                                                                   FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                               Apr 23 2012, 9:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                           CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DANIEL J. MOORE                                     GREGORY F. ZOELLER
Laszynski & Moore                                   Attorney General of Indiana

                                                    ANDREW A. KOBE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL RIMSCHNEIDER,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 79A05-1105-CR-414
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-1006-FA-17


                                          April 23, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Michael Rimschneider appeals the denial of his request to withdraw his guilty plea.

We affirm.

                            FACTS AND PROCEDURAL HISTORY

        On June 9, 2010, the State charged Rimschneider with three counts each of Class A

felony dealing in cocaine1 and Class B felony possession of cocaine2 based on

Rimschneider’s drug transaction with an undercover officer. On July 26, the State also

alleged Rimschneider was an habitual substance offender.3

        On April 15, 2011, Rimschneider agreed to plead guilty to one count of Class A

felony dealing in cocaine. The plea agreement provided Rimschneider would “receive the

sentence this Court deems appropriate after hearing any evidence or argument of counsel.

However, the executed portion of the sentence shall be no less than twenty (20) years and no

more than twenty-six (26) years, which shall be executed in full in the Indiana Department of

Correction.” (App. at 22.)

        At the sentencing hearing, Rimschneider’s counsel indicated his client did not want to

proceed with the sentencing hearing upon learning the executed portion of Rimschneider’s

sentence could not be ordered served at a community facility. Rimschneider also stated, “I

don’t want to accept the plea” (Tr. at 71) because he was “hoping that some of [his] executed

time might be served in a facility that wasn’t a prison, but was a community facility.” (Id. at

68-9.) The trial court denied his request and sentenced Rimschneider to thirty years, with


1
  Ind. Code § 35-48-4-1.
2
  Ind. Code § 35-48-4-6.
3
  Ind. Code § 35-50-2-10.
                                              2
twenty-six years executed at the Department of Correction (DOC) and four years suspended

to supervised probation.

                              DISCUSSION AND DECISION

       Motions to withdraw guilty pleas are governed by Ind. Code § 35-35-1-4. At any time

before the imposition of the sentence, a court may grant the motion for “any fair and just

reason.” Id. The court is required to grant the motion to prevent “manifest injustice,” but is

required to deny the motion if the State would be “substantially prejudiced.” Id. The trial

court’s ruling “arrives in our Court with a presumption in favor of the ruling.” Johnson v.

State, 734 N.E.2d 242, 245 (Ind. 2000). A defendant appealing an adverse decision must

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

       Ind. Code § 35-35-1-4(b) requires the motion to be in writing, to be verified, and to

state the facts in support of the motion. “A defendant’s failure to submit a verified, written

motion to withdraw a guilty plea generally results in waiver of the issue of wrongful denial of

the request.” Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind. 2000). Rimschneider’s motion

was oral; therefore, he has waived this issue. See id.

       Waiver notwithstanding, Rimschneider has not shown manifest injustice required the

court to allow him to withdraw his plea. At his plea hearing, he asked the judge questions

about the specific terms of his plea agreement, and afterward answered affirmatively when

asked if he understood the terms of the plea. Additionally, the court explained, in response to

Rimscheider’s attempt to withdraw his plea, that “some DOC facilities are community

correction facilities. . . . [and] if a person is accepted into it, while still serving their DOC

                                               3
sentence, they can serve that in the community in a community corrections facility.” (Tr. at

69 – 70.) The court then stated:

       [A] sentence of twenty to twenty-six years executed in full in the Indiana
       Department of Correction doesn’t mean that you are ineligible for those
       programs I just mentioned. . . . The decision about whether you go into those
       programs is made when --- after you go into the Department of Correction
       based upon how you behavior [sic] and accomplishments in the Department of
       Correction. . . . you can earn the right to participate in those programs . . . I
       can’t make that determination today. But the Judge sitting in my seat will later
       have the opportunity to determine whether you should participate in the
       community transition program for the last months of your sentence. And the
       Department of Correction itself will have the discretion to place you in at a
       level of security that is less restricted, if your behavior indicates that that’s
       appropriate.

(Id. at 70 – 71.) Therefore, the reason Rimschneider gave for rejecting the plea – alternative

community placement – could be later remedied, contrary to his asserted reasoning for

rejecting the plea.

       Rimschneider did not submit his motion to withdraw his plea in writing as required by

Ind. Code § 35-35-1-4(b) and has not demonstrated the denial of his motion produced

manifest injustice. Therefore, we hold the trial court did not abuse its discretion when it

denied his request to withdraw his guilty plea.

       Affirmed.

CRONE, J., and BROWN, J., concur.




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