thus we find the plea agreement to be ambiguous with respect to her right to appeal. First, Williams initialed indicating that she was advised of the statutory maximum, minimum, and advisory sentence for a Class D felony, to which she was pleading guilty and the statutory limitations on the trial court’s discretion in imposing the sentence. Secondly, her initials indicate that she was waiving her right to have a jury determine the existence of any aggravating factors and requested the trial court to find any aggravating and mitigating circumstances after considering the presentence investigation report and evidence and argument of counsel at the sentencing hearing. Thirdly, the plea agreement provides that Williams had the right to appeal a sentence imposed on an open plea, but waived her right to appeal the sentence imposed because hers was not an open plea, at least as was defined in the plea agreement (“An open plea is an agreement which leaves the sentence entirely to the Judge’s discretion, without any limitations or the dismissal of any charges.”).
“We construe contracts against the drafting party, ‘which, in the case of plea agreements, is the State.’” [Citations omitted.] As such, we conclude that this was in fact an open plea, that the parties mistakenly characterized as not being so. Nevertheless, per the terms of the plea agreement, Williams was allowed the opportunity to appeal her sentence from the open plea and may do so here on direct appeal. This conclusion comports with the trial court’s sentencing statement on the record after imposing sentence. (“Since this was an open sentence, I will advise you of your rights to appeal in this matter.”). At that point the State did not object to the trial court’s comments or correct the record pursuant to the plea agreement. We decline to dismiss Williams’ appeal.
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Affirmed.
Baker, J., and Altice, J., concur.