                                                                                 FILED
                                                                             Jun 28 2019, 8:53 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
      Kurt A. Young                                                 Curtis T. Hill, Jr.
      Nashville, Indiana                                            Attorney General of Indiana

                                                                    Samantha M. Sumcad
                                                                    Deputy Attorney General
                                                                    Indianapolis, Indiana



                                                     IN THE
             COURT OF APPEALS OF INDIANA

      Joshua E. Asher,                                              June 28, 2019
      Appellant-Defendant,                                          Court of Appeals Case No.
                                                                    18A-CR-2679
                 v.                                                 Appeal from the Brown Circuit
                                                                    Court
      State of Indiana,                                             The Honorable Judith A. Stewart,
      Appellee-Plaintiff                                            Judge
                                                                    Trial Court Cause No.
                                                                    07C01-1608-F1-353



      May, Judge.


[1]   Joshua E. Asher pled guilty to two counts of Level 1 felony attempted murder. 1

      Before the imposition of his sentence, Asher filed a motion to withdraw his



      1
          Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).


      Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019                              Page 1 of 9
      guilty pleas, and the trial court denied his motion. Asher argues the denial was

      an abuse of discretion because his pleas were not entered knowingly and

      voluntarily. Finding no abuse of discretion, we affirm.



                             Facts and Procedural History
[2]   On August 24, 2016, Asher was charged with two counts of Level 1 felony

      attempted murder. On April 20, 2018, Asher entered pleas of guilty. On May

      31, 2018, a pre-sentence investigation report was filed with the court. The

      report indicated Asher wanted to withdraw his guilty pleas. On June 15, 2018,

      Asher filed his amended motion to set aside the plea agreement and set the case

      for a jury trial. The only rationale stated for his motion was that Asher did not

      believe “he had the specific intent necessary to be guilty of attempted murder.”

      (Appellant’s App. Vol. II at 145.)


[3]   On July 6, 2018, the State filed its response, which asserted granting the

      withdrawal would substantially prejudice the State because the State was

      prepared to take this matter to jury trial on April 30, 2018. Attached to the

      State’s response were three witness counter-affidavits asserting facts in

      opposition to Asher’s motion to set aside his guilty pleas.


[4]   On July 13, 2018, the court conducted a hearing on Asher’s motion. On July

      19, 2018, the trial court denied Asher’s motion because “[he] failed to prove the

      existence of a fair and just reason for withdrawal of [his] guilty plea.” (Id. at

      163.) In so determining, the trial court found:


      Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019            Page 2 of 9
        The court does not take lightly a denial of a request to withdraw
        a guilty plea, particularly to crimes of this magnitude. Even aside
        from the specific language of I.C. 35-35-1-4(c), it is fundamental
        that a guilty plea must be knowingly and voluntarily entered.
        The court found and continues to find that Mr. Asher’s guilty
        pleas were in fact knowingly and voluntarily made.


        On April 23, 2018, the defendant pled guilty to two counts of
        attempted murder. The defendant was represented by Mr.
        Moore. The court accepted the plea and found the defendant
        guilty of Count 1, attempted murder a Level 1 felony and Count
        2, attempted murder a Level 1 felony. The plea agreement called
        for the dismissal of the remaining counts, but left sentencing to
        the court’s discretion with the State agreeing not to take a
        position with respect to whether the sentences on the two counts
        would run concurrently or consecutively. The court took
        sentencing under advisement, ordered a presentence investigation
        report and set the case for sentencing on June 7, 2018.


                                               *****


        In his amended verified motion to withdraw his plea of guilty,
        Mr. Asher raised one reason for withdrawing his guilty plea,
        “[t]hat after the guilty plea hearing, based upon his recollection
        of the alleged events and upon his understanding of the concept
        of specific intent, Mr. Asher does not believe he had the specific
        intent necessary to be guilty of attempted murder.” No
        additional affidavits or hearing testimony was offered to amplify
        or further explain this assertion.


        At the guilty plea hearing, the court read the charges to the
        defendant, including the portion of each count that charged the
        defendant with attempting to commit the crime of murder by
        engaging in conduct, that is “knowingly or intentionally shoot
        with intent to kill,” each victim. For each count, the defendant

Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019            Page 3 of 9
        stated he understood that by pleading guilty he was admitting
        those facts. For each count, the court asked if the defendant
        understood that he could not be convicted unless the State
        proved those elements, “including the specific intent to kill,” and
        the defendant responded “yes.” When defense counsel was
        asked if he was aware of any legal reason Mr. Asher should not
        plead guilty, he responded negatively.


        The court then requested an additional factual basis, and defense
        counsel made inquiry of the defendant. During the factual basis
        questioning, Mr. Asher agreed that he discharged a firearm; that
        the bullets he fired struck both victims; that when he fired the
        shots, he intended to hit both victims; that when he was firing the
        shots he was walking, his aim was not steady and he did not
        know precisely where the bullets were going to hit the victims.
        He agreed that if the bullets had killed the victims it would be
        murder; that he fired the shots in the direction of each victim and
        the bullets hit each victim; and that shooting the victims was a
        substantial step toward what would have been murder if the
        victims had been killed.


        Because the questions seemed calculated to avoid a specific
        inquiry as to whether Mr. Asher intended to kill the victims when
        he shot them, the court further inquired, asking, “Mr. Asher,
        we’ve already covered this but I just want to make sure you
        understand. Are you admitting that on or about August 23,
        2016, in Brown County Indiana you attempted to commit the
        crime of murder, which is to knowingly kill another human
        being, Count 1 being Angel Mack and Count 2 being Nicole
        Hillen, by engaging in conduct that is knowingly or intentionally
        shoot with the intent to kill, which conduct constituted a
        substantial step toward the commission of the crime of murder?”,
        The defendant responded “yes.” The court then asked “and did
        you do that with both Angel Mack and Nicole Hillen?” and
        again the defendant responded “yes.” The court indicated it
        found the factual basis sufficient, stating “[the defendant] has

Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019             Page 4 of 9
        indicated the specific intent to kill he understands has to be
        proven by the State as well as admitting it in the charging
        information. Any other concerns there Mr. Moore? Anything
        else you wish to…?” Neither defense counsel nor the defendant
        raised any concerns with the requirement for specific intent to
        kill. The discussion then turned to a somewhat lengthy inquiry
        about the return of certain personal property under the terms of
        the plea agreement. Toward the conclusion of the hearing, and
        prior to accepting the defendant’s guilty pleas, the court returned
        to the factual basis because of the court’s concern that the
        questions asked of Mr. Asher by counsel during the factual basis
        seemed to avoid the issue of specific intent to kill. Prior to
        accepting Mr. Asher’s guilty pleas, the court stated, “And, I’m
        gonna’ go back to the factual basis because there seems some
        hesitation in terms of what he’s.. [sic] or not hesitation but
        vagueness in terms of actually what was (sic) admitting. And
        Mr. Asher, are you admitting that on August 23 you attempted to
        commit the crime of murder against Angel Mack and also against
        Nicole Hillen by engaging in conduct that took a substantial step
        toward the commission of murder that conduct being knowingly
        or intentionally shooting Angel Mack and Nicole Hillen with the
        intent to kill? Do you admit?” Defendant stated, “yes.” The court
        then accepted the defendant’s guilty plea and found him guilty of
        both counts of attempted murder.


        At the guilty plea hearing, the defendant agreed six (6) different
        times that he was either admitting the facts charged including the
        intent to kill or he understood that if he went to trial the State
        would have to prove the elements of the crime including the
        specific intent to kill. Although the questions asked of the
        defendant during the factual basis laid by counsel did not include
        a direct question of “did you intend to kill Angel Mack and
        Nicole Hillen,” the court recognized this issue or “vagueness”
        and twice more asked the defendant if he was admitting he
        knowingly or intentionally shot the victims with the intent to kill.
        He responded affirmatively. At the guilty plea hearing, the

Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019              Page 5 of 9
               defendant never denied that he intended to kill the victims.
               Moreover, even his current claim of lack of specific intent to kill
               raises only a general assertion that upon his recollection of events
               and upon “his understanding of the concept of specific intent, he
               does not believe he had the specific intent necessary to be guilty
               of attempted murder.” At the hearing, counsel argued that
               specific intent to kill is a confusing concept particularly to a lay
               person. He stated he had talked with Mr. Asher about the issue
               of specific intent to kill and counsel thought there was a point at
               which the defendant felt, “OK, I can take this plea and not be
               lying, alright. …Upon reflection, though, sleeping on it if you
               will, Mr. Asher no longer felt he had that specific intent.”


               Having considered the evidence and arguments presented at the
               July 13, 2018 hearing, as well as the State’s counter-affidavits
               including a sworn statement of one victim that the defendant told
               her she was going to die and that he stated to the other victim,
               “die bitch,” the court finds the defendant has failed to prove the
               existence of a fair and just reason for withdrawal of the
               defendant’s guilty plea.


      (Id. at 160-63.) 2


[5]   On August 17, 2018, Asher was sentenced to consecutive thirty-year terms on

      each of the two counts. Five years of each sentence were suspended, and those

      ten years were to be served on probation after completion of his executed

      sentence.




      2
       We thank the trial court for its thorough, informative, and well-written order, which greatly assisted our
      consideration of Asher’s claims.

      Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019                                   Page 6 of 9
                                  Discussion and Decision
[6]   Asher asserts the trial court abused its discretion in denying his motion to

      withdraw his guilty pleas. The trial court “is required to grant such a request

      only if the defendant proves that withdrawal of the plea ‘is necessary to correct

      a manifest injustice.’” Coomer v. State, 652 N.E.2d 60, 61-62 (Ind. Ct. App.

      1999) (quoting Ind. Code § 35-35-1-4(c) (1986)) (emphasis in original). Rulings

      on motions to withdraw guilty pleas are presumptively valid, and parties

      appealing an adverse decision must prove the court has abused its discretion.

      Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002), reh’g denied. When evaluating

      Asher’s arguments on this point, “‘we will not disturb the ruling where it was

      based on conflicting evidence.’” Weatherford v. State, 697 N.E.2d 32, 34 (Ind.

      1998) (quoting Smith v. State, 596 N.E.2d 57, 258 (Ind. Ct. App. 1992)), reh’g

      denied.


[7]   Asher maintains the trial court abused its discretion because: (1) his pleas were

      not voluntary when he did not understand the nature of the charges against

      him, and (2) the State was not substantially prejudiced by reliance upon his

      guilty plea. We address each separately, beginning with the second.


[8]   Asher contends the State was not substantially prejudiced by reliance upon his

      guilty plea. However, lack of prejudice to the State did not mean the trial court

      was required to grant his motion; it meant only that the court retained

      discretion to grant his motion “for any fair and just reason[.]” See Ind. Code §

      35-35-1-4(b) (“the court may allow the defendant by motion to withdraw his


      Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019         Page 7 of 9
      plea of guilty . . . for any fair and just reason unless the state has been

      substantially prejudiced by reliance on the defendant’s plea”). Moreover, as a

      factual matter, the trial court did not deny Asher’s motion based on the State’s

      reliance on Asher’s guilty plea. Rather, the court considered the evidence and

      arguments presented at the July 13, 2018, hearing and determined Asher “failed

      to prove the existence of a fair and just reason for withdrawal of the defendant’s

      guilty plea.” (Appellant’s App. Vol. II at 163.) We turn to the validity of that

      finding next.


[9]   During the guilty plea hearing, the court asked Asher multiple times whether he

      attempted to commit the crime of murder, which is to knowingly kill another

      human being, by knowingly or intentionally shooting with the intent to kill,

      which constitutes a substantial step toward the commission of the crime of

      murder. (Tr. Vol. I at 7; Tr. Vol. I at 13; Tr. Vol. I at 16). Asher answered in

      the affirmative every time. When asked if he understood he would be admitting

      he committed the crime as charged, Asher answered in the affirmative. When

      asked if he understood that he could not be convicted unless the State proved

      the elements of the counts—including the specific intent to kill—Asher

      answered in the affirmative. When asked if he understood that by pleading

      guilty, he would be judged guilty and sentenced without any trial, Asher

      answered in the affirmative. At no point during the hearing did Asher mention

      not understanding the nature of the charges against him. Thus, the record

      indicates Asher understood the nature of the charges against him before his

      guilty plea. Moreover, Asher’s counsel discussed the requisite intent for


      Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019             Page 8 of 9
       attempted murder with Asher before he pled guilty to both counts. (Tr. Vol. I at

       47) (counsel stated, “I spoke with Mr. Asher about [specific intent]. I think

       there was a point that he felt okay, I can take this plea and not be lying”). The

       trial court was well within its discretion in determining that no fair and just

       reason supported withdrawal of Asher’s guilty pleas. 3 See Johnson v. State, 734

       N.E.2d 242, 246 (Ind. 2000) (finding no abuse of discretion in denial of motion

       to withdraw guilty plea to murder where Johnson did not protest his innocence

       until sentencing hearing).



                                                 Conclusion
[10]   The trial court did not abuse its discretion when it denied Asher’s motion to

       withdraw his guilty pleas. Accordingly, we affirm.


[11]   Affirmed.


       Mathias, J., and Brown, J., concur.




       3
        As Asher did not demonstrate a fair and just reason supported withdrawal of his pleas, he also could not
       have met the higher standard of “manifest injustice,” pursuant to which the trial court would not have had
       discretion to deny Asher’s motion. See Ind. Code § 35-35-1-4(b) (“the court shall allow the defendant to
       withdraw his plea . . . whenever the defendant proves that withdrawal of the plea is necessary to correct a
       manifest injustice”).

       Court of Appeals of Indiana | Opinion 18A-CR-2679 | June 28, 2019                                  Page 9 of 9
