Vaidik, J.
Our Supreme Court held in Creech v. State, 887 N.E.2d 73 (Ind. 2008), that a defendant may waive the right to appeal their sentence as part of a written plea agreement that leaves sentencing to the discretion of the trial court. Several years later, in Crider v. State, 984 N.E.2d 618 (Ind. 2013), the Court held an appeal waiver is unenforceable when the sentence the trial court imposes is “illegal” or “contrary to law.” Here, Britni Wihebrink entered into a plea agreement under which she pled guilty to a Level 1 felony, agreed to a sentencing cap of thirty years, and waived the right to appeal any sentence within that cap. She was sentenced to thirty years, but she now argues some of the aggravators found by the trial court are invalid and that therefore she was not sentenced “in accordance with the law.” But Crider was concerned with the legality of the sentence imposed, not the individual factors considered in reaching that sentence. As such, Wihebrink’s appeal waiver is enforceable.
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Wihebrink contends the trial court erred in denying her petition for permission to file a belated notice of appeal.
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The State argues Wihebrink is not an “eligible defendant” because she waived the right to appeal her sentence under the plea agreement and therefore did not have the right to challenge her sentence on direct appeal.
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Wihebrink does not dispute that her sentence falls within the statutory range for her crime. She was convicted of a Level 1 felony. The sentencing range for a Level 1 felony is twenty to forty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4(b). Wihebrink received the advisory sentence. Nevertheless, Wihebrink argues her sentence is contrary to law because several aggravators found by the trial court are invalid. She cites the last paragraph of Crider, where our Supreme Court stated a defendant is entitled to presume the trial court will sentence them “in accordance with the law.” 984 N.E.2d at 625. Wihebrink claims a defendant who is sentenced based in part on invalid aggravators is not sentenced “in accordance with the law.”
But the quoted passage from Crider must be read in context. The defendant in Crider entered into a plea agreement under which he pled guilty to theft and admitted being a habitual offender and waived the right to appeal his sentence. When he made the agreement, the defendant had been convicted in another county of theft and attempted fraud and found to be a habitual offender. The plea agreement did not address the other case. At sentencing, the trial court ordered the defendant’s habitual-offender sentences to run consecutively. The defendant appealed, arguing his sentence was “illegal” because Indiana law did not authorize consecutive habitual-offender sentences. Id. at 620. On appeal, our Supreme Court found the defendant’s consecutive habitual-offender sentences were illegal or contrary to law. See id. at 622 (“We reiterate [u]nder Indiana law, a trial court cannot order consecutive habitual offender sentences.” (quotation omitted)). And because the defendant did not agree to consecutive habitual-offender sentences in his plea agreement, the Court found his appeal waiver was unenforceable and remanded for resentencing. The Court was concerned with whether the defendant’s consecutive habitual-offender sentences were authorized by law; nowhere in Crider did the Court suggest that reliance on one or more invalid aggravators makes the sentence “illegal” or “contrary to law.”
Wihebrink notes this Court has held otherwise. In Haddock v. State, a panel of this Court held a defendant was an “eligible defendant” under Post-Conviction Rule 2 notwithstanding an appeal waiver because he alleged his sentence was “illegal” due to one of the two aggravators being invalid. 112 N.E.3d 763, 767 (Ind. Ct. App. 2018), trans. denied; see also Fields, 162 N.E.3d 571 (relying on Haddock). But again, Crider doesn’t support such a holding. See Crouse v. State, 158 N.E.3d 388, 395 (Ind. Ct. App. 2020) (Vaidik, J., concurring in result) (opining Haddock was “wrongly decided” because “[e]ven if the challenged aggravator was invalid, that would not have made the defendant’s sentence ‘illegal’”), trans. not sought. And for good reason. Indiana Code section 35-38-1 7.1(d) provides that “[a] court may impose any sentence that is: (1) authorized by statute; and (2) permissible under the Constitution of the State of Indiana; regardless of the presence or absence of aggravating circumstances or mitigating circumstances.” As such, when imposing a sentence, a trial court has discretionary authority to sentence a defendant within the parameters authorized by statute for each offense. To the extent a court finds improper aggravators or fails to find proper mitigators, we review the sentence for an abuse of discretion, not for legality. Crider concerns sentence illegality. Examples of sentences that would be illegal or contrary to law include: (1) a sentence that exceeds statutory guidelines, such as a fifty-year sentence for a Level 2 felony, see I.C. § 35-50-2-4.5; (2) consecutive sentences without an aggravator, see Sanquenetti v. State, 727 N.E.2d 437, 442 (Ind. 2000) (“In order to impose consecutive sentences, a trial court must find at least one aggravating circumstance.”); (3) impermissible double enhancements, see, e.g., Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013) (“[A] person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence for that crime enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon.”); and (4) consecutive habitual-offender sentences, as in Crider.
Furthermore, if a defendant who waived the right to appeal their sentence was allowed to appeal on the ground that the trial court found improper aggravators or failed to find proper mitigators, the appeal waiver explicitly sanctioned in Creech would be largely gutted in those cases where a defendant does not agree to a specific sentence, see Creech, 887 N.E.2d at 75, as any defendant could make such an argument.
Because Wihebrink’s argument is not one of illegality under Crider, she did not have the right to challenge her sentence on direct appeal. As such, she is not an “eligible defendant” under Post-Conviction Rule 2. We therefore affirm the trial court’s denial of Wihebrink’s petition for permission to file a belated notice of appeal.
Affirmed.
Weissmann, J., concurs.
Najam, J., dissents with separate opinion.
Najam, J., dissenting.
I respectfully dissent. The question before us is whether, under Post-Conviction Rule 2, Wihebrink is an eligible defendant entitled to file a belated appeal. The majority holds that Wihebrink is not an eligible defendant because she waived her right to appeal her sentence and because she does not allege that her sentence is illegal. But this Court has recently held, on three occasions, that individuals were eligible defendants despite the waiver-of-appeal provisions in their plea agreements where they alleged that their sentences were contrary to law. Based on that precedent, I would hold that Wihebrink is an eligible defendant pursuant to Indiana Post-Conviction Rule 2.
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[T]his Court has repeatedly held that, had a defendant timely appealed his sentence and asserted that it was contrary to law because it was based on improper aggravators, that issue would have been available for review notwithstanding the waiver-of-appeal provision in a plea agreement. And because such a defendant would have had the right to challenge his sentence on direct appeal, he is an eligible defendant under Post-Conviction Rule 2.
Here, like the defendants in Crouse and Fields, the court sentenced Wihebrink to the maximum sentence allowed under the plea agreement. But even though Wihebrink agreed to a maximum sentence of thirty years, she did not agree to be sentenced to the full thirty-years based on an improper aggravator. See Fields, 162 N.E.3d at 576. And Wihebrink asserted in her petition for permission to file a belated notice of appeal that her sentence is contrary to law because it relied on several improper aggravators. As we held in Haddock, Crouse, and Fields, I would again hold that that is an issue she would have had the right to raise in a timely appeal and, as such, that Wihebrink is an eligible defendant under Post-Conviction Rule 2. 3 Accordingly, I would reverse the trial court’s order and remand with instructions for the court to grant Wihebrink’s petition for permission to file a belated notice of appeal.