Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CHRISTOPHER J. HAMMERLE                          GREGORY F. ZOELLER
CHRISTOPHER B. SERAK                             Attorney General of Indiana
Jacob, Hammerle & Johnson
Zionsville, Indiana                              JONATHAN R. SICHTERMANN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE                                       May 06 2013, 9:21 am

                    COURT OF APPEALS OF INDIANA

BRYAN DELANEY,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 06A01-1209-CR-435
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE BOONE SUPERIOR COURT
                        The Honorable Matthew C. Kincaid, Judge
                             Cause No. 06D01-1011-FB-427




                                        May 6, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       Bryan Delaney appeals the trial court’s denial of his motion to withdraw a guilty

plea. Delaney raises the following restated issue on appeal: whether the trial court

properly denied his motion to withdraw his guilty plea. Concluding that the denial was

within the trial court’s discretion and that discretion was not abused, we affirm.

                               Facts and Procedural History

       In November 2010, Delaney was charged with sexual misconduct with a minor, as

a Class B felony. Initially, Delaney pleaded not guilty. Later, a plea agreement was

negotiated and was filed with the court on June 8, 2012. On June 26, 2012, the court

conducted a plea hearing.

       At the plea hearing, the court started by telling Delaney that it expected him to tell

the court if he did not understand a question, and that he could speak with his lawyer at

any time during the hearing.        The court then proceeded to go over Delaney’s

Constitutional rights, and to each of these, Delaney stated that he understood his rights.

The court then spoke to Delaney’s crime and told him that:

       before you could be convicted of sexual misconduct with a minor the State
       of Indiana would have to prove all the material elements of the charge
       against you are true and I’m just going to go over that with you now. They
       would have to prove beyond a reasonable doubt that between January 15,
       2010 and March 15, 2010 in Boone County, State of Indiana that you Bryan
       Delaney a person at least twenty-one years of age did perform or submit to
       sexual intercourse with a child victim, a child at least fourteen years of age
       but less than sixteen years of age to-wit: fifteen years of age. . . . If the
       State didn’t prove all of that to be true you wouldn’t be convicted of that
       offense. Do you understand that?

Transcript at 6. To which Delaney replied, “Yes sir Your Honor.” Id. The court went

over the possible sentences and fines for the crime. The court then asked Delaney

                                             2
whether he had signed the agreement, read it before he signed it, and discussed it with his

attorney. To all of these questions Delaney replied yes. The court went over the major

terms of the plea agreement to make sure that Delaney understood them, and gave him a

chance to tell the court if it had left out anything that was important to him. It asked him

again if he had read and understood the agreement, to which he replied yes. The court

then asked whether anyone promised him anything for pleading guilty or forced him to

plead guilty, and Delaney answered no. The court asked him whether it was his own free

choice, whether he was satisfied with the work of his lawyer, and whether he still

intended to plead guilty. To all of those questions, Delaney replied yes.

       Delaney was then sworn in in order for the court to establish a factual basis of his

crime. Under oath, the following exchange occurred between Delaney, the court, and the

prosecutor, Ms. Jennings:

       BY MS. JENNINGS: Judge if this matter were to proceed to trial the State
       would be in a position to prove beyond a reasonable doubt that during the
       time period of January 15th, 2010 to March 15th, 2010 here in Boone
       County, State of Indiana Mr. Delaney did have a romantic relationship with
       a juvenile who was fifteen years of age at the time. During that time period
       he did engage in sexual intercourse with that juvenile. Her initial’s [sic] are
       A P and he did know that she was under the age of sixteen at that time
       Judge, thus committing the act of sexual misconduct with a minor as a class
       B felony.
       BY THE COURT: Mr. Delaney the Prosecutor just recited what she thinks
       the facts are and did she make any mistakes at all?
       BY DEFENDANT: No sir Your Honor
       BY THE COURT: Is everything she said true?
       BY DEFENDANT: Yes, that’s correct.

Tr. at 15. The court then asked Delaney’s counsel whether she saw any advantage to him

proceeding to a jury trial on the charge, and she replied no. Delaney then pleaded guilty

to the charge.

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       At the end of the hearing, the court took the plea under advisement, and scheduled

a hearing for August 9. At the August 9 hearing, Delaney’s attorney withdrew, citing a

“breakdown in communication,” and the hearing was rescheduled for September 5, 2012;

the guilty plea remained under advisement. Tr. at 23. New counsel filed an appearance

on August 10. On August 31, Delaney filed a motion to withdraw his guilty plea. On

September 5, 2012, the court heard argument from each side regarding the motion to

withdraw the guilty plea. The court then determined that the State would be substantially

prejudiced if the court granted the motion and that Delaney had not shown that there

would be any manifest injustice if the motion were denied, and denied the motion. The

court sentenced Delaney to twelve years in the Department of Correction, with eight

years executed and four years suspended to probation. This appeal followed. Additional

facts will be supplied as necessary.

                                  Discussion and Decision

                                   I. Standard of Review

       Indiana Code section 35-35-1-4(b) governs motions to withdraw guilty pleas.

Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans. denied. In general,

after a defendant pleads guilty but before a sentence is imposed, the defendant may move

to withdraw a plea of guilty and the court may, in its discretion, grant the motion for any

fair and just reason. Id. However, the court must deny the motion if the State would be

substantially prejudiced by the withdrawal of the plea. Id. On the other hand, the court

must grant the motion if withdrawal is necessary to correct a manifest injustice. Id.

Therefore, to the extent that substantial prejudice or manifest injustice are not implicated,

a grant or denial of the motion is within the discretion of the court.
                                              4
       There is a presumption in favor of a trial court’s ruling on a motion to withdraw a

guilty plea, and we will reverse a trial court only for an abuse of discretion. Id. In

determining whether an abuse of discretion has occurred, we will examine statements by

the defendant at the plea hearing to decide whether the plea was offered “freely and

knowingly.” Id.

                           II. Motion to Withdraw Guilty Plea

                                 A. Substantial Prejudice

       The State argues that it would be substantially prejudiced by withdrawal of

Delaney’s plea because the victim would be traumatized by a trial and because the plea

proceedings have caused a delay that would hinder the State in putting on its case.

       Regarding traumatization of the victim, we do not disagree that testifying at trial

and recounting events can be a traumatic experience for a victim.            However, that

possibility does not substantially prejudice the State. A defendant has a right to a trial

unless he properly waives it, and as Delaney succinctly states, “[t]he exercise of

fundamental constitutional rights by a defendant should never in itself be defined as a

‘substantial prejudice’ to the State.” Appellant’s Reply Brief at 14. Further, it is not the

withdrawal of the guilty plea itself that would potentially traumatize the victim, it is the

trial—and any trauma related to going to trial would be no different where a plea was

withdrawn than if there had been no plea agreement in the first place.

       As for delay, we agree that significant delays could potentially cause substantial

prejudice the State. As the State points out, witnesses’ memories fade, and evidence can

be degraded or lost over time. However, while it appears that there have been delays in

this case, relatively little of that time is attributable to the plea agreement and Delaney’s
                                             5
motion to withdraw that plea. It was more than a year-and-a-half after Delaney was

charged that the plea agreement was signed. From there, it was just two months before

Delaney filed his motion to withdraw the plea. Even now, it is just six months past the

court’s denial of Delaney’s motion and imposition of sentence. We cannot agree that this

delay is significant enough to be a substantial prejudice to the State, and the State makes

no specific argument as to any loss that has occurred in this case that would prevent it

from now trying the case. The State cites no other reason why it might be substantially

prejudiced by a withdrawal of Delaney’s plea, and so we disagree with the trial court that

the State would be substantially prejudiced by a grant of Delaney’s motion. Because

there was no substantial prejudice to the State, the trial court was not required to deny

Delaney’s motion.

                                   B. Manifest Injustice

       While the trial court was not required to deny Delaney’s motion because there was

no substantial prejudice to the State, it would have been required to grant it if Delaney

had shown that a withdrawal of his plea was necessary to correct a manifest injustice.

Delaney argues that there is a manifest injustice in this case in that his plea was not

knowingly or voluntarily made. We disagree.

       At the plea hearing, the trial court questioned Delaney extensively about the plea.

Delaney admits that the trial court “asked each of the questions required by prevailing

case law to establish the knowing and voluntary nature of a tendered plea,” but argues

that the totality of the circumstances indicate that Delaney did not in fact fully understand

the plea agreement or its implications. Appellant’s Brief at 6. Delaney points to his

assertion of innocence in his motion to withdraw the guilty plea, as well as the fact that
                                             6
the attorney who represented him at the plea hearing later withdrew, citing a “complete

breakdown in communication,” as factors indicating that his answers at the plea hearing

were given despite his lack of understanding regarding the proceedings and the plea. Id.

at 7. Delaney argues that he did not understand everything he was waiving because he

was not aware of a statutory defense—ignorance of the victim’s age—until after the plea

hearing, when he was questioned for a pre-sentence investigation (“PSI”) report.

       Delaney cites Allman v. State, 253 Ind. 14, 235 N.E.2d 56, 61 (1968), for the

proposition that a defendant may be found to have lacked understanding of a guilty plea’s

implications even where the court fully explained the plea and waiver of rights.

However, in Allman, the defendant was arrested and questioned without counsel, was

then charged, was arraigned a few minutes after being charged and did not have counsel

present at the arraignment, and entered a guilty plea at the arraignment. The facts of that

case indicated that the trial court itself had some concerns about Allman’s

comprehension, as it ordered two doctors to assess his sanity. That same day, his family

arranged for counsel to represent him and three days later counsel filed a motion to

vacate the plea and enter a plea of not guilty by reason of insanity. Ultimately, the court

denied the motion and found that Allman had been able, at the arraignment, to

intelligently enter a guilty plea. Id. at 59. Our supreme court reversed the trial court’s

decision. Id. at 62.

       Allman is quite different from the current case. Here, Delaney had counsel when

he was offered the plea agreement. Almost three weeks passed between when the plea

was signed and when the plea hearing was held, and at the hearing Delaney confirmed

that he had read the plea and discussed it with his lawyer, and that he had no problems
                                            7
with his lawyer’s representation of him. The court thoroughly questioned Delaney’s

understanding of his rights and the plea agreement, and then the State presented an

overview of what it was prepared to prove if the case should go to trial. Included in that

was a statement about Delaney knowing the victim’s age. Delaney confirmed, under

oath, that the State had all of the facts correct. By the end of the plea hearing, we are

convinced that Delaney knowingly and voluntarily waived his rights and chose to plead

guilty, and was aware of the elements of the crime to which he was pleading guilty. It is

not clear what more the trial court could have possibly asked Delaney at the hearing to

further ensure he knowingly and voluntarily waived his rights, and Delaney does not

argue that the court fell short. Delaney frames his argument to imply that he was thrown

into the plea hearing unprepared and was not able to understand the gravity of his plea,

and so blindly answered yes to the court’s questions when he did not truly understand

them. However, he had weeks in which to read the plea, think it over, and discuss it with

his lawyer before the plea hearing took place.

      Even if we believe that, by the time he got to the plea hearing—having had ample

time to discuss with his attorney the plea and the crime to which he would be pleading

guilty—he was unaware of a statutory defense regarding ignorance of the victim’s age,

we cannot say that this amounts to a manifest injustice. Delaney pleaded guilty after

affirming under oath that the facts as presented by the State were true, including that he

was aware of the victim’s age. A later protestation of innocence based on a newly

discovered defense does not require the trial court to grant a motion to withdraw a guilty

plea. See, e.g., Carter v. State, 724 N.E.2d 281, 285 (Ind. Ct. App. 2000), trans. granted,

opinion aff’d, 739 N.E.2d 126 (Ind. 2000) (“[W]here a trial court has followed the
                                            8
procedures outlined in the guilty plea statutes, and where the defendant’s guilty plea is

knowing and voluntary, his later assertion of innocence does not require the trial court to

set aside his guilty plea.”) (citing cases).       Moreover, the “discovery” of a possible

defense, and Delaney’s assertion of innocence are rooted in the PSI. The trial court

found Delaney’s statements in the PSI, which were not under oath, not to be credible, and

we do not reweigh the evidence. See Weatherford v. State, 697 N.E.2d 32, 36 n.9 (Ind.

1998).

         As for Delaney’s claim that a breakdown in communication with his attorney

points to a lack of understanding of the plea agreement, the record does not support this

contention.    There was no testimony from Delaney or his attorney regarding the

attorney’s withdrawal as counsel, or whether it related to a misunderstanding about the

plea. At the plea hearing, Delaney affirmed that he had no problems with the attorney’s

representation of him. And while this attorney withdrew and cited a breakdown in

communication as the basis for withdrawal, it was the second time that an attorney

working with Delaney on this case had withdrawn and cited a breakdown in

communication as the basis.        We cannot make the leap that the breakdown in

communication following the plea hearing indicates that Delaney did not knowingly

waive his rights or agree to the plea agreement.

         Because withdrawal of Delaney’s plea was not necessary to correct a manifest

injustice, denial of the motion to withdraw was within the discretion of the trial court, and

the trial court did not abuse its discretion by denying the motion.




                                               9
                                        Conclusion

       We conclude that Delaney’s motion to withdraw his guilty plea implicated neither

substantial prejudice nor manifest injustice, and that it was therefore within the discretion

of the trial court to deny the motion. Concluding that Delaney offered his plea freely and

knowingly and thus that the court did not abuse its discretion, we affirm.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




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