                                                                        FILED
                                                                   May 27 2020, 9:18 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Lauren A. Jacobsen
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Brian Kinman,                                             May 27, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2718
        v.                                                Appeal from the Fayette Circuit
                                                          Court
State of Indiana,                                         The Honorable Hubert
Appellee-Plaintiff                                        Branstetter, Jr., Judge
                                                          Trial Court Cause No.
                                                          21C01-1802-F5-131
                                                          21C01-1906-F5-467



May, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                            Page 1 of 18
[1]   Brian Kinman appeals the trial court’s denial of both his pre-sentence oral

      motion to withdraw his guilty plea and his post-sentence written motion to

      withdraw his guilty plea. We affirm.



                                   Facts and Procedural History
[2]   On February 14, 2018, the State charged Kinman with Level 5 felony dealing in

      a narcotic drug 1 and Level 6 felony maintaining a common nuisance 2 under

      cause number 21C01-1802-F5-131 (“Cause 131”). On February 16, 2018, the

      State alleged Kinman was a habitual offender 3 under Cause 131. On June 28,

      2019, the State charged Kinman with Level 5 felony burglary, 4 Level 6 felony

      residential entry, 5 Class A misdemeanor theft, 6 and Class B misdemeanor

      criminal mischief 7 under cause number 21C01-1906-F5-467 (“Cause 467”).


[3]   On July 3, 2019, 8 Kinman entered a plea agreement with the State whereby he

      would plead guilty to Level 5 felony possession of a narcotic drug and admit




      1
          Ind. Code § 35-48-4-1.
      2
          Ind. Code § 35-45-1-5.
      3
          Ind. Code § 35-50-2-8.
      4
          Ind. Code § 35-43-2-1.
      5
          Ind. Code § 35-43-2-1.5.
      6
          Ind. Code § 35-43-4-2(a).
      7
          Ind. Code § 35-43-1-2(a).
      8
       The parties entered into an earlier agreement whereby Kinman would plead guilty to Level 5 dealing in a
      narcotic drug and admit being a habitual offender under Cause 131, would plead guilty to Level 5 felony


      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                               Page 2 of 18
      being a habitual offender under Cause 131 and would plead guilty to Level 6

      felony residential under entry Cause 467. The plea agreement called for an

      aggregate sentence of ten and a half years, specifically meted out as:




      (App. Vol. II at 34.) The trial court held a plea hearing the same day.


[4]   At the plea hearing, the trial court recited the plea agreement to Kinman:


              Mr. Kinman, we’re here because a plea agreement was filed
              today and looking at that the State’s F5-131 you’d be pleading to
              [dealing] a narcotic drug as a Level 5 felony, four years executed,
              $200.00 drug intradiction [sic] fee and costs consecutive to a
              habitual offender enhancement four years executed, $200.00 drug
              intradiction [sic] fee and costs to be consecutive to F5-467
              residential entry as a Level 6 felony, two and a half years
              executed, costs, remaining counts would be dismissed.


      (Tr. Vol. II at 13.) Kinman acknowledged the terms of the plea agreement as

      set forth by the trial court and indicated that he intended to “withdraw [his]




      burglary under Cause 467, and would be sentenced to twelve years with the possibility of work release.
      Community Corrections refused to accept Kinman for work release, so that plea agreement was not ratified.

      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                              Page 3 of 18
      earlier pleas of not guilty and enter pleas of guilty,” (id. at 14), and that he

      understood all the rights he was giving up by pleading guilty. He also indicated

      he was not under the influence of drugs or alcohol, he understood the plea

      agreement, he did not suffer from an emotional or mental disability, and he

      spoke with his attorney regarding the plea agreement before signing it.


[5]   Kinman then requested a mental evaluation “because it’s obvious that my life

      has been a certain way and I can’t get past that.” (Id. at 16.) After discussion,

      the parties and the court concluded the mental evaluation Kinman was

      requesting was not related to his capacity to consent to the plea agreement, but

      instead was a request for mental health treatment as part of his sentence. The

      court then asked Kinman if his guilty plea was his “own free choice and

      decision” and “what [he] want[s] to do today” to which Kinman answered in

      the affirmative. (Id. at 19.) The trial court ordered a pre-sentence investigation

      report and told Kinman’s counsel to contact the trial court to schedule a

      sentencing hearing.


[6]   The trial court held a sentencing hearing on August 2, 2019, and Kinman did

      not appear. The parties discussed Kinman’s whereabouts:


              [Trial Court]:            Okay, [Defense Counsel], do you know
                                        anything about his whereabouts?


              [Defense Counsel]: His whereabouts I do not. The last time I
                                 heard where he was was [sic] in Indianapolis
                                 at the hospital.



      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020            Page 4 of 18
              [State]:                  And we’ve confirmed that he was released.


              [Trial Court]:            Okay.


              [Defense Counsel]: So, I don’t know where he is.


      (Id. at 23.) Based thereon, the trial court issued a warrant for Kinman’s arrest

      and indicated a new sentencing hearing would be scheduled when Kinman was

      located. Kinman subsequently turned himself in and was released on his own

      recognizance.


[7]   On October 18, 2019, the trial court held a sentencing hearing. Kinman and his

      counsel appeared. At the beginning of hearing, Kinman’s counsel stated, “Mr.

      Kinman has told me that he wishes to withdraw his former plea of guilty[,]” (id.

      at 24), and then counsel asked to withdraw from the case because he and

      Kinman were “not on the same page” and “both agree that probably he needs a

      different lawyer.” (Id.) The State argued the matter had already been resolved

      because a guilty plea had been entered and requested the trial court go forward

      with sentencing as scheduled. Kinman interjected, and he and the State argued

      about the terms of his plea agreement:


              [Kinman]:         Your Honor, I have to object to what she just said
                                because in my plea agreement under Indiana Code
                                35-50-2-8 section J it states habitual offender status
                                is uh, is a criminal enhancement, it’s not a separate
                                crime therefore it has to be ran concurrent with the
                                charges and my plea agreement she has it
                                consecutive –


      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                   Page 5 of 18
        [State]:          That’s not what the statute says Your Honor.


        [Kinman]:         So she actually wrote (inaudible).


        [State]:          The statute says – the plea agreement should read
                          that it’s not a consecutive sentence, that it’s an
                          enhanced sentence.


        [Kinman]:         Right.


        [State]:          However, may I please – however, um, enhanced
                          and consecutive for all intense [sic] and purposes
                          does the same thing and I have written it as
                          consecutive in the past because I think it’s clearer to
                          say that it’s a consecutive sentence because I think
                          it’s clearer in everybody’s minds it doesn’t run
                          concurrent. That statute that he is um, referred to
                          read and I’ve gotten I don’t know maybe ten letters
                          and motions from defendants at the jail who
                          misunderstand this[.] J says “habitual offender is a
                          status that results in an enhanced sentence. It is not
                          a separate crime and does not result in a consecutive
                          sentence. The Court shall attach the habitual
                          offender enhancement to the felony conviction with
                          the highest sentence imposed and specify which
                          felony count is being enhanced. If the felony
                          enhanced by the habitual determination is set aside
                          or vacated the Court shall re-sentence the person
                          and apply the enhancement to the next highest
                          felony conviction.”. [sic] Um, it does not run
                          concurrent. Mr. Kinman is reading that statute
                          wrong um, and the only thing that really needs to
                          happen to make this um, right is your sentencing
                          order is in fact supposed to say that the habitual
                          offender count attaches to the dealing in a narcotic

Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020               Page 6 of 18
                                drug a 5 felony and enhances that sentence by four
                                years.


      (Id. at 24-5.) The trial court told Kinman that the “enhancement is going to be

      consecutive,” acknowledged that the habitual offender adjudication “results in

      a higher sentence, an enhanced sentence,” and denied counsel’s request to

      withdraw his appearance and counsel’s oral motion to withdraw Kinman’s

      guilty plea. (Id. at 25.)


[8]   When asked if he had anything else to say before the trial court accepted his

      guilty plea and sentenced him accordingly, Kinman stated:


              Yeah, your Honor, uh, I mean word verbatim (inaudible) it’s
              consecutive to and that’s the way it’s listed in there and that’s
              what the State’s and I feel like that that’s just a (inaudible) the
              way she’s interpreting it is mistaken because not only there’s me
              there’s ten other guys in my block and twenty other people before
              me that have been stroked on this and it’s clearly breaking the
              law and if I broke the law I’m being held responsible so why is
              she not being held responsible to the law that she’s supposed to
              represent. I want to go to trial.


      (Id. at 26) (errors in original). The trial court then heard testimony from the

      person whose house Kinman illegally entered. The trial court then stated:


              Well, at this time I’m going to accept the plea agreement and
              sentence you to the terms of the plea agreement in F5-131
              dealing in a narcotic drug a Level 5 felony, four years executed,
              $200.00 drug intradiction [sic] fee and costs and habitual offender
              enhancement will be consecutive, four years executed, $200 drug
              intradiction [sic] fee and costs consecutive to [F5-]467 burglary as


      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020               Page 7 of 18
                a Level 6 felony two and a half years executed and costs
                remaining counts will be dismissed.


      (Id. at 28) (errors in original).


[9]   On November 7, 2019, Kinman filed a pro se petition to vacate judgment and

      withdraw his plea, arguing:


                The Plea agreement of said cause numbers is void due to (A) The
                incompetency of myself on the date of, 7-3-19; when I asked the
                court for a full mental health evaluation before my plea bargain
                was accepted & a guilty plea entered, but was not given, therefore
                making the acceptence of my plea injust & void. (B) The
                ineffectiveness of my court appointed lawyer, John Bodwell; who
                tried to remove himself not once, but twice. On dates, 9-16-19 &
                10-18-19, but was denied and forced to represent me. Not giving
                me my constitutional right to proceed pro se. Making the
                proceeding of my defense of said cause numbers ineffective. (C)
                The illegal, unlawfulness, and excessive sentence that is being
                imposed on, Cause Number, 21C01-1802-F5-131, due to the
                breaking of law under, I.C. 35-50-2-8, section (j). I quote, “A
                habitual offender is a status that results in an enhanced sentence.
                It is not a seperate crime & does not result in a consecutive
                sentence.”


      (App. Vol. II at 97) (errors in original). 9 On November 18, 2019, Kinman filed

      a pro se petition to amend his sentence. On the same day, Kinman filed a pro se

      motion for transport to attend the hearing for the petition to amend his sentence

      once that hearing was scheduled. On November 18, 2019, the trial court denied




      9
          This motion was handwritten.


      Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020           Page 8 of 18
       Kinman’s pro se motions to vacate judgment and withdraw his guilty plea, to

       amend his sentence, and to transport.



                                  Discussion and Decision
                  1. Pre-Sentence Motion to Withdraw Guilty Plea
[10]   We review a pre-sentence motion to withdraw a guilty plea under Indiana Code

       section 35-35-1-4(b) for an abuse of discretion. Coomer v. State, 652 N.E.2d 60,

       61-2 (Ind. 1995). Indiana Code section 35-35-1-4(b) states:


               (b) After entry of a plea of guilty, or guilty but mentally ill at the
               time of the crime, but before imposition of sentence, the court
               may allow the defendant by motion to withdraw his plea of
               guilty, or guilty but mentally ill at the time of the crime, for any
               fair and just reason unless the state has been substantially
               prejudiced by reliance upon the defendant’s plea. The motion to
               withdraw the plea of guilty or guilty but mentally ill at the time of
               the crime made under this subsection shall be in writing and
               verified. The motion shall state facts in support of the relief
               demanded, and the state may file counter-affidavits in opposition
               to the motion. The ruling of the court on the motion shall be
               reviewable on appeal only for an abuse of discretion. However,
               the court shall allow the defendant to withdraw his plea of guilty,
               or guilty but mentally ill at the time of the crime, whenever the
               defendant proves that withdrawal of the plea is necessary to
               correct a manifest injustice.


       Under Indiana Code section 35-35-1-4(e), a defendant “has the burden of

       establishing his grounds for relief by a preponderance of the evidence.”

       Kinman argues the trial court abused its discretion when it denied his oral

       motion to withdraw his guilty plea prior to sentencing because withdrawal was
       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020            Page 9 of 18
       required to correct a manifest injustice, with that manifest injustice being the

       alleged improper sentence for Kinman’s habitual offender adjudication.


[11]   As an initial matter, we note Kinman neither filed his motion to withdraw his

       guilty plea in writing nor had it verified as required by Indiana Code section 35-

       35-1-4(b). 10 At the beginning of the sentencing hearing, Kinman’s counsel

       indicated Kinman had told counsel “that he wishes to withdraw his former plea

       of guilty[.]” (Tr. Vol. III at 24.) Kinman further stated he “want[ed] to go to

       trial.” (Id. at 26.) However, this request was never reduced to writing, and the

       trial court denied Kinman’s motion to withdraw his guilty plea shortly after it

       was made.


[12]   Further, Kinman has not demonstrated the withdrawal of his plea was

       necessary to correct a “manifest injustice.” He argued before the trial court that

       his plea agreement was void because its language indicated the habitual

       offender enhancement was to be served consecutive to his other two sentences,




       10
          Kinman argues that his November 7, 2019, pro se motion to vacate judgment and withdraw his guilty plea
       satisfied the requirement that a motion to withdraw a guilty plea be made in writing and verified. However,
       the November 7 motion was filed after sentencing, and it contains additional argument not made by Kinman
       during his oral motion to withdraw his guilty plea on October 18, 2019. Thus, the November 7 motion was a
       motion to withdraw a guilty plea subsequent to sentencing, which is governed by Indiana Code section 35-
       35-1-4(c). We will address the trial court’s denial of Kinman’s November 7 written motion in the second half
       of our analysis.

       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                               Page 10 of 18
       instead of as an enhancement of the Level 5 felony sentence, and that other

       inmates told him that this characterization was contrary to statute and illegal. 11


[13]   The habitual offender statute states, in relevant part:


                (j) Habitual offender is a status that results in an enhanced
                sentence. It is not a separate crime and does not result in a
                consecutive sentence. The court shall attach the habitual
                offender enhancement to the felony conviction with the highest
                sentence imposed and specify which felony count is being
                enhanced. If the felony enhanced by the habitual offender
                determination is set aside or vacated, the court shall resentence
                the person and apply the habitual offender enhancement to the
                felony conviction with the next highest sentence in the
                underlying cause, if any.


       In Kinman’s plea agreement the State indicated his sentence for “Habitual

       Offender” was “Consecutive to” his sentence for Level 5 burglary. (App. Vol.

       II at 34) (emphasis in original omitted). At his sentencing hearing, Kinman

       argued that the language of Indiana Code section 35-50-2-8(j) - specifically,

       “Habitual offender is a status that results in an enhanced sentence. It is not a




       11
          On appeal, Kinman argues he did not knowingly or voluntarily enter into his plea agreement and thus the
       trial court abused its discretion when it denied his oral motion to withdraw his guilty plea prior to sentencing.
       In his reply brief, Kinman attempts to characterize his argument at sentencing regarding the difference
       between consecutive and enhancement as equal to an argument that he did not knowingly or voluntarily
       enter into his plea agreement. We disagree. At no time during sentencing did Kinman say he did not
       understand the language of his plea agreement. Instead, he maintained the State’s interpretation of Indiana
       Code section 35-50-2-8(j) was illegal, and that his plea was void on that basis. Thus, as it relates to Kinman’s
       motion to withdraw his guilty plea prior to sentencing, he cannot argue for the first time on appeal that he did
       not knowingly or voluntarily enter into the plea agreement, and that particular argument as to this particular
       issue is waived. See Goodner v. State, 685 N.E.2d 1058, 1060 (Ind. 1997) (argument presented for first time on
       appeal is waived).

       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                                   Page 11 of 18
       separate crime and does not result in a consecutive sentence” – means the

       State’s language in the plea agreement is incorrect and thus his plea agreement

       was void.


[14]   During the sentencing hearing, the State explained the possible source of

       confusion:


               However, may I please – however, um, enhanced and
               consecutive for all intense [sic] and purposes does the same thing
               and I have written it as consecutive in the past because I think it’s
               clearer to say that it’s a consecutive sentence because I think it’s
               clearer in everybody’s minds it doesn’t run concurrent. That
               statute that he is um, referred to read and I’ve gotten I don’t
               know maybe ten letters and motions from defendants at the jail
               who misunderstand this[.] J says “habitual offender is a status
               that results in an enhanced sentence. It is not a separate crime
               and does not result in a consecutive sentence. The Court shall
               attach the habitual offender enhancement to the felony
               conviction with the highest sentence imposed and specify which
               felony count is being enhanced. If the felony enhanced by the
               habitual determination is set aside or vacated the Court shall re-
               sentence the person and apply the enhancement to the next
               highest felony conviction.”. [sic] Um, it does not run concurrent.
               Mr. Kinman is reading that statute wrong um, and the only thing
               that really needs to happen to make this um, right is your
               sentencing order is in fact supposed to say that the habitual
               offender count attaches to the dealing in a narcotic drug a 5
               felony and enhances that sentence by four years.


       (Tr. Vol. II at 25.)


[15]   We agree the State’s language in the plea agreement is incorrect. The State

       should have used the language set forth in Indiana Code section 35-50-2-8(j) –

       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020           Page 12 of 18
the highest felony sentence is to be enhanced by the habitual offender

adjudication. Using the word “consecutive” unnecessarily confuses the matter,

as the statute itself clearly states the habitual offender adjudication is not a

separate crime that receives a consecutive sentence. Because of that language,

we have long held that those adjudicated as habitual offenders must have one of

the sentences for one of their convictions enhanced, and we have remanded

cases for resentencing when a trial court has ordered a defendant to serve a

habitual offender sentence consecutive to other convictions, listing the habitual

offender adjudication as a separate crime. See e.g., Hendrix v. State, 759 N.E.2d

1045, 1048 (Ind. 2001) (“A habitual offender finding does not constitute a

separate crime nor does it result in a separate sentence, rather it results in a

sentence enhancement imposed upon the conviction of a subsequent felony.”);

Pinkston v. State, 436 N.E.2d 306, 307 (Ind. 1982) (“One convicted of a crime

and found to be an habitual criminal is not sentenced separately for being an

habitual criminal. . . . [The statute] provides for an enhancement of the penalty

for the instant crime because the defendant is found to be an habitual

criminal.”); Harris v. State, 964 N.E.2d, 920, 927 (Ind. Ct. App. 2012) (“It is

well settled that a habitual offender finding does not constitute a separate crime,

nor does it result in a separate sentence. . . . Rather, a habitual offender finding

results in a sentence enhancement imposed upon the conviction of a subsequent

felony.”), trans. denied. We advise the State to draft plea agreements that do not

violate the language of the relevant statute.




Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020           Page 13 of 18
[16]   Nevertheless, Kinman has not suffered a manifest injustice because of this

       improper wording. He argues the habitual offender enhancement must be

       served concurrent to his other sentences, but that is illogical under the plain

       language of Indiana Code section 35-50-2-8, which authorizes trial courts to

       sentence habitual offenders to “an additional fixed term that is . . .

       nonsuspendible.” Ind. Code § 35-50-2-8(i). It is well settled that a habitual

       offender enhancement is meant “to more severely penalize those persons whom

       prior sanctions have failed to deter from committing felonies. Comstock v. State,

       273 Ind. 259, 264, 406 N.E.2d 1164, 1167 (1980).


[17]   Kinman’s motion was not in writing and verified as required by Indiana Code

       section 35-35-1-4(b). Nor did Kinman demonstrate the withdrawal of his guilty

       plea was necessary to correct a manifest injustice. Therefore, we conclude the

       trial court did not abuse its discretion when it denied Kinman’s pre-sentence

       motion to withdraw his guilty plea. See Bland v. State, 708 N.E.2d 880, 882

       (Ind. Ct. App. 1999) (denial of pre-sentence motion to withdraw guilty plea

       affirmed because Bland did not file a written and verified motion and had not

       established by a preponderance of the evidence that denial of his motion to

       withdraw his guilty plea would result in manifest injustice).


                2. Post-Sentence Motion to Withdraw Guilty Plea
[18]   Indiana Code section 35-35-1-4(c) governs a motion to withdraw a guilty plea

       made after sentencing and states:




       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020         Page 14 of 18
        (c) After being sentenced following a plea of guilty, or guilty but
        mentally ill at the time of the crime, the convicted person may
        not as a matter of right withdraw the plea. However, upon
        motion of the convicted person, the court shall vacate the
        judgment and allow the withdrawal whenever the convicted
        person proves that withdrawal is necessary to correct a manifest
        injustice. A motion to vacate judgment and withdraw the plea
        made under this subsection shall be treated by the court as a
        petition for postconviction relief under the Indiana Rules of
        Procedure for Postconviction Remedies. 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;


                 (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.


Under Indiana Code section 35-35-1-4(e), the moving party, here Kinman, has

the burden of establishing grounds for relief by a preponderance of the

evidence.




Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020             Page 15 of 18
[19]   Kinman’s post-sentence motion to vacate judgment and motion to withdraw

       guilty plea are governed by Post-Conviction Rules as stated in Indiana Code

       section 35-35-1-4(c), and Post-Conviction Rule 1(5) also requires the petitioner,

       here Kinman, to prove his grounds for relief by a preponderance of the

       evidence. “In order to prevail on an appeal from the denial of post-conviction

       relief, a petitioner must show that the evidence leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). In conducting our

       review we do not defer to the court’s legal conclusions and we will reverse the

       trial court’s judgment only upon a showing of clear error, that which leaves us

       with a definite and firm conviction that a mistake has been made. Id.


[20]   Kinman argues that a “manifest injustice arose from the State’s erroneous

       designation of the habitual offender enhancement as a separate conviction in

       the plea agreement and [from] Kinman’s obvious misunderstanding of the

       impact of the habitual offender finding on his sentence[,]” (Appellant’s Br. at

       18), and thus we should reverse the trial court’s denial of his motion to vacate

       judgment and withdraw his guilty plea. However, in his post-sentence motion

       to vacate judgment and withdraw his guilty plea, Kinman did not argue that he

       did not understand the impact of the habitual offender finding on his sentence.

       Instead, he argued he was incompetent at the time he entered the plea because




       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020        Page 16 of 18
       he asked for a mental health evaluation and he was not given one, 12 his trial

       counsel was ineffective, and his sentence was “illegal, unlawful[], and

       excessive” based on his interpretation of Indiana Code section 35-50-2-8(j).

       (App. Vol. II at 97.) As Kinman makes an argument on appeal that was not

       first presented before the trial court, that argument is waived. See Phillips v.

       State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (appellant cannot argue one

       legal theory before the trial court and present a different theory on appeal),

       trans. denied.


[21]   Waiver notwithstanding, Kinman has not demonstrated he misunderstood the

       impact a habitual offender adjudication would have on his sentence. His plea

       agreement stated the habitual offender enhancement would add four years to

       his sentence under Cause 131. During his guilty plea hearing, the judge read

       Kinman’s guilty plea to him and reiterated the charges for which he was

       pleading guilty by stating, “Do you understand the crime for which you’re

       pleading guilty to today is dealing in a narcotic drug as a Level 5 felony, a

       habitual offender enhancement on that and also residential entry as a Level 6

       felony?” (Tr. Vol. II at 15.) Kinman told the trial court multiple times that he

       understood the terms of his plea, that he was satisfied with his counsel’s

       representation, and that it was his intent to plead guilty as indicated in the terms

       of the plea agreement. Based thereon, we cannot say Kinman did not



       12
         Despite Kinman’s contention, the discussion regarding Kinman’s request for a mental evaluation was
       understood at the time it occurred to be a request for evaluation and treatment as part of his sentence. (See
       Tr. Vol. II at 16-19) (discussion of Kinman’s request for a mental health evaluation).

       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020                                  Page 17 of 18
       knowingly enter into his plea agreement. Nor has Kinman demonstrated

       manifest injustice would result if he was not allowed to withdraw his guilty

       plea. Therefore, the trial court did not err when it denied his post-sentence

       motion to vacate judgment and withdraw his guilty plea. See Barnes v. State, 738

       N.e.2d 1093 (Ind. Ct. App. 2000) (no manifest injustice when defendant was

       represented by counsel at plea hearing and indicated he understood his plea,

       which he also signed), reh’g denied, trans. denied.



                                                Conclusion
[22]   We conclude the trial court did not abuse its discretion when it denied

       Kinman’s pre-sentence oral motion to withdraw his guilty plea and did not err

       when it denied Kinman’s post-sentence written motion to vacate judgment and

       withdraw his guilty plea. Accordingly, we affirm.


[23]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2718 | May 27, 2020          Page 18 of 18
