As an appellate attorney taking public defender appointments, I receive a fair number of appeals after guilty pleas. In many of those cases, the plea agreement contains an appeal waiver provision. How are those cases to be handled? If the defendant waived his right to appeal his sentence, what is there left to appeal?

In 2019, the U.S. Supreme Court decided Garza v. Idaho, which held that counsel must file a notice of appeal on a criminal defendant’s behalf if requested, even where the defendant waived his right to appeal as part of his plea agreement. The High Court noted that no appeal waiver serves as an absolute bar to all appellate claims.

Pursuant to Garza, then, if you are appointed to represent a defendant who waived his right to appeal, you must file a notice of appeal and request the guilty plea and sentencing hearing transcripts be prepared. Proceed like normal through the appeal. Once you receive everything from the court file, compile and efile the Appellant’s Appendix.

Upon receiving the transcript, here’s what you should focus on for your review. First, review the exact language of the appeal waiver provision itself. Does it expressly waive all sentencing claims available to the defendant? If not, any sentencing claims not expressly waived can be raised on direct appeal.

Next, review the advisement given for the appeal waiver provision at both the guilty plea and sentencing hearings. Is each hearing advisement consistent with the waiver provision and with the sentencing order? “[T]he plea agreement, guilty plea and sentencing hearing colloquy, and sentencing order must be clear and consistent as to whether a defendant waives only the right to appeal the conviction or the right to appeal the conviction and sentence.” Williams v. State, 2021 Ind. LEXIS 177 (Ind. 2021). If the advisement is not consistent throughout the case, counsel may argue the appeal waiver was not knowing or voluntary.

Practice tip: do not forget to check the calculation of jail time credit. This is an issue that can be raised at any time, even on direct appeal.

Finally, what if the appeal waiver provision expressly waived all sentencing claims, the advisement was consistent throughout the plea agreement, guilty plea hearing, sentencing hearing, and sentencing order, and the jail time credit was properly calculated? Now what? Some practitioners believe counsel has an ethical duty to advocate for a change in the law, e.g., overruling the Supreme Court precedent holding appeal waivers are valid in Indiana. Other practitioners believe the ethical duty is satisfied when appellate counsel conducts a full review of the waiver provision and believes no claims are available to the defendant. In those cases, practitioners file a motion with the Court of Appeals requesting a dismissal of the appeal.

Recently, an appellate practitioner proceeded as if the appeal waiver did not exist and filed a brief challenging the defendant’s sentence. The State did not argue in response that the defendant had waived his right to appeal his sentence as a term of his plea agreement, despite the fact that the defendant had indeed done so. The Court of Appeals ordered the parties to file supplemental briefing explaining why the appeal waiver did not completely foreclose the defendant’s opportunity to appeal his sentence. The defendant could argue the State has now “waived” its opportunity to assert the doctrine of waiver. However, given the language in the order from the Court of Appeals and given a memorandum decision I recently received in an unrelated case, it is likely the Court will find itself to be bound by the terms of the plea agreement.