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A man convicted on several theft-related charges can’t directly appeal his sentence after he and his attorney signed a plea agreement waiving his right to appeal, a split Indiana Supreme Court again ruled Tuesday in a modified opinion on rehearing.
The high court majority previously rejected arguments by Matthew Thomas Davis that the Madison Circuit Court’s statements prior to his acceptance of his change of plea had misled him to believed he still retained a right to appeal.
Davis sought rehearing, supported by separate amicus briefs from the state public defender and the Indiana Public Defender Council, according to the Wednesday order on rehearing.
In its order, the high court acknowledged that the state public defender and the Public Defender Council reported confusion among public defenders about whether the majority opinion forecloses direct appeals of sentencing issues that remain viable notwithstanding an appeal waiver, such as direct appeals of certain illegal sentences or sentencing issues outside the scope of an appeal waiver.
“Based on this concern, we grant in part the Petition for Rehearing, clarifying that the majority opinion addresses only the issue Davis presented, which required us to decide whether we could nullify Davis’s appeal waiver through a direct appeal based on his claim that the trial court gave contradictory advisements,” the order states.
“The opinion does not disturb any of our prior precedents, including our holding in Crider that a defendant may pursue a direct appeal of an illegal sentence that the defendant did not bargain for and our holding in Archer that a defendant may pursue a direct appeal of sentencing issues that fall outside the scope of the appeal waiver,” the order continues, citing Crider v. State, 984 N.E.2d 618 (Ind. 2013), and Archer v. State, 81 N.E.3d 212 (Ind. 2017).
Thus, the justices removed the following language from the original May 3 opinion: “Davis seeks to appeal his sentence despite his plea agreement with the State promising not to do so (and without yet knowing whether there are any viable appellate issues). But because we cannot nullify Davis’s signed appeal waiver through this direct appeal, we must dismiss the appeal, although he may still seek relief through post conviction proceedings.”
They added the following language in place of the deleted language: “Davis argues we should nullify his appeal waiver, and his transfer petition identifies a single issue for our consideration: ‘Did Davis knowingly and voluntarily waive his right to appeal his sentence when the court gave contradictory advisements in violation of his due process rights?’ Because we cannot nullify Davis’s appeal waiver through this direct appeal based on the claim that the waiver was not knowing and voluntary, we must dismiss the appeal. However, Davis may still seek relief through post-conviction proceedings.”
They also added footnote 3 to the majority opinion: “To be sure, there remain circumstances where defendants may pursue a direct appeal of sentencing issues notwithstanding an appeal waiver. For example, some sentencing appeal issues are nonwaivable. See Crider v. State, 984 N.E.2d 618, 619 (Ind. 2013) (‘In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence.’). Other issues may also fall outside the scope of the waiver. See Archer v. State, 81 N.E.3d 212, 214, 216 (Ind. 2017) (holding that the defendant’s appeal waiver did not cover her right to appeal the restitution amount). This appeal does not implicate those issues because Davis’s transfer petition seeks to nullify the appeal waiver as not knowing and voluntary rather than to raise a nonwaivable sentencing issue or an issue outside the scope of his appeal waiver.”
Chief Justice Loretta Rush and Justice Christopher Goff concurred in the grant of rehearing but dissented from the revised majority opinion, as they did from the original opinion.
The case is Matthew H. Thomas Davis v. State of Indiana, 22S‐CR‐253.
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