Joshua N. Pennington, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff (2023)

MEMORANDUM DECISION

Weissmann, Judge.

[1] Joshua Pennington entered into a plea agreement in which he waived the right to appeal his sentence. Yet over a year after receiving his sentence, Pennington attempted to file a belated notice of appeal. The trial court summarily denied his petition without a hearing. Finding that Pennington is not eligible to challenge his sentence, we affirm.

Facts

[2] In April 2021, Pennington pleaded guilty to sexual misconduct with a minor, a Level 4 felony, and possession of child pornography, a Level 6 felony. As part of his plea agreement, Pennington agreed to waive his right to challenge his sentence on appeal. The waiver provision reads:

The Defendant hereby waives the right to appeal any sentence imposed by the Court, under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court sentences the Defendant within the terms of the plea agreement.

App. Vol. II, p. 39. The trial court sentenced Pennington to 14 years in the Indiana Department of Correction, which was within the parameters of the plea agreement.

[3] Over a year later, Pennington petitioned to file a belated notice of appeal, asserting he had just learned of the right to appeal his sentence. The trial court denied the petition without a hearing. It reasoned that Pennington was not eligible to challenge his sentence, but even if he were, he had not acted diligently in doing so. Pennington appeals that decision.

Discussion and Decision

[4] When a trial court does not hold a hearing on a defendant's petition to file a belated notice of appeal, we exercise de novo review. LeShore v. State, 203 N.E.3d 474, 477 (Ind. 2023). A defendant's failure to timely file a notice of appeal forfeits the right to appeal, except as provided in Post-Conviction Rule 2. Ind. Appellate Rule 9(A)(5). But only eligible defendants can avail themselves of this exception. An “eligible defendant” is:

a defendant who, but for the defendant's failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.

P-C.R. 2.

[5] Pennington is not eligible to appeal his sentence. The waiver provision in his plea agreement plainly stated he was giving up the right to appeal his sentence. Indeed, the provision's language mirrors a similar waiver agreement recently upheld as “unambiguous” by our Supreme Court. Davis v. State, 207 N.E.3d 1183, 1185-86 (Ind. 2023). And Pennington does not allege any facts implying that he did not “knowingly and voluntarily” agree to this provision. Creech v. State, 887 N.E.2d 73, 77 (Ind. 2008); see, e.g., Davis, 207 N.E.3d at 1186 (noting that the trial court repeatedly misadvised the defendant about his right to appeal his sentence); Grate v. State, 213 N.E.3d 1025, 1026 (Ind. 2023) (Rush, C.J., dissenting from denial of transfer) (finding a “trifecta of errors” established the defendant did not knowingly or voluntarily waive her right to appeal her sentence).

[6] More to the point, the source of Pennington's belief that he may challenge his sentence is not the text of his plea agreement, comments from the trial court judge at his sentencing hearing, or even his trial counsel. A law clerk at the prison library simply told Pennington he had a right to appeal his sentence. Appellant's Br., pp. 6-7. By contrast, at the hearing where Pennington entered into his plea agreement, the trial court judge said to him, “[Y]ou have by paragraph four [of the plea agreement] agreed to waive the right to appeal any sentence in this cause. Do you understand this?” Tr. Vol. II, p. 9. Pennington responded that he understood.

[7] Finding that Pennington is ineligible to challenge his sentence on appeal, we affirm the denial of his petition to file a belated appeal.

Memorandum Decision by Judge Weissmann

Judges Riley and Bradford concur. Riley, J., and Bradford, J., concur.