MCCUTCHEON v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Arron D. McCutcheon appeals the sentence the trial court imposed under a plea agreement in which McCutcheon waived his right to appeal his sentence for any reason. We dismiss.

Facts and Procedural History

[2] In October and November 2023, the State charged McCutcheon with seven offenses under two separate cause numbers. In a combined plea agreement entered to resolve both cases, McCutcheon agreed to plead guilty to Level 4 felony child molesting,¹ Level 5 felony criminal confinement,² and Class C felony child molesting.³ In exchange, the State agreed to dismiss the other charges. The plea agreement left the sentencing to the trial court's discretion. Paragraph eleven provided: “As a condition of entering this plea agreement, the Defendant knowingly, intelligently, and voluntarily waives [his] right to appeal [his] sentence on the basis [it] is erroneous, or for any other reason, so long as the Court sentences [him] within the terms of [his] plea agreement.” Appellant's App. Vol. 2 at 151.⁴ The defendant, his counsel, and the prosecuting attorney signed and dated the plea agreement.

[3] At the change of plea hearing on July 2, the trial court advised McCutcheon:

THE COURT: All right. If this went to trial and there was an adverse finding, you'd have a right to appeal, but by ․ paragraph eleven of the plea agreement, it states that as a condition of entering into the plea agreement that you knowing [sic], intelligently and voluntarily waive your right to appeal the sentence on the basis that it's erroneous or for any other reason so long as the court sentences you within the terms of the agreement. Is that your – and do you understand you'd be waiving your right to an appeal?

THE DEFENDANT: Yes, sir.

Tr. Vol. 2 at 5. After establishing a factual basis for the offenses, the trial court accepted McCutcheon's guilty plea and orally entered judgments of conviction. The trial court also set the matter for a sentencing hearing and ordered probation to prepare a presentence investigation report. Then, defense counsel asked, “Judge, could we approach?” Id. at 10. The transcript shows counsel approached the bench for a sidebar conference, but it was not transcribed.

[4] The trial court held a sentencing hearing on August 1 and sentenced McCutcheon to consecutive terms of six years on the Level 4 felony; three years on the Level 5 felony; and five years on the Class C felony, for a total executed sentence of fourteen years. The following occurred:

THE COURT: All right. And then pursuant to paragraph eleven of the plea, Mr. McCutcheon waives his right to appeal.

[DEFENSE COUNSEL]: Your Honor, could we address that?

THE COURT: Sure.

[DEFENSE COUNSEL]: I think at the last hearing we had approached the bench on that. I believe this provision of the plea agreement was never intended to restrict Mr. McCutcheon's right to appeal under Indiana appellate rule 7B. Specifically, I remember advising Mr. McCutcheon, after a conversation with [the prosecutor], that he would be able to retain that right, and I'd ask the court to make that finding.

THE COURT: State?

[PROSECUTOR]: Yes, that's correct, Your Honor.

THE COURT: All right.

[PROSECUTOR]: If the defendant were so interested, he could appeal his sentence pursuant to 7B.

THE COURT: Okay. All right.

Id. at 34–35. The trial court advised McCutcheon of his right to appeal.

[5] On August 30, McCutcheon moved to correct error on the basis the sentence was inappropriate and an abuse of discretion, which the trial court denied. McCutcheon appealed under each cause number, and on his motion, this Court consolidated the appeals.

McCutcheon waived his right to appeal his sentence.

[6] A criminal defendant has a constitutional right to appeal his sentence. Davis v. State, 217 N.E.3d 1229, 1232 (Ind. 2023). But a defendant may waive this right if his waiver is knowing and voluntary. Id. A defendant may plead guilty and waive his right to appeal his sentence as part of a plea agreement in exchange for certain benefits, such as a more lenient sentence or dismissal of charges. See id. “These plea agreements are contracts between the defendant and the State, and once the trial court approves the agreements, they are binding on the defendant, the State, and the trial court.” Id. “Because plea agreements are contracts, contract law principles generally apply.” Id.

[7] Here, McCutcheon entered into a written plea agreement with the State in which he waived his right to appeal his sentence if “erroneous, or for any other reason, so long as the Court sentences [him] within the terms of [his] plea agreement.” Appellant's App. Vol. 2 at 151 (emphasis added). During the change of plea hearing, McCutcheon acknowledged he understood he was waiving his right to appeal his sentence. Thereafter, the trial court accepted the agreement and entered judgments of conviction. Once the trial court accepted the agreement, it became binding on McCutcheon, the State, and the trial court. Davis, 217 N.E.3d at 1232. Because McCutcheon waived his right to appeal his sentence for any reason—including under Appellate Rule 7(B)—and the trial court sentenced him within the plea agreement terms, we must dismiss his appeal.

[8] Still, McCutcheon argues the parties’ contrary intent is clear from the sentencing hearing, in which the parties stated on the record that the written plea agreement language was not intended to restrict McCutcheon's ability to seek independent appellate review of his sentence under Appellate Rule 7(B). Apparently, this was also the substance of the un-transcribed sidebar conference the trial court held a month earlier at the end of the change of plea hearing.

[9] But defense counsel requested the sidebar only after McCutcheon affirmed his knowing and voluntary waiver of the right to appeal his sentence and the trial court accepted the agreement. At that point, it was binding. See Davis, 217 N.E.3d at 1234 (“While trial judges have discretion to accept or reject plea agreements, courts are not empowered to change any of the terms.”). And as McCutcheon concedes on appeal, the plea agreement “contained unambiguous language waiving his right to appeal his sentence[.]” Appellant's Br. at 21 (emphasis added). Under our well-established rules of contract interpretation, if an agreement's terms are unambiguous, they are conclusive of the parties’ intent, and we give the terms their plain meaning. Wohlt v. Wohlt, 245 N.E.3d 611, 616 (Ind. 2024). Only if the terms are ambiguous, inconsistent, or uncertain will we look outside the contract's four corners and consider extrinsic evidence. Id. Under the unambiguous terms of the plea agreement, McCutcheon waived his right to appeal his sentence in this case. Because the trial court sentenced him within the terms of the agreement, his appeal waiver applies. See Davis, 217 N.E.3d at 1232. To the extent McCutcheon claims his guilty plea was involuntary because he was coerced or misled by erroneous advisements, he cannot do so through direct appeal and must pursue post-conviction relief. See id. at 1234.

[10] Dismissed.

[11] In Davis v. State, the defendant challenged whether he knowingly or voluntarily waived his right to appeal his sentence when a trial court gave advisements that contradicted the terms of his plea agreement. 217 N.E.3d 1229 (Ind. 2023). Under this circumstance, our Supreme Court held that whether waivers were made knowingly and voluntarily was an issue ripe not for direct appeal, but for post-conviction relief. However, I view the instant case as outside the scope of Davis. Here, there were no critical mis-advisements made by the trial court: instead, the State explicitly agreed that the terms of the plea agreement—when entered—excluded a 7(B) appeal waiver.

[12] During McCutcheon's sentencing hearing, his counsel stated:

I think at the last hearing we had approached the bench on that. I believe this provision of the plea agreement was never intended to restrict Mr. McCutcheon's right to appeal under Indiana appellate rule 7B. Specifically, I remember advising Mr. McCutcheon, after a conversation with Ms. Houchin, that he would be able to retain that right, and I'd ask the court to make that finding.

Tr. Vol. II p. 34.

The State then conceded that McCutcheon's counsel's recollection of the prior conversations was “correct[.]” Id. The State voluntarily went on to clarify that “[i]f the defendant were so interested, he could appeal his sentence pursuant to 7B.” Id. In my view, this makes clear that at the time the plea agreement was entered, the State agreed McCutcheon retained his right to a 7(B) appeal. Therefore, whether McCutcheon knowingly or voluntarily waived his right to a 7(B) appeal is not an issue, as the State agreed he never made such a waiver. As such, I believe the State is estopped from raising this argument on appeal and that McCutcheon would be unduly prejudiced by allowing the State to prevail on an argument that is contrary to their explicit position below: that is, that McCutcheon never waived his right to a 7(B) appeal.

[13] Although we have historically applied these principles to reinstatement of forfeited appeals, it is worth mentioning in this context that this Court has a long-standing preference to address the merits of claims, as well as an “interest in judicial economy[.]” Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App. 2014), trans. denied; see also Clemons v. State, 260 N.E.3d 1010, 1014 (Ind. Ct. App. 2025). The record in this case reflects no uncertainty by the parties or the court about whether McCutcheon retained his right to a 7(B) appeal: they unanimously acknowledged that he did. Any resulting confusion should be construed against the State, not McCutcheon. For all these reasons, I would proceed to address the merits of McCutcheon's Appellate Rule 7(B) appeal. Therefore, I respectfully dissent.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b) (2015).

2.   I.C. § 35-42-3-3(a) & (b)(1)(B) (2019).

3.   I.C. § 35-42-4-3(b) (1998).

4.   Exhibit A—an acknowledgement and waiver of rights incorporated by reference into the agreement—also provided, in relevant part:12. I understand that by pleading guilty in accordance with this plea agreement, I knowingly and voluntarily agree to waive my right to appeal my sentence on the basis that it is erroneous or for any other reason, so long as the Court sentences me in accordance with the terms of this plea agreement.13. I have been informed that if there is a plea agreement, and the Court accepts the plea, the Court is bound by the terms of the plea agreement, must follow the plea agreement, and cannot alter the terms․* * *15. I hereby certify that I have read the above rights and I knowingly, intelligently, and voluntarily waive my 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 me within the terms of the plea agreement.Id. at 154. Defendant and his counsel signed and dated Exhibit A.

Kenworthy, Judge.

Foley, J., concurs. Scheele, J., dissents with separate opinion.