Kenneth Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Kenneth Johnson pleaded guilty to resisting law enforcement, a Level 5 felony. The plea agreement left sentencing to the trial court's discretion, and the court sentenced Johnson to six years to be served in the Department of Correction (“DOC”). The only issue Johnson raises on appeal is whether his sentence is inappropriate in light of the nature of his offense and his character. On cross-appeal, the State argues that Johnson waived his right to appeal his sentence. We dismiss, finding that Johnson waived his right to appeal his sentence.

Issue

[2] On cross-appeal, the State presents one issue, which we find to be dispositive: whether Johnson waived his right to appeal his sentence.

Facts

[3] On May 30, 2025, an officer with the Fishers Police Department stopped Johnson's vehicle after noticing that his license plate was not illuminated. Johnson drove away as the officer approached. Officers pursued him in a chase that reached 100 miles per hour and ended in a crash. After the crash, Johnson ran from the vehicle, but officers apprehended him.

[4] On May 30, 2025, the State charged Johnson and later amended the charges on October 8, 2025 to include: Count I, resisting law enforcement, a Level 6 felony; Count II, counterfeiting, a Level 6 felony; Count III, resisting law enforcement, a Class A misdemeanor; Count IV, possession of methamphetamine, a Level 6 felony; Count V, reckless driving, a Class C misdemeanor; Count VI, operating a motor vehicle without ever receiving a license, a Class C misdemeanor; and Count VII, resisting law enforcement, a Level 5 felony. The State also filed an habitual offender enhancement.

[5] Johnson entered into a plea agreement on October 31, 2025. Pursuant to this agreement, Johnson agreed to plead guilty to Count VII, and the State agreed to dismiss the other six counts and the habitual offender enhancement. The plea agreement left the length of Johnson's sentence and his placement to the trial court's discretion. The agreement contained the following waiver clause:

Unless otherwise provided for in this plea agreement, [Defendant] hereby waives his right to appeal any discretionary portion of the sentences entered pursuant to and in accordance with this plea agreement and further acknowledges and affirms that this waiver is knowing and made voluntarily. Defendant understands that he otherwise would have a right to appeal his sentence if there were an open plea. The defendant hereby waives his right to appeal the sentence so long as the Court sentences him within the terms of the plea agreement. Defendant understands and waives his right to appeal the proportionality of the sentence under Article I, Section 16 of the Indiana Constitution: therefore, he knowingly and voluntarily agrees to waive his right to appeal his sentence on the basis that it is erroneous or for any other reason so long as the Court sentences him within the terms of this plea agreement.

Plea Agreement § 4(r) (emphasis in original).¹ Johnson initialed Section 4(r) of the agreement and signed the agreement.

[6] At the guilty plea hearing, the trial court advised: “if the sentence is left open under the plea agreement and imposed by the Court, which appears to be the case in this plea, you retain your right to appeal the sentence to the next level.” Tr. Vol. II p. 118. The trial court further clarified: “And if you think that I have made an error in imposing that sentence or in determining what that sentence can be, you still have the right to appeal the sentence to the next level. You can't appeal the plea of guilty or the conviction ․ but you can appeal the sentence․ Do you understand that?” Id. at 119. Johnson replied, “Yes, sir.” Id. At the sentencing hearing, the trial court sentenced Johnson to six years to be served in the DOC. Id. at 138. Johnson now appeals.

Discussion and Decision

[7] On cross-appeal, the State argues that Johnson waived his right to appeal his sentence. We agree. It is well settled 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). Such waivers should be given effect “as long as the record clearly demonstrates that it was made knowingly and voluntarily.” Id. at 75 (quoting United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999).

[8] Plea agreements are contracts, and contract law principles generally apply to such agreements. Anderson v. State, 269 N.E.3d 817, 824 (Ind. 2025). “Like any contract, we ‘begin with its plain language.’ ” Id. (quoting Berry v. State, 10 N.E.3d 1243, 1247 (Ind. 2014)). We review questions of contract interpretation de novo. Id. (citing Lake Imaging, LLC v. Franciscan All., Inc., 182 N.E.3d 203, 206 (Ind. 2022)).

[9] Here, the waiver provision of the plea agreement provided:

Unless otherwise provided for in this plea agreement, [Defendant] hereby waives his right to appeal any discretionary portion of the sentences entered pursuant to and in accordance with this plea agreement and further acknowledges and affirms that this waiver is knowing and made voluntarily. Defendant understands that he otherwise would have a right to appeal his sentence if there were an open plea.[2] The defendant hereby waives his right to appeal the sentence so long as the Court sentences him within the terms of the plea agreement․

Plea Agreement § 4(r). Johnson does not argue that this provision is ambiguous. Instead, Johnson draws this Court's attention to the second sentence: “Defendant understands that he otherwise would have a right to appeal his sentence if there were an open plea.” Johnson argues that this part of the waiver provision is a clear exemption for “open pleas” and that Johnson, thus, retained his right to appeal.

[10] We agree that Johnson's plea agreement is an “open plea.” We do not, however, read the second sentence as an exemption to the waiver provision but, rather, as a clarification of Johnson's rights outside of the agreement. First, the term “otherwise” indicates that, without the plea agreement, Johnson would have a right to appeal his sentence. Second, the next sentence clearly and unambiguously indicates that Johnson waived his right to appeal the sentence. The language in the next sentence resembles the provision in Creech, which stated:

I understand that I have a right to appeal my sentence if there is an open plea. An open plea is an agreement which leaves my sentence to the Judge's discretion. I hereby waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.

887 N.E.2d at 74. Our Supreme Court applied the provision's “express language” and concluded that the defendant waived his right to appeal his sentence. Id. at 75. Here, this language in the plea agreement similarly indicates that Johnson waived his right to appeal his sentence.

[11] Although the waiver provision is valid, at the guilty plea hearing, the trial court incorrectly stated that Johnson had the right to appellate review of his sentence. To the extent that Johnson argues that the trial court's misstatement should impact our analysis, our Supreme Court rejected this same argument in Davis v. State, 217 N.E.3d 1229, 1234 (Ind. 2023). In that case, our Supreme Court found that, when a trial court misstates a defendant's rights at the change of plea hearing, the issue cannot be raised on direct appeal and, instead, must be raised through a post-conviction relief petition. Id. Accordingly, the trial court's misstatement at the change of plea hearing does not entitle Johnson to appeal his sentence on direct appeal.

Conclusion

[12] We conclude that the waiver provision is unambiguous, and Johnson waived his right to appeal his sentence. Further, the issue of whether the trial court's misstatement invalidated the waiver is not properly before us. Accordingly, we dismiss Johnson's appeal.

[13] Dismissed.

FOOTNOTES

1.   This full document did not appear in Appellant's Appendix, and the Appellee did not file an appendix. We take judicial notice of the plea agreement available on Odyssey.

2.   An “open plea” and “open sentencing” refer to the same process: the agreement leaves the sentencing decision to the discretion of the trial court. State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008). A “blind plea” is a “guilty plea made without the promise of a concession from either the judge or the prosecutor.” Blind plea, Black’s Law Dictionary (12th ed. 2024).

Tavitas, Chief Judge.

Weissmann, J., and Foley, J., concur.