MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 21 2017, 9:21 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
William Byer, Jr.                                       Curtis T. Hill, Jr.
Byer & Byer                                             Attorney General of Indiana
Anderson, Indiana
                                                        Monika Prekopa Talbot
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William R. Rothel,                                      December 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1708-CR-1858
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Happe,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        48C04-1509-F6-001585
                                                        48C04-1512-F3-002137



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017        Page 1 of 14
[1]   William R. Rothel appeals his convictions for criminal confinement as a level 3

      felony, battery as a level 5 felony, criminal recklessness as a level 6 felony, and

      residential entry as a level 6 felony. He raises one issue which we revise and

      restate as whether the trial court abused its discretion in denying his motion to

      withdraw his guilty plea. We affirm.


                                      Facts and Procedural History

[2]   On September 25, 2015, the State charged Rothel with residential entry as a

      level 6 felony under cause number 48C05-1509-F6-001585 (“Cause No. 1585”).

      On December 15, 2015, the State charged Rothel under cause number 48C04-

      1512-F3-002137 (“Cause No. 2137”) with: Count I, kidnapping as a level 3

      felony; Count II, criminal confinement as a level 3 felony; Count III, battery as

      a level 5 felony; and Count IV, criminal recklessness as a level 6 felony.


[3]   On December 17, 2015, Rothel filed a notice of insanity defense under Cause

      No. 2137. On June 30, 2016, the court entered an order finding that Rothel did

      not have comprehension sufficient to understand the nature of the criminal

      action and to assist his lawyer in his defense. The court ordered the

      proceedings delayed and continued and committed Rothel to the Division of

      Mental Health.


[4]   On February 7, 2017, Robert E. Connell, a psychologist and the Psychology

      Director at the Logansport State Hospital, issued a report concluding that

      Rothel was able to understand the proceedings and assist in the preparation of

      his defense. The report indicated that Rothel’s current diagnoses were:


      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 2 of 14
      Schizoaffective Disorder, Depressive Type; Opioid Use Disorder, In Sustained

      Remission, In a Controlled Environment; and Antisocial Personality Disorder.

      The report stated that Rothel was currently prescribed Zyprexa Zydis for

      psychosis, Wellbutrin for depression, and Klonopin for anxiety/agitation. The

      report also stated:


              With regard to pleas/defenses, he reported a plea of not guilty
              means, “Not admitting to any guilt.” He stated a plea of guilty
              means, “That you are accepting the guilt, or uh, admitting to it.”
              He said that a plea of guilty but mentally ill means, “That you
              are pleading guilty, just acknowledging that you have a mental
              illness.” He reported that a defense of insanity means, “You’re
              trying to prove your state of mind at the time of the crime.” He
              understood that being found not responsible by reason of insanity
              would likely result in commitment to a psychiatric hospital. He
              defined a plea bargain as, “A chance to plead for lesser time, or
              lesser consequences.” He understood that to accept a plea
              bargain, “You accept guilt, you admit you are guilty.” He
              identified rights waved [sic] by pleading guilty as the right to
              “jury, attorney, face the accusers, appeal, and right to remain
              silent.”


      Appellant’s Appendix Volume II at 44-45.


[5]   On May 2, 2017, Rothel and his attorney signed a plea agreement in which he

      agreed to plead guilty but mentally ill under Cause No. 2137 to: Count II,

      criminal confinement as a level 3 felony; Count III, battery as a level 5 felony;

      and Count IV, criminal recklessness as a level 6 felony. The plea agreement

      provided that Count I, kidnapping, under Cause No. 2137 would be dismissed.

      The plea agreement provided that Rothel would plead guilty but mentally ill to


      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 3 of 14
      residential entry as a level 6 felony under Cause No. 1585. The agreement also

      provided that the State would recommend the sentence be open to argument

      with a cap of twelve years on any executed sentence.


[6]   On May 15, 2017, the court held a guilty plea hearing under Cause Nos. 2137

      and 1585. The court engaged Rothel in an exchange in which Rothel provided

      his name and date of birth and indicated that his signature appeared on the plea

      agreement and that he read and understood the agreement. Rothel also stated

      that he was thirty-one years old, went to the eleventh grade, obtained a GED or

      high school equivalence, and understood his rights. He indicated that he was

      prescribed and took a psychotic medication and that he had been diagnosed

      with schizophrenia. The following exchange then occurred:


              THE COURT: All right. And the reason that we talk about
              your medicine, and your mental health condition, today is
              because I’ve got to make sure that you’re in a good frame of
              mind to understand what you’re doing and also that you’re able
              to talk to your lawyer. And as you sit here today, knowing
              yourself and knowing how the medication effects [sic] you, and
              knowing the symptoms that you suffer, do you believe that
              you’re able to understand what you’re doing here and make good
              decisions?

              [Rothel]: I do, Your Honor.

              THE COURT: All right. And you feel like you’re able to talk
              with [your attorney] okay and discuss your case and help him get
              ready?

              [Rothel]: Yes, sir.

              THE COURT: All right.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 4 of 14
        [Rothel’s Counsel]: And, Judge, could I speak to that also?

        THE COURT: Yes, please.

        [Rothel’s Counsel]: Um, as the court knows, I’ve represented
        Mr. Rothel from early on in this case, and a prior case in Judge
        Clem’s court, and there was some early contact where Mr.
        Rothel clearly didn’t understand what was going on with the
        court. If the court will recall there was a competency
        determination made finding my client not competent to stand
        trial. There were a couple different reports. Mr. Rothel spent a
        significant amount of time in the Mental Health Unit at the
        Department of Correction before being transported to
        Logansport State Hospital. He and I have had several
        conversations since he’s returned and there’s certainly a marked
        difference. He and I have had several good conversations about
        the plea agreement; he’s asked very good questions about the
        possibilities in sentencing and whether I thought it was in his best
        interest to accept the plea. So I certainly have seen the change in
        Mr. Rothel from the beginning of the case to this point now,
        Judge. And I don’t have any concern about him understanding
        the agreement.

        THE COURT: Okay. All right. Thank you, Mr. Williams. The
        Court will note that even the limited time that I’ve spent with
        you Mr. Rothel, here in court, you seem like a very different
        person. You seem like you’re very alert at this point, you’re
        understanding what’s happening, and I’m glad to see the change
        has happened.

        [Rothel]: Yes, sir.

Transcript Volume II at 29-31. The court then engaged in an exchange with

Rothel in which Rothel stated that he understood that the plea agreement was a

contract between him and the State. After further discussion, he indicated that

he was pleading guilty but mentally ill to Count II, criminal confinement as a


Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 5 of 14
      level 3 felony, Count III, battery as a level 5 felony, and Count IV, criminal

      recklessness as a level 6 felony, under Cause No. 2137, and residential entry as

      a level 6 felony under Cause No. 1585. The prosecutor stated the factual bases

      for both cases. Specifically, the prosecutor stated:


              If this case were to go to trial the State would prove beyond a
              reasonable doubt that on or about December 12, 2015, in
              Madison County, Indiana, Mr. William Rothel did knowingly or
              intentionally confine E.M., without E.M.’s consent while
              William Rothel was armed with a deadly weapon. Also on that
              same date, um, William Rothel knowingly or intentionally
              touched another person, E.M., in a rude, insolent or angry
              manner resulting in bodily injury, bruising or scrapes, and the
              offense was committed with a deadly weapon, a screwdriver. On
              that date, um, William Rothel also recklessly, knowingly, or
              intentionally performed an act that created a substantial risk of
              bodily injury to another person, E.M., while William Rothel was
              armed with a deadly weapon, that being a screwdriver. In case
              ending in 1585 if this case were to proceed to trial the State
              would prove would beyond reasonable doubt that on or about
              September 25, 2015, in Madison County, State of Indiana,
              William Rothel did knowingly or intentionally break and enter
              the dwelling of Frances Lanton or Tonya Moore or Melissa
              Webster. Those events occurred in Madison County, Indiana.


      Id. at 34.


[7]   The court then asked Rothel if he heard and understood everything the

      prosecutor just said, and Rothel answered: “I did, Your Honor.” Id. at 35. The

      court asked Rothel if all those facts were correct, and Rothel answered

      affirmatively. The court found that his guilty pleas were made freely and

      voluntarily and that there was a factual basis supporting each of the guilty pleas.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 6 of 14
[8]   On June 19, 2017, the court began a scheduled sentencing hearing, and Rothel

      filed a verified motion to withdraw guilty plea under both cause numbers

      alleging that he had no memory whatsoever of the incidents to which he pled

      guilty. His counsel asserted that after Rothel was found competent to stand

      trial he was returned to the Madison County Jail with a prescription for

      Olanzapine, that it appeared that he stopped taking the antipsychotic drug he

      had been prescribed at least by April 4, 2017, that his guilty plea occurred on

      May 15th, and that Rothel had no memory of the crime and had no criminal

      intent.1 The prosecutor objected to the motion. The prosecutor also stated: “I

      haven’t seen the actual records, but I don’t have any reason to disbelieve that it

      was a month.” Id. at 43. He argued that “even though it was a month, based

      on the Court’s observations and I think a totality of the circumstances, the

      record would support the fact that Mr. Rothel was competent at the time, he

      understood the rights waiver and willingly entered a plea agreement.” Id.


[9]   After some discussion, Rothel indicated that he did not have criminal intent

      toward the child at the time. When asked by his counsel if he had told Rothel

      that the child would have to testify if they had a trial, Rothel answered:


               Yeah. And that’s something I – I really don’t want to put any of
               the victims through. Um, but, at the same time, it’s something I




      1
        Rothel’s counsel stated: “It would appear from the documentation that I have, and I’m happy to provide it
      to the Court and State, but it would appear that about a month prior [to the guilty plea hearing], actually a
      little more than a month prior, on April – at least April 4th of 2017, at that time my client had stopped taking
      the antipsychotic drug that he had been prescribed. The jail records confirmed that.” Transcript Volume II
      at 40. The record does not contain any documentation or jail records related to Rothel’s use of medication.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017            Page 7 of 14
               don’t – I really have a – don’t remember and I really don’t have –
               there was no intention in it. But that was a big part of the I guess
               factor and (indiscernible – trailing off).


       Id. at 48. On cross-examination, Rothel indicated that he was not intoxicated at

       the time of the offense and that the police reports said he was intoxicated.

       When asked how he remembered not being intoxicated but not anything else,

       he answered: “At the time, I was on several different psych medications.” Id. at

       50. The prosecutor asked him: “So, you could’ve been intoxicated?” Id.

       Rothel replied: “Off the medication that they prescribed, I mean, that would be

       it.” Id.


[10]   Upon questioning by the court, Rothel stated that he thought the child involved

       in the case was his. When asked why he wanted to withdraw his plea, Rothel

       answered: “Um, a big reason I – I just do not – I took the – signed the plea and

       a big factor was just not wanting to put the victims through any of it. But I – I

       really do not remember a good part of this. And just the fact I even – what was

       going through my mind at the time.” Id. at 54. Rothel indicated that he

       stopped taking his medication because they were deducting money from his

       commissary account. When asked if he noticed any difference since he stopped

       taking the medication, he answered:


               I mean, I – I think I have. It’s hard – it’s hard to say because
               when you’re on it see you’re – you gotta let it build up in your
               system and, when you get off of it, it fluctuates and gets out of
               your system. So, it’s like a time period. I – I’m sure I do for the
               extent of time that I was on it. I’m sure there is a difference.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 8 of 14
       Id. at 56. Rothel also added: “Whether I can tell it all the way or not, I’m not

       sure there is.” Id.


[11]   The court denied Rothel’s motion and stated in part:


               Competence is not always a completely black and white issue,
               although there is a line, at least a theoretical line, drawn by the
               case law. I think it’s fair to say that Mr. Rothel is closer to that
               line today than he was at the time he submitted his guilty plea.
               With any client, for a variety of reasons, there’s a spectrum of
               ability to understand what the case is about and understand the
               rights and law that applies to the case. There’s a spectrum of
               helpfulness to their own counsel in preparing the defense. I can’t
               say from what I’ve heard that there is a strong indication of lack
               of competence on Mr. Rothel’s part which would cause us to
               restart the entire competence evaluation process again. There is
               a real concern that by continuing the case, um, we’re inflicting
               some costs on the State and the quality of their case going
               forward. We’re inflicting some costs on the victim’s family and
               the victim in the case in continuing the matter without finality.
               And there is potentially a cost to Mr. Rothel in terms of his level
               of competence. I’m not sure if we set this case in three (3) or four
               (4) months down the road that things are going to be better in
               terms of his ability to understand and help than they are today. I
               wish we weren’t in this situation. I wish Mr. Rothel had
               continued the medication and it wouldn’t even be a close call I
               think at that point. Where we are, it is somewhat more of a close
               call. But, on balance, I can not find that I found such a strong
               suggestion of lack of competence in the record that the guilty plea
               should be withdrawn. So, I am going to deny the request to
               withdraw the guilty plea.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 9 of 14
       Id. at 62-63. After some discussion, the court stated that it was going to allow

       some additional time for Rothel to return to his medication and rescheduled the

       sentencing hearing for July 17th.


[12]   On July 17, 2017, the court held a sentencing hearing and sentenced Rothel

       under Cause No. 1585 to a suspended sentence of two years for residential

       entry as a level 6 felony. Under Cause No. 2137, the court sentenced him to

       fourteen years with ten years served at the Department of Correction, two years

       served on home detention, and two years suspended for criminal confinement

       as a level 3 felony, four years for battery by means of a deadly weapon as a level

       5 felony, and two years for criminal recklessness as a level 6 felony. The court

       ordered that the counts within Cause No. 2137 be served concurrent with each

       other and consecutive to the sentence in Cause No. 1585.


                                                   Discussion

[13]   The issue is whether the trial court erred in denying Rothel’s motion to

       withdraw his guilty plea. Ind. Code § 35-35-1-4(b) governs motions to

       withdraw guilty pleas filed after a defendant has pled guilty but before the trial

       court has imposed a sentence. The trial court must allow a defendant to

       withdraw a guilty plea if “necessary to correct a manifest injustice.” Brightman

       v. State, 758 N.E.2d 41, 44 (Ind. 2001) (quoting Ind. Code § 35-35-1-4(b)). By

       contrast, the trial court must deny the motion if withdrawal of the plea would

       “substantially prejudice” the State. Id. (quoting Ind. Code § 35-35-1-4(b)). In

       all other cases, the trial court may grant the defendant’s motion to withdraw a


       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 10 of 14
       guilty plea “for any fair and just reason.” Id. (quoting Ind. Code § 35-35-1-

       4(b)).


[14]   A defendant has the burden to prove by a preponderance of the evidence and

       with specific facts that he should be permitted to withdraw his plea. Ind. Code

       § 35-35-1-4(e); Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct. App. 1992).

       “Manifest injustice” and “substantial prejudice” are necessarily imprecise

       standards, and an appellant seeking to overturn a trial court’s decision faces a

       high hurdle. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). “The trial court’s

       ruling on a motion to withdraw a guilty plea arrives in this Court with a

       presumption in favor of the ruling.” Id. 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 his guilty plea hearing to decide whether

       his plea was offered “freely and knowingly.” Id. See also Davis v. State, 770

       N.E.2d 319, 326 (Ind. 2002) (holding that a trial court’s decision on a request to

       withdraw a guilty plea is presumptively valid, and a party appealing an adverse

       decision must prove that the court has abused its discretion), reh’g denied.


[15]   Rothel argues that the record demonstrates the trial court abused its discretion

       in failing to grant his motion to withdraw his plea agreement and that the State

       did not show that it was substantially prejudiced by relying on Rothel’s plea.

       He asserts that his failure to take medication in advance of the submission of his

       plea agreement establishes a fair and just reason for him to withdraw that plea.

       He points to his version of the offenses in the presentence investigation report

       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 11 of 14
       and asserts that those versions, his mental illness, and his need for medication

       substantiate that he did not possess the requisite intent. 2


[16]   The State argues that the trial court properly denied Rothel’s motion to

       withdraw his guilty plea, that Rothel testified at the guilty plea hearing that he

       understood the prosecutor’s factual bases and stated that the facts were correct.

       The State contends that Rothel’s statements that he did not remember, there

       was no intention in his offenses, and that he thought the child was his

       contradict each other.


[17]   The record reveals that the Psychology Director at the Logansport State

       Hospital issued a report on February 7, 2017, concluding that Rothel was able

       to understand the proceedings and assist in the preparation of his defense. The

       report also described Rothel’s understanding of a guilty plea. Rothel and his

       counsel signed the plea agreement dated May 2, 2017. At the guilty plea

       hearing, Rothel engaged in a colloquy with the trial court in which he provided

       lucid and responsive answers. He indicated that he took a psychotic medication

       and that he believed he was able to understand what he was doing there and

       make good decisions. His counsel stated that he and Rothel had several good

       conversations about the plea agreement and that counsel did not have any




       2
         In the presentence investigation report, Rothel’s version of the offense under Cause No. 1585 states: “I
       walked into my neighbor’s screened in porch and knocked on the door. We weren’t getting along at the time
       and they called the police.” Appellant’s Appendix Volume II at 60. His version of the offenses under Cause
       No. 2137 states: “Without medication I don’t think well. At the time, I thought a kid was mine so I grabbed
       a kid and set him down.” Id. at 61.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017      Page 12 of 14
       concern about Rothel understanding the agreement. The trial court told

       Rothel: “You seem like you’re very alert at this point, you’re understanding

       what’s happening, and I’m glad to see the change has happened.” Transcript

       Volume II at 31. After the prosecutor provided the factual bases, Rothel

       indicated that he understood what the prosecutor said and that the facts were

       correct. At the June 19, 2017 hearing, Rothel stated that did not remember, yet

       also stated that that there was no intention in the offense, that he was not

       intoxicated, and that he thought the child was his.


[18]   Based upon our review of the record, we conclude that Rothel has not

       overcome the presumption of validity accorded the trial court’s denial of his

       motion to withdraw his guilty pleas. Such a denial was within the discretion of

       the court, and we cannot say its refusal to allow Rothel to withdraw his guilty

       pleas constitutes manifest injustice. See Coomer, 652 N.E.2d at 63 (holding that

       the refusal to allow defendant to withdraw his guilty plea did not constitute

       manifest injustice); Jeffries v. State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012)

       (“Instances of manifest injustice may include any of the following, none of

       which are present here: 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.”), trans. denied; McGraw v. State, 938 N.E.2d 1218, 1220 (Ind. Ct. App.

       2010) (observing that the guilty plea hearing record indicated that the defendant

       denied being under the influence of drugs or alcohol at that time, he gave lucid,


       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 13 of 14
       appropriate responses to each question posed to him, and holding that the

       defendant had not established that the withdrawal of his plea was necessary to

       correct a manifest injustice and the trial court acted within its discretion by

       denying his motion to withdraw his guilty plea), trans. denied.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Rothel’s convictions.


[20]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1858 | December 21, 2017   Page 14 of 14
