MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                    Oct 03 2017, 11:18 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tabitha Lykins-Greene,                                   October 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         78A01-1705-CR-1129
        v.                                               Appeal from the Switzerland
                                                         Circuit Court
State of Indiana,                                        The Honorable W. Gregory Coy,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         78C01-1608-F4-306



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017       Page 1 of 9
                                                   Case Summary
[1]   Tabitha Lykins-Greene (“Lykins-Greene”) appeals the trial court’s denial of her

      motion to withdraw her plea of guilty. The only issue she raises is whether the

      trial court’s decision denying her motion was an abuse of its discretion. We

      affirm.



                                Facts and Procedural History
[2]   On August 30, 2016, and September 21, 2016, the State charged Lykins-Greene

      with count I, burglary of a dwelling, as a Level 4 felony;1 count II, theft, as a

      Level 6 felony;2 count III, conspiracy to commit burglary, as a Level 4 felony; 3

      count IV, conspiracy to commit theft, as a Level 6 felony; 4 and count V, theft,

      as a Level 6 felony.5 These charges were based on allegations that she and her

      husband, Jonathan Greene (“Jonathan”), had broken into Jonathan’s

      grandmother’s house and stolen a crossbow and several firearms. On February

      15, 2017, Lykins-Greene entered into a guilty plea wherein she admitted to an

      amended burglary count as a Level 5 felony, and the State moved to dismiss the

      remaining counts.




      1
          Ind. Code § 35-43-2-1(1).
      2
          I.C. § 35-43-4-2(a)(1)(B).
      3
          I.C. § 35-41-5-2 and I.C. § 35-43-2-1(1).
      4
          I.C. § 35-41-5-2 and I.C. § 35-43-4-2.
      5
          I.C. § 35-43-4-2(a)(1)(A).


      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 2 of 9
[3]   At Lykins-Greene’s guilty plea hearing on that same date, the trial court

      advised her that she had the following rights: 1) a right to a public and speedy

      trial by jury; 2) a right to face all witnesses against her, and to see, hear,

      question, and cross-examine them; 3) a right to require witnesses to be present

      at any hearing or trial and to testify on her behalf; 4) a right to not be forced to

      make any statement or to testify against herself; 5) a right to remain silent; 6)

      and a right to have the State prove beyond a reasonable doubt that she

      committed the charged offenses before she could be found guilty. Lykins-

      Greene acknowledged, under oath, that she understood all of those rights and

      that, by pleading guilty, she was giving up all of those rights. Specifically as to

      the amended Level 5 burglary count, Lykins-Greene acknowledged that she

      understood that in the event of a trial the State would have to prove beyond a

      reasonable doubt that she was guilty of that offense, and that by pleading guilty

      she was admitting to that offense.


[4]   Lykins-Greene also confirmed that she had discussed the plea agreement with

      her attorney and she (Lykins-Greene) had signed it. The trial court then read

      the entire plea agreement aloud to Lykins-Greene, and Lykins-Greene

      acknowledged that she understood the agreement. Lykins-Greene confirmed

      that no one “had forced or threatened [her] or placed [her] or anyone else in

      fear to get [her] to plead guilty.” Tr. Vol. II at 8. Lykins-Greene pled guilty to

      the charge of burglary as amended, admitted to the factual basis for the charge,

      and confirmed that her plea of guilty was done “freely and voluntarily.” Id. at

      8-9. The trial court then accepted Lykins-Greene’s plea of guilt, took it under


      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 3 of 9
      advisement, and set a date for sentencing so that a pre-sentence investigation

      could be completed.


[5]   In a letter to the court dated April 13, 2017 and file-stamped April 20, 2017,

      Lykins-Greene stated, in relevant part:


              I want to withdraw my current plea I signed on Feb-15-2017.
              And I want my current lawyer[,] “Mary Jean Shotts[,]” to be
              removed from my case. I have been forced to make a decision on
              signing my plea, if I did not sign my plea I was guided by Miss
              Stotts to believe I would in fact be found guilty and lose my case.
              Considering I have never been in this situation and I thought my
              lawyer had my best interest [sic][,] I signed the plea because[,]
              according to her[,] that was as good as it was going to get for me,
              which is and was a lie. I had previously made an attempt to
              discuss the truth [with a] Detective on my case or to reason with
              the prosecutor that I was innocent[,] but my lawyer lied to me[,]
              saying they had refused. I even wanted to testify in front of a
              jury to prove my innocence. But “Mrs[.] Shotts” made countless
              attempts to keep me from going to trial. … I don’t deserve to go
              to prison for something I did not do. I have and still want to take
              my case to trial. … I am asking to take my case to trial.


                                                      ***


              I additionally know my current lawyer[,] “Mary Shotts[,]” has
              letters in her file to show that I was wanting to testify and prove
              my innocence. So that can be used to show where I was standing
              in my case. And that she did[,] in fact[,] mislead me.


      Appellant’s App. Vol. II at 56. The letter was signed “Sincerely, Tabitha

      Greene,” but it was not verified.



      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 4 of 9
[6]   On May 1, 2017, at Lykins-Greene’s sentencing hearing, the trial court

      addressed the request in Lykins-Greene’s letter. Because Lykins-Greene

      indicated that she had reasons for her request in addition to those stated in the

      letter, the trial court took her sworn testimony on the issue. Lykins-Greene

      testified that she “originally” had wanted to testify against Jonathan but she

      “was advised that the prosecutor and court were not willing to negotiate [her]

      plea if [she were] to testify.” Tr. Vol. II at 13. She stated that she wanted to

      take her case to trial because she was “generally innocent,” and did not want to

      go to prison for something she did not do. Id. Lykins-Greene’s lawyer

      (“Shotts”) stated to the court that she and Lykins-Greene “went word for word

      with the plea agreement,” and that Shotts believed that Lykins-Greene “fully

      understood what she was signing.” Id. at 18.


[7]   Citing Indiana Code Section 35-35-1-4, the trial court noted that a defendant

      must file a verified motion to withdraw a guilty plea rather than just a letter.

      Based on Lykins-Greene’s failure to file such a motion and on her statements at

      the February 15 plea hearing, the court concluded that she had been fully

      advised of her rights and had freely and voluntarily pled guilty and admitted to

      the factual basis of the plea. The trial court denied Lykins-Greene’s request to

      withdraw her guilty plea, accepted the guilty plea, and sentenced her according

      to the terms of the plea agreement. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 5 of 9
                                 Discussion and Decision
[8]   Lykins-Greene’s only contention on appeal is that the trial court erred in

      denying her request to withdraw her guilty plea. This court has recently

      summarized the applicable law and standard of review in such appeals:


              Indiana Code section 35-35-1-4(b) governs motions to withdraw
              guilty pleas. In general, after a defendant pleads guilty but before
              a sentence is imposed, a defendant may move to withdraw a plea
              of guilty. Id. The trial court must permit a defendant to
              withdraw a guilty plea if it is “necessary to correct a manifest
              injustice.” Id. On the other hand, the motion to withdraw the
              plea should be denied if the plea’s withdrawal would
              substantially prejudice the State. Id. In all other cases, the court
              may grant the defendant’s motion to withdraw a guilty plea “for
              any fair and just reason.” Id.


              We also note that 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).
              We will reverse the trial court 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 the guilty plea hearing to
              decide whether the plea was offered “freely and knowingly.” Id.


      Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans. denied. “A

      defendant has the burden to prove by a preponderance of the evidence and with

      specific facts that he should be permitted to withdraw his plea.” Gross v. State,

      22 N.E.3d 863, 868 (Ind. Ct. App. 2014), trans. denied. And “an appellant




      Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 6 of 9
       seeking to overturn a trial court’s decision [denying the motion to withdraw]

       faces a high hurdle.”6 Id.


[9]    Initially, we note that Lykins-Greene did not file a written, verified motion to

       withdraw her guilty plea, as required by statute. I.C. § 35-35-1-4(b). A written

       request to withdraw a guilty plea that is not in the form of a verified motion

       does not satisfy the requirements of the statute, and “generally results in waiver

       of the issue of wrongful denial of the request.” Carter v. State, 739 N.E.2d 126,

       128 n.3 (Ind. 2000) (citing Flowers v. State, 528 N.E.2d 57, 59 (Ind. 1988)).

       Because Lykins-Green did not file a verified motion to withdraw her guilty plea

       but only an unverified letter making such a request, she has waived our review

       of the trial court’s denial of that request.


[10]   Waiver notwithstanding, Lykins-Greene failed to carry her burden of proving

       the denial of her request to withdraw her plea caused a “manifest injustice” or

       that her plea should be withdrawn for any other “fair and just reason.” Jeffries,

       966 N.E.2d at 777. In her letter, Lykins-Greene contended that her lawyer

       “lied” to her by telling her that a detective and the prosecutor had refused to

       speak to Lykins-Greene about her alleged innocence and by advising Lykins-

       Greene that the plea was the best deal she would get. Appellant’s App. Vol. II

       at 56. She also claimed that her lawyer “misled” her. Id. However, she

       provided no specific facts to support those contentions. Rather, the evidence



       6
         When a motion to withdraw a guilty plea is made after sentencing, it is treated as a petition for
       postconviction relief. I.C. § 35-35-1-4(c).

       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017                Page 7 of 9
       shows that both Lykins-Greene’s lawyer and the court reviewed the plea

       agreement, word for word, with Lykins-Greene, after which Lykins-Greene

       expressly stated that she understood the agreement, that no one had forced her

       to enter into the agreement, and that she entered into the agreement freely and

       voluntarily.


[11]   Nor are Lykins-Greene’s assertions of “general[]” innocence or of having a

       good defense sufficient to show that acceptance of her guilty plea resulted in a

       manifest injustice. Tr. Vol. II at 13. “[W]here a trial court has followed the

       procedures outlined in the guilty plea statutes, and where the defendant’s guilty

       plea is knowing and voluntary, his later assertion of innocence does not require

       the trial court to set aside his guilty plea.” Carter v. State, 724 N.E.2d 281, 285

       (Ind. Ct. App. 2000), aff’d, 739 N.E.2d 126 (Ind. 2000). And, as we have

       previously held, the existence of a potential defense based only on a defendant’s

       own testimony does not carry the defendant’s burden of showing that

       withdrawal is necessary to correct a manifest injustice, even in the absence of

       prejudice to the State. Gipperich v. State, 658 N.E.2d 946, 949 (Ind. Ct. App.

       1995), trans. denied. The trial court did not abuse its discretion in denying

       Lykins-Greene’s request to withdraw her guilty plea based on her self-serving

       claims of innocence and a good defense to the charge.



                                               Conclusion
[12]   The trial court did not abuse its discretion in denying Lykins-Greene’s request

       to withdraw her guilty plea.

       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 8 of 9
[13]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017   Page 9 of 9
