MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 18 2019, 9:21 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven Knecht                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                      Attorney General of Indiana
                                                        Lauren A. Jacobsen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jesse L. Anthony,                                       December 18, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1648
        v.                                              Appeal from the Carroll Circuit
                                                        Court
State of Indiana,                                       The Honorable Benjamin A.
Appellee-Plaintiff.                                     Diener, Judge
                                                        Trial Court Cause No.
                                                        08C01-1802-F3-2



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019                   Page 1 of 9
                                              Case Summary

[1]   Jesse Anthony appeals the trial court’s denial of his motion to withdraw his

      guilty plea. We affirm.


                                                     Issue

[2]   Anthony raises one issue, which we restate as whether the trial court properly

      denied Anthony’s motion to withdraw his guilty plea.


                                                     Facts

[3]   On February 15, 2018, the State charged Anthony with Count I, disarming a

      law enforcement officer, a Level 3 felony; Count II, resisting law enforcement,

      a Level 6 felony; Count III, unlawful possession of a syringe, a Level 6 felony;

      Count IV, possession of methamphetamine, a Level 6 felony; Count V, carrying

      a handgun without a license, a Class A misdemeanor; Count VI, possession of

      marijuana, a Class B misdemeanor; Count VII, false informing, a Class B

      misdemeanor; Count VIII, visiting a common nuisance – controlled substances,

      a Class B misdemeanor; and Count IX, possession of paraphernalia, a Class C

      misdemeanor. The charges were the result of a physical altercation and

      subsequent search during a traffic stop in which officers determined that

      Anthony had outstanding warrants in Howard County.


[4]   On January 28, 2019, Anthony entered into a plea agreement on Count I. The

      agreement’s terms were that the trial court would have discretion on Anthony’s

      sentence, “but that no more than 11 years will be executed initially. If the

      Defendant is ordered to serve executed time in the DOC, the State agrees that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 2 of 9
he will be recommended for purposeful incarceration if eligible.” Appellant’s

App. Vol. II p. 68. The State agreed to dismiss the remaining counts with

prejudice. At the guilty plea hearing on January 28, 2019, the same day as the

scheduled jury trial, the following discussion occurred:


        COURT: Mr. Anthony, I advise you that you have the right to a
        public and speedy trial by a jury. Do you understand this?


        [ANTHONY]: Yes, Your Honor.


        COURT: Do you understand that this trial by jury is scheduled
        to occur today’s date?


        [ANTHONY]: Yes, Your Honor.


        COURT: January 28, 2019?


        [ANTHONY]: Yes, Your Honor.


        COURT: Do you understand that but for you entering a plea of
        guilty pursuant to this Plea Agreement, the State of Indiana
        would present evidence in an effort to convict you of the charged
        offenses, do you understand that?


        [ANTHONY]: Yes, Your Honor.


                                             *****


        COURT: Do you understand that by pleading guilty you give up
        all the rights I just explained?



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 3 of 9
        [ANTHONY]: Yes, Your Honor.


                                             *****


        COURT: Do you understand that by pleading guilty you are
        admitting that you committed the crime that you are charged
        with?


        [ANTHONY]: Yes, Your Honor.


        COURT: Do you understand that by pleading guilty you’d be
        judged guilty and sentenced without any trial?


        [ANTHONY]: Yes, Your Honor.


                                             *****


        COURT: Mr. Anthony, have you or anyone else received any
        promises besides the Plea Agreement you have filed, or have you
        been given anything of value to entice you to enter the plea of
        guilty you are offering today?


        [ANTHONY]: No, Your Honor.


        COURT: Has anyone forced or threatened, or put you or anyone
        else in fear to coerce you to enter the plea of guilty you are
        offering today?


        [ANTHONY]: No, Your Honor.


        COURT: Do you feel the plea of guilty you are offering now is
        your own free choice and decision?

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 4 of 9
              [ANTHONY]: Yes, Your Honor.


      Tr. Vol. II pp. 7-8, 10, 12-13. A factual basis was laid in which Anthony

      admitted to the offense. The trial court accepted the plea agreement and set the

      matter for sentencing.


[5]   On March 25, 2019, Anthony filed a motion to withdraw his guilty plea. The

      trial court held a hearing on Anthony’s motion on April 4, 2019. Anthony

      testified that he: (1) has maintained his innocence prior to and after pleading

      guilty; (2) wished to have the matter tried by a jury of his peers; (3) did not

      believe the State would be prejudiced by allowing Anthony to withdraw his

      plea; and (4) believed that it would be a manifest injustice if the trial court

      sentenced Anthony without allowing him to withdraw his plea.


[6]   Anthony also testified that he lied under oath at the guilty plea hearing

      regarding the factual basis and that he felt coerced into pleading guilty.

      Specifically, Anthony testified:


              [T]hey talked about once I went to trial and [was] found guilty I
              would be facing more years and it kind of scared the crap out of
              me. So I don’t know, I guess I kind of felt pressured, scared, I
              didn’t want to go to prison for longer, but I guess I’m ready to do
              what I have to do now because I’m not guilty of this so I feel like
              I shouldn’t have to go to prison for any amount of time for trying
              to disarm a police officer because I didn’t do it.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 5 of 9
      Id. at 35. Anthony did not inform his attorney he wanted to withdraw his plea

      until the day of sentencing. After the hearing, the trial court took the matter

      under advisement.


[7]   On June 17, 2019, the trial court entered a written order denying Anthony’s

      motion to withdraw his guilty plea. Anthony now appeals. 1


                                                      Analysis

[8]   Anthony argues that the trial court erred by denying his motion to withdraw his

      guilty plea. “A trial court’s ruling on a motion to withdraw a guilty plea

      ‘arrives in this Court with a presumption in favor of the ruling.’” Brightman v.

      State, 758 N.E.2d 41, 44 (Ind. 2001) (quoting Coomer v. State, 652 N.E.2d 60, 62

      (Ind. 1995)). We will reverse the trial court’s decision only for an abuse of

      discretion. Id. “In determining whether a trial court has abused its discretion in

      denying a motion to withdraw a guilty plea, we examine the statements made

      by the defendant at his guilty plea hearing to decide whether his plea was

      offered ‘freely and knowingly.’” Id. (quoting Coomer, 652 N.E.2d at 62).




      1
        We note that neither party raises the issue that Anthony filed this direct appeal prior to his sentencing.
      Anthony filed his notice of appeal on July 16, 2019. At that time, Anthony had not yet been sentenced. In
      reviewing the chronological case summary (“CCS”), Anthony was sentenced on August 14, 2019, and
      Anthony’s Appellant’s brief was filed on August 22, 2019. Anthony does not appeal his sentence on this
      direct appeal. As neither party raises this issue, we will address Anthony’s argument on the merits. See Mills
      v. State, 868 N.E.2d 446, 452 (Ind. 2007) (holding that “Indiana Code § 35-35-1-4 permits an individual to
      move to withdraw a guilty plea before sentence. If a motion to withdraw a guilty plea is denied and the
      individual wishes to contest the trial court’s decision, a direct appeal is the proper appellate procedure”).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019                  Page 6 of 9
[9]    The withdrawal of a guilty plea before the imposition of a sentence is governed

       by Indiana Code Section 35-35-1-4(b), which provides:


               After entry of a plea of guilty . . . but before imposition of
               sentence, the court may allow the defendant by motion to
               withdraw his plea of guilty . . . for any fair and just reason unless
               the state has been substantially prejudiced by reliance upon the
               defendant’s plea. The motion to withdraw the plea of guilty . . .
               made under this subsection shall be in writing and verified. 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.


[10]   Consequently, the trial court “shall” allow a defendant to withdraw his guilty

       plea if the defendant proves it is “necessary to correct a manifest injustice.”

       Ind. Code § 35-35-1-4(b); Brightman, 758 N.E.2d at 44. In all other cases, the

       trial court “may allow” the withdrawal of the guilty plea for “any fair or just

       reason unless the state has been substantially prejudiced by reliance upon the

       defendant’s plea.” Id. The defendant “has the burden of establishing his

       grounds for relief by a preponderance of the evidence.” I.C. § 35-35-1-4(e). See

       Rogers v. State, 437 N.E.2d 957, 959 (Ind. 1982) (holding that the Supreme

       Court of the United States, in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463

       (1970), held that proof the guilty plea would not have occurred “but for” the

       prosecutor’s discretion “adverse to the interest of the accused” is insufficient to

       show involuntariness and “[s]ufficient evidence of involuntariness must include

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 7 of 9
       proof that the choice was not made to take advantage of an offer of leniency or

       benefit tendered by the prosecution”).


[11]   Anthony argues that the State would not have been prejudiced by the

       withdrawal of the plea and that “he pled guilty in fear of the consequences

       which might occur if he did not plead guilty.” Appellant’s Br. pp. 10-11. These

       circumstances, according to Anthony, constitute a manifest injustice that

       warrants the withdrawal of his guilty plea. At the guilty plea hearing, however,

       Anthony acknowledged to the trial court that he was not being forced to plead

       guilty, acknowledged it was his choice to plead guilty, and admitted to the

       factual basis for the offense.


[12]   Anthony has failed to prove by a preponderance of the evidence that a manifest

       injustice has occurred that must be corrected by allowing him to withdraw his

       plea of guilty. In the absence of a manifest injustice, it was within the trial

       court’s discretion to grant or deny the motion. The trial court found: (1)

       “Defendant essentially contends that he lied under oath at the guilty plea

       hearing”; (2) “Defendant’s self-serving statements after the guilty plea hearing

       were incredible and constitute an attempt to manipulate the system”; (3) “[o]nly

       after receiving and reviewing the [pre-sentence investigation report (“PSI”)] in

       this case did Defendant have a change of heart and desire to recant his sworn

       testimony . . .”; and (4) “Defendant admitted to committing the offense in the

       PSI as well and only recanted after the Probation Officer recommended a fully

       executed sentence without work release or home detention privileges.”

       Appellant’s App. Vol. II pp. 100-101.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 8 of 9
[13]   The mere fact the State conceded it would not have been prejudiced by

       Anthony’s decision to change his plea does not require the trial court to accept

       Anthony’s change of plea. Pursuant to the statute, the trial court is only

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

       Under these circumstances, Anthony has failed to show the trial court abused

       its discretion when it denied Anthony’s request to withdraw his plea of guilty.

       See e.g., Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (holding that the

       trial court did not abuse its discretion by denying the defendant’s motion to

       withdraw his guilty plea), trans. denied.


                                                  Conclusion

[14]   The trial court did not abuse its discretion by denying Anthony’s motion to

       withdraw his guilty plea. We affirm.


[15]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1648 | December 18, 2019   Page 9 of 9
