MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Aug 15 2019, 10:21 am
regarded as precedent or cited before any
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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald L. Emery,                                         August 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-464
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause Nos.
                                                         79D01-1704-F4-19
                                                         79D01-1803-F6-302
                                                         79D01-1805-FB-1



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019                 Page 1 of 7
                                       Statement of the Case
[1]   Ronald L. Emery appeals the trial court’s denial of his motion to withdraw his

      guilty plea. Emery raises a single issue for our review, namely, whether he

      maintained his innocence to a charge of vicarious sexual gratification, as a

      Level 4 felony, at the time he pleaded guilty to that charge. We affirm.


                                 Facts and Procedural History
[2]   On April 17, 2017, the State charged Emery with vicarious sexual gratification,

      as a Level 4 felony; inappropriate communication with a child, as a Class B

      misdemeanor; with being a habitual offender; and with being a repeat sexual

      offender. On March 2, 2018, the State, under a second cause number, charged

      Emery with Level 6 felony battery against a public safety official and Class A

      misdemeanor resisting law enforcement. And, on May 14, 2018, the State,

      under a third cause number, charged Emery with five counts of Class B felony

      child molesting.


[3]   Thereafter, Emery entered into a plea agreement with the State in which he

      agreed to plead guilty to vicarious sexual gratification, as a Level 4 felony;

      battery on a public safety official, as a Level 6 felony; child molesting, as a

      Class B felony; and for being a repeat sex offender. In exchange, the State

      agreed to dismiss the other charges in the three cause numbers.


[4]   At his ensuing guilty plea hearing, Emery engaged in the following colloquy

      with his counsel with respect to the Level 4 felony vicarious sexual gratification

      charge, which was premised on a letter he had written to A.T., a nine-year-old

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019   Page 2 of 7
child, directing her “to masturbate with the intent to arouse or satisfy the sexual

desires of [A.T.]” or himself:


        [Counsel]: . . . Sometime between January 1st, 2017[,] and
        March 17th[] of 2017 did you write a letter and send it to a child
        with the initials of A.T.?


        [Emery]:   I didn’t send it directly to her. I sent it to her
        grandmother . . . .


        [Counsel]:       Alright, but . . . the letter was intended to be read by
        A.T.


        [Emery]:    Yes sir. Well, it was up to the grandmother if she
        would [have given] it to her or not.


Tr. Vol. II at 12, 18. The State followed up on Emery’s statements with respect

to that offense:


        [The State]: . . . That letter that you admitted to sending, that
        was addressed to A.T., correct?


        [Emery]:         Yes with [the grandmother’s] address.


        [The State]: Right but the letter itself [was] to A.T., correct?


        [Emery]:         Yes, I put her name on it.


Id. at 22. At the conclusion of the hearing, the court took Emery’s plea under

advisement pending sentencing.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019      Page 3 of 7
[5]   Prior to sentencing, Emery filed a motion to withdraw his guilty plea. In his

      motion, he stated that he “has had time to reflect on the plea of guilty and

      desires to withdraw the plea.” Appellant’s App. Vol. II at 54. The court

      scheduled a hearing on the motion, and, at that hearing, Emery asserted that he

      had maintained his innocence at his guilty plea hearing with respect to the

      charge of vicarious sexual gratification when he stated that the letters addressed

      to A.T. “were going to her grandmother, [who] would then read the letters

      before she would . . . say anything to the victim . . . .” Tr. Vol. II at 27. He

      also asserted, for the first time, that he was innocent of the other offenses to

      which he had pleaded guilty.


[6]   The trial court denied Emery’s motion to withdraw his guilty plea. Thereafter,

      the court accepted his plea agreement and sentenced him accordingly. This

      appeal ensued.


                                     Discussion and Decision
[7]   Emery appeals the trial court’s denial of his motion to withdraw his guilty plea.

      As our Supreme Court has explained:


              Motions to withdraw guilty pleas are governed by Ind. Code §
              35-35-1-4. After the plea of guilty but before sentencing, a court
              may grant the motion for “any fair or just reason.” Id. However,
              the court is required to grant the motion to prevent “manifest
              injustice” and is required to deny the motion when the State
              would be “substantially prejudiced.” Id. The trial court’s
              decision is reviewed for abuse of discretion. Id. Upon appeal:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019   Page 4 of 7
                       The trial court’s ruling on a motion to withdraw a guilty
                       plea arrives in our Court with a presumption in favor of
                       the ruling. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).
                       One who appeals an adverse decision on a motion to
                       withdraw must therefore prove the trial court abused its
                       discretion by a preponderance of the evidence. Weatherford
                       v. State, 697 N.E.2d 32, 34 (Ind. 1998). We will not
                       disturb the court’s ruling where it was based on conflicting
                       evidence. Id.


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


      Smallwood v. State, 773 N.E.2d 259, 264 (Ind. 2002).


[8]   Emery asserts that the trial court abused its discretion when it denied his

      motion to withdraw his guilty plea because he had maintained his innocence

      during his guilty plea hearing. As we have noted:


              “[A]n Indiana trial court may not accept a guilty plea that is
              accompanied by a denial of guilt.” Carter v. State, 739 N.E.2d
              126, 129 (Ind. 2000).


                       [A] plea of guilty tendered by one who in the same breath
                       protests his innocence, or declares he actually does not
                       know whether or not he is guilty, is no plea at all.
                       Certainly it is not a sufficient plea upon which to base a
                       judgment of conviction. No plea of guilty should be
                       accepted when it appears to be doubtful whether it is being
                       intelligently and understandingly made, or when it appears
                       that, for any reason, the plea is wholly inconsistent with
                       the realities of the situation.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019   Page 5 of 7
               Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953).
               Before a trial court may accept a plea of guilty, the defendant
               must tender a reliable admission of guilt. Ellis v. State, 67 N.E.3d
               643, 650-51 (Ind. 2017). If a trial court accepts an unreliable
               plea, the court commits reversible error, Ross v. State, 456 N.E.2d
               420, 423 (Ind. 1983) . . . .


       Hooker v. State, 120 N.E.3d 639, 645-46 (Ind. Ct. App. 2019) (alterations

       original to Hooker), trans. denied.


[9]    To establish a factual basis for vicarious sexual gratification, as a Level 4 felony,

       Emery was required to admit that he had knowingly or intentionally directed,

       aided, induced, or caused A.T., who was under the age of fourteen, to touch or

       fondle herself, and that Emery did so to arouse either his or A.T.’s sexual

       desires. See Ind. Code § 35-42-4-5(a)(1) (2019). Emery’s only argument that he

       did not establish a reliable admission of guilt for that offense is his assertion

       that, by sending his letter to the residence of A.T.’s grandmother, he was not

       guilty as charged. Emery does not dispute the contents of the letter, which,

       again directed A.T. to masturbate with the intent to arouse or satisfy the sexual

       desires of either Emery or A.T.


[10]   We reject Emery’s assertion that he maintained his innocence during his guilty

       plea. Nothing about Emery’s statement that he knowingly or intentionally

       directed, aided, induced, or caused A.T. to touch or fondle herself in order to

       arouse his or her sexual desires is negated by the fact that A.T. did not own the

       residence to which Emery had sent the letter to accomplish that offense. In

       other words, Emery reliably admitted to the commission of each element of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019   Page 6 of 7
       offense of vicarious sexual gratification, as a Level 4 felony. The trial court did

       not abuse its discretion when it denied Emery’s motion to withdraw his guilty

       plea with respect to that offense.


[11]   As for Emery’s alleged protestations of innocence with respect to the other

       offenses to which he had pleaded guilty, Emery raised those alleged assertions

       of innocence for the first time in his motion to withdraw his guilty plea, not at

       his guilty plea hearing. Emery’s counsel on appeal properly acknowledges that,

       as such, those statements were not a valid basis on which to grant his motion to

       withdraw his guilty plea. See, e.g., Carter v. State, 739 N.E.2d 126, 129 (Ind.

       2000) (noting that Indiana’s rule against accepting a guilty plea that is

       accompanied by a protestation of innocence “is explicitly contingent . . . upon

       the protestation of innocence occurring at the same time the defendant attempts

       to enter the plea”). Thus, the trial court did not abuse its discretion when it

       denied his motion with respect to those offenses.


[12]   In sum, we affirm the trial court’s denial of Emery’s motion to withdraw his

       guilty plea.


[13]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-464 | August 15, 2019   Page 7 of 7
