MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Nov 07 2018, 10:33 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
T. Andrew Perkins                                       Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP                        Attorney General of Indiana
Rochester, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dewayne Van Alstine, Jr.,                               November 7, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1555
        v.                                              Appeal from the Fulton Circuit
                                                        Court
State of Indiana,                                       The Honorable A. Christopher
Appellee-Plaintiff                                      Lee, Judge
                                                        Trial Court Cause No.
                                                        25C01-1701-F1-30



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018               Page 1 of 9
                                            Case Summary
[1]   Dewayne Cloyce Van Alstine Jr.1 appeals the trial court’s denial of his motion

      to withdraw his guilty plea. We affirm.



                              Facts and Procedural History
[2]   One night in January 2017, Van Alstine, who was on parole, and Amanda Lace

      got into an argument about Amanda’s infidelity while he was incarcerated.

      When Amanda did not give Van Alstine an answer that he liked, Van Alstine

      pushed her down and kicked her in the ribs and face. Van Alstine then poured

      beer on Amanda. When Amanda got in the shower to wash off the beer, Van

      Alstine entered the bathroom and said he should kill her. Van Alstine then

      stabbed Amanda through the shower curtain with a twelve-inch knife, slicing

      Amanda’s arm as she raised it to cover her face. Van Alstine then opened the

      shower curtain and hit Amanda above her left eye with the handle of the knife,

      causing a laceration. When Amanda fell down in the shower, Van Alstine

      threw a ball-peen hammer at her legs, causing an injury to her left knee. While

      Amanda was still down, Van Alstine kicked her face, injuring her nose. When

      Amanda was finally able to run out the back door, Van Alstine again said he

      was going to kill her. Amanda flagged down a passing car and was taken to the

      hospital, where she received stitches above her left eye, in her lip, and on her




      1
        The majority of the documents in this case spell the defendant’s last name as “Vanalstine,” but it is clear
      from the defendant’s own signature that his last name is Van Alstine. See Appellant’s App. Vol. II pp. 41, 44.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018                   Page 2 of 9
      left knee and a staple to the back of her head. Amanda also had a broken nose

      and bruising on her body.


[3]   The State charged Van Alstine with Level 1 felony attempted murder and Level

      3 felony aggravated battery. On April 3, 2018, two weeks before jury trial was

      set to begin, Van Alstine and the State entered into a plea agreement.

      According to the plea agreement, Van Alstine would plead guilty to attempted

      murder and the State would dismiss aggravated battery. In addition, Van

      Alstine would “receive a sentence of 20 years to the Indiana Department of

      Correction[] none of which shall be suspended[.]” Appellant’s App. Vol. II p.

      44.


[4]   That same day, a guilty-plea hearing was held. The trial court advised Van

      Alstine of his rights, read him the attempted-murder charging information, and

      advised him of the penalties.2 The State established the factual basis for

      attempted murder by reading Van Alstine the charging information, and Van

      Alstine said the information contained in the charging information was

      “factually true.” Tr. p. 20. The State asked the trial court to take judicial notice

      of the probable-cause affidavit, and defense counsel said he had no objection.




      2
          The charging information for attempted murder provides:
               On or about January 17, 2017, in Fulton County, State of Indiana, DeWayne Cloyce Vanalstine
               Jr., did attempt to commit the crime of murder by knowingly or intentionally stabbing, verbally
               threatening to kill Amanda Lace and striking Amanda Lace, said conduct constituting a
               substantial step toward the commission of the crime of murder, to knowingly or intentionally
               kill another human being.
      Appellant’s App. Vol. II p. 12.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018                   Page 3 of 9
      The court then found that Van Alstine’s guilty plea was “freely and voluntarily

      made” and that there was a factual basis to support it, namely, Van Alstine’s

      testimony and the probable-cause affidavit. Id. at 21. Accordingly, the court

      vacated the jury trial and scheduled a sentencing date. Appellant’s App. Vol. II

      p. 46.


[5]   On June 14, 2018, before sentencing, Van Alstine filed a motion to withdraw

      his guilty plea alleging that “it is fair and just for the Court to allow me to

      withdraw my previous plea of guilty for the following reasons”:


               a. That at the time that I entered into this plea I felt that it was in
               my best interests.


               b. However I did not intend to murder Amanda Lace.


               c. That I have maintained this throughout all consultations with
               my attorney.


               d. Consequently, although I thought at the time it may be best to
               take the plea as offered by the State, I know that in reality it is
               not best for me because I was not attempting to murder Amanda
               Lace and I cannot go forward with this plea of guilty in good
               consci[ence].


      Id. at 166 (emphasis added).


[6]   The next day, the trial court held a hearing on Van Alstine’s motion. It was not

      an evidentiary hearing; rather, the parties presented argument only. See Tr. p.

      25 (defense counsel telling trial court he was not going to present any evidence


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018   Page 4 of 9
      and was going to “confine it to argument”).3 Defense counsel explained that

      Van Alstine’s motion was based “on the discretionary power of the Court” to

      allow a defendant to withdraw his guilty plea for “any fair and just reason.” Id.

      at 27. Defense counsel told the court that Van Alstine “has always maintained

      to me that . . . he was not attempting to kill Amanda Lace.” Id. at 28. In

      addition, defense counsel said Van Alstine “took the plea of guilty comparing

      what the plea agreement was, versus the possible ramifications, but as he has

      thought more about this from the date that he has entered his plea he cannot, in

      his own good consc[ience], go forward with that, because . . . he was not

      attempting to kill Amanda Lace.” Id. The State argued that there was no fair

      and just reason to allow Van Alstine to withdraw his guilty plea because it was

      apparent that he “just want[ed] to change his mind.” Id. at 31. The court

      denied Van Alstine’s motion, finding that there was “no fair and just reason to

      allow [Van Alstine] to withdraw his plea.” Appellant’s App. Vol. II p. 168.

      The court then accepted Van Alstine’s guilty plea, entered judgment of

      conviction, and sentenced him to twenty years.


[7]   Van Alstine now appeals.




      3
       The State did admit into evidence photos of Amanda’s injuries, the sliced shower curtain, and the knife. See
      Exs. 2-5.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018                 Page 5 of 9
                                Discussion and Decision
[8]   Van Alstine contends that the trial court should have allowed him to withdraw

      his guilty plea. The withdrawal of a guilty plea before the imposition of a

      sentence is governed by Indiana Code section 35-35-1-4, which provides:


              (b) 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.


      Thus, 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); see also Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). In all

      other cases, the trial court “may allow” the withdrawal of the guilty plea for

      “any fair and just reason unless the state has been substantially prejudiced by

      reliance upon the defendant’s plea.” I.C. § 35-35-1-4(b); Brightman, 758 N.E.2d

      at 44. The defendant “has the burden of establishing his grounds for relief by a

      preponderance of the evidence.” I.C. § 35-35-1-4(e).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018   Page 6 of 9
[9]    On appeal, Van Alstine argues that withdrawal of his guilty plea “was required

       to correct a manifest injustice” because he was not advised at his guilty-plea

       hearing that specific intent is an element of attempted murder. See Patton v.

       State, 810 N.E.2d 690, 696-97 (Ind. 2004) (holding that a defendant who pleads

       guilty must have notice that specific intent is an element of attempted murder

       but that the failure to advise a defendant that specific intent is an element will

       constitute harmless error “where, during the course of the guilty plea or

       sentencing hearings, the defendant unambiguously admits to, or there is other

       evidence of, facts that demonstrate specific intent beyond a reasonable doubt”).

       The State argues that Van Alstine has waived this issue for review because he

       made a different argument below. See Hunter v. State, 72 N.E.3d 928, 932 (Ind.

       Ct. App. 2017) (“Any grounds for objections not raised at trial are not available

       on appeal, and a party may not add to or change his grounds in the reviewing

       court.”), trans. denied.


[10]   Van Alstine’s motion below specified only that he was asserting a “fair and just

       reason” to withdraw his guilty plea, and defense counsel told the trial court that

       the motion was being made for that reason only. As set forth above, it is within

       a trial court’s discretion to grant a motion based on a “fair and just reason,”

       while a trial court must grant a motion based on a “manifest injustice.” See I.C.

       § 35-35-1-4(b). Defense counsel then explained that as Van Alstine had thought

       more about his guilty plea, he could not “in his own good consc[ience], go

       forward with that, because . . . he was not attempting to kill Amanda Lace.”

       Tr. p. 28. Defense counsel highlighted that Van Alstine had “always”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018   Page 7 of 9
maintained to him that he was not attempting to kill Amanda. Id. At no point

did defense counsel argue that Van Alstine had not been advised that specific

intent is an element of attempted murder. In essence, Van Alstine claimed that

he did not commit attempted murder. See Carter v. State, 739 N.E.2d 126, 130

(Ind. 2000) (holding that when a defendant asserts innocence at sentencing after

having pled guilty, it is within a trial court’s discretion to grant or deny the

motion to withdraw because “[t]here is a substantive difference between a

defendant who maintains innocence but asks the court to impose punishment

without trial, and one who concedes guilt in one proceeding but contradicts that

admission by claiming innocence in a later proceeding”). Thus, there was no

discussion as to whether Van Alstine had notice that specific intent is an

element of attempted murder. Cf. Patton, 810 N.E.2d at 698 (in concluding that

Patton did not have notice that specific intent is an element of attempted

murder, our Supreme Court pointed out that defense counsel testified that he

did not advise Patton that specific intent is an element of attempted murder).

As a result, the trial court never had an opportunity to consider the fact-

sensitive argument that Van Alstine now makes. Van Alstine has thus waived

this issue for appeal by not raising it below. See Hunter, 72 N.E.3d at 932 (“The

argument Hunter makes on appeal is independent of and outside the specific

subject matter of the objection that was before the trial court. [Thus,] the trial

court never had an opportunity to consider the argument Hunter now makes to

this Court. Therefore, Hunter has waived this issue for appeal by not raising it

at trial.”). If Van Alstine believes that he did not have notice that specific intent


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018   Page 8 of 9
       to kill Amanda is an element of attempted murder, he is free to make that claim

       in a petition for post-conviction relief, where the record can be developed.


[11]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018   Page 9 of 9
