FLORES v. STATE (2024)

MEMORANDUM DECISION

[1] The State charged Leo Flores with fourteen counts of Level 5 felony possession of child pornography. The parties entered into a written plea agreement under which Flores would plead guilty to four counts, the State would dismiss the remaining counts, and sentencing would be left to the discretion of the trial court. The agreement included the following sentence-appeal waiver:

As a condition of entering this plea agreement, the Defendant knowingly, intelligently, and voluntarily waives the Defendant's right to appeal the Defendant's sentence on the basis that is erroneous [sic], or for any other reason, so long as the Court sentences the Defendant within the terms of the Defendant's plea agreement.

Appellant's App. Vol. II p. 65. At the guilty-plea hearing, the trial court specifically advised Flores of this waiver, and Flores acknowledged it. The sentencing hearing was held a month later, and the court sentenced Flores to a total of six years, with four years to serve and two years suspended to probation.

[2] Notwithstanding the appeal waiver, Flores now purports to appeal his sentence. He argues that the waiver is “vague” and “ambiguous,” and therefore unenforceable, Appellant's Br. pp. 10-11, but he doesn't explain how. He also notes that at the end of the sentencing hearing the trial court mistakenly said he could appeal his sentence. See Tr. p. 29. But as the State notes, our Supreme Court has made clear that such a mistake at sentencing doesn't impact the appeal waiver because by that point the defendant has “already pled guilty and received the benefit of his bargain.” Creech v. State, 887 N.E.2d 73, 76-77 (Ind. 2008). Here, Flores pled guilty and expressly acknowledged the appeal waiver a month before the incorrect advisement at the sentencing hearing. Therefore, we agree with the State that the waiver is enforceable and Flores's appeal must be dismissed.

[3] Dismissed.

Vaidik, Judge.

Altice, C.J., and Crone, Sr. J., concur.