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Johnson v. State

Court of Appeals of Indiana

November 21, 2019

Brandon L. Johnson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Orange Circuit Court The Honorable Steven L. Owen, Judge Trial Court Cause No. 59C01-1602-F4-160

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana Vickie Yaser Deputy Public Defender Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

          MATHIAS, JUDGE

         [¶1] Brandon L. Johnson ("Johnson") pleaded guilty in Orange Circuit Court to Level 4 felony possession of methamphetamine and was sentenced to twelve years of incarceration. Johnson did not file a timely notice of appeal, but he subsequently filed a petition for permission to file a belated notice of appeal, which the trial court denied. Johnson appeals and presents two issues, which we restate as: (1) whether the trial court erred by denying Johnson's motion to take judicial notice of certain portions of the record in this case, and (2) whether the trial court abused its discretion by denying Johnson's petition for permission to file a belated notice of appeal.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On February 4, 2016, the police pulled over a car in which Johnson, who was on probation at the time, was a passenger. A subsequent search of the car revealed methamphetamine, two hypodermic needles, and digital scales. Johnson later admitted to the police that the scales, the methamphetamine, and the needles were his. He also admitted that he purchased methamphetamine in Louisville, Kentucky so that he could sell it in Orange County, Indiana.

         [¶4] On February 8, 2016, the State charged Johnson with Level 4 felony dealing in methamphetamine, Level 5 felony possession of methamphetamine, and Class B misdemeanor false informing.[1] The State also alleged that Johnson was an habitual offender. On April 3, 2017, Johnson entered into a plea agreement with the State in which he agreed to plead guilty to Level 4 felony dealing in methamphetamine, and the State agreed to dismiss the remaining charges and the habitual offender allegation. With regard to sentencing, the plea agreement provided: "OPEN SENTENCING by the Court, Blind Plea." Appellant's App. Vol. 2, p. 107. Among the terms of the written plea agreement was: "DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF." Id. at 108.

         [¶5] At the change-of-plea hearing held that same day, the trial court advised Johnson of the various rights he would be giving up by pleading guilty, including the right to a public and speedy trial by jury, the right to confront witnesses, the right to remain silent, and the right to counsel. Johnson indicated that he understood he was waiving these rights. With regard to appeal, the trial court stated:

[Court]: Do you understand that if you were to have a trial and you were found guilty that you would have the right to appeal that conviction and/or sentence -
[Johnson]: Yes.
[Court]: - to the Court of Appeals or Supreme Court, do you understand that?
[Johnson]: Yes.
[Court]: And do you understand that you have the right to be represented by an attorney at all times including your trial, but also, including that Appeal and if you couldn't afford to pay for an attorney to do your Appeals, the Court would appoint one for you, do you understand that?
[Johnson]: Yes.
[Court]: But, you understand that by pleading guilty here today you're giving up all those rights when it talks about your Appellate rights?
[Johnson]: Yes.

         Appellant's App. Vol. 3, pp. 15-16 (emphases added).[2] After some discussion about whether Johnson retained the right to seek a modification of his sentence, the trial court accepted the plea agreement.

         [¶6] On May 1, 2017, the trial court held a sentencing hearing. Concluding that the aggravating factors outweighed the mitigating factors, the trial court sentenced Johnson to the maximum term of twelve years of incarceration. After imposing its sentence, the trial court stated:

And because indeed it was made pursuant to a Plea Agreement, the Court, believes in the Plea Agreement itself where it, you waive your right to an Appeal[, ] the Court interprets that [as] the right to appeal the Court's decision has also been waived. I'll leave that up to Counsel, but, that's ...

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