MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    May 16 2019, 6:33 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
John Kindley                                             Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Chad E. Smith,                                           May 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-68
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Samuel A. Swaim,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         61C01-1806-F5-191
                                                         61C01-1807-CM-260



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019                            Page 1 of 9
[1]   Chad Smith appeals the sentence imposed by the trial court after he pleaded

      guilty to Level 5 Felony Criminal Confinement, Level 6 Felony Strangulation,

      and Class A Misdemeanor Invasion of Privacy, arguing that the trial court erred

      when it denied his motion to withdraw his guilty plea and that the sentence is

      inappropriate in light of the nature of the offenses and his character. Finding no

      error and that the sentence is not inappropriate, we affirm.


                                                   Facts
[2]   On or about June 19, 2018, Sondra Knight came home after work to find

      Smith, her ex-boyfriend, waiting for her. Knight and Smith did not live

      together. Smith had been contacting Knight repeatedly to try to convince her

      that they should get back together. Knight invited Smith inside, and after taking

      shots of alcohol, the two began to argue. Smith became aggressive, grabbing

      Knight by the hair and forcing her onto her bed. Smith proceeded to smother

      Knight by pressing his chest and stomach onto her body while placing his hands

      on her mouth and nose. After Smith released her, Knight ran into the

      bathroom. Smith followed her and pushed her into the toilet, breaking the lid.

      Smith then used a nearby pair of sweatpants to strangle Knight.


[3]   Next, Smith forced Knight outside and into his truck. As they drove to Smith’s

      house, he warned her that if she screamed, he would kill her. Once at Smith’s

      house, Smith tied Knight up and stated that he was going to kill her and then

      commit suicide. Smith ordered Knight to write a note to her children in which

      she told them that she was going to die. Over the course of the evening, Smith

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 2 of 9
      unplugged all the lights in his home, repeatedly tied up and untied Knight,

      boarded up the front and back doors of his house, and placed a solid object up

      against Knight’s head so that she believed it was a gun. Knight pleaded for her

      life multiple times, asking Smith to let her go. Later that night, after Smith fell

      asleep, Knight tried to escape. She discovered that the doors were boarded, but

      she was able to pull back enough wood to squeeze through. She then ran down

      the street to a nearby house and called the police. Soon after, officers arrived at

      Smith’s house and arrested him.


[4]   On June 20, 2018, the State charged Smith with Level 5 felony criminal

      confinement, Level 6 felony intimidation, and Level 6 felony domestic battery

      resulting in moderate bodily injury. On June 21, 2018, the trial court issued a

      no contact order, barring Smith from making any sort of contact with Knight

      until trial. Yet, leading up to Smith’s jury trial, he called Knight more than

      twenty times. On June 25, 2018, the State also charged Smith with Level 5

      felony kidnapping, Level 6 felony strangulation, and one additional count of

      Level 5 felony criminal confinement. Smith has a long criminal history and had

      previously been convicted of kidnapping, criminal confinement, battery

      resulting in bodily injury, and invasion of privacy “involving women and

      domestic stuff[.]” Tr. Vol. II p. 95-96. On July 9, 2018, under a separate cause

      number, the State charged Smith with one count of Class A misdemeanor

      invasion of privacy based on his violations of the no contact order.


[5]   On the morning of Smith’s October 9, 2018, jury trial, pursuant to an open plea

      agreement, Smith pleaded guilty to one count of Level 5 felony criminal

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 3 of 9
      confinement, one count of Level 6 felony strangulation, and one count of Class

      A misdemeanor invasion of privacy in exchange for dismissal of the other

      charges. Before accepting Smith’s plea, the trial court advised Smith of the

      rights he was waiving by pleading guilty. The trial court also informed Smith of

      the crimes to which he would be pleading guilty and of the potential sentences

      that would be imposed. Smith stated that he understood and accepted the terms

      of the plea agreement, the potential sentences to be imposed, and the rights he

      was waiving. Id. at 37-41.


[6]   At the December 7, 2018, sentencing hearing, Smith filed a motion to withdraw

      his guilty plea. During a separate hearing on that motion, Smith argued that he

      was not aware of the potential sentences he would face by pleading guilty and

      that he did not know he was pleading guilty to Class A misdemeanor invasion

      of privacy. The trial court denied his motion.


[7]   The trial court sentenced Smith to an aggregate term of eight and one-half years

      to be served in the Department of Correction. Of that sentence, the trial court

      imposed the maximum sentence (six years) for the criminal confinement count

      and the maximum sentence (two and one-half years) for the strangulation

      count. The trial court gave Smith credit for the 170 days served in the Parke

      County jail, appellant’s app. vol. II p. 44, thereby leaving him with no time left

      to serve for the invasion of privacy count. Smith now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 4 of 9
                               Discussion and Decision

                                           I. Guilty Plea
[8]    First, Smith argues that the trial court erred when it denied his motion to

       withdraw his guilty plea.


[9]    There is a presumption in favor of the trial court’s ruling on a motion to

       withdraw a guilty plea. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). In

       determining whether the trial court erred in its ruling, we examine statements

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

       offered freely and knowingly. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001).


[10]   Indiana Code section 35-35-1-4(b) establishes when a defendant can move to

       withdraw a guilty plea:


               (b) 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. . . . [T]he 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.


       Therefore, the trial court must grant a defendant’s motion to withdraw his

       guilty plea if the defendant can prove that withdrawal will correct a manifest

       injustice.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 5 of 9
[11]   Here, though Smith claims that he did not know he was pleading guilty to Class

       A misdemeanor invasion of privacy and that he was unaware of the potential

       sentencing ranges for his offenses, the record shows otherwise. Smith explicitly

       stated that he understood that he was waiving certain constitutional rights by

       pleading guilty and that he accepted the terms of his plea agreement.

       Furthermore, the trial court asked Smith numerous times if he understood that

       he was pleading guilty to specific charges, including invasion of privacy. Once

       again, Smith stated that he understood the nature of his guilty plea, the offenses

       listed therein, and the potential sentences to be imposed. Tr. Vol. II p. 37-41. As

       such, Smith’s direct testimony undermines any argument that he lacked

       knowledge of the sentence he would receive or that he was unaware of the

       crimes to which he was pleading guilty. There is no indication that Smith did

       not offer his plea freely and knowingly and at no point would Smith’s

       withdrawal have corrected a manifest injustice. Thus, the trial court did not err

       in denying Smith’s motion to withdraw his guilty plea.


                                     II. Appropriateness
[12]   Next, Smith argues that the sentence imposed by the trial court is inappropriate

       in light of the nature of the offenses and his character.


[13]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense[s] and the

       character of the offender.” The defendant bears the burden of persuading us

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 6 of 9
       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). In determining whether a sentence is inappropriate, we will consider

       numerous factors such as culpability of the defendant, the severity of the crime,

       the damage done to others, and a “myriad [of] other factors that come to light

       in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[14]   The maximum sentence for a Level 5 felony criminal confinement conviction is

       six years and the minimum sentence is one year. Ind. Code § 35-50-2-6(b). The

       advisory sentence is three years. Id. The maximum sentence for a Level 6 felony

       strangulation conviction is two and one-half years and the minimum sentence is

       six months. I.C. § 35-50-2-7(b). The advisory sentence is one year. Id. For a

       Class A misdemeanor invasion of privacy conviction, the defendant “shall be

       imprisoned for a fixed term of not more than one (1) year[.]” Ind. Code § 35-50-

       3-2. Here, the trial court imposed an aggregate sentence of eight and one-half

       years, of which the trial court ordered the maximum six years for the criminal

       confinement count, the maximum two and one-half years for the strangulation

       count, and credit given for time served for the invasion of privacy count.


[15]   First, as to the nature of the offenses, Smith committed particularly heinous and

       brutal criminal acts against Knight. After Knight allowed him into her home,

       Smith smothered her face and pressed hard on her body after grabbing her and

       forcing her onto a bed. Then, after chasing Knight into the bathroom, slamming

       her into the toilet, and strangling her with a pair of sweatpants, Smith forced

       Knight into his car so they could drive to his home. There, Smith continued to

       tie up, untie, berate, threaten, and essentially torture Knight for the rest of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 7 of 9
       evening, even going so far as to order Knight to write a note telling her children

       that she was going to die. Moreover, Smith unplugged all the lights in his home

       and boarded up the doors to prevent Knight from escaping. This experience has

       caused Knight severe psychological trauma, and the record evidences Smith’s

       deliberate attempt to harm Knight without any justification. Therefore, we find

       that the nature of the offenses does not render Smith’s sentence inappropriate.


[16]   Second, as to Smith’s character, Smith’s actions following his arrest are telling.

       After the trial court issued a no contact order against him, Smith nevertheless

       called and harassed Knight more than twenty times before the time of trial.

       Additionally, the record shows that this is not his first criminal conviction.

       Smith had previously been convicted of the very crimes (criminal confinement

       and invasion of privacy) to which he pleaded guilty in this case, demonstrating

       poor and reprehensible character. See Bailey v. State, 763 N.E.2d 998, 1004 (Ind.

       2002) (holding that a history of criminal activity, even if those criminal actions

       did not lead to convictions, reflects poorly on a defendant’s character at

       sentencing). Moreover, while Smith contends that the trial court

       inappropriately imposed the maximum sentences for two counts, the trial

       court’s reasoning is explicit:


               Ms. Knight was subject to a night of torture and terror for several
               hours[.] . . . The Court also finds that [Smith] does have a history
               of criminal behavior as outlined in the presentence report. The
               Court would also note the evidence presented today that [Smith]
               attempted to contact . . . the victim in excess of twenty times after
               a No Contact Order was issued. Now, the Court has considered
               the fact that [Smith] has not been in trouble, as argued by Defense
               counsel, for sixteen years and, I guess, the Court would’ve been

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019   Page 8 of 9
               willing to give you, Mr. Smith, some credit for that time, until
               today’s hearing, when you continued to try to shame the victim
               after you’ve already pled guilty. So, really, none of --- nothing you
               said today makes much sense. There was no reason presented for
               the victim to lie about any of this. There’s no motive for her to do
               any of this. In fact, there would be every reason for a lot of women
               not to have the courage to come forward with any of this. So
               you’re not taking any responsibility for the crimes that you
               committed and pled guilty to. Convictions have already been
               entered. I know you’re not low intelligence. You graduated high
               school. I see no reason why you wouldn’t understand what’s going
               on. Your conduct in the Courtroom, continually shaking your
               head, looking at the victim, also I find that to be threatening[.] . . .
               I don’t think you have any remorse whatsoever for the acts you’ve
               committed.


       Tr. Vol. II p. 99-100. Even though Smith pleaded guilty, the trial court had

       ample reasons to impose the maximum sentences for those two counts.

       Therefore, we find that Smith’s character does not render the sentence

       inappropriate. In sum, we will not revise Smith’s sentence pursuant to Indiana

       Appellate Rule 7(B).


[17]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-68 | May 16, 2019    Page 9 of 9
