Earlier this week I discussed a recent Supreme Court oral argument on appeal waiver provisions in Indiana. An opinion from the Indiana Supreme Court may take months. In the meantime, what should an appellate practitioner do if appointed to an appeal with such a waiver?

STEP ONE: file a timely notice of appeal, irrespective of the appeal waiver. Unless and until the Indiana Supreme Court decides otherwise, the voluntariness of an appeal waiver provision can be challenged on direct appeal. Thus, appellate counsel must file a timely notice of appeal to preserve the issue. See Garza v. Idaho, 139 S. Ct. 738 (2019) (holding defense counsel’s failure to file requested appeal constituted ineffective assistance of counsel, regardless of appeal waiver).

STEP TWO: review the full record on appeal (court file, transcript of guilty plea and sentencing hearing(s), etc.) to determine whether the appeal waiver provision was voluntary.

STEP THREE: If available, challenge the voluntariness of the appeal waiver provision. Add any available sentencing claims that either fall outside the appeal waiver or that would be available if the waiver provision was nullified.

What if the appeal waiver was knowing and voluntary, the waiver covered all sentencing claims, and the defendant was sentenced according to the terms of the plea agreement? This is a source of disagreement among appellate practitioners. Some believe appointed counsel must file an advocative brief due to Mosley v. State, 908 N.E.2d 599 (Ind. 2009), which requires counsel to file an advocative brief “in any criminal appeal [taken] as a matter of right.”

Other practitioners believe that if the appeal waiver was knowing and voluntary and covered all claims, and the defendant’s sentence fell within the terms of the plea agreement, then as part of the deal the defendant bargained for the defendant has waived his right to take a criminal appeal as a matter of right. Thus, after conducting the necessary investigation to ensure the appeal waiver was knowing and voluntary, counsel would file a motion to dismiss the appeal.