MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                        Aug 27 2020, 9:10 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
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Steven Hosler
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Seth McCullough,                                         August 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-726
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Hon. Steven P. Meyer, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D02-1812-F1-13



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020         Page 1 of 10
                                          Case Summary
[1]   On December 16, 2018, Seth McCullough spent the night at his cousin’s house

      and, at some point, went into the room of his cousin’s four-year-old daughter

      B.O. McCullough had vaginal intercourse with B.O. and inflicted head and

      neck injuries on her. The State eventually charged McCullough with eight

      counts, including Level 1 felony child molesting, Level 5 felony battery, and

      Level 6 felony battery by bodily waste. In July of 2019, McCullough pled guilty

      to those three charges, and the trial court took the matter under advisement

      until sentencing. In February of 2020, McCullough’s trial counsel moved to

      withdraw his guilty plea. After a hearing, the trial court denied McCullough’s

      motion to withdraw and sentenced him to an aggregate sentence of fifty years of

      incarceration with five years suspended to probation. McCullough contends

      that the trial court abused its discretion in denying his motion to withdraw his

      guilty pleas. Because we disagree, we affirm.


                            Facts and Procedural History
[2]   On December 16, 2018, the HIV-positive McCullough and his brother went to

      their cousin’s house in Tippecanoe County, in which the cousin lived with his

      wife and his two daughters, including four-year-old B.O. McCullough drank

      alcohol and at some point went into B.O.’s bedroom, had sexual intercourse

      with her, and caused injuries to her head and neck. The next morning, after

      McCullough and his brother left, B.O. told her mother that her vagina and head

      hurt. B.O. was taken to Riley Children’s Hospital, where it was determined


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 2 of 10
      that she had suffered lacerations to her vagina and anus and bruising and

      lacerations to her head and neck. McCullough’s semen was identified in B.O.’s

      underwear, his DNA was found on a genital swab, and, although B.O. did not

      test positive for HIV, she did develop genital warts.

[3]   Eventually, the State charged McCullough with two counts of Level 1 felony

      child molesting, Level 4 felony child molesting, Level 5 felony battery, Level 6

      felony strangulation, two counts of Level 6 felony battery by bodily waste, and

      Level 6 felony failure to warn by a carrier of a dangerous communicable

      disease. On July 15, 2019, McCullough executed a document indicating that he

      had reviewed the evidence the State intended to use against him, had consulted

      with his attorney regarding the benefits of a jury trial, understood his rights, and

      intended to plead guilty to three charges. On July 16, 2019, McCullough pled

      guilty to Level 1 felony child molesting, Level 5 felony battery, and Level 6

      felony battery by bodily waste in exchange for dismissal of the other five

      charges. On February 13, 2020, McCullough moved to withdraw his guilty

      pleas. After a hearing held on February 28, 2020, the trial court denied

      McCullough’s motion to withdraw his guilty pleas, and, on March 6, 2020, the

      trial court sentenced McCullough to an aggregate sentence of fifty years of

      incarceration with five years suspended to probation.


                                 Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 3 of 10
                        Whether the Trial Court Abused its
                        Discretion in Denying McCullough’s
                        Motion to Withdraw his Guilty Pleas
[4]   McCullough contends that the trial court abused its discretion in denying his

      motion to withdraw his guilty pleas to Level 1 felony child molesting, Level 5

      felony battery, and Level 6 felony battery by bodily waste. Indiana Code

      Section 35-35-1-4(b) provides, in part, as follows:

              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 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.
      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). 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 change-of-plea hearing to decide whether the plea was

      offered “freely and knowingly.” Id.

                A. Professed Lack of Memory of the Crimes
[5]   McCullough first contends that the trial court abused its discretion in denying

      his motion to withdraw his guilty pleas because he claimed to have no memory

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 4 of 10
      of his crimes at his change-of-plea hearing. McCullough argues that this

      professed lack of memory is equivalent to a denial of guilt. “[A]n Indiana trial

      court may not accept a guilty plea that is accompanied by a denial of guilt.”

      Carter v. State, 739 N.E.2d 126, 129 (Ind. 2000).

              [A] plea of guilty tendered by one who in the same breath protests
              his innocence, or declares he actually does not know whether or
              not he is guilty, is no plea at all. Certainly it is not a sufficient plea
              upon which to base a judgment of conviction. No plea of guilty
              should be accepted when it appears to be doubtful whether it is
              being intelligently and understandingly made, or when it appears
              that, for any reason, the plea is wholly inconsistent with the
              realities of the situation.
      Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953).

[6]   While it is true that trial court may not accept a defendant’s guilty plea when

      the defendant pleads guilty but also professed innocence, that is not what

      occurred here. During McCullough’s change-of-plea hearing, the following

      exchange occurred between McCullough and his trial counsel:

              Q       And you have looked through all of the discovery materials
              in this case that includes, but not limited to, police reports,
              medical records, there’s a Certificate of Analysis, search warrants,
              body cams, recorded statements, and all photographs, right?
              A        Yes.
              Q       Now, you don’t have any memory, but you’ve looked
              through the discovery, and you are choosing to plead guilty today,
              is that right?
              A        Yes.
              […]
              Q     Okay, so we’re gonna reference some of those, because as
              we’ve stated before, you’ve reviewed all these materials and you

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 5 of 10
              agree that even though you have no memory, the State has proven
              their case beyond a reasonable doubt that you were guilty, is that
              right?
              A        Yes.
              Q     And you are wanting to plead guilty because you believe
              you are guilty, is that right?
              A        That’s right.
              Q      Okay. So, and you understand that voluntary intoxication
              is not a defense to this?
              A        I understand that.
              Q       Okay. Now, reviewing Defendant’s Exhibit 1 here, which
              is the summary of statements by Jeremy, Shannon, and the two
              girls, right?
              A        Yes.
              Q     Now, you’ve also watched the recorded statements from
              them including the victim in this case, B.O., correct?
              A        Yes.
              Q      And you believe B.O. is very credible in this case, is that
              right?
              A        Yes.
              Q        And so, you are not contesting any of those allegations?
              A        I am not.
      Appellant’s App. Vol. II pp. 21–22.

[7]   McCullough did not attempt to retract or contradict any of the above and points

      to no other statement made at the change-of-plea hearing that can be interpreted

      as a denial of guilt. In other words, while McCullough claimed at his change-

      of-plea hearing that he did not remember the events of December 16, 2018, far

      from contesting that they occurred or claiming that he was innocent, he


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 6 of 10
      specifically admitted that they did occur as B.O. had described them. Under

      the circumstances of this case, at least, McCullough’s mere claim of a failure to

      recall events, even if legitimate, does not amount to a protestation of innocence.

      See Gibson v. State, 490 N.E.2d 297, 298 (Ind. 1986) (in case where defendant

      claimed not to recall details of his crimes, concluding that “Appellant neither

      claims nor does he show that his failure to recall details of his crime amounted

      to a protestation of innocence”). Because McCullough’s professed lack of

      memory at his change-of-plea hearing did not function as a claim of innocence,

      it does not entitle him to a withdrawal of his guilty pleas. The trial court did

      not abuse its discretion in this regard.

                           B. Voluntariness of Guilty Pleas
[8]   McCullough next contends that his pleas were involuntary because he was

      “coerced or bullied or pressured” into pleading guilty by his trial counsel. Tr.

      Vol. II p. 33. Our analysis of whether a guilty plea was voluntary starts by

      examining statements made at the change-of-plea hearing. See Brightman, 758

      N.E.2d at 44. After McCullough affirmed that he was, in fact, guilty of the

      crimes to which he was pleading guilty, the following exchange occurred:

                     THE COURT: Alright. Besides this plea agreement, have
              you been offered anything else of value or been given anything, or
              have been given any other agreements to get you to plead guilty
              here today?
                       THE DEFENDANT: No.
                     THE COURT: Has anyone forced you or threatened you
              or placed anyone else in fear of harm to get you to plead guilty
              here today?


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 7 of 10
                       THE DEFENDANT: No.
                    THE COURT: You believe your plea of guilty then would
              be your own free and voluntary choice?
                       THE DEFENDANT: Yes, I do.
                    THE COURT: Are you satisfied with the services of your
              attorney and you feel she’s properly representing you?
                       THE DEFENDANT: Yes, I am.
                    THE COURT: Is it still your intention to plead guilty
              pursuant to this plea agreement?
                       THE DEFENDANT: It is.
      Tr. Vol. II pp. 17–18. Additionally, McCullough had executed a document the

      day before his change-of-plea hearing which included the following: “I am

      pleading guilty because I am guilty. I am knowingly and voluntarily pleading

      guilty [and acknowledge] that no promises, threats or force have been used to

      make me plead guilty.” Appellant’s App. Vol. II p. 25. McCullough’s

      responses to the trial court’s questions, along with his declarations from the day

      before, are more than sufficient to establish that his guilty pleas were voluntarily

      made. See, e.g., Gross v. State, 22 N.E.3d 863, 868 (Ind. Ct. App. 2014)

      (affirming trial court’s denial of motion to withdraw guilty plea where

      defendant stated he understood his rights and the terms of plea, was not forced

      or threatened, and was satisfied with his attorney’s services), trans. denied.

[9]   That said, McCullough now claims that he felt “bullied” into the guilty plea

      when his trial counsel allegedly threatened him with a 100-year sentence if he

      did not plead guilty. McCullough’s trial counsel, however, testified at the

      withdrawal hearing that she had not threatened McCullough but had merely



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 8 of 10
       advised him that he faced a sentence of up to 100 years of incarceration for the

       eight charges he was facing. Tr. Vol. II p. 51. The trial court was entitled to

       credit McCullough’s trial counsel’s testimony on this matter, and we will not

       disturb its ruling when it is based on conflicting evidence. See, e.g., Flowers v.

       State, 528 N.E.2d 57, 59 (Ind. 1988) (in affirming denial of motion to withdraw

       guilty plea, stating that “[w]e will not disturb the trial court’s ruling where such

       ruling was based on conflicting evidence”). In the end, McCullough’s

       argument is nothing more than an invitation to reweigh the evidence presented

       at the withdrawal hearing, which we will not do. We conclude that the record

       supports the trial court’s conclusion that McCullough entered his guilty plea

       knowingly and voluntarily, his later claims of coercion notwithstanding. See

       Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000) (in affirming trial court’s

       refusal to allow the defendant to withdraw his guilty plea, noting that “[t]he

       answers Johnson gave while pleading guilty belie his later assertion that the

       only reason he entered a guilty plea is because his counsel pressured him”).

                                      C. Automatism Defense
[10]   Finally, McCullough contends that the trial court abused its discretion in not

       granting his motion to withdraw his guilty plea based on his discovery of the

       automatism defense. The only evidence to support this claim, however, is

       McCullough’s self-serving testimony that he felt that he had a potential defense

       to the charges against him based on an alleged sleep disorder. McCullough

       presented no other evidence that he suffers from a sleep disorder, much less that

       his alleged sleep disorder could provide him with a viable defense if he went to


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 9 of 10
       trial. We conclude that McCullough’s vague and unsupported testimony falls

       short of establishing either that it would be fair and just to allow him to

       withdraw his guilty pleas or that withdrawal is necessary to correct a manifest

       injustice. See Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct. App. 1992)

       (concluding that “the existence of a potential defense for a defendant which is

       based only on his own testimony, taken together with the absence of prejudice

       to the State and the fact that the court had not yet formally accepted [his] plea,

       fails to carry [his] burden to prove that withdrawal of his plea is necessary to

       correct a manifest injustice”).

[11]   We affirm the judgment of the trial court.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020   Page 10 of 10
