Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Jan 09 2015, 8:32 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

ROBERT W. GEVERS, II                                GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    ELLEN H. MEILAENDER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MASON BROWN,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 35A05-1406-CR-294
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HUNTINGTON CIRCUIT COURT
                             The Honorable Thomas Hakes, Judge
                                Cause No. 35C01-1304-FB-76


                                         January 9, 2015

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Mason Brown appeals the denial of his motion to withdraw guilty plea. We affirm.

                            FACTS AND PROCEDURAL HISTORY

          On April 18, 2013, the State charged Brown with two counts of Class B felony

criminal deviate conduct,1 three counts of Class D felony sexual battery,2 and one count each

of Class A felony attempted criminal deviate conduct,3 Class B felony rape,4 and Class A

misdemeanor battery5 based on three incidents involving two girls Brown dated. On April

21, 2014, Brown pled guilty to three counts of Class B felony criminal deviate conduct, one

count of Class B felony rape, and one count of Class D felony sexual battery pursuant to a

plea agreement in which the State agreed to dismiss the other charges.

          On May 29, Brown filed a motion to withdraw his guilty plea and the trial court

denied it.

                                  DISCUSSION AND DECISION

          Ind. Code § 35-35-1-4(b) provides:

          After entry of a plea of guilty, . . . but before imposition of sentence, the court
          may allow the defendant by motion to withdraw his plea of guilty . . . 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 .
          . . 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 . . .
          whenever the defendant proves that withdrawal of the plea is necessary to


1
    Ind. Code § 35-42-4-2(a)(1) (2012).
2
    Ind. Code § 35-42-4-8(a)(a)(A) (2012).
3
    Ind. Code § 35-42-4-2(b)(1) (criminal deviate conduct) (2012); Ind. Code § 35-41-5-1 (attempt).
4
    Ind. Code § 35-42-4-1(a)(1) (2012).
5
    Ind. Code § 35-42-2-1(a)(1) (2012).
                                                      2
        correct a manifest injustice.

There can be manifest injustice when a plea is not knowingly or voluntarily made. Jeffries

v. State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012), trans. denied.

        One who appeals an adverse decision on a motion to withdraw a guilty plea must

prove by a preponderance of the evidence the trial court abused its discretion. Turner v.

State, 843 N.E.2d 937, 941 (Ind. Ct. App. 2006), reh’g denied. 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.” Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).

        Brown argues he “suffered manifest injustice by the denial of his Motion to Withdraw

Plea of Guilty,” (Br. of Appellant at 4), because he felt coerced to enter a plea agreement in

light of the State’s disclosure of a new witness.6 We disagree.

        The State disclosed the new witness at the final pre-trial conference on April 7, 2014.

After consulting with counsel, Brown filed a notice to change plea on April 11, signed the

motion to enter a new plea on April 16, and appeared before the trial court on April 21.

During that hearing, he indicated he understood the conditions and consequences of his plea.

Brown signed the Motion to Enter a Plea of Guilty, indicating he understood the terms of the

plea agreement and he agreed the statements therein regarding the crimes were true. In

addition, he signed a Written Advisement and Waiver of Rights for both charges to which he



6
  In his brief, Brown argues that “[t]he only available evidence is that [Brown] felt somewhat coerced by the
circumstances surrounding the newly discovered witness and pled guilty out of fear of the timeline and the
potential penalties if he were to be found guilty at trial.” (Br. of Appellant at 4-5.) However, Brown did not
testify during the Motion to Withdraw hearing or the sentencing hearing, and thus there is no such “evidence”
in the record before us. We admonish counsel to refrain from mischaracterizing the record.
                                                      3
pled guilty; these documents again set forth the rights waived by pleading guilty. Finally, in

a letter he wrote to the trial court after pleading guilty, Brown indicated, “I know that I

agreed to the plea agreement and admitted guilt to [sic] my charges. I even answered all your

questions confirming I knew what I was doing. . . . I did this . . . not because anyone

threatened me.” (App. at 104.)

       Brown has not demonstrated he was coerced into accepting a plea. He had two weeks

to consider his decision to accept the plea agreement, and he confirmed several times, orally

and in writing, that he understood the conditions and consequences of pleading guilty. The

trial court did not abuse its discretion when it denied Brown’s motion to withdraw his guilty

plea. See Coomer, 652 N.E.2d at 62 (finding no abuse of discretion when trial court denied

Coomer’s motion to withdraw guilty plea because it confirmed multiple times that Coomer

understood the conditions and consequences of his plea, and Coomer indicated he had not

been coerced to enter the plea).

       Affirmed.

BARNES, J., and PYLE, J., concur.




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