May, J.
In this belated appeal, Jay Paul Crouse Jr. appeals his aggregate forty-year
sentence for four convictions of Class B felony armed robbery. He argues the trial court abused its discretion when it ordered his four ten-year sentences to be served consecutive to one another. The State cross-appeals, arguing the trial court abused its discretion when it permitted Crouse to file a belated appeal. We affirm the trial court’s decision to grant Crouse’s petition for permission to file a belated appeal and we affirm Crouse’s sentence.
As an initial matter, the State contends the trial court abused its discretion when it granted his petition for permission to file a belated appeal. To file a belated appeal, a defendant must be an “eligible defendant” as defined by Indiana Post Conviction Rule 2…
…
The State contends that Crouse waived his right to appeal his sentence as part of the language of his plea agreement, and thus he is not an “eligible defendant” under Indiana Post-Conviction Rule 2 because he does not have the right to challenge his sentence on appeal.
Crouse’s plea agreement stated, “[d]efendant hereby waives the right to appeal any sentence imposed by the court, including the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the court sentences the defendant within the terms of his plea agreement.” (App. Vol. II at 65.) The State contends we have long upheld a defendant’s waiver of his right to appeal his sentence based on similar language. (See Br. of Appellee at 12) (citing Creech v. State, 887 N.E.2d 73, 74 (Ind. 2008) (holding defendant’s right to appeal his sentence waived based on this statement in his plea agreement: “I hereby waive my right to appeal my sentence as long as the Judge sentences me within the terms of my plea agreement”); and see Brown v. State, 970 N.E.2d 791, 791 (Ind. Ct. App. 2012) (holding defendant’s right to appeal his sentence waived based on the following statement in his plea agreement: “The Defendant hereby waives his right to appeal his sentence so long as the Judge sentences him within the terms of the plea agreement”).
However, our Indiana Supreme Court has held that unless “a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences,” a waiver of appeal set forth as part of a plea agreement “applie[s] only to sentences imposed in accordance with the law.” Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013.) While the trial court’s discretion in determining a sentence when it is capped by a plea agreement is not as great as an open plea wherein sentencing is left to the trial court’s discretion, the trial court maintains a level of discretion when sentencing based on a sentencing cap. Childress v. State, 848 N.E.2d 1073, 1078 (Ind. 2006). Here, Crouse’s plea agreement capped his sentence at forty years, but gave the court discretion to determine the length of his aggregate sentence and how that sentence was to be structured and served. Thus, under Crider, Crouse’s waiver of appeal may not be a barrier to appeal of his sentence if he believes the trial court sentenced him illegally. Contra Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (Lee could not agree to a fixed sentence as part of a plea agreement and then argue it was illegal).
During the hearing on his motion to correct error stemming from the denial of his petition for permission to file a belated appeal and in the appeal before us, Crouse relies primarily on Haddock v. State, 112 N.E.3d 763 (Ind. Ct. App. 2018). The facts in Haddock are similar to those here.
…
Here, Crouse argued during the hearing on his motion to correct error after the denial of his petition for permission to file a belated appeal:
[T]here’s belief that he has an illegal aspect to the sentence, and he should be allowed to proceed with the belated appeal. In an open plea agreement such as the one he entered in this case. I think we set out in the Verified Petition and in the Motion to Correct Errors that this case involved, um, four (4) different robbery counts. He plead [sic] guilty to each one of those with a sentence, sentencing cap of forty (40) years. The State argued for forty (40) years and Mr. Crouse argued for a lesser sentence. The Court identified the fact that there were four (4) separate victims in order to impose four (4) advise-presumptive, at that point, sentences in this case. . . . [T]he Court identified four (4) victims when, in fact, there were only three (3). . . [E]ven despite the waiver, if there is, if he believe that there is an appeal, an erroneous aspect to his sentence, then he’s entitled to appeal that sentence.
(Tr. Vol. II at 9-11.) Like in Haddock, Crouse has alleged he was not sentenced in accordance with the applicable law, and thus the trial court did not abuse its discretion when it granted his motion to correct error and allowed him to file a belated appeal.
The trial court did not abuse its discretion when it granted Crouse’s petition for permission to file a belated appeal. Regarding the merits of Crouse’s sentencing argument, the trial court did not abuse its discretion when it sentenced him to four ten-year sentences to be served consecutive to one another. Accordingly, we affirm Crouse’s forty-year sentence.
Affirmed.
Robb, J., concurs.
Vaidik, J., concurs in result with opinion.
Vaidik, Judge, concurring in result.
I concur in the result reached by the majority. However, I cannot join its reliance on Haddock, which I believe was wrongly decided.
In my view, a defendant who enters into a plea agreement that includes a waiver-of-appeal provision does not become an “eligible defendant” under Post Conviction Rule 2 simply by claiming “I want to appeal the legality of my sentence” or “I believe my sentence is illegal.” Rather, such a defendant should be required to identify a specific, plausible theory of illegality. Otherwise, the broad waiver-of-appeal provision agreed to by the defendant is no waiver at all
In Haddock, the defendant’s claim of illegality was specific but not plausible. He claimed that one of the two aggravators relied upon by the trial court to impose an above-advisory sentence for a single conviction was invalid.
…
Here, on the other hand, Crouse identified a specific, plausible theory of illegality. He claimed that the only aggravator found by the trial court—that each robbery count involved “a separate victim”—is invalid because two of the robberies involved the same victim. If Crouse were correct that this aggravator is invalid, then his sentence would be illegal, because consecutive sentences cannot be imposed without at least one aggravator. See, e.g., Mannix v. State, 54 N.E.3d 1002, 1011 n.7 (Ind. Ct. App. 2016). While I agree with the majority that the challenged aggravator is proper and that therefore Crouse’s sentence is ultimately not illegal, Crouse’s theory was at least plausible, so he was correctly allowed to pursue this belated appeal. For this reason, I concur in result.