Rush, C.J.
This case presents the recurring problem of criminal defendants being misadvised about the consequences of signing plea agreements that include provisions waiving the right to appeal their sentences. Although the Court of Appeals properly followed precedent in dismissing this appeal, I write to explain the steps our courts and attorneys must take to ensure defendants are not misled and to protect the finality of plea agreements.
…[I]t has become far too common for defendants to receive incorrect advisements from our trial courts about appeal waivers. See, e.g., Grate v. State, 213 N.E.3d 1025, 1026–27 (Ind. 2023) (Rush, C.J., dissenting from denial of transfer) (citing cases in reminding our courts to “be clear, consistent, and accurate when making statements related to those waivers during hearings”). Inaccurate or contradictory statements by a judge about an agreement’s appeal-waiver provision can mislead a defendant into pleading guilty without fully understanding the consequences, rendering the plea involuntary and subject to collateral attack through post-conviction proceedings. Davis, 217 N.E.3d at 1233. Such statements therefore threaten the finality and certainty of convictions secured through plea agreements. For these reasons, it is imperative that courts and counsel ensure defendants receive clear and accurate advisements.
When a defendant signs a plea agreement that leaves sentencing discretion to the trial court and contains a waiver of the right to appeal the sentence, the court should:
- Explain that the defendant would ordinarily have the right to appeal their sentence, but the plea agreement contains a waiver limiting that right.
- Read the appeal-waiver provision to the defendant.
- Explain that the provision waives the defendant’s right to appeal the sentence to be imposed, except for:
- any issue that falls outside the scope of the waiver;
- a sentence that violates the plea agreement; or
- a sentence that is illegal because it falls outside the prescribed statutory range or is unconstitutional.
- Confirm the defendant understands the consequences of the appeal-waiver provision before accepting the guilty plea.
Attorneys also have a role in ensuring appeal-waiver provisions are clear and defendants are accurately advised. Given the stakes in preserving finality and certainty, the State should draft appeal-waiver provisions that unambiguously and specifically describe which appeal rights the defendant is waiving and retaining. Defense counsel should then confirm that the provisions are clear and that their clients understand these rights. And counsel for both sides should respectfully intervene during a guilty plea hearing to correct any confusing or incorrect statements by a judge. Together, the bench and bar can ensure that defendants are properly advised so that plea agreements achieve their intended finality.
Massa, Slaughter, Goff, and Molter, JJ., join.