Since 2008, Indiana has enforced sentencing appeal waivers in written plea agreements, so long as the waiver was knowing and voluntary. In Creech v. State, 887 N.E.2d 73 (Ind. 2008), the trial court advised the defendant at the end of the sentencing hearing that he had a right to appeal his sentence, even though the written plea agreement contained an appeal waiver provision. The Supreme Court of Indiana upheld the waiver, stating: “By the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain. Being told at the close of the hearing that he could appeal presumably had no effect on that transaction.”

In other words, when Creech signed the plea agreement, pleaded guilty at the plea hearing, and received a sentence allowed under the terms of the plea agreement, he was aware he could not appeal his sentence. It was only after all this — when the case was effectively over — that Creech was incorrectly told he could appeal. Thus, the misadvisement had no effect on Creech’s decision to plead guilty.

But what if the misadvisement comes before the defendant pleads guilty? This was the issue the Indiana Supreme Court confronted during oral argument last week in Matthew Thomas Davis v. State of Indiana. There the defendant was told prior to pleading guilty that he retained the right to appeal his sentence, despite the fact that his plea agreement contained an appeal waiver. That neither the State nor the defense attorney corrected the trial court’s misadvisement complicated matters further.

Clearly, the Justices are concerned about trial courts misadvising defendants about the terms of their plea agreements with the State. A fair amount of questions at the oral argument, however, focused on what the remedy should be and what a defendant must do procedurally to obtain relief.

In Lee v. State, 816 N.E.2d 35 (Ind. 2004), the Court made clear that invalid provisions in a plea agreement, even an illegal sentencing provision, can be severed from the rest of the agreement. “[W]here a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on grounds that the sentence is later determined to be invalid.” Id. at 39. Likewise, an appeal waiver provision entered into involuntarily could be nullified and severed from the remainder of the agreement, leaving the guilty plea intact.

But at least one of the justices pondered whether the misadvisement might render the entire plea agreement invalid. And if so, would not such a remedy only be available through post-conviction relief and not on direct appeal after a guilty plea?

It seems hard to find a case where a defendant’s decision to plead guilty would be motivated by the State’s agreement requiring him to give up an important right (the right to an appeal). Sure, defendants agree to waive rights when pleading guilty, but they only do so to receive a benefit, not to give up even more rights. It would seem almost comical to have a defendant claim he only agreed to plead guilty because he thought he would be prohibited from taking an appeal, and that the court’s misadvisement that he could appeal after all somehow made his guilty plea involuntary. Who would argue he only agreed to plead guilty to a crime because he thought he would benefit by losing the right to appeal?

It is much more likely that a defendant agreed to plead guilty in exchange for a sentencing benefit and was either unaware of the appeal waiver in the written agreement or believed the court’s misadvisement at the plea hearing modified the terms of the agreement, In that case, the appropriate remedy would be to nullify the appeal waiver provision and sever it from the remainder of the plea agreement. This would allow the defendant to receive the benefit he believed he had bargained for.

Given the number of cases where a defendant has been misadvised about an appeal waiver in a plea agreement, the Court was wise to accept the Davis case for review. Guidance is needed for future cases. In a later post, I will discuss more about this issue.