MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Oct 13 2017, 8:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodrigo Castillo Trudillo,                               October 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A04-1704-CR-831
        v.                                               Appeal from the Clinton Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley K. Mohler,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         12C01-1509-F1-803



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017            Page 1 of 11
[1]   Rodrigo Castillo Trudillo appeals the trial court’s order denying his motion to

      withdraw his guilty plea. Finding no error, we affirm.


                                                     Facts
[2]   In 2015, Clinton County law enforcement conducted an investigation during

      which police learned that then-ten-year-old A.S. had disclosed that on several

      occasions, a man had inserted his finger into her vagina. Police interviewed

      Trudillo, A.S.’s mother’s boyfriend, who waived his Miranda1 rights and

      admitted to touching A.S.’s vagina with his finger on one occasion.


[3]   On September 2, 2015, the State charged Trudillo with Level 1 felony child

      molesting. Trudillo hired an attorney and the parties engaged in discovery over

      the course of the next year. Among other things, Trudillo retained a Spanish-

      language interpreter to review the video recording of his statement to police.


[4]   On October 21, 2016, the parties filed a plea agreement under which Trudillo

      agreed to plead guilty to two new charges of Level 3 felony child molesting in

      exchange for the dismissal of the Level 1 felony charge. The plea agreement

      provided that Trudillo’s sentence would be at least ten years in the Department

      of Correction and otherwise left the sentence to the trial court’s discretion.


[5]   At the October 21, 2016, sentencing hearing, at which Trudillo was provided

      with a Spanish interpreter and Spanish language advisements, Trudillo stated




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 2 of 11
      that he understood the terms of the plea agreement and assured the trial court

      that he had not been promised anything, threatened in any way, or forced into

      agreeing to the plea. He further stated that he was not under the influence of

      medication or intoxicants and that he did not suffer from a mental illness or

      disease that would affect his ability to understand what was occurring. Trudillo

      agreed that he understood that, by pleading guilty, he would be waving certain

      rights articulated by the trial court.


[6]   The trial court explained that if he pleaded guilty to the two new counts of

      Level 3 felony child molesting, Trudillo would be admitting that he performed

      or submitted to intercourse or other sexual conduct with A.S.; Trudillo agreed

      that he understood after confirming that the original Level 1 felony charge

      would be dismissed in exchange. Trudillo further acknowledged that he

      understood the sentencing range for the two offenses. He told the trial court

      that he understood everything, did not want to discuss anything further with

      counsel, his decision to plead guilty was his own free and voluntary choice, and

      that he understood the translation provided for him.


[7]   The trial court then asked Trudillo whether he pleaded guilty or not guilty to

      Count II, Level 3 felony child molesting. Trudillo replied, “Yes,” and when the

      trial court clarified by asking, “Guilty?” Trudillo said, “Not guilty.” Tr. p. 9.

      Trudillo’s counsel asked him if he was pleading guilty or not guilty, and

      Trudillo replied in Spanish. The trial court then took a recess so that Trudillo

      could consult with his attorney. When the hearing reconvened, the trial court

      asked Trudillo if he had been able to consult with his attorney and Trudillo

      Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 3 of 11
      replied affirmatively. Trudillo then pleaded “Guilty” to two counts of Level 3

      felony child molesting. Id. at 9-10. Trial counsel then recited the allegations of

      those two counts; Trudillo stated that he agreed that the summaries were

      accurate and admitted that the allegations were true. The trial court found that

      a factual basis existed for the guilty plea and set the matter for a sentencing

      hearing.


[8]   On December 30, 2016, Trudillo moved to withdraw his guilty plea, alleging

      that he had been coerced into pleading guilty to “help persuade the victim that

      she was not crazy,” that he was not guilty, and that he had come to realize his

      error in pleading guilty after talking with his probation officer.2 At a January

      31, 2017, hearing on Trudillo’s motion, Trudillo complained that “physical

      tests” had not been performed on A.S. and stated that he had pleaded guilty

      because:


               I was looking for an option. They’re making me pay for a
               crime . . . that I didn’t commit. Just because of some suspicions.
               Looking for an option. Where they would give me approval to
               be able to work maybe. To be keep continuing [sic] to help my
               family. And my family that I also have in Mexico.


      Id. at 17. Trudillo explained that his claim of coercion referred to the detective

      who had arrested and interviewed him; that detective, according to Trudillo,




      2
       After talking with his probation officer, Trudillo learned that in the Presentence Investigation Report, the
      probation officer was recommending an executed sentence of twenty-three years imprisonment. Appellant’s
      App. Vol. II p. 92.

      Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017            Page 4 of 11
       told him that an admission would persuade the victim “that she’s not crazy[.]”

       Id. at 19.


[9]    The trial court denied the motion, noting that Trudillo had pleaded guilty after

       “a year of working with your attorney in reviewing the case and looking at all

       options . . . .” Id. at 21. The trial court also observed that the advisements at

       the guilty plea hearing were clear and comprehensive and that nothing Trudillo

       had stated had changed the trial court’s conclusion that he had knowingly and

       voluntarily pleaded guilty. Finally, the trial court emphasized that if it vacated

       the guilty plea, the case would have been pending for approximately two years

       by the time of trial and that there would be “substantial prejudice both to the

       State and an[] additional burden to the victim in this case.” Id. at 22.


[10]   At the March 20, 2017, sentencing hearing, A.S.’s mother complained about

       the absence of tests on her daughter:


               Q:       You have mentioned that you would like to speak today
                        about the sentencing. Um what would you like the Court
                        to know?


               A:       My thoughts are um my case (inaudible). Why didn’t they
                        take um my [daughter] to get checked by a medic.


               Q:       Okay. We’re just talking about sentencing today. So what
                        would you like to tell the Court about the punishment or
                        the sentence?


               A:       I don’t know.


       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 5 of 11
        Q:       Is that all you want to say I mean as far as the sentencing?
                 The affect [sic] on your child?


        A:       Yes.


Id. at 28-29. She then sat down and made no further statements at the hearing.

Twelve-year-old A.S. then testified:


        State: . . . Do you want to tell the Judge anything [about] how
               you think [Trudillo] should be punished?


        A.S.: Um um I actually lied. I didn’t want him to be with my
              mom.


        State: Okay.


        A.S.: He actually um been [sic] he moved with us. I lied cause
              [sic] he took my father’s spot. And I didn’t want him to.
              And then he said . . . that we were gonna move to a
              different house. And then I like we moved. I didn’t like
              the house. So I lied that he touched me. Which he never
              did.


        State: And um do you understand that [Trudillo] told the police
               that he did it? Why do you so [sic] you think he lied too?


        A.S.: Yes. He lied cause I lied to him and I lied to my mom.


                                                ***


        State: Okay. Have you talked to your mom about coming to
               Court today?

Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 6 of 11
               A.S.: Yes.


               State: Okay. Did you guys talk about what you were gonna say?


               A.S.: Yes.


       Id. at 31-32.


[11]   Trudillo then renewed his motion to withdraw his guilty plea; the State

       objected. Trudillo testified as follows:


               Well since the first day the day I got arrested that I was
               innocence [sic]. They don’t believe in my innocence. So I’m
               here. I accepted the story that was made up. So I can’t
               incriminate. I’m not a criminal. I’m gonna pay for a crime that I
               didn’t commit. I would ask for my deportation to Mexico.


       Id. at 36. Trudillo stated that he could not remember how many times he had

       talked with A.S.’s mother on the phone since he had been in jail and that she

       visits him at the jail “[w]hen she can.” Id. at 37.


[12]   The trial court denied the renewed motion to withdraw the guilty plea, finding

       as follows:


               Uh we are . . . going forward with sentencing. Court has been
               aware of this case both through the criminal case and through the
               related CHINS cases for the child that was the victim and the
               siblings. Unfortunately throughout those cases uh what we saw
               today was . . . also present uh in that we have a child or a victim
               who has faced considerable pressure at home from a mother who
               wants the defendant home. And whether or not the defendant
               has been involved in that pressure or whether it’s all coming from

       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 7 of 11
                the mother I’m not sure. Um but I know that that has been the
                pattern for these cases. And so we are going forward with
                sentencing.


       Id. at 41. After finding and weighing aggravating factors and mitigating

       circumstances, the trial court imposed two concurrent twelve-year terms, with

       credit for time served. Trudillo now appeals.


                                       Discussion and Decision
[13]   Trudillo’s sole argument on appeal is that the trial court erred by denying his

       motion to withdraw his guilty plea. After a guilty plea is entered but before

       sentence is imposed, a defendant may move to withdraw his guilty plea for any

       fair and just reason unless the State has been substantially prejudiced by

       reliance upon the plea.3 Ind. Code § 35-35-1-4(b). The trial court shall grant the

       motion to withdraw if the defendant proves, by a preponderance of the

       evidence, that it is necessary to correct a manifest injustice. Id. Absent such a

       showing, the decision to grant or deny the motion rests soundly in the

       discretion of the trial court. Id.


[14]   As a general matter, we will not second-guess a trial court’s evaluation of the

       facts and circumstances because the trial court “is in a better position to weigh

       evidence, assess the credibility of witnesses, and draw inferences.” Moshenek v.




       3
        Trudillo does not contest the trial court’s conclusion that the State was substantially prejudiced by reliance
       upon the plea because of the lengthy passage of time since the offenses were committed.

       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017              Page 8 of 11
       State, 868 N.E.2d 419, 424 (Ind. 2007). 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).


[15]   First, we must examine the record of the guilty plea hearing to determine if

       Trudillo’s plea was knowing and voluntary. Id. Here, Trudillo was clearly

       advised by the trial court of his rights and the information required by Indiana

       Code section 35-35-1-2. The trial court went step by step through the charges,

       their penalty ranges, the rights Trudillo would give up by pleading guilty, and

       the fact that Trudillo was of sound mind. The trial court also determined that

       Trudillo’s plea was free from threats, coercion, or promises of leniency. At

       each step, Trudillo assured the trial court that he understood his rights, the

       effect of his plea, and the sentencing ranges he faced if he pleaded guilty, and

       that his questions and concerns had been fully addressed by his attorney.


[16]   Trudillo attempts to avoid the effect of this lengthy discussion with the trial

       court by emphasizing that at one point he answered “Not guilty” when asked

       how he pleaded to Count II. Tr. p. 8-9. The record shows, however, that

       before Trudillo gave this answer, he was apprehensive about pleading guilty to

       two charges with liability on one charge remaining. After the trial court said

       that Count I would be dismissed after the trial court accepted the guilty plea,

       Trudillo responded “Okay,” but was apparently not satisfied, because when the

       trial court asked how Trudillo pleaded to Count II, Trudillo first replied “Yes,”

       and then, “Not guilty.” Id. After a recess during which counsel addressed

       Trudillo’s concerns, the hearing resumed and he pleaded guilty to Counts II

       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 9 of 11
       and III unequivocally and without hesitation, admitting to the allegations of

       both counts. Under these circumstances, we do not find that the trial court

       erred by concluding that his momentary apprehension causing him to say “Not

       guilty” renders his plea unknowing or involuntary.


[17]   Trudillo contends that withdrawal of the plea is necessary to correct a manifest

       injustice, and the crux of this argument is A.S.’s testimony at the sentencing

       hearing. He argues that because she recanted at that hearing, he should be

       permitted to withdraw his guilty plea because holding him to his own sworn

       testimony would be a manifest injustice.


[18]   The trial court, which had the opportunity to interact with and observe

       Trudillo, A.S., and A.S.’s mother, both during this criminal proceeding and

       during a related Child in Need of Services proceeding, found that A.S. had been

       pressured by her mother, and possibly also by Trudillo, to change her story:


               Court has been aware of this case both through the criminal case
               and through the related CHINS cases for the child that was the
               victim and the siblings. Unfortunately throughout those cases uh
               what we saw today was . . . also present uh in that we have a
               child or a victim who has faced considerable pressure at home
               from a mother who wants the defendant home. And whether or
               not the defendant has been involved in that pressure or whether
               it’s all coming from the mother I’m not sure. Um but I know
               that that has been the pattern for these cases.


       Tr. p. 41. We will not second-guess the trial court’s evaluation of the situation,

       especially in light of the testimony at that hearing by A.S.’s mother, who

       showed no concern whatsoever regarding her daughter’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 10 of 11
[19]   Additionally, we note that Trudillo’s confession to law enforcement precisely

       mirrored the allegations made by A.S. and that he had a year to study the

       recording of his confession and examine the State’s discovery. Trudillo,

       however, did not file a motion to suppress or claim he was coerced into making

       that confession until months after his guilty plea hearing—after he learned his

       probation officer was recommending an executed sentence of twenty-three

       years imprisonment. Under these circumstances, we find no error in the trial

       court’s conclusion that Trudillo failed to prove a manifest injustice by a

       preponderance of the evidence or in its denial of his motion to withdraw his

       guilty plea.


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


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A04-1704-CR-831 | October 13, 2017   Page 11 of 11
