MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Dec 08 2016, 9:16 am

regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Derrick Harris                                          Gregory F. Zoeller
Plainfield, Indiana                                     Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Derrick Harris,                                         December 8, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A04-1604-CR-919
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        18C03-1405-FC-20



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016       Page 1 of 10
[1]   Derrick Harris, pro se, appeals the trial court’s Order Denying Defendant’s

      Motion for Vacating Plea Agreement and Habeas Corpus. Harris raises one

      issue which we revise and restate as whether the court erred in denying his

      motion. We affirm.


                                      Facts and Procedural History

[2]   On February 19, 2013, the State charged Harris with Count I, operating a

      vehicle while intoxicated causing death as a class C felony; Count II, operating

      a vehicle with an ACE of .15 or more as a class A misdemeanor; and Count III,

      operating a vehicle while intoxicated endangering a person as a class A

      misdemeanor. On April 11, 2013, the court held a pretrial hearing at which

      Harris’s counsel stated that Harris had been sentenced in Madison County in

      another matter and that he was subject to a parole hold issued by the

      Department of Correction (“DOC”) for a violation. The court noted that

      Harris was to be released to the DOC to serve time for a parole violation, and it

      ordered that upon release from the DOC on the parole violation, he was to

      report to Delaware County Community Corrections to be placed on electronic

      home detention.


[3]   On May 5, 2014, following the court’s rejection of a plea agreement entered

      into between Harris and the State, the court granted Harris’s motion for change




      Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 2 of 10
      of judge. 1 On January 15, 2015, Harris was released to pretrial home detention

      with reporting to Delaware County Community Corrections. Harris thereafter

      retained private counsel. On June 22, 2015, the court held a change of plea

      hearing, at which a proposed plea agreement (“Plea Agreement”) was filed by

      the parties pursuant to which Harris agreed to plead guilty to Count I and the

      State agreed to dismiss the remaining counts. Also, Paragraph 8 of the Plea

      Agreement stated in relevant part that Harris “shall receive credit time for the

      time he has been incarcerated prior to the change of plea.” Appellant’s

      Appendix at 194. A factual basis was established and evidence heard, and the

      court took Harris’s guilty plea under advisement and ordered a presentence

      investigation report (“PSI”).


[4]   On August 20, 2015, the court held a hearing at which defense counsel noted at

      the outset that Harris had been on parole at the time of the offense and that a

      parole hold was placed on him “at the time and [Harris] served the remainder

      of his sentence and was released from the cause on 12/09/2014,” which totaled

      “roughly” 665 days, and that Harris “wanted to make sure that was clarified

      just for the record itself was, whether or not he would be entitled to those

      particular days as well as the two twelve actual jail days . . . .” Transcript at 2.

      The court continued the hearing to allow clarification regarding Harris’s credit

      time, noting that it was unclear whether his pretrial days should be credited




      1
       Harris filed a motion for change of judge on May 2, 2014, stating that he believed “the Judge has had ex
      parte communication with the probation officer prior to sentencing.” Appellant’s Appendix at 247.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016           Page 3 of 10
      toward a sentence on the pending matter or were counted toward his

      completion of parole.


[5]   The court held another hearing on August 27, 2015, at which it noted that the

      DOC informed the court that Harris received credit for the days on his parole,

      and it called the attorneys’ attention to the language of Paragraph 8 in the Plea

      Agreement and stated that it believed that the agreement as written did not

      follow state law because it would award credit time already applied toward

      Harris’s parole to the sentence in this matter. Specifically, the court stated “I

      don’t want to be bound to do something that by law I am not supposed to do.

      So, in light of that, the Court is, feels as if all I can do is reject the plea

      agreement at this point.” Id. at 13. Defense counsel responded that it was not

      his “intention or [Harris’s] intention to cause any issue in that regard.” Id. The

      court then noted that defense counsel could “amend the plea agreement,” but

      that if he did not it would “reject it.” Id. The State observed that it agreed with

      the court’s analysis of the situation in that, while a parole hold was placed on

      Harris, “he was never really revoked” and that “they let him set under that

      parole hold” and “finish out his time” and then “released him from parole . . .

      .” Id. at 13-14. Defense counsel stated that he agreed with the assessment of

      the situation and that he just wanted to make sure he was doing his best for

      Harris to establish “clarity by the time he was sentenced . . . .” Id. at 14. The

      court stated that it would entertain a motion to continue the plea acceptance

      hearing and possible sentencing hearing to give the parties an opportunity to

      discuss amending the plea agreement and it turned to defense counsel and


      Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 4 of 10
      asked “is the court going to have to reject the plea agreement today or do you

      have a motion for the Court?” Id. at 17. Defense counsel asked the court if he

      could confer with Harris, the court allowed him to do so, and after the

      conference defense counsel asked the court for a continuance of the hearing to

      discuss amending the plea agreement. The court granted the motion and set the

      matter for a hearing on September 14, 2015.


[6]   On September 9, 2015, the parties filed an amended plea agreement (the

      “Amended Plea Agreement”), which was signed by the prosecutor, defense

      counsel, and Harris. The Amended Plea Agreement did not contain the

      language regarding credit time that the court found to be problematic in the

      original Plea Agreement and left sentencing to the discretion of the court.


[7]   On September 14, 2015, the court held an acceptance of plea and sentencing

      hearing, at which the court recognized that defense counsel and Harris both

      “signed off on the amended plea agreement,” and defense counsel stated that

      that was correct. Id. at 21. The court specifically asked “does the defendant as

      well as you as his legal counsel, note for the record that this is your amended

      plea agreement?” Id. at 22. Defense counsel responded: “We would in fact say

      this is the amended plea agreement Judge.” Id. The court immediately after

      swore Harris in to testify, and Harris testified that he recognized he was in court

      to be sentenced. Harris then testified regarding steps he had taken since the

      date of the accident, including receiving between four and six certificates from

      Reformers Unanimous, participating in addiction programs while at the jail,

      and also attending Thinking for a Change. Following arguments from the

      Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 5 of 10
      parties, the trial court accepted the Amended Plea Agreement and sentenced

      Harris to eight years in the DOC.


[8]   On March 3, 2016, Harris, pro se, filed his Motion for Vacating Plea Agreement

      and Habeas Corpus requesting that the court “Vacate the Plea Agreement and

      any other filing based upon the same including the Court’s acceptance thereof,

      the finding of guilt, the conviction resulting thence, the sentence, and any other

      adjudication that is the fruit of this poisonous tree . . . .” Appellant’s Appendix

      at 49. On April 5, 2016, the State filed its response. On April 11, 2016, the

      court denied Harris’s motion.


                                                  Discussion

[9]   The issue is whether the court erred in denying Harris’s Motion for Vacating

      Plea Agreement and Habeas Corpus. We initially observe that Harris is

      proceeding pro se. Such litigants are held to the same standard as trained

      counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

      To the extent that he fails to develop a cogent argument or cite to the record, we

      conclude that such arguments are waived. See Cooper v. State, 854 N.E.2d 831,

      834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived

      because it was “supported neither by cogent argument nor citation to

      authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the

      defendant waived argument on appeal by failing to develop a cogent argument);

      Smith v. State, 822 N.E.2d 193, 202-203 (Ind. Ct. App. 2005) (“Generally, a

      party waives any issue raised on appeal where the party fails to develop a


      Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 6 of 10
       cogent argument or provide adequate citation to authority and portions of the

       record.”), trans. denied.


[10]   The crux of Harris’s argument appears to be that, although he pled guilty under

       the original Plea Agreement, the court did not accept his guilty plea under the

       Amended Plea Agreement and accordingly his sentence thereunder is invalid.

       His arguments, in effect, ask this court to withdraw his guilty plea.


[11]   We begin by observing that, generally, “[i]n Indiana . . . it is well-settled that a

       person who pleads guilty cannot challenge his convictions by means of direct

       appeal[.]” Robey v. State, 7 N.E.3d 371, 383 (Ind. Ct. App. 2014) (citing Kling v.

       State, 837 N.E.2d 502, 504 (Ind. 2005)), trans. denied. “One consequence of

       pleading guilty is restriction of the ability to challenge the conviction on direct

       appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). Instead, post-

       conviction relief is the proper vehicle for pursuing this type of claim. See id. at

       396 (rejecting a defendant’s challenge to the factual basis supporting his guilty

       plea to an habitual offender enhancement on direct appeal).


[12]   To the extent that Harris’s motion constitutes a motion to withdraw his guilty

       plea, we observe that Ind. Code § 35-35-1-4(c) provides in relevant part as

       follows:


               For purposes of this section, withdrawal of the plea is necessary
               to correct a manifest injustice whenever:


                       (1) the convicted person was denied the effective assistance
                       of counsel;

       Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 7 of 10
                       (2) the plea was not entered or ratified by the convicted
                       person;


                       (3) the plea was not knowingly and voluntarily made;


                       (4) the prosecuting attorney failed to abide by the terms of
                       a plea agreement; or


                       (5) the plea and judgment of conviction are void or
                       voidable for any other reason.


[13]   A motion to set aside a guilty plea under Ind. Code § 35-35-1-4(c) is treated as a

       petition for post-conviction relief. State v. Oney, 993 N.E.2d 157, 161 (Ind.

       2013). 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.


[14]   In his reply brief, Harris appears to suggest that withdrawal is necessary to

       correct a manifest injustice under subparagraphs (3) and (5). We cannot say

       that Harris demonstrated a manifest injustice and conclude that any alleged

       error was invited. The invited error doctrine forbids a party to take advantage

       of an error that he “commits, invites, or which is the natural consequence of

       [his] own neglect or misconduct.” Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 8 of 10
App. 2016) (quoting Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting

Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert. denied, 135 S.

Ct. 970, reh’g denied), trans. denied. As detailed in the transcript, at the August

27, 2015 hearing the trial court identified an issue it had with the Plea

Agreement regarding credit time and stated that, based on this provision, it was

inclined to reject the agreement. Harris’s defense counsel responded that it was

not his intent to cause an issue with the Plea Agreement. The court asked

defense counsel to decide whether to make a motion to continue the hearing to

give the parties an opportunity to amend the Plea Agreement or else the court

would reject the Plea Agreement, and defense counsel, following a conference

with Harris, moved the court to continue the hearing for the purpose of

amending the Plea Agreement. The court granted Harris’s motion. On

September 9, 2014, the parties filed the Amended Plea Agreement, which was

signed by Harris. At the September 14, 2015 hearing, the court asked defense

counsel “does the defendant as well as you as his legal counsel, note for the

record that this is your amended plea agreement?” Transcript at 22. Defense

counsel responded: “We would in fact say this is the amended plea agreement

Judge.” Id. Harris personally testified at the hearing, and he did not make any

comments purporting to show that he was not in favor of pleading guilty

pursuant to the Amended Plea Agreement. We conclude that Harris invited

any error with respect to the court’s decision to sentence him pursuant to the

Amended Plea Agreement and that he has not shown a manifest injustice in

need of correction.


Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 9 of 10
                                                   Conclusion

[15]   For the foregoing reasons, we affirm the trial court’s denial of Harris’s Motion

       for Vacating Plea Agreement and Habeas Corpus.


[16]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1604-CR-919 | December 8, 2016   Page 10 of 10
