MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 30 2018, 10:42 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Melinda K. Jackman-Hanlin                               Curtis T. Hill, Jr.
Greencastle, Indiana                                    Attorney General of Indiana

                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Hunter,                                         November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1267
        v.                                              Appeal from the
                                                        Putnam Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      Matthew L. Headley, Judge
                                                        Trial Court Cause No.
                                                        67C01-1612-F1-305



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018              Page 1 of 16
[1]   Jeffrey Hunter appeals from the trial court’s denial of his motion to withdraw

      his plea of guilty to attempted murder.1 On appeal, he raises the following

      issue: whether the denial of his motion to withdraw his guilty plea resulted in a

      manifest injustice because 1) his plea was not knowing and voluntary and 2)

      there was no factual basis that he shot the victim and intended to kill him.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On December 10, 2016, Hunter tried to buy a chainsaw from a Tractor Supply

      Company store, but his credit card was denied. Appellant’s App. Vol. 2 at 15.

      Hunter grabbed the chainsaw and left the store, pushing aside two customers

      who tried to stop him and striking a store employee who also tried to thwart his

      departure. Id. at 15-16. Putnam County Deputy Donnie Pettit pursued Hunter

      back to Hunter’s residence, where Cloverdale Officer Luke Brown (“Officer

      Brown”), Greencastle Officer Daryl Bunten, and Putnam County Deputy

      Elizabeth Campbell arrived to help. Id. at 16. Inside the house, Hunter was

      yelling so loudly that the officers could hear him from the driveway. Id.

      Hunter was arguing with his mother, who wanted him to go outside to talk to

      the police. Id. at 17.




      1
          Ind. Code § § 35-42-1-1, 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 2 of 16
[4]   The officers made contact with Hunter at the front door of his residence.

      Hunter opened the glass storm door, continued to complain in a loud voice,

      and failed to cooperate. Id. at 16. The officers saw a double-barreled shotgun

      leaning in a corner directly beside the doorway, and Officer Brown attempted to

      pull Hunter out of the house. Id. A struggle ensued in which Hunter pulled

      Officer Brown through the threshold of the home, and moments later, Officer

      Brown fell backwards outside the house. Id. As Officer Brown stood up,

      Hunter grabbed the shotgun, leveled it at Officer Brown, and fired it into Officer

      Brown’s chest from approximately one foot away, striking him in his protective

      vest. Id. Officer Brown retreated from the doorway and fired two rounds with

      one round striking Hunter in the left side of his stomach. Id. at 17.


[5]   On December 13, 2016, the State charged Hunter with Level 1 felony attempted

      murder, Class A misdemeanor theft, Level 6 felony resisting law enforcement,

      Class B misdemeanor battery, Level 5 felony battery by means of a deadly

      weapon, and Level 3 felony aggravated battery. Id. at 18-23. The trial date was

      eventually set for March 7, 2018, fourteen months after the date that Hunter

      was charged. During those intervening fourteen months, the trial court twice

      extended the deadline for a plea agreement, once at the request of both parties

      and once at the request of Hunter. Id. at 7-8.


[6]   At some point before he pleaded guilty, Hunter, accompanied by his attorney

      and his father, met with the prosecutor in the prosecutor’s office to discuss a

      plea deal. Id. at 18. In discussing a potential plea, the prosecutor discussed



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 3 of 16
      with Hunter the evidence and arguments the State would use if the case went to

      trial. Id. at 18-19.


[7]   On March 1, 2018, Hunter entered a plea agreement by which he would plead

      guilty to attempted murder, the State would dismiss the remaining two felony

      counts and the two misdemeanor counts, and Hunter would receive a twenty-

      year sentence. Appellant’s App. Vol. 2 at 24. At his guilty plea hearing Hunter

      confirmed that: 1) he intended to plead guilty; 2) nothing was affecting his

      ability to think or reason; 3) no one coerced him to plead guilty; 4) he was

      waiving his rights; and 5) there was nothing else he thought his attorney should

      have done for him. Tr. Vol. 2 at 4-5.


[8]   At the guilty plea hearing, the following colloquy occurred between the

      prosecutor and Hunter:


              Q. And you’re admitting that you shot Officer Luke Brown with
              a shotgun. Is that right?


              A. Yes. I did raise the gun, and it was fired, yes.


              Q. And you’re admitting that you were somewhere from about
              two to six feet away. You raised the shotgun, shot it, you hit him
              in the chest at close range. Is that right?


              A I’m not positive, but I know it was around ten feet.


              Q. A close distance. Is that right?


              A. Yes, sir.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 4 of 16
               Q. And you’re admitting that constitutes a substantial step
               towards that commission of the crime. Is that right?


               A. That’s correct, sir.


[9]    Id. at 5-6. The trial court took Hunter’s guilty plea under advisement and set a

       sentencing hearing.


[10]   At Hunter’s May 3, 2018 sentencing hearing, his counsel informed the trial

       court for the first time that Hunter wanted to withdraw his plea because he

       believed that he was forced into taking the plea and that he was not guilty of

       attempted murder. Id. at 14. Thus, Hunter contended that 1) his plea was not

       knowing and voluntary and 2) there was no factual basis for attempted murder,

       more particularly claiming that he did not have specific intent to kill Officer

       Brown.


[11]   In support of his claim that his plea was not knowing and voluntary, Hunter

       said he felt pressured to accept the plea for three reasons. First, he claimed that

       he believed the purpose of the meeting with the prosecutor was to review the

       State’s evidence against him, not negotiate a plea. Id. at 18. Second, he

       claimed that the one-hour meeting with the prosecutor did not give him enough

       time to decide whether he should plead guilty. Id. Third, after the trial court

       had denied Hunter’s motion to withdraw his plea, Hunter argued during

       allocution that his father had pressured him to plead guilty. Id. at 24.

       However, in arguing that he was pressured to plead guilty, Hunter said only



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 5 of 16
       that he was “rushed,” not that he was coerced. Id. at 18. The following

       colloquy occurred between the State and Hunter:


               Q. Mr. Hunter, what duress was -- you said there was -- or your
               attorney said there was duress used against you, or you said that,
               to get you to plead guilty.


               A. I just -- I felt that it was rushed. I was under the impression
               that we were just coming over to listen to what the arguments
               that you had were, and then I would decide later if I was going to
               take the plea agreement. And everything was just done right
               then. I really didn’t have time to think about it.


               Q. So you don’t feel duress; you felt rushed now. Is that right?


               A. Yes, that’s correct. I -- I don’t know that I had time to really
               consider the plea . . . [.]


               ....


               Q. But is it safe to say nobody forced you or under duress made
               you sign that plea agreement? You did that of your own free
               will?


               A. I was under the impression that I couldn’t get anything better,
               and that this was all that was going to be—ever be given.


       Id. at 18-19.


[12]   As to his claim that he lacked specific intent to kill Officer Brown, the following

       exchange occurred between Hunter and his attorney at the sentencing hearing:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 6 of 16
               Q. And the reason why you want to withdraw the guilty plea is
               because you do not believe that you intended to kill. Is that
               correct?


               A. That’s correct. You said that I formed a specific intent in just
               a few seconds, and that’s what the Court is trying to say, and I
               just -- I do not believe that I have ever wanted anyone to die. I
               mean, I’m not a murderer, so I just can’t see – it’s just
               unfathomable to me.


               ....


               Q. Okay. And so based upon all that -- and I’ve told you that
               intent can be inferred from actions. You understand that?


               A. Yes, I guess I understand.


               Q. Okay. So still with all that, you are adamant that you did not
               form specific intent to kill, and therefore you’re stating that you --
               that is the reason why you can’t withdraw the -- or you want to
               withdraw the plea and you can’t plead guilty. Is that correct?


               A. That’s correct.


       Id. at 16-17.


[13]   The trial court denied Hunter’s request to withdraw his plea. As to Hunter’s

       claim that he was coerced into pleading guilty because he was rushed, the trial

       court found as follows:


               I find that this was a specific plea. You knew exactly what you
               were going to get if the Court accepted it. I can’t find that you

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 7 of 16
               had any coercion because you had at least a one-hour meeting
               with your attorney and the prosecutor and your dad to talk about
               all of this.


               ....


               You say you were rushed, but you weren’t rushed at all. I mean,
               I remember sitting here three or four times waiting on your
               lawyer and the state’s lawyer and yourself before I could come in
               to court on the case because they kept asking me to have
               additional time to talk to you about the case. I can’t find that
               you had any coercion because you had at least a one-hour
               meeting with your attorney and the prosecutor and your dad to
               talk about all of this.


       Id. at 21.


[14]   As to Hunter’s claim that there was no factual basis that he intended to kill

       Officer Brown, the trial court found that Hunter’s intent could be inferred from

       his actions. Id. It concluded that withdrawal of the plea was not necessary to

       prevent a manifest injustice. Id.


[15]   Later during allocution, Hunter contended: 1) “I had no intention of hurting

       anyone,” 2) “I felt threatened for my life,” 3) “I wouldn’t have gotten the gun

       out if I didn’t think my mom’s life was in danger by the guy that was chasing

       me,” 4) “I had no intention of firing at any person,” and that 5) he did not

       believe there was a factual basis for attempted murder but that there was a

       factual basis for aggravated battery, to which he would have pleaded guilty. Id.

       at 23-24. Hunter now appeals.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 8 of 16
                                        Discussion and Decision2
[16]   A motion to withdraw a guilty plea filed before a person is sentenced is

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


                After entry of a plea of guilty, or guilty but mentally ill at the
                time of the crime, but before imposition of sentence, the court
                may allow the defendant by motion to withdraw his plea of
                guilty, or guilty but mentally ill at the time of the crime, 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 or guilty but mentally ill at the time of
                the crime 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,
                or guilty but mentally ill at the time of the crime, whenever the
                defendant proves that withdrawal of the plea is necessary to
                correct a manifest injustice.


       Id.; see also Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998). “[T]he moving

       party has the burden of establishing his grounds for relief by a preponderance of

       the evidence.” Ind. Code § 35-35-1-4(e). “The trial court’s ruling on a motion

       to withdraw a guilty plea arrives in our Court with a presumption in favor of




       2
        We agree with the State that Hunter has waived review of the denial of his motion to withdraw his guilty
       plea because he did not file a written and verified motion but instead only made an oral request. “The
       motion to withdraw the plea of guilty or guilty but mentally ill at the time of the crime made under this
       subsection shall be in writing and verified.” Ind. Code § 35-35-1-4(b); see also Carter v. State, 739 N.E.2d 126,
       128 n.3 (Ind. 2000). Nonetheless, we choose to address Hunter’s claims on the merits.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018                   Page 9 of 16
       the ruling.” Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000). 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 a defendant at his guilty plea

       hearing to decide whether his plea was offered “freely and knowingly.” See

       Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). “A trial court abuses its

       discretion as to plea agreements only ‘when the failure of the trial court to grant

       the motion would result in either a manifest injustice to the defendant or in

       substantial prejudice to the State.’” Johnson, 734 N.E.2d at 244-45 (quoting

       Weatherford, 697 N.E.2d at 34). Instances of manifest injustice include a plea

       that was not knowing and voluntary. I.C. § 35-35-1-4(c)(3); see also Jeffries v.

       State, 966 N.E.2d 773, 778-79 (Ind. Ct. App. 2012).


[17]   A sufficient factual basis to support a guilty plea exists when there is evidence

       about the elements of the crime from which a trial court reasonably could

       conclude that the defendant is guilty. Oliver v. State, 843 N.E.2d 581, 588 (Ind.

       Ct. App. 2006), trans. denied. An adequate factual basis may be established by

       the defendant’s acknowledgement that he understands the nature of the charges

       and that his plea is an admission of the charges. Id. Additionally, the standard

       for a sufficient factual basis is less rigorous than that required to support a

       conviction. Rhoades v. State, 675 N.E.2d 698, 701-02 (Ind. 1996). A factual

       basis may be established by relatively minimal evidence about the elements of

       the crime from which the court could reasonably conclude that the defendant is

       guilty. Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App. 2011). “With

       regard to the crime of attempted murder, it has long been held that the specific

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 10 of 16
       intent to kill may be inferred from the use of a deadly weapon in a manner

       likely to cause death or great bodily harm.” Miller v. State, 106 N.E.3d 1067,

       1074 (Ind. Ct. App. 2018), trans. denied.


                       Manifest Injustice – Plea Not Knowing and Voluntary

[18]   Hunter argues that withdrawal of his guilty plea is necessary to prevent a

       manifest injustice because his plea was not knowing and voluntary.


[19]   He first argues that his plea was not knowing and voluntary because he thought

       his attorney was going to procure a deal to plead guilty to aggravated battery,

       not attempted murder. Appellant’s Br. at 21; Tr. Vol. 2 at 24. During allocution,

       Hunter said: “I was under the impression that [my attorney] was going to get

       the aggravated battery [deal], and that’s what I thought it was going to be.” Tr.

       Vol. 2 at 24.


[20]   Hunter’s second argument that his plea was not knowing and voluntary is that

       he was “rushed” into pleading guilty. Id. at 18. In support, he refers to the

       meeting where he and his lawyer met with the prosecutor for just one hour and

       where he claims he was surprised that the meeting was for negotiation of a plea

       deal. Id. at 18. Hunter claims he felt even more pressure to plead guilty

       because his father also attended the meeting and had been pressuring Hunter to

       plead guilty. Id. at 24.


[21]   We reject Hunter’s claim that his plea was not knowing and voluntary. First,

       the guilty plea hearing shows that Hunter was fully aware that he was pleading

       guilty to attempted murder. Hunter signed a written plea agreement specifying

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 11 of 16
       that he was pleading guilty to attempted murder, that all remaining counts

       would be dismissed, and that he was to receive a twenty-year executed

       sentence. Appellant’s App. Vol. 2 at 24-25. In the acknowledgment of rights in

       the plea agreement, Hunter declared, “I believe this agreement to be in my best

       interest.” Id. at 25. At the guilty plea hearing, the trial court asked Hunter if he

       intended to plead guilty to attempted murder, and Hunter responded, “That’s

       correct, sir.” Tr. Vol. 2 at 4. Hunter was then asked by the State, “Mr. Hunter,

       you’re here today to plead to the count of attempted murder, a Level 1 felony.

       Is that right?” Id.at 5. Hunter responded, “That’s right, sir.” Id. Hunter never

       sought clarification about the offense to which he was pleading guilty; likewise,

       he did not claim that the agreement was not what he thought it was until much

       later during his allocution at the sentencing hearing, which occurred after the

       trial court had already denied his motion to withdraw his plea. Thus, Hunter’s

       claim that he thought his counsel was going to obtain a plea for aggravated

       battery is not supported by the record. Compare Johnson, 734 N.E.2d at 245

       (record belied defendant’s claim that he pleaded guilty only because his

       attorney pressured him to do so; defendant acknowledged that he read and

       understood the plea agreement; this was sufficient to indicate his plea was

       voluntarily entered and that denying motion to withdraw plea did not result in

       manifest injustice).


[22]   Second, the record shows that Hunter was not coerced into pleading guilty.

       Before Hunter and his attorney met with the prosecutor, the case had been

       pending for more than one year, and the trial court had twice extended the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 12 of 16
       deadline for the parties to file a plea agreement. Appellant’s App. Vol. 2 at 3-8.

       After all that time, the fact that the time for Hunter to decide whether to plead

       guilty after a one-hour meeting strikes us as hardly unusual or unreasonable.

       Thus, it was reasonable for the trial court to conclude that Hunter had sufficient

       time to consider whether a plea agreement was in his best interest and to also

       conclude that Hunter was not coerced, or even “rushed,” into pleading guilty.

       Tr. Vol. 2 at 18-19.


[23]   Hunter “has failed to show that his plea was not knowing and voluntary and

       that withdrawal of his plea was necessary to prevent a manifest injustice on that

       basis. See I.C. § 35-35-1-4(c)(3); Jeffries, 966 N.E.2d at 778-79. He freely and

       knowingly” pleaded guilty to attempted murder. See Coomer, 652 N.E.2d at 62.


                       Manifest Injustice – Guilty Plea Lacked Factual Basis

[24]   Hunter next argues that affirming the denial of his motion to withdraw his

       guilty plea will result in a manifest injustice because the guilty plea hearing did

       not establish a factual basis for attempted murder. Specifically, he claims that

       there was no factual basis that he fired the shotgun at Officer Brown and that he

       had the requisite specific intent to kill Officer Brown. In support, he refers to

       his exchange with the prosecutor:


               Q. And you’re admitting that you shot Officer Luke Brown with
               a shotgun. Is that right?


               A. Yes. I did raise the gun and it was fired, yes.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 13 of 16
       Tr. Vol 2 at 5 (emphasis added).


[25]   We reject Hunter’s claim that this testimony did not establish a factual basis

       that he shot the gun and intended to kill Officer Brown. Hunter’s argument

       rests largely on his somewhat ambiguous admission that “it [the gun] was

       fired.” This admission, standing alone, is sufficient to establish a factual basis

       that he shot Officer Brown and intended to kill him, especially considering the

       less rigorous standard to establish a factual basis for a guilty plea than to

       support a conviction after a trial. See Rhoades, 675 N.E.2d at 702. Moreover,

       the broader context of the “it was fired” statement reinforces that there was a

       factual basis that Hunter shot Officer Brown and intended to kill him.


               Q. And you’re admitting that you shot Officer Luke Brown with
               a shotgun. Is that right?


               A Yes. I did raise the gun and it was fired, yes.


               Q. And you’re admitting that you were somewhere from about
               two to six feet away. You raised the shotgun, shot it, you hit him
               in the chest at close range. Is that right?


               A. I’m not positive, but I know it was around ten feet.


               Q. A close distance. Is that right?


               A. Yes, sir.


               Q. And you’re admitting that constitutes a substantial step
               towards that commission of the crime. Is that right?

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 14 of 16
               A. That’s correct, sir.


       Tr. Vol. 2 at 5-6. This acknowledgment by Hunter established a factual basis

       because it showed that Hunter understood the nature of the attempted murder

       charge and that his plea was an admission to that charge. See Oliver, 843

       N.E.2d at 588.


[26]   Finally, since “it has long been held that the specific intent to kill may be

       inferred from the use of a deadly weapon in a manner likely to cause death or

       great bodily harm,” Miller, 106 N.E.3d at 1074, the trial court reasonably

       concluded that there was an adequate factual basis for attempted murder.

       Despite Hunter’s protestation of innocence during allocution, the trial court

       reasonably concluded that Hunter fired the gun and that his specific intent to

       kill Officer Brown could be inferred from his use of the gun,. See Oliver, 843

       N.E.2d at 588; compare Carter, 739 N.E.2d at 131 (no abuse of discretion in

       denying withdrawal of a guilty plea when the defendant admitted guilt at plea

       hearing, and later proclaimed his innocence at the sentencing hearing); compare

       also Owens v. State, 426 N.E.2d 372, 374-75 (Ind. 1981); Gross v. State, 22 N.E.3d

       863, 868-69 (Ind. Ct. App. 2014); and Harris v. State, 671 N.E.2d 864, 869 (Ind.

       Ct. App. 1996).


[27]   The foregoing facts amply satisfy the standard that a “factual basis may be

       established by relatively minimal evidence about the elements of the crime from

       which the court could reasonably conclude that the defendant is guilty.”

       Graham, 941 N.E.2d at 1098. Hunter has failed to demonstrate that withdrawal


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 15 of 16
       of his plea was necessary to prevent a manifest injustice because of an allegedly

       inadequate factual basis, and he also failed to demonstrate that withdrawal of

       his plea was necessary because his plea was allegedly not knowing and

       voluntary.


[28]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1267 | November 30, 2018   Page 16 of 16
