MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Feb 09 2018, 10:29 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
John T. Wilson                                           Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Angela Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremiah J. Davis,                                       February 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A01-1705-CR-1197
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable E. Edward
Appellee-Plaintiff.                                      Dunsmore II, Judge Pro Tempore
                                                         Trial Court Cause Nos.
                                                         33C03-1402-FD-54
                                                         33C03-1409-F6-56



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018           Page 1 of 11
[1]   Jeremiah J. Davis (“Davis”) pleaded guilty under two separate cause numbers

      in the Henry Circuit Court. Davis then filed a motion to withdraw both guilty

      pleas, which the trial court denied. Davis now appeals and claims that the trial

      court abused its discretion when it denied his motion.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On February 24, 2014, under cause number 33C03-1402-FD-54 (“FD-54”), the

      State charged Davis with Class D felony possession of marijuana,1 Class A

      misdemeanor possession of paraphernalia, and Class B misdemeanor visiting a

      common nuisance. The State also filed a habitual substance offender

      enhancement against Davis. On March 31, Davis entered into a plea agreement

      with the State in which he pleaded guilty to Class D felony possession of

      marijuana and admitted to qualifying as a habitual substance offender. 2 Davis

      also signed an advisement and waiver of rights form.


[4]   The trial court held a hearing on Davis’s guilty plea on May 21. During that

      hearing, Davis confirmed that he had read and signed the advisement and

      waiver of rights form and that he did not have any questions regarding any of

      the rights listed on the form. Davis also informed the court that he understood




      1
       Davis was originally charged with Class A misdemeanor possession of marijuana; however, it was
      enhanced to a Class D felony because of a prior conviction.
      2
       The State agreed to dismiss the Class A misdemeanor possession of paraphernalia and the Class B
      misdemeanor visiting a common nuisance. Appellant’s App. p. 32.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018      Page 2 of 11
      the terms of the plea agreement and that no one had forced or threatened him to

      accept it. The court then stated, “I will find that your plea is freely and

      voluntarily made, that there is a factual basis for your plea. I’m going to take

      the acceptance of your plea and the acceptance of the plea agreement under

      advisement at this time.” Supp. Tr. p. 7. Davis was then ordered to be

      transported to the House of Hope in Madison County, Indiana for treatment.


[5]   On June 9, Davis was released to the House of Hope; however, he was

      discharged on July 29 for failing a drug screen. Subsequently, Davis failed to

      attend his sentencing hearing on August 25. As a result, on September 15,

      under cause number 33-C03-1409-F6-56 (“F6-56”), Davis was charged with

      Level 6 felony failure to return to lawful detention and Level 6 felony failure to

      appear. On the same day, the State also filed a habitual felony offender

      enhancement against Davis. He was eventually located and arrested on

      November 10.


[6]   On February 2, 2015, Davis signed a second advisement and waiver of rights

      form and entered into a plea agreement for cause F6-56 in which he pleaded

      guilty to Level 6 felony failure to return to lawful detention, and he admitted to

      qualifying as a habitual offender.3 The trial court held Davis’s guilty plea

      hearing the same day. Davis again confirmed that he had read and signed the

      advisement and waiver of rights form and that he did not have any questions




      3
          The State agreed to dismiss the Level 6 felony failure to appear. Appellant’s App. p. 48.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018         Page 3 of 11
      regarding any of the rights listed on the form. He also informed the court that

      he understood the terms of the plea agreement and that no one had forced or

      threatened him to accept it. The trial court then stated, “I’m going to show that

      your plea is freely and voluntarily made, that there is a factual basis for your

      plea. I’m going to take the acceptance of your plea under advisement at this

      point.” Supp. Tr. p. 13. The court then explained to Davis, “I hope that you

      understand you’ve got quite a bit . . . riding on the fact that you go there to the

      House of Hope and you don’t have any problems this time. You understand

      that, because you’re looking at a very long period of time incarcerated if this

      does not work out this time. You understand that.” Id. Davis responded in the

      affirmative.


[7]   Davis was released back to the House of Hope to continue treatment three days

      after the hearing. On June 24, 2015, Davis was discharged from Blackwell

      House, a different treatment facility, because he was under the influence of

      drugs. A warrant was issued for Davis’s arrest the next day; however, he was

      not arrested until March 31, 2017.


[8]   On April 26, 2017, Davis filed a motion to withdraw both guilty pleas. The trial

      court held Davis’s sentencing hearing on May 1. At the sentencing hearing,

      Davis argued that when he pleaded guilty he did not understand the length of

      the treatment program, and he did not understand that he could take his case to

      trial. The following exchange followed between the trial court and Davis’s

      counsel:



      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 4 of 11
              [Court]:         [T]he record indicates that Paragraph 12 of the
                               document he signed says you have the right to a
                               public and speedy trial by a jury, the right to
                               confront and cross examine witnesses against you,
                               the right to subpoena witnesses at no cost to you,
                               the right to require the State prove you guilty
                               beyond a reasonable doubt at a trial at which you
                               do not have to testify, but which you may testify if
                               you wish and the right to appeal any decision made
                               by the Judge. By pleading guilty, you give up and
                               waive each and everyone of these rights. His initials
                               appear on that and his signature appears at the
                               bottom of that document, along with all of the other
                               advisements of rights that are in that four page
                               document that he signed and initialed. Is he saying
                               he didn’t sign and initial that document?

              [Counsel]:       No, Your Honor.

              [Court]:         Is he saying he can’t read, write and understand the
                               English language?

              [Counsel]:       He states he didn’t read over it. He was just going
                               by what his attorney said.


      Tr. pp. 6–7 (errors in original).


[9]   The court then denied Davis’s motion to withdraw his guilty pleas. Under cause

      FD-54, the trial court sentenced Davis to two years in the Department of

      Correction (“DOC”) for the Class D felony possession of marijuana, with an

      additional five years for the habitual substance offender enhancement. Under

      cause F6-56, the trial court sentenced Davis to two years in the DOC for the

      Level 6 felony failure to return to lawful detention and ordered this to be served




      Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 5 of 11
       consecutive to his cause FD-54 sentence.4 Because the trial court gave Davis

       two years’ credit for time served, he was sentenced to an aggregate term of

       seven years in the DOC. Davis now appeals.


                                       Discussion and Decision
[10]   Davis claims that the trial court abused its discretion when it denied his motion

       to withdraw his guilty pleas. Motions to withdraw guilty pleas are governed by

       Indiana Code section 35-35-1-4(b). After a defendant pleads guilty, but before a

       sentence is imposed, a defendant may file a motion to withdraw a plea.

       Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (citing I.C. § 35-35-1-4(b)). The

       court must allow the defendant to withdraw the plea if it is “necessary to correct

       a manifest justice.” Id. (quoting I.C.§ 35-35-1-4(b)). However, the court must

       deny the motion if withdrawal of the plea would “substantially prejudice[]” the

       State. Id. In all other cases, the trial court has the discretion to grant a

       defendant’s motion to withdraw a guilty plea “for any fair and just reason.” Id.


[11]   Our supreme court has explained,


               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.
               We will reverse the trial court only for an abuse of discretion. In
               determining whether a trial court has abused its discretion in
               denying a motion to withdraw a guilty plea, we examine the




       4
         The State asked for and the trial court dismissed the habitual offender enhancement on cause F6-56 during
       sentencing. Tr. p. 19.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018         Page 6 of 11
               statements made by the defendant at his guilty plea hearing to
               decide whether his plea was offered freely and knowingly.


       Brightman, 758 N.E.2d at 44 (citation and quotations omitted).


[12]   Davis contends that that trial court abused its discretion by denying his motion

       to withdraw “because he was not adequately advised of his rights and of the

       plea agreement by his defense counsel,” and thus he “was effectively coerced

       into accepting the State’s plea bargain.” Appellant’s Br. at 10. And also “his

       guilty plea should have been withdrawn in order to correct a manifest

       injustice.” Id. at 9. We disagree. Davis cannot demonstrate that the trial court’s

       denial of his motion to withdraw his guilty plea was an abuse of discretion or

       resulted in manifest injustice.


[13]   As part of his plea agreements, Davis read and filled out two advisement and

       waiver of rights forms. With the exception of the different crimes listed at the

       top of each, they are identical. The forms contain the following relevant

       paragraphs:


               12.      You have the right to a public and speedy trial by jury.
                        The right to confront and cross-examine witnesses against
                        you. The right to subpoena witnesses at no cost to you.
                        The right to require the State to prove you guilty beyond a
                        reasonable doubt at a trial at which you do not have to
                        testify, but in which you may testify if you wish. And the
                        right to appeal any decision made by the judge. By
                        pleading guilty, you will give up and waive each and every
                        one of these rights.

               13.      Your guilty plea is made knowingly and voluntarily and
                        no promises, threats or force have been used to make you
                        plead guilty.
       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 7 of 11
                                                        ***

               15.      You have been given the opportunity to read the Charging
                        Information, and the Probable, including any attachments,
                        filed in this case and the facts contained in them are true
                        and constitute a factual basis for your plea.

               16.      You are able to read and understand the English language
                        and have understood the information contained in this
                        document.


       Appellant’s App. pp. 30, 47. Davis initialed next to each paragraph on both

       forms and signed each document.


[14]   Moreover, Davis’s responses to the trial court during both of his plea hearings

       indicate that he understood the rights he was waiving and had freely and

       knowingly decided to plead guilty. During his May 21, 2014 plea hearing the

       following exchange took place:


                [Court]:        I had received an Advisement and Waiver of Rights
                                form. It appears to me on that form that you’ve
                                initialed at the end of each of the applicable
                                paragraphs and signed the last page. Is that correct?

               [Davis]:         Yes.

               [Court]:         Did you read through that before you initialed and
                                signed it?

               [Davis]:         Yes.

               [Court]:         Do you have any questions concerning any of the
                                rights that are discussed on that form?

               [Davis]:         No.

               [Court]:         You do understand that if you enter a plea of guilty
                                today that you would be giving up and waiving the

       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 8 of 11
                                rights that are discussed on that form. You
                                understand that?

               [Davis]:         Yes.

               [Court]:         You also understand that part of that form indicates
                                you’ve been given the opportunity to review the
                                Charging Informations in your cases, Probable
                                Cause Affidavits and supporting documents and
                                you do understand that you are stipulating to the
                                fact that there will be a factual basis for your plea of
                                guilty pursuant to the agreement. You understand
                                that.

               [Davis]:         Yes.

                                                        ***

               [Court]:         Has anyone forced you or threatened you to get you
                                to accept this agreement?

               [Davis]:         No.


       Supp. Tr. pp. 4–6 (errors in original).


[15]   And at Davis’s February 2, 2015 plea hearing:


               [Court]:         Alright, on the advisement and Waiver of Rights I
                                received, it looks like you’ve initialed at the end of
                                each of the applicable paragraphs. You’ve signed on
                                the last page. Is that correct?

               [Davis]:         Yes.

               [Court]:         Did you read through that before you initialed and
                                signed it?

               [Davis]:         Yes.

               [Court]:         Any questions about any of the rights that are
                                discussed on that form?

               [Davis]:         No.
       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 9 of 11
               [Court]:         You do understand if you enter a plea of guilty
                                today that you would be giving up and waiving the
                                rights that are discussed on that form. You
                                understand that?

               [Davis]:         Yes.

               [Court]:         Part of that form also indicates that you’ve been
                                given the opportunity to review the Charging
                                Information and Probable Cause Affidavit,
                                including any attachments filed in this case. You are
                                acknowledging the facts contained in those
                                documents are true and they would constitute a
                                factual basis for your plea of guilty. Is that correct?

               [Davis]:         Yes.

                                                        ***

               [Court]:         Has anyone forced you or anyone threatened you to
                                get you to accept this agreement?

               [Davis]:         No.


       Id. at pp. 11–12.


[16]   Davis’s signed acknowledgement on the waiver and advisement of rights forms

       as well as his statements during both plea hearings adequately demonstrate that

       he voluntarily and knowingly pleaded guilty. It is clear that Davis was

       sufficiently advised of his rights, and there is no evidence that he was coerced

       into accepting the State’s plea bargain. Rather, Davis consistently indicated that

       he was aware of the rights he was waiving, that he understood what he signed,

       that he admitted to the factual basis for each plea, and that he understood the




       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018   Page 10 of 11
       potential penalties he faced.5 Therefore, under the facts and circumstances

       before us, the trial court acted within its discretion when it denied Davis’s

       motion to withdraw his guilty pleas, and we cannot say that its denial

       constitutes manifest injustice. See e.g., Jeffries v. State, 966 N.E.2d 773, 778 (Ind.

       Ct. App. 2012), trans. denied.


                                                     Conclusion
[17]   For all these reasons, we conclude that the trial court did not abuse its

       discretion when it denied Davis’s motion to withdraw his guilty pleas.

       Accordingly, we affirm.


       Najam, J., and Barnes, J., concur.




       5
         To the extent Davis argues that he was misled by his trial counsel, this argument is better framed as a claim
       of ineffective assistance of counsel. See Appellant’s Br. at 8–9. The voluntariness of a plea is distinct from a
       claim of ineffective assistance of counsel, and the two claims are reviewed under different standards. Hanks v.
       State, 71 N.E.3d 1178, 1189 (Ind. Ct. App. 2017), trans. denied. Voluntariness in Indiana “focuses on whether
       the defendant knowingly and freely entered the plea, in contrast to ineffective assistance, which turns on the
       performance of counsel and resulting prejudice.” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997). Because
       we find that Davis knowingly and freely entered into both pleas, and that Davis has failed to support an
       ineffective assistance claim with cogent reasoning, we decline to address Davis’s concerns with his trial
       counsel. See Ind. Appellate Rule 46(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1197 | February 9, 2018           Page 11 of 11
