Carlos Tacio Ortiz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Carlos Tacio Ortiz (“Ortiz”) appeals the trial court's denial of his petition for permission to file a belated notice of appeal. He specifically contends that the trial court abused its discretion when it denied his petition. Concluding that the trial court abused its discretion, we reverse and remand with instructions for the trial court to grant Ortiz's petition for permission to file a belated notice of appeal.

[2] We reverse and remand with instructions.

Issue

Whether the trial court abused its discretion when it denied Ortiz's petition for permission to file a belated notice of appeal.

Facts

[3] On December 7, 2006, twenty-one-year-old Ortiz was taking care of his six-week-old son, J.O. (“J.O.”) while J.O.’s mother was at work. When J.O. began crying, Ortiz picked him up and shook him until he stopped crying. Ortiz then noticed that J.O. had stopped breathing and called for emergency services. J.O. was transported to the hospital, where he died two days later.

[4] One week later, the State charged Ortiz with murder. In January 2007, the State filed a request for a sentence of life imprisonment without parole (“LWOP”). In August 2009, twenty-four-year-old Ortiz pleaded guilty to murder pursuant to a written plea agreement (“the Agreement”). Pursuant to the terms of the Agreement, the State agreed to dismiss the LWOP request and sentencing was left to the trial court's discretion. At that time, the sentencing range for murder was forty-five (45) to sixty-five (65) years, and the advisory sentence was fifty-five (55) years.

[5] The Agreement further provided, in relevant part, as follows:

20. The defendant understands that he may have the right to appeal his sentence under Indiana Appellate Rule 7B. Notwithstanding that right, by pleading guilty under this agreement, the defendant knowingly, intelligently, and voluntarily waives his right to challenge the sentence on the basis that it is erroneous, and waives his right to have Appellate review of his sentence under Indiana Appellate Rule 7B.

* * * * *

22. The defendant understands that by entering a plea of guilty, he is waiving each and every right set forth above.

(App. Vol. 2 at 116).

[6] The trial court held a guilty plea hearing in August 2009. At the hearing, Ortiz provided a factual basis for the offense. Also, during the hearing, the following colloquy ensued between the trial court and Ortiz:

THE [TRIAL] COURT: There is, in your plea agreement, a paragraph 20. Paragraph 20 says:

“The defendant understands that he may have the right to appeal his sentence under Indiana Appellate Rule 7B. Notwithstanding that right, by pleading guilty under this agreement, the defendant knowingly, intelligently, and voluntarily waives his right to challenge the sentence on the basis that it is erroneous and waives his right to have appellate review of his sentence under Indiana Appellate Rule 7B.”

Do you understand that?

[ORTIZ]: Yes, sir.

(App. Vol. 3 at 102-03). The trial court did not advise Ortiz that he had the right to appeal an illegal sentence. Further, the trial court accepted Ortiz's guilty plea and entered a judgment of conviction for murder.

[7] In September 2009, the trial court held Ortiz's sentencing hearing. Testimony and evidence admitted at the sentencing hearing revealed that Ortiz had struggled academically while in school. Reading and writing were particularly difficult for him. At the age of twelve, Ortiz had a full-scale IQ score of 71, which is in the borderline range for intellectual functioning. At that time, Ortiz qualified as a learning disabled or a cognitively impaired student. Three years later, when Ortiz was fifteen years old, testing continued to show that he had a full-scale IQ score of 71, which placed him in the third percentile among his peers. At that time, he qualified for and received special education services. Three years later, when Ortiz was eighteen years old, he continued to receive special education services but did not graduate from high school.

[8] Testimony and evidence admitted at the sentencing hearing further revealed that Ortiz had had one previous involvement in the criminal justice system. Specifically, Ortiz had a 2005 misdemeanor conviction for possession of marijuana. In that case, Ortiz had pleaded guilty without the representation of counsel, and the trial court had suspended his sentence and had placed him on probation. Ortiz had not appealed his conviction or sentence.

[9] Also, at the sentencing hearing, the trial court and Ortiz engaged in the following colloquy:

THE [TRIAL] COURT: And in your plea agreement, which was filed with the Court on August 8, 2009, signed by you, [defense counsel], and [the prosecutor], there is a paragraph 20. I will read paragraph 20.

“The defendant understands that he may have the right to appeal his sentence under Indiana Appellate Rule 7B. Notwithstanding that right, by pleading guilty under this agreement, the defendant knowingly, intelligently, and voluntarily waives his right to challenge the sentence on the basis that it is erroneous and waives his right to have Appellate review of his sentence under Indiana Appellate Rule 7B.”

Correct, Mr. Ortiz?

[ORTIZ]: Yes.

THE [TRIAL] COURT: I'm sorry?

[ORTIZ]: Yes.

THE [TRIAL] COURT: All right. So, whatever sentence is imposed, that is the sentence that will stand.

(App. Vol. 3 at 115). The trial court did not advise Ortiz that he had the right to appeal an illegal sentence. In addition, Ortiz's public defenders did not advise him that he had the right to appeal an illegal sentence.

[10]Thereafter, the trial court found multiple aggravating and mitigating factors. Specifically, the trial court found, in the relevant part, the following aggravating factors: (1) Ortiz occupied a position of trust with his son; (2) J.O. was forty-two days old; (3) Ortiz had the care, custody, or control of J.O.; (4) J.O. suffered a mental and physical infirmity due to his age of forty-two days; and (5) the death of J.O. was the result of shaken baby syndrome as that term is defined by INDIANA CODE § 16-41-40-2. The trial court further found that the aggravators were sufficient to warrant an enhanced sentence and sentenced Ortiz to sixty-three and one-half (631/212) years in the Department of Correction. Ortiz did not file a notice of appeal.

[11]One month later, in October 2009, Ortiz asked one of the public defenders who had represented him at trial for a copy of his case file. In July 2010, the public defender sent Ortiz a copy of his case file and told Ortiz that if Ortiz filed a petition for post-conviction relief, Ortiz could request the appointment of a public defender. Ortiz did not know how to do that.

[12]Over the ensuing years, Ortiz knew that he wanted “to challenge [his] case, [but he] still did not understand what to do.” (App. Vol. 4 at 95). Ortiz wrote the Elkhart Circuit Court multiple times and requested transcripts from his guilty plea and sentencing hearings as well as copies of his court file. He also requested that the Elkhart Circuit Court appoint him counsel. Many of his requests were denied.

[13]In November 2021, Ortiz met with a public defender, who told Ortiz about the possibility of seeking permission to file a belated notice of appeal to challenge the lawfulness of his sentence. According to Ortiz, had he known in 2009 that he could have appealed the lawfulness of his sentence, he would have done so. Four months later, in March 2022, Ortiz filed a petition for permission to file a belated notice of appeal.

[14]The trial court held a hearing on the petition in May 2023. In December 2023, the trial court issued an order denying Ortiz's petition. The trial court's order provides, in relevant part, as follows:

18. In the instant case, Defendant seeks to appeal his sentence despite his Plea Agreement with the State wherein he agreed not to appeal in exchange for a more lenient sentence. Defendant contends that, notwithstanding his plea, he is an eligible defendant to proceed with his Petition to File a Belated Notice of Appeal to challenge his sentence based, at least in part, upon alleged improper aggravators despite his sentence appeal waiver - the same basis upon which the defendant in Wihebrink sought to appeal. The waiver in Wihebrink was deemed enforceable because the sentence imposed was found to be neither illegal nor contrary to law. This is the law that applies in the instant case.

* * * * *

26. In sum, even though Defendant now wants to challenge his sentence based on allegedly improper aggravating factors that he avers were not in accord with the law, thereby rendering the sentence appealable under the “Haddock Cases,” the fact is that the law under more recent cases does not afford that relief to the Defendant as someone who agreed to waive appellate review of his sentence as part of his guilty plea where the sentence was within the statutory range. See, Wihebrink, trans denied. See also, Davis v. State, 207 N.E.3d 1183, 1196 (Ind. 2023), [modified on reh'g, 217 N.E.3d 1229 (Ind. 2023),] in which the Indiana Supreme Court dismissed a direct appeal considering an agreed, unambiguous sentence appeal waiver contained in a written plea agreement where the trial court sentenced Davis within the terms of the plea agreement, therefore, his appeal waiver applied to bar direct appeal.

27. As in Davis, the evidence in the instant case demonstrates that the Defendant's guilty plea based on a written Plea Agreement was knowing and voluntary. Therefore, the unambiguous appeal waiver contained in the Plea Agreement is fully enforceable, and Defendant waived the right to appeal his sentence.[1]

(App. Vol. 5 at 93, 97).

[15]Ortiz now appeals.

Decision

[16]Ortiz argues that the trial court abused its discretion when it denied his petition for permission to file a belated notice of appeal. He contends that he “is entitled to a belated direct appeal to challenge the lawfulness of his 631/212 year sentence based upon aggravating factors that are improper as a matter of law.” (Ortiz's Br. 16). Specifically, according to Ortiz, “the trial court's sentencing order reflects error in double-counting aggravators in multiple instances, including the victim's age and Ortiz's position of trust held towards the victim was essentially the same as the care, custody, and control he was required to exercise․ And the trial court's reliance upon the shaken baby syndrome theory is especially improper ․ [because] [t]he scientific community has soundly discredited the shaken baby syndrome theory.” (Ortiz's Br. 27-28).

[17]The decision whether to grant permission to file a belated notice of appeal is within the sound discretion of the trial court. Leshore v. State, 203 N.E.3d 474, 477 (Ind. 2023). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019).

[18]Although a notice of appeal generally must be filed within thirty days after the entry of a final judgment is noted in the chronological case summary, Post-Conviction Rule 2 provides an exception to the general rule. Ind. App. Rule 9(A)(1) and (5). Specifically, Post-Conviction Rule 2(1)(a) provides as follows:

An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;

(1) The defendant failed to file a timely notice of appeal;

(2) The failure to file a timely notice of appeal was not due to the fault of the defendant; and

(3) The defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

Ind. Post-Conviction Rule 2(1)(a). “If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny permission.” P-C.R. 2(1)(c). “The defendant bears the burden of proving by a preponderance of the evidence that he was without fault in the delay of filing and was diligent in pursuing permission to file a belated motion to appeal.” Moshenek v. State, 868 N.E.2d 419, 422-23 (Ind. 2007), reh'g denied.

[19]Ortiz contends that the trial court abused its discretion when it denied his petition for permission to file a belated notice of appeal because he is an eligible defendant under Post-Conviction Rule 2. He further contends that his failure to timely file a notice of appeal was not due to any fault of his own and that he had been diligent in requesting permission to file the belated notice of appeal. We address each of Ortiz's contentions in turn.

Eligibility

[20]Ortiz first argues that the trial court abused its discretion when it denied his petition because he is eligible under Post-Conviction Rule 2 to seek a belated appeal. Post-Conviction Rule 2 expressly applies only to an “eligible defendant[,]” which 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 trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.” P-C.R. 2. The State, on the other hand, contends that Ortiz is not an eligible defendant under our post-conviction rules because he waived the right to appeal his sentence pursuant to the terms of his plea agreement. We agree with Ortiz.

[21]The law is well-settled that a defendant can waive his right to appeal a sentence. Haddock v. State, 112 N.E.3d 763, 767 (Ind. Ct. App. 2018), trans. denied. “However, a defendant's waiver of appellate rights is only valid if the sentence is imposed in accordance with the law.” Id. (citing Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013)). “Thus, if a sentence imposed is illegal, and the defendant does not specifically agree to the sentence, the waiver-of-appeal provision is invalid.” Id.

[22]In the Haddock case, Haddock entered into a plea agreement with the State in which he agreed that he had sold drugs to a confidential informant in the presence of a child. In addition, Haddock agreed to knowingly and voluntarily waive his right to appeal his sentence so long as the trial court sentenced him within the terms of the agreement. The plea agreement left sentencing to the trial court's discretion. At the conclusion of a subsequent sentencing hearing, the trial court stated as follows: “The criminal history shows two (2) other felony offenses, eight (8) prior[ ] misdemeanor offenses, five (5) petitions to revoke. The factual basis for this particular offense specifically includes that it took place in the physical presence of a child less than eighteen (18) years of age.” Id. at 765. (cleaned up). The trial court then sentenced Haddock to an aggravated sentence of fourteen years, with twelve years executed and two years suspended to probation.

[23]Two years later, Haddock filed a petition for permission to file a belated notice of appeal in which he argued that his sentence was contrary to law because the trial court had used an improper aggravator when it had sentenced him. Specifically, he contended that the trial court's use of the fact that he had committed the offense while in the presence of a child was an improper aggravator because that was also an element of the offense to which he had pleaded guilty. The trial court denied Haddock's petition without a hearing.

[24]On appeal, Haddock argued that he was an eligible defendant under Post-Conviction Rule 2. The State, on the other hand, contended that Haddock was not an eligible defendant because he had waived the right to appeal his sentence pursuant to the terms of his plea agreement. However, we explained that under the State's theory, the only way to determine whether Haddock was an eligible defendant under Post-Conviction Rule 2 was to analyze whether his sentence was illegal and, thus, not subject to the waiver provision of his plea agreement. Id. at 767. We further explained that that was the substance of the issue that Haddock sought to raise on appeal by way of his belated notice of appeal. Id. We noted that, in other words, the State was asking us to address the merits of Haddock's putative belated appeal in order to determine that he was not eligible to be heard on the merits of his belated appeal. Id. We declined to adopt the State's “circular reasoning.” Id.

[25]We also explained that, at that stage of the proceedings, we were unwilling to place the burden on Haddock to argue the merits of his putative belated appeal. Id. Rather, we held that Haddock would have had the right to raise in a timely appeal the issue of whether his sentence was illegal. Id. Accordingly, as that was the issue that Haddock sought to raise in his putative belated appeal, we held that Haddock was an eligible defendant pursuant to Post-Conviction Rule 2. Id. See Fields v. State, 162 N.E.3d 571, 577 (Ind. Ct. App. 2021) (following Haddock and holding that notwithstanding a waiver of appeal provision in his plea agreement, Fields was an “eligible defendant” entitled to a belated appeal of his sentence under Post-Conviction Rule 2 to challenge the legality of his sentence where he alleged that the trial court had considered an improper aggravator), trans. denied; Crouse v. State, 158 N.E.3d 388, 393 (Ind. Ct. App 2020) (Vaidik, J., concurring in result and opining that Haddock was wrongly decided) (following Haddock and holding that, notwithstanding a waiver of appeal in Crouse's plea agreement, where Crouse had alleged that he had not been sentenced in accordance with the applicable law, the trial court had not abused its discretion when it granted his motion to correct error and allowed him to file a belated notice of appeal), trans. not sought.

[26]Here, as in Haddock, Ortiz has asserted in his petition for permission to file a belated notice of appeal that his sentence was contrary to law because the trial court used improper aggravators when it sentenced him. Specifically, Ortiz argues that the trial court double counted aggravating factors in multiple instances and relied upon an aggravating factor that the scientific community has soundly discredited. This is an issue that Ortiz would have had the right to raise in a timely appeal. Accordingly, we hold that Ortiz is an eligible defendant pursuant to Post-Conviction Rule 2. See Haddock, 112 N.E.3d at 767.²

Fault and Diligence

[27]Ortiz also argues that the trial court erred when it denied his petition for permission to file a belated appeal because his failure to timely file a notice of appeal was not due to any fault of his own and because he was diligent in requesting permission to file a belated notice of appeal. Our Indiana Supreme Court has previously stated that “[t]here is substantial room for debate as to what constitutes diligence and lack of fault on the part of the defendant.” Leshore, 203 N.E.3d at 477 (cleaned up). “And since each case is shaped by its own circumstances, there are no assigned standards of fault or diligence.” Id. (cleaned up). Rather, courts examine a range of factors, including “the defendant's level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the defendant was informed of his appellate rights, and whether he committed an act or omission which contributed to the delay.” Id. (cleaned up).

[28]As to whether Ortiz was at fault for his failure to timely file a notice of appeal, we note that Ortiz signed a plea agreement that indicated that he had waived his right to appeal his sentence. In addition, at Ortiz's guilty plea hearing, the trial court advised Ortiz that by pleading guilty, he was giving up the right to appeal his sentence. Ortiz indicated that he understood that he was giving up the right to appeal his sentence. The trial court did not advise Ortiz that he had the right to appeal an illegal sentence.

[29]Further, at the sentencing hearing, the trial court told Ortiz that because he had pleaded guilty, his sentence “w[ould] stand.” (App. Vol. 3 at 115). Also, at the sentencing hearing, the trial court did not advise Ortiz of his right to appeal a sentence that is contrary to law. It is well-settled that “[t]he fact that a trial court did not advise a defendant about this right can establish that the defendant was without fault in the delay of filing a timely appeal.” Fields, 162 N.E.3d at 577-78 (cleaned up). Ortiz's public defenders also did not advise him of his right to appeal an illegal sentence. In sum, Ortiz had no reason to appeal his sentence when he was never aware of his right to do so.

[30]In addition, the record contains equitable factors weighing in Ortiz's favor. Specifically, he was twenty-four years old when he was sentenced, he had a history of learning disabilities and qualified as a cognitively impaired student while in school, he had limited education and contact with the legal system, and he had no experience with appellate law and its many rules. Based upon the foregoing, we conclude that Ortiz has met his burden to prove that he was without fault in the delay of filing a petition for permission to file a belated notice of appeal. See Leshore, 203 N.E.3d at 479 (concluding that Leshore had met his burden to prove that he was without fault in the delay of filing a petition for permission to file a belated notice of appeal).

[31]As to whether Ortiz was diligent in requesting permission to file a belated notice of appeal, we note that there are several factors to consider in order to determine whether a defendant was diligent in seeking a belated appeal. See Fields, 162 N.E.3d at 578. Those factors include the overall passage of time, the extent to which the defendant was aware of the relevant facts, and the degree to which the delays are attributable to other parties. Id.

[32]In the Leshore case, Leshore had been sentenced in 1999, but he had not been advised of his right to appeal his sentence until December 2021, when a fellow inmate had informed him of that right. Leshore, 203 N.E.3d at 474. Our Indiana Supreme Court concluded that diligence under the facts of the case was “best measured from the time when Leshore learned of his rights to the filing of his permission to file a belated notice of appeal.” Id. at 479. Accordingly, the supreme court further concluded that the “appropriate starting place for evaluating Leshore's diligence [began] on December 1, 2021.” Id. The supreme court noted that nineteen days later, Leshore filed his petition for permission to file a belated notice of appeal and concluded that “while [it] decline[d] to draw a line for when diligence must always begin, [it could] say Leshore was prompt enough.” Id. at 480.

[33]Here, our review of the record reveals that although the trial court sentenced Ortiz in 2009, Ortiz did not learn that he could appeal his sentence until he met with a public defender in November 2021. We conclude, as did the supreme court in Leshore, that diligence is best measured from the time when Ortiz learned of his right to appeal his sentence and to file a petition for permission to file a belated notice of appeal. Ortiz filed his petition four months after learning of his right. We conclude that Ortiz was prompt enough and has met his burden to show that he was diligent in pursuing permission to file a belated notice of appeal. See id. See also Haddock, 112 N.E.3d at 768 (concluding that Haddock had met his burden to show that he had been diligent in pursuing permission to file a belated notice of appeal where he had been sentenced in 2016, had been advised of his right to appeal his sentence in February 2018 when he had met with a public defender, and filed a petition for permission to file a belated notice of appeal two months later in April 2018); Fields, 162 N.E.3d at 578 (concluding that Fields had met his burden to show that he had been diligent in pursuing permission to file a belated notice of appeal where he had been sentenced in 2016, had been advised of his right to appeal his sentence in May 2020 when he had met with a public defender, and filed a petition for permission to file a belated notice of appeal three months later in August 2020).

Conclusion

[34]Because Ortiz is an eligible defendant pursuant to Post-Conviction Rule 2 and because he met his burden to prove that he was not at fault in the delay of filing and was diligent in pursuing permission to file a belated notice of appeal, we conclude that the trial court abused its discretion when it denied Ortiz's petition for permission to file a belated notice of appeal. Accordingly, we reverse and remand with instructions for the trial court to grant Ortiz's petition.

[35]Reversed and remanded with instructions.

[36] I respectfully dissent from the result reached by the majority. Ind. Post-Conviction Rule 2 provides that an “eligible defendant” for purposes of the Rule 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 trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.” The Indiana Supreme Court has held that “a defendant may waive the right to appellate review of his sentence as part of a written plea agreement.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Whether a defendant has waived his right to appeal his sentence is relevant to the determination of whether a defendant is an eligible defendant under Ind. Post-Conviction Rule 2. See Bowling v. State, 960 N.E.2d 837, 841 (Ind. Ct. App. 2012) (“We think that the issue of whether Bowling waived her right to appeal her sentence pursuant to the terms of paragraph 10 is relevant to the threshold determination of whether Bowling is an ‘eligible defendant’ under Post-Conviction Rule 2.”), trans. denied.

[37] Ortiz signed a plea agreement containing a waiver provision, and the trial court sentenced him within the parameters of the plea agreement. Ortiz does not dispute that his sentence falls within the statutory range for his crime. Rather, he argues that “the trial court's sentencing order reflects error in double-counting aggravators in multiple instances, including the victim's age and Ortiz's position of trust held towards the victim [which] was essentially the same as the care, custody, and control he was required to exercise” and “the trial court's reliance upon the shaken baby syndrome theory is especially improper.” Appellant's Brief at 27-28.

[38] I find the reasoning in Wihebrink v. State, 181 N.E.3d 448 (Ind. Ct. App. 2022), trans. denied, persuasive. Accordingly, I would conclude that Ortiz did not have the right to challenge his sentence on direct appeal because his argument is not one of illegality under Crider v. State, 984 N.E.2d 618 (Ind. 2013), and he is not an eligible defendant under Ind. Post-Conviction Rule 2. See Wihebrink, 181 N.E.3d at 451 (addressing an appeal following the denial of a petition for permission to file a belated notice of appeal under Ind. Post-Conviction Rule 2 following a plea agreement that contained a waiver provision; addressing a defendant's argument that her sentence was contrary to law because several aggravators found by the trial court were invalid; concluding that because defendant's argument was not one of illegality under Crider, she did not have the right to challenge her sentence on direct appeal and she was not an eligible defendant under Post-Conviction Rule 2; and affirming the trial court's denial of defendant's petition for permission to file a belated notice of appeal).

[39] Further, even assuming that an argument that the trial court abused its discretion by relying on improper aggravators raises the issue of the illegality of a sentence, I would conclude, in the interest of judicial economy, that reversal is not appropriate. An abuse of discretion in sentencing occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A court abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court has abused its discretion, we will remand for resentencing “if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. at 491. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. Generally, a single aggravator is sufficient to support an enhanced sentence. Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005). Further, “[w]hen aggravating circumstances share an element, we look to the policy or policies supporting each aggravator.” Overstreet v. State, 783 N.E.2d 1140, 1162 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004). “When the policy behind each aggravator is different, they are not impermissibly duplicative.” Id.

[40] In its sentencing order, the trial court identified multiple aggravating factors including Ortiz's position of trust, the age of the victim of forty-two days, that Ortiz shook the child to quiet the child so he could watch television without interruption, the presence of two other young children at the time of the murder, Ortiz's failure to seek immediate medical care, and Ortiz's failure to provide accurate information to medical practitioners so that care could be immediately provided to the victim. While multiple aggravators contain some reference to the victim's age, I cannot say that the sentence is illegal on this basis. See Ray v. State, 838 N.E.2d 480, 492-493 (Ind. Ct. App. 2005) (holding that the age of the victim aggravating factor focused on the status of the victim, arising from the need to give heightened protection to younger children and to punish more severely those who harm them; stating that “[t]he shaken baby aggravating factor focuses on the nature and circumstances of the crime”; and concluding that “the policy behind each aggravator is different and that they are not impermissibly duplicative”), trans. denied. Further, the trial court stated that “any one of the aggravators taken individually or all of them taken as a whole would be sufficient to warrant the imposition of an aggravated sentence and the Court believes that an eight and one-half (8 1/212) aggravated sentence is appropriate based upon the facts of this case.” Appellant's Appendix Volume III at 6. Under these circumstances, I would affirm the trial court.

[41] For these reasons, I respectfully dissent.

FOOTNOTES

1.   We will discuss the trial court's cited cases our analysis of Ortiz's arguments.

2.   We note that the State directs us to Wihebrink v. State, 181 N.E.3d 448 (Ind. Ct. App. 2022), trans. denied, wherein another panel of our Court affirmed the trial court's denial of Wihebrink's petition for permission to file a belated notice of appeal. In the Wihebrink case, Wihebrink, who had waived her right to appeal her sentence in a plea agreement, argued that she had not been sentenced in accordance with the law because her sentence had been based, in part, on invalid aggravating factors. The State responded that Wihebrink was not an eligible defendant under Post-Conviction Rule 2 because she had waived her right to appeal her sentence in a plea agreement and, therefore, did not have the right to challenge her sentence on direct appeal. The other panel acknowledged that, pursuant to Crider, 984 N.E.2d at 622, an appeal waiver is unenforceable when the sentence is illegal or contrary to law. Wihebrink, 181 N.E.3d at 451. However, that panel further concluded that “[t]o the extent a court finds improper aggravators or fails to find proper mitigators, we review the sentence for an abuse of discretion, not for legality. Crider concerns sentence illegality.” Id. at 452. Therefore, that panel concluded that “[b]ecause Wihebrink's argument [was] not one of illegality under Crider, she did not have the right to challenge her sentence on direct appeal. As such, she [was] not an “eligible defendant” under Post-Conviction Rule 2.” Id. Accordingly, that panel affirmed the trial court's denial of Wihebrink's petition for permission to file a belated notice of appeal. Id. Judge Najam dissented and argued that pursuant to Haddock and its progeny, Fields and Crouse, he would have reversed the trial court's judgment and remanded the case to the trial court with instructions to grant Wihebrink's petition for permission to file a belated notice of appeal. Id. at 452-53. (Najam, J., dissenting).We further note that the trial court cited Wihebrink in support of its denial of Ortiz's petition. Specifically, the trial court appears to have followed Wihebrink because our Indiana Supreme Court denied transfer in that case and because it was more recently decided than Haddock and its progeny. However, the supreme court also denied transfer in Haddock, 112 N.E.3d at 763 and in Fields,162 N.E.3d at 571. And, as Ortiz points out, Indiana does not recognize horizontal stare decisis. See Wellman v. State, 210 N.E.3d 811, 816 n.4 (Ind. Ct. App. 2023). Specifically, although we respect the decisions of other panels, “each panel of this Court has coequal authority on an issue and considers any previous decisions by other panels but is not bound by those decisions.” Id. (cleaned up) (emphasis in the original). Accordingly, we are not bound by Wihebrink. Further, because we agree with the reasoning in Haddock, Fields, and Crouse, we have followed those cases in reaching our decision in this case.We also note that the trial court cited Davis v. State, 207 N.E.3d 1183, 1196 (Ind. 2023) in support of its denial of Ortiz's petition. As a preliminary matter, we note that, on rehearing, Davis was modified and superseded by Davis v. State, 217 N.E.3d 1229 (Ind., Oct. 3, 2023). We will cite to the modified and superseding opinion. Further, although the trial court cited Davis, we agree with Ortiz that Davis “does not bar relief.” (Ortiz's Br. 25). First, in the Davis case, Davis argued that he had not knowingly or voluntarily waived his right to appeal his sentence. Our Indiana Supreme Court concluded that it could not modify Davis’ appeal waiver through a direct appeal based on a claim that the waiver was not knowing and voluntary. Davis. 217 N.E.3d at 1232. In addition, the supreme court explained that Davis could still seek relief through post-conviction proceedings. Id. Here, however, Ortiz does not argue that his appeal waiver was not knowing and voluntary. Rather, Ortiz argues that he is entitled to file a belated appeal to challenge the lawfulness of his sentence. Second, we note that Davis, 217 N.E.3d at 1236, reiterated that: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.”).These are the circumstances present in this case.

Pyle, Judge.

Judge May concurs. Judge Brown dissents with opinion. May, J., concurs. Brown, J., dissents with opinion.