MILLER v. STATE (2025)

MEMORANDUM DECISION

[1] Michelle L. Miller appeals her 370-day sentence for Level 6 felony possession of methamphetamine ¹ and Level 6 felony theft.² Miller argues her sentence is inappropriate based on the nature of the offenses and her character. However, the State contends Miller waived her right to appeal her sentence as part of her plea agreement. We agree with the State and dismiss Miller's appeal.

Facts and Procedural History

[2] On August 6, 2022, Sergeant Eric Lusk of the Greensburg Police Department responded to a reported theft at the local Walmart. Upon his arrival, he spoke with Alyssa Vasquez, a Walmart Asset Protection employee. Vasquez told Sergeant Lusk that she observed Miller and her companion, Michael J. Marshall, attempt to leave Walmart without paying for items totaling $314.14. Sergeant Lusk searched Miller incident to her arrest and found in Miller's purse a “glass smoking device with residue” that he knew based on his law enforcement training and experience “to be consistent with consuming illegal narcotics.” (App. Vol. II at 15.) He also found “a small zip lock [sic] bag containing a white crystal like substance that later field tested for methamphetamine.” (Id. at 19.)

[3] On August 10, 2022, the State charged Miller with Level 6 possession of methamphetamine and Level 6 felony theft. On August 16, 2022, the State amended the charges to include the allegation that Miller was an habitual offender.³ On March 11, 2024, the parties entered into a plea agreement, by which Miller pled guilty as charged and admitted to being a habitual offender, leaving sentencing to the trial court's discretion. As part of the agreement, Miller waived her right to appeal her sentence, “including appeal of the presence and weight of aggravating and mitigating factors as well as independent review under Indiana Appellate Rule 7(B)” as long as the trial court sentenced her within the terms of the plea agreement. (Id. at 75.)

[4] The same day, the trial court held a guilty plea hearing during which Miller pled guilty as charged and the trial court took the plea agreement under advisement. At that hearing, Miller answered in the affirmative when asked if she understood the rights she was giving up as part of the plea agreement. On April 23, 2024, the trial court held a sentencing hearing. Miller did not attend, and her counsel told the trial court Miller had checked herself into a 30-day substance abuse treatment center the day prior. Miller's counsel requested a continuance, which the trial court denied. At the State's request, the trial court issued a “warrant for failure to appear.” (Tr. Vol. II at 13.)

[5] On October 1, 2024, Miller filed a motion to recall the warrant for failure to appear and reset the matter for sentencing because she had completed three substance abuse treatment programs between May 16, 2024, and September 13, 2024. On October 2, 2024, the trial court granted that motion and set a sentencing hearing on October 21, 2024. On October 21, 2014, after hearing testimony, evidence, and arguments the trial court accepted Miller's plea agreement and, pursuant to the terms of that agreement which left sentencing to the discretion of the trial court, sentenced her to 370 days incarcerated in the Indiana Department of Correction.

Discussion and Decision

[6] Miller argues her 370-day sentence is inappropriate based on the nature of her offense and her character. However, the State contends that she waived her challenge to her sentence as a part of her plea agreement. A plea agreement is a contract, and once accepted by the trial court, the agreement's terms bind the State, the defendant, and the trial court. Nolan v. State, 177 N.E.3d 881, 884 (Ind. Ct. App. 2021), trans. denied. “A defendant may waive his or her right to appeal a sentence as part of a plea agreement and such waivers are valid and enforceable.” Id. As long as the trial court sentences the defendant within the terms of the plea agreement, the appeal waiver applies. Davis v. State, 217 N.E.3d 1229, 1232 (Ind. 2023).

[7] Miller does not respond to the State's argument that she waived her challenge to her sentence under the terms of her plea agreement. She does not assert her assent to the plea agreement was not knowingly or voluntary or that the terms of the plea agreement were ambiguous. The portion of her plea agreement waiving appeal of her sentence states:

Waiver of Appeal: I understand I have the right to appeal a sentence determined at the discretion of the Judge. I understand and agree that I hereby waive my right to appeal the sentence, including appeal of the presence and weight of aggravating and mitigating factors as well as independent review under Indiana Appellate Rule 7(B), so long as the Judge sentences me within the terms of the plea agreement.

(App. Vol. II at 75.) Miller does not argue the trial court did not sentence her within the terms of her plea agreement, which left sentencing to the trial court's discretion. Because Miller expressly waived her right to appeal her sentence in her written plea agreement, we dismiss her appeal. See Starcher v. State, 66 N.E.3d 621, 623 (Ind. Ct. App. 2016) (dismissing defendant's appeal when the plain terms of his plea agreement demonstrated he waived his right to appellate review of his sentence), trans. denied.

Conclusion

[8] Because Miller expressly waived appeal of her 370-day sentence, we dismiss.

[9] Dismissed.

FOOTNOTES

1.   Ind. Code § 35-48-4-6.1(a).

2.   Ind. Code § 35-43-4-2(a)(1)(A) and Ind. Code § 35-43-4-2(a)(1)(C).

3.   Ind. Code § 35-40-2-8(a).

May, Judge.

Weissmann, J., and Scheele, J., concur.