MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jan 22 2020, 7:00 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terald A. Walthour,                                      January 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2019
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven M. Fleece,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         10C01-1708-F1-4



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020                  Page 1 of 11
                                               Case Summary
[1]   Terald Walthour (“Walthour”) appeals his conviction of attempted murder, as

      a Level 1 felony,1 following his entry of a plea agreement, and his sentence

      therefor.


[2]   We affirm.



                                                           Issues
[3]   Walthour raises the following two restated issues on appeal:


                 1.       Whether the trial court abused its discretion when it
                          denied his request to withdraw his guilty plea.


                 2.       Whether his sentence is inappropriate in light of the nature
                          of the offense and his character.


                                Facts and Procedural History
[4]   On August 21, 2017, Walthour attended a party in the backyard of his

      girlfriend’s house. Walthour became angry and violent with his girlfriend and

      demanded that everyone leave. Corey Baker (“Baker”) left the party to go to

      his car but returned to the backyard to retrieve a cell phone. When Walthour




      1
          Ind. Code § 35-42-1-1(1); I.C. § 35-41-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 2 of 11
      saw Baker, Walthour became enraged and shot Baker in the face. As Baker

      tried to crawl away, Walthour shot him two more times in the legs.


[5]   The State charged Walthour with attempted murder, a Level 1 felony. On

      February 21, 2019, the parties filed a signed plea agreement pursuant to which

      Walthour agreed to plead guilty to the charge and the sentence was capped at

      the advisory sentence of thirty years. The plea agreement also stated, “The

      Defendant agrees that either party may unilaterally withdraw from this plea

      agreement for any reason before a guilty plea is entered.” App. at 143.


[6]   At a March 20 change of plea hearing, Walthour withdrew his previous plea of

      not guilty and “enter[ed] a plea of guilty.” Id. at 18. In so doing, he admitted

      the factual basis for the charge. The trial court advised him of the rights he was

      waiving and confirmed that he was entering the guilty plea knowingly and

      voluntarily. At the conclusion of the hearing, the trial court took the guilty

      “plea under advisement.” Id.


[7]   At the April 25 hearing that was scheduled for sentencing, Walthour told the

      trial court he wanted to “back out of that plea” and take the case to trial pro se.

      Tr. at 29. Walthour’s counsel requested a continuance of the sentencing

      hearing, and the court granted that request and reset the hearing to May 9 to

      give Walthour “some time to think about” his request to withdraw his guilty

      plea and represent himself. Id. at 36. At the subsequent May 9 hearing, the

      trial court granted Walthour’s request to proceed pro se, appointed stand by




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 3 of 11
      counsel for Walthour, and scheduled a hearing on his request to withdraw his

      guilty plea.


[8]   At a June 27 hearing, Walthour requested that his counsel be reappointed and

      the court granted that request. Walthour requested that the hearing be reset to

      allow him time to file a written motion to withdraw his guilty plea, and the

      court also granted that request. On July 22, Walthour filed his written motion

      to withdraw his guilty plea. At the July 25 hearing on that motion, the trial

      court reviewed the recording of the March 20, 2019, change of plea hearing that

      had been conducted by a different judge and concluded:


              I found no indication that Mr. Walthour was sleeping through
              the situation or failing to pay adequate attention or failing to
              understand the proceedings. Instead, I found that there were a
              number of really intelligent questions that were asked to clarify
              certain things. And that the Judge then dealt with that and the
              defense attorneys dealt with that. I was impressed with Mr.
              Walthour[’s] understanding . . . If I had been convinced that Mr.
              Walthour was, perhaps, not sharp enough to take it all in or
              didn’t understand it, I’d be inclined to grant this, but my
              impression from listening to that tape is that Mr. Walthour was
              sharp enough to understand what he was saying and was not
              under co-ersion [sic], and has voluntarily entered a plea, which is
              legitimate and which can stand.


      Id. at 66-67. The trial court denied Walthour’s motion to withdraw his guilty

      plea.


[9]   At Walthour’s subsequent August 22 sentencing hearing, the trial court found

      his criminal history to be an aggravating factor. The court noted that, although

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 4 of 11
       Walthour had a number of offenses in California for which the Probation

       Department was unable to ascertain the outcomes, the evidence established that

       he had one prior confirmed misdemeanor conviction and two confirmed felony

       convictions. The court also noted that Walthour had a pending charge of

       battery resulting in moderate bodily injury, and he had charges of strangulation,

       criminal confinement, and battery resulting in moderate bodily injury that had

       been dismissed on the day of trial. Walthour also had an active warrant out for

       his arrest in California and had recently violated the conditions of his probation

       or parole. “[T]aking into account the [prior] convictions … and the plea in the

       [instant] case,” the trial court found there would be aggravating circumstances

       sufficient to justify the imposition of a higher sentence than the thirty-year

       advisory cap that was included in the plea agreement. Id. at 74. The trial court

       then sentenced Walthour to a thirty-year executed term in the Indiana

       Department of Correction, i.e., the maximum sentence allowed under the plea

       agreement. This appeal ensued.



                                  Discussion and Decision
                    Denial of Motion to Withdraw Guilty Plea
[10]   Walthour challenges the trial court’s denial of his motion to withdraw his guilty

       plea. 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. When we review for an abuse of discretion, we do not reweigh

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 5 of 11
       the evidence. Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 38 (Ind. Ct. App.

       2010), trans. denied. “In determining whether a trial court has abused its

       discretion in denying a motion to withdraw a guilty plea, courts must examine

       the statements made by the defendant at the guilty plea hearing to decide

       whether the plea was offered ‘freely and knowingly.’” Jeffries v. State, 966

       N.E.2d 773, 777 (Ind. Ct. App. 2012) (quoting Brightman, 758 N.E.2d at 44).


[11]   Walthour first asserts that the trial court’s denial of his motion to withdraw

       from the plea agreement was erroneous because that agreement2 allowed him to

       withdraw from it prior to the court’s “acceptance” of his guilty plea.

       Appellant’s Br. at 9. However, that is not what the plea agreement said.

       Rather, it explicitly stated that Walthour could withdraw from the plea

       agreement “before a guilty plea is entered in Court.” App. at 143 (emphasis

       added). As the State points out, “[t]he ‘entry’ of a guilty plea and the court’s

       subsequent ‘acceptance’ of that plea are two distinct stages of the plea process.”

       Turner v. State, 843 N.E.2d 937, 941 (Ind. Ct. App. 2006). A defendant “enters

       a plea when he offers it to the court.” Peel v. State, 951 N.E.2d 269, 271-72 (Ind.

       Ct. App. 2011). Here, as the Chronological Case Summary notes, Walthour

       “enter[ed] a plea of guilty” at the March 20, 2019, hearing on change of plea.

       App. at 18 (emphasis added). He did not seek to withdraw that plea, even

       informally, until the April 25, 2019, hearing. Because Walthour did not seek to




       2
           The parties do not dispute that the trial court accepted the plea agreement.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 6 of 11
       withdraw from the plea agreement before he entered his guilty plea, his plea

       withdrawal was not authorized by the terms of the plea agreement.


[12]   Walthour alternatively contends that the trial court erred when it denied his

       request to withdraw his guilty plea as permitted under Indiana Code Section 35-

       35-1-4(b). Under that statute,


               after a defendant pleads guilty but before a sentence is imposed, a
               defendant may move to withdraw a plea of guilty. [I.C. § 35-35-
               1-4(b).] 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.


                                                       ***


               Instances of manifest injustice may include any of the following
               …: a defendant is denied the effective assistance of counsel, the
               plea was not entered or ratified by the defendant, the plea was
               not knowingly and voluntarily made, the prosecutor failed to
               abide by the terms of the plea agreement, or the plea and
               judgment of conviction are void or voidable.”


       Jeffries, 966 N.E.2d at 777-78.


[13]   Walthour asserts that the denial of his motion to withdraw his guilty plea was a

       manifest injustice because he “maintained his innocence and demonstrated that

       he misunderstood the effect of his ‘guilty’ plea.” Appellant’s Br. at 14. That is,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 7 of 11
       he maintains that his plea was “not knowingly and voluntarily made.” Jeffries,

       966 N.E.2d at 778. However, the record does not support that claim. As the

       trial court found, at the March 20 hearing on change of plea Walthour clearly

       stated his desire to plead guilty to the charge of attempted murder, and he

       admitted the underlying facts without hesitation. Tr. at 26-27, 66-67. Walthour

       asked intelligent questions during the hearing regarding potential sentences, and

       the trial court concluded that he was sharp enough to understand what he was

       saying and was not under coercion. Walthour’s vague, general claims that he is

       innocent and “fundamentally misunderstood the nature of his testimony and

       admissions” do not overcome that evidence. Appellant’s Br. at 13. Rather, the

       statements Walthour made at the guilty plea hearing support the trial court’s

       conclusion that Walthour’s plea was knowing and voluntary. Jeffries, 966

       N.E.2d at 777.


[14]   Walthour has failed to prove withdrawal of the guilty plea is necessary to

       correct a manifest injustice, and we do not discern any other “fair and just

       reason” to allow withdrawal of the guilty plea. I.C. § 35-35-1-4(b). The trial

       court did not abuse its discretion when it denied his request to withdraw his

       guilty plea.


                                Inappropriateness of Sentence
[15]   Walthour maintains that his sentence is inappropriate in light of the nature of

       the offense and his character. Article 7, Sections 4 and 6, of the Indiana

       Constitution authorize independent appellate review and revision of a trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 8 of 11
       court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.

       2018). This appellate authority is implemented through Indiana Appellate Rule

       7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to

       demonstrate that his sentence is inappropriate in light of the nature of his

       offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866

       N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or

       non-recognition of aggravators and mitigators as an initial guide to determining

       whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d

       142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and

       mitigators found by the trial court, but also any other factors appearing in the

       record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.

       denied. It is the defendant’s burden to “persuade the appellate court that his or

       her sentence has met th[e] inappropriateness standard of review.” Roush v.

       State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the

       defendant “bears a particularly heavy burden in persuading us that his sentence

       is inappropriate when the trial court imposes the advisory sentence.” Fernbach

       v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 9 of 11
       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[17]   We begin by noting that Walthour’s thirty-year executed sentence is the

       advisory sentence for a Level 1 felony, I.C. § 35-50-2-4(b), and the advisory

       sentence “is the starting point the Legislature selected as appropriate for the

       crime committed,” Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Moreover, the

       nature of Walthour’s offense was cruel and callous; he not only shot Baker in

       the face but continued to shoot Baker as he attempted to crawl away. Thus,

       Walthour’s crime was not accompanied by a show of “restraint” or “lack of

       brutality” on his part. Stephenson, 29 N.E.3d at 122.


[18]   Nor does Walthour’s character support a sentence revision. He has one prior

       misdemeanor conviction and two prior felony convictions. At the time of

       sentencing, he had an active warrant for his arrest in California, and he had

       recently violated the terms of his probation or parole. Walthour’s criminal

       history, in conjunction with the lack of restraint shown by his repeated shooting

       of an injured victim as he attempted to crawl away, supports the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 10 of 11
       conclusion that it could have imposed a sentence above the advisory sentence if

       not for the cap imposed by the plea agreement. Furthermore, Walthour points

       to no mitigating evidence, such as substantial virtuous traits or persistent

       examples of good character, and the trial court found none. Id.


[19]   We cannot say that Walthour’s sentence is inappropriate in light of the nature

       of his offense and his character.



                                               Conclusion
[20]   The trial court did not abuse its discretion when it denied Walthour’s motion to

       withdraw his guilty plea made after he entered that plea but before sentencing.

       And we find no reason to revise Walthour’s sentence as it is not inappropriate

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


[21]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2019 | January 22, 2020   Page 11 of 11
