Judge: Lawyers have responsibility to correct bench errors

A man’s appeal of his sentence for marijuana-related convictions was denied in a memorandum decision Friday, but an appellate judge wrote the case wouldn’t have been there had a prosecutor or defense lawyer spoken up when a judge erred.

Matthew T. Dickerhoff was convicted of Class D felony maintaining a common nuisance and Class A misdemeanor possession of marijuana. He pleaded guilty and received a one-year executed sentence, which the Court of Appeals affirmed.

The court noted that Dickerhoff had waived his right to appeal his conviction or sentence so long as it was within the agreed range, but Miami Circuit Judge Timothy Spahr advised him otherwise. Spahr advised he was waiving Dickerhoff’s right to appeal, “except as to any sentencing since sentencing is being left to the Court’s discretion.” Neither party objected to the statement.  

Judge Margret Robb used a concurring opinion to remind attorneys of their obligations in such a situation. “I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed.

“In Mechling, we held the State was not estopped from enforcing the waiver provisions of a plea agreement simply because it had not objected when the trial court, at the conclusion of the sentencing hearing, erroneously advised the defendant of his right to appeal his sentence. … We also noted, however, that defendant’s counsel ‘sat just as idly by as the State during the trial court’s erroneous advisement’ and that there was ‘much in judicial resources to be lost’ by the failure of either attorney to speak up if the result was to be a ‘gratuitous appeal.’

“That is the situation we have encountered here. The parties knew the terms of the plea agreement and should have corrected the trial judge when he misspoke. Because the improper advisement came during Dickerhoff’s plea hearing, time, effort, and resources have been expended briefing and deciding a sentencing appeal that Dickerhoff had originally bargained away.”  

The case is Matthew T. Dickerhoff v. State of Indiana (mem. dec.),52A02-1408-CR-535.