MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                              Dec 09 2019, 10:06 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana

                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy D. Weinley,                                      December 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-555
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1809-F6-228



Barnes, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019                  Page 1 of 11
                                             Case Summary
[1]   Timothy D. Weinley appeals the denial of his motion to withdraw his guilty

      plea. We affirm.


                                                     Issue
[2]   The sole issue Weinley raises is whether the trial court abused its discretion

      when it denied his motion to withdraw his guilty plea.


                                                     Facts
[3]   The facts, taken from the factual basis for Weinley’s guilty plea, are as follows:


                 On July 3, 2018, I[, Weinley,] was confined at the Huntington
                 County Jail and working in the kitchen. On that date, I followed
                 the second shift cook, [A.C.], into the freezer. I told [A.C.] that
                 she was not leaving until I got a kiss. When [A.C.] told me to
                 knock it off, I stepped closer to her and repeated that she was not
                 leaving until I got a kiss. I positioned myself to block [A.C.]
                 from leaving the freezer. [A.C.] had to forcefully push me away
                 in order to leave the freezer.


      Appellant’s App. Vol. 2, p. 26. On September 24, 2018, the State charged
                                                                             1
      Weinley with criminal confinement as a Level 6 felony.


[4]   On November 27, 2018, Weinley signed and filed a motion to enter a guilty

      plea, by which he agreed to plead guilty to Level 6 felony criminal confinement




      1
          Ind. Code § 35-42-3-3(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 2 of 11
      in exchange for a fully executed sentence of two years, with all other terms of

      his sentence left to the trial court’s discretion. He also signed a written

      advisement and waiver of rights.


[5]   That same day, a hearing was held on Weinley’s motion. At the hearing, the

      following exchange occurred regarding whether Weinley had read the motion,

      the factual basis for his guilty plea that was included in the motion, and the

      advisement and waiver of rights:


              THE COURT: Are you Timothy Weinley?


              THE DEFENDANT: Yes.


              THE COURT: Do you have a copy of the Motion to Enter a
              Plea of Guilty in front of you?


              THE DEFENDANT: Yes.


              THE COURT: Have your [sic] read it?


              THE DEFENDANT: Yes.


              THE COURT: Have you discussed it with your attorney?


              THE DEFENDANT: Yes.


              THE COURT: And did you sign it?


              THE DEFENDANT: Yes.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 3 of 11
              THE COURT: When did you sign it?


              THE DEFENDANT: Today.


              THE COURT: According to the agreement, you’re pleading
              guilty to Criminal Confinement, a Level 6 Felony. In exchange
              for your plea of guilty, the State and you have agreed to a fully
              executed sentence of two (2) years. All other terms of your
              sentence shall be left to the Court’s discretion. Is that what you
              understand the agreement to be?


              THE DEFENDANT: Yes.


      Tr. pp. 4-5.


[6]   The trial court then asked Weinley if he “underst[ood] the Court is not bound

      by this agreement yet?” Id. at 5. He answered, “Yes.” Id. The trial court

      continued its questioning as follows:


              THE COURT: Do you understand that the Court will order a
              Pre-Sentence Investigation Report or a Criminal History Check
              and only after receiving and reviewing that report, will the Court
              decide whether to accept the plea agreement you and the State
              are offering today?


              THE DEFENDANT: Yes.


              THE COURT: Do you understand that if the Court decides to
              not accept the agreement, you’ll be allowed to withdraw the plea
              of guilty you’re offering today and to reinstate your original plea
              of not guilty?



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 4 of 11
              THE DEFENDANT: Yes.


              THE COURT: Do you understand that if the Court accepts [the]
              agreement, the Court will be bound to sentence you as the
              agreement provides?


              THE DEFENDANT: Yes.


      Id. When the trial court asked Weinley if he had “see[n] the video[taped

      advisement of rights] at least once in its entirety[,]” Weinley answered, “Yes.”

      Id.


[7]   The trial court then questioned Weinley as follows regarding the rights he

      would waive by pleading guilty and, again, whether he had read the factual

      basis for his plea:


              THE COURT: Do you understand the rights you’re giving up by
              pleading guilty?


              THE DEFENDANT: Yes.


              THE COURT: Referring specifically to Paragraph 17 of the
              Motion to Enter a Plea of Guilty, do you understand that you’re
              waving [sic] you’re right to appeal your sentence in this case?


              THE DEFENDANT: Yes.


              THE COURT: Are you currently on probation or parole for any
              offense?


              THE DEFENDANT: No.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 5 of 11
              THE COURT: How do you plead to Criminal Confinement, a
              Level 6 Felony?


              THE DEFENDANT: Guilty.


              THE COURT: Referring specifically to Paragraph 15 of the
              Motion to Enter a Plea of Guilty, that contains the factual basis
              for your plea of guilty, have you read that paragraph?


              THE DEFENDANT: Yes.


              THE COURT: Is that a true and accurate statement of the facts?


              THE DEFENDANT: Yes.


      Id. at 5-6.


[8]   As to whether Weinley was satisfied with his representation in the matter, the

      following colloquy took place:


              THE COURT: Has your attorney done everything that you’ve
              asked her to do?


              THE DEFENDANT: Say that again.


              [DEFENSE COUNSEL]: He didn’t hear you, Judge.


              THE COURT: Oh. Has your attorney done everything that
              you’ve asked her to do?


              THE DEFENDANT: Yes.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 6 of 11
       Id. at 6. The court then asked defense counsel if she saw “any reason to take

       this [matter] to trial?” Defense counsel answered, “No, Your Honor.” Id. The

       court then took the matter under advisement.


[9]    Weinley’s sentencing hearing was held on December 18, 2018, during which

       Weinley made an oral motion to withdraw his guilty plea. The court instructed

       Weinley to file a written motion to withdraw the plea and continued the

       sentencing hearing to January 8, 2019. On January 8, Weinley, by counsel,

       filed a written verified motion to withdraw his guilty plea, requesting that his

       guilty plea be withdrawn because he “did not have sufficient time to confer with

       counsel.” Appellant’s App. Vol. 2, p. 32.


[10]   On January 22, 2019, the trial court held a hearing on the motion to withdraw

       the guilty plea. At the hearing, the trial court denied Weinley’s motion and

       then accepted the plea agreement and sentenced Weinley to two years executed
                                                                                      2
       in the Department of Correction. Weinley now appeals.


                                                        Analysis
[11]   Weinley argues that the trial court abused its discretion when it denied his

       motion to withdraw his guilty plea. Motions to withdraw guilty pleas are

       governed by Indiana Code section 35-35-1-4(b) (1983). After a defendant

       pleads guilty, but before a sentence is imposed, a defendant may file a motion




       2
           Weinley requested and was granted permission to file a belated notice of appeal.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019        Page 7 of 11
       to withdraw a plea. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (citing

       Ind. Code § 35-35-1-4(b)). The statute continues:


               The motion shall state facts in support of the relief demanded,
               and the state may file counter-affidavits in opposition to the
               motion. The ruling of the court on the motion shall be
               reviewable on appeal only for an abuse of discretion. However,
               the court shall allow the defendant to withdraw his plea of guilty
               . . . whenever the defendant proves that withdrawal of the plea is
               necessary to correct a manifest injustice.


       Ind. Code § 35-35-1-4(b). Conversely, the court must deny the motion if

       withdrawal of the plea would “substantially prejudice[ ]” the State. Brightman,

       758 N.E.2d at 44 (quoting Ind. Code § 35-35-1-4(b)).


[12]   As a general rule, the withdrawal of a guilty plea before sentencing “should be

       freely allowed whenever it appears fair or just and motions made within a few

       days of the initial pleading should be favorably considered.” Fletcher v. State,

       649 N.E.2d 1022,1023 (Ind. 1995) (quoting Centers v. State, 501 N.E.2d 415, 419

       (Ind. 1986)). However, the statute contains no express requirement for a

       hearing. A defendant seeking to withdraw his plea “has the burden of

       establishing his grounds for relief by a preponderance of the evidence.” Ind.

       Code § 35-35-1-4(e). “A trial court’s ruling on a motion to withdraw a

       guilty plea ‘arrives in this [c]ourt with a presumption in favor of the ruling.’”

       Brightman, 758 N.E.2d at 44 (quoting Coomer v. State, 652 N.E.2d 60, 62 (Ind.

       1995)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 8 of 11
[13]   In his motion to withdraw his guilty plea, Weinley did not allege that he

       entered his plea or waived his rights unknowingly or involuntarily, and he did

       not allege that he was ill-advised by counsel when he entered into the plea

       agreement and waived his rights. Rather, the only basis for his motion was his

       allegation that he did not have sufficient time to confer with counsel before

       agreeing to plead guilty. Here, on appeal, he specifically maintains that the trial

       court should have provided him the opportunity to present evidence at the

       January 22 hearing to support his allegation. Weinley concedes that the trial
                                                                                   3
       court was not required to hold a hearing on his motion. He contends,

       however, that because the trial court set the matter for hearing, “he was entitled

       to expect to be able to present some evidence or testimony at said hearing.”

       Appellant’s Br. p. 10.


[14]   We note that Weinley’s motion to withdraw his guilty plea did not provide any

       “facts in support of the relief [he] demanded,” as required by statute, and

       therefore, did not present any facts showing that withdrawal of the plea was

       necessary to correct a manifest injustice. See Ind. Code § 35-35-1-4(b).

       Nevertheless (and in its discretion), the trial court set the matter for a hearing.




       3
        See Fletcher, 649 N.E.2d at 1023 (holding there “was no error in failing to conduct a hearing” on defendant’s
       motion to withdraw guilty plea because “[Indiana Code section 35-35-1-4(b)] contemplates a summary
       proceeding” and “[c]onvening a hearing is merely a discretionary option of the trial court.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019                   Page 9 of 11
[15]   At the hearing, Weinley testified as follows to his belief that neither he nor the

       trial court was bound by the plea agreement, and that his guilty plea could be

       withdrawn at his request.


               THE DEFENDANT: Then I don’t have the right to withdraw
               my guilty plea?


               THE COURT: No. Um.


               THE DEFENDANT: Well, that’s what you said, I wasn’t
               bound by the Court and nor are you.


               THE COURT: I said what?


               THE DEFENDANT: You guys said that, um, you’re not bound
               the Court [sic], that I can withdraw my guilt – guilty plea.


       Tr. p. 10. The trial court then addressed Weinley’s mistaken belief.


[16]   First, the trial court informed Weinley that it had reviewed the testimony from

       his November 27 guilty plea hearing.


               THE COURT: Okay. And— I went back through and listened
               to the hearing of— I just want to get the date correct, here—
               November 28th [sic] of 2018. Which is when, um, Mr. Weinley
               entered his Motion to Enter a Plea of Guilty.


       Id. The court then clarified that it did not tell Weinley at the guilty plea hearing

       that he could withdraw his guilty plea. The trial court explained:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 10 of 11
               THE COURT: No, I did not say you could withdraw your guilty
               plea. What I would have told you is that the Court was not
               bound by your plea agreement, but I went through the hearing
               when you filed the Motion to Enter a Plea a [sic] Guilty and the
               dialogue between you and the Court and it was ver— I was very
               specific in asking you if you understood the rights you were
               giving up. If, um, —we went through the factual basis on that.
               We went through, um, an admission on the counts and you— I
               asked you, also, if your attorney had done everything you – you
               asked her to do and you said ‘yes’. Um, there was nothing in the
               admission of the plea that was contrary to that. Um, therefore, I
               am not going to allow you to withdraw the plea of guilty.


       Id.


[17]   Based on the foregoing, we find that, contrary to his assertion, Weinley was

       afforded an opportunity at his hearing on his motion to withdraw his guilty plea

       to present argument as to why his motion should be granted. After considering

       his argument, and reviewing the questioning that took place at Weinley’s guilty

       plea hearing, the trial court determined that Weinley’s motion to withdraw his

       guilty plea should be denied, and it was well within its discretion to do so. No

       abuse of discretion occurred here.


                                                 Conclusion
[18]   The trial court did not abuse its discretion when it denied Weinley’s motion to

       withdraw his guilty plea. We affirm.


[19]   Affirmed.


       May, J., and Crone, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-555 | December 9, 2019   Page 11 of 11
