MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jun 19 2019, 9:14 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Abner C. Robertson,                                      June 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2936
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1708-F3-28280



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019                   Page 1 of 5
[1]   Abner Robertson appeals the trial court’s denial of his motion to withdraw his

      guilty plea. Finding no error, we affirm.


                                                     Facts
[2]   Between July 25 and 26, 2017, Robertson became angry with L.M., who was

      the mother of his two children, because L.M. no longer wanted to be in a

      relationship with him. He punched L.M. in the eye, resulting in broken bones,

      loss of bone structure, and double vision in her right eye. The two children

      were present at the time of the assault. L.M. had to have surgery as a result of

      the altercation.


[3]   On August 2, 2017, the State charged Robertson with multiple felony offenses

      and later added an allegation that he was an habitual offender. On August 13,

      2018, Robertson entered into a plea agreement but later withdrew, so the trial

      court reset the matter for trial.


[4]   On August 17, 2018, Robertson filed a motion to proceed pro se, which the trial

      court granted. The trial court also granted Robertson’s motion for a

      continuance of the trial over the State’s objection, and the trial was rescheduled

      for October 5, 2018.


[5]   On October 3, 2018, Robertson pleaded guilty to Level 3 felony aggravated

      battery and admitted to being an habitual offender in exchange for the dismissal

      of the remaining counts. The trial court accepted the guilty plea and scheduled

      a sentencing hearing. Two days before the sentencing hearing, Robertson filed


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019   Page 2 of 5
      a motion to withdraw his guilty plea and later filed a motion to proceed with

      counsel.


[6]   The trial court granted Robertson’s motion to proceed with counsel and held a

      hearing on Robertson’s request to withdraw his guilty plea on November 8,

      2018. The trial court denied the motion and sentenced Robertson to ten years,

      enhanced by six years for his status as an habitual offender, with nine years to

      be served in the Department of Correction, five years to be served in

      community corrections, and two years suspended to probation. Robertson now

      appeals.


                                   Discussion and Decision
[7]   Robertson’s sole argument on appeal is that the trial court erred by denying the

      motion to withdraw his guilty plea.


[8]   After a guilty plea is entered but before the sentence is imposed, a defendant

      may move to withdraw his guilty plea for any fair and just reasons unless the

      State has been substantially prejudiced by its reliance upon the plea. Ind. Code

      § 35-35-1-4. The trial court shall grant the motion if the defendant proves by a

      preponderance of the evidence that the withdrawal is necessary to correct a

      manifest injustice, but absent such a showing, the decision to grant or deny the

      motion rests solely in the trial court’s discretion. Id. In reviewing the trial

      court’s ruling, which we must presume to be correct, we examine the

      statements made by the defendant at the guilty plea hearing to determine

      whether the plea was offered freely and knowingly. Coomer v. State, 652 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019   Page 3 of 5
       60, 62 (Ind. 1995). We will not reverse if the ruling was based on conflicting

       evidence. Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000).


[9]    Robertson argues that leading up to his guilty plea, he had filed multiple

       motions to compel discovery from the State and had requested a second

       continuance of the trial, which the trial court had not yet ruled on. According

       to Robertson, he pleaded guilty only because he had not received a substantial

       amount of evidence from the State and felt that he had no chance of succeeding

       at trial as a result.


[10]   The trial court disagreed:


               At the guilty plea hearing [Robertson] asked many questions
               which the Court did its best to answer. At no point did he say he
               was missing discovery. At no point did he say he felt pressured
               or threatened to plead guilty. At no point did he ask me for
               additional time. At no point did he ask to discuss this matter
               with his standby counsel. I think this is simply a matter of he’s
               changed his mind in the interim between the guilty plea and the
               sentencing hearing, and the Court is not going to allow him to
               withdraw from his plea.


       Tr. Vol. II p. 39. Indeed, at the guilty plea hearing, Robertson stated that he

       was pleading guilty to the charges because he was guilty. Id. at 5.


[11]   Given this record, we find that Robertson failed to show by a preponderance of

       the evidence that the withdrawal was necessary to correct a manifest injustice.

       We likewise find no error in the trial court’s exercise of its discretion in denying

       the motion to withdraw.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019   Page 4 of 5
[12]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019   Page 5 of 5
