Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                Feb 10 2014, 9:04 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID A. SMITH                                   GREGORY F. ZOELLER
McIntyre & Smith                                 Attorney General of Indiana
Bedford, Indiana
                                                 ELLEN H. MEILAENDER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFERY L. FLEENOR, SR.,                         )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 88A01-1307-CR-296
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE WASHINGTON CIRCUIT COURT
                          The Honorable Larry W. Medlock, Judge
                              Cause No. 88C01-1211-FB-844




                                     February 10, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issue

       Jeffery Fleenor, Sr., pleaded guilty to possession of a firearm by a serious violent

felon, a Class B felony. The plea agreement called for the State to dismiss two additional

charges and for Fleenor to be given an executed sentence of twenty years. Prior to

sentencing, Fleenor filed a motion to withdraw his guilty plea. The motion was denied,

and the trial court entered judgment of conviction and sentenced Fleenor according to the

terms of the plea agreement. Fleenor now appeals, raising one issue for our review:

whether the trial court abused its discretion in denying his motion to withdraw his guilty

plea. Concluding withdrawal of the guilty plea was not necessary to correct a manifest

injustice because Fleenor has failed to show that his plea was not knowing or voluntary or

that it was induced by ineffective assistance of counsel, we affirm the trial court’s denial

of his motion.

                               Facts and Procedural History

       When police investigated a report from Fleenor’s neighbors of shots fired from the

direction of his home toward theirs, firearms were found in Fleenor’s home. He had

previously been convicted of battery with a deadly weapon, a Class C felony, and was

therefore classified as a serious violent felon. See Ind. Code § 35-47-4-5(b)(4)(C). The

State charged Fleenor with possession of a firearm by a serious violent felon, a Class B

felony; criminal recklessness, a Class D felony; and alleged that he was an habitual

offender.

       Public defender Alice Blevins was appointed to represent Fleenor. While he was

awaiting trial, Fleenor was examined by medical professionals for various pre-existing

concerns including heart disease and diabetes. The court spoke with the doctors and was
                                             2
assured that Fleenor was competent, mentally and physically, to stand trial. At a hearing

four days before trial, the court informed Fleenor that if he felt unwell during trial, he

should tell his counsel and the court would take a break until he felt better. While his case

was pending, Fleenor indicated that he was unhappy with Blevins’ representation of him

and requested appointment of a different public defender. On the day Fleenor’s trial was

set to begin, public defender Robert Hamilton entered his appearance as co-counsel for

Fleenor. A jury was chosen on the first day of trial. Before the trial resumed the following

day with opening statements, Fleenor and his attorneys met with his witnesses and

discovered they would not be testifying as Fleenor had anticipated. Fleenor therefore

entered into plea negotiations with the State which resulted in an agreement that he would

plead guilty to possession of a firearm by a serious violent felon, the State would dismiss

the criminal recklessness charge and habitual offender allegation, and Fleenor would be

sentenced to twenty years. The court immediately held a change of plea hearing during

which Fleenor advised the court that he understood the rights he was giving up by changing

his plea, including his right to proceed with the jury trial, that he was offering the plea of

his own free will, and that he was satisfied with the advice of counsel and the outcome.

His attorneys each informed the court that Fleenor was “as lucid as [they had] ever seen

him,” transcript at 11, and that he had conferred with his family and they had expressed no

concerns about his ability to understand the proceedings. After hearing a factual basis for

the plea, the trial court accepted the plea agreement and set the matter for sentencing. The

trial court dismissed the jury and signed an order releasing Fleenor’s firearms out of

evidence into the possession of Fleenor’s aunt.


                                              3
       Prior to the sentencing hearing, Fleenor obtained private counsel who filed a verified

motion to withdraw Fleenor’s guilty plea, alleging Fleenor’s plea was not knowing and

voluntary because he was suffering from a “spell” during the change of plea hearing which

left him “exhausted and confused, and not able to make a reasonable, informed decision.”

Appellant’s Supplemental Appendix at 155. The motion also alleged Fleenor was deprived

of the effective assistance of counsel. Following a hearing, the trial court denied the motion

to withdraw guilty plea and proceeded to sentence Fleenor to twenty years as provided by

the plea agreement. Fleenor now appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       Indiana Code section 35-35-1-4(b) governs a motion to withdraw a guilty plea:

       After entry of a plea of guilty . . . but before imposition of sentence, the court
       may allow the defendant by motion to withdraw his plea of guilty . . . for any
       fair and just reason unless the state has been substantially prejudiced by
       reliance upon the defendant’s plea. The motion to withdraw the plea of guilty
       . . . made under this subsection shall be in writing and verified. The motion
       shall state facts in support of the relief demanded, and the state may file
       counter-affidavits in opposition to the motion. The ruling of the court on the
       motion shall be reviewable on appeal only for an abuse of discretion.
       However, the court shall allow the defendant to withdraw his plea of guilty .
       . . whenever the defendant proves that withdrawal of the plea is necessary to
       correct a manifest injustice.

Thus, the trial court must allow a defendant to withdraw a guilty plea if it is “necessary to

correct a manifest injustice.” Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012)

(quoting Ind. Code § 35-35-1-4(b)), trans. denied. Manifest injustice is shown in instances

such as where “a defendant is denied the effective assistance of counsel, the plea was not

entered or ratified by the defendant, the plea was not knowingly and voluntarily made, the

prosecutor failed to abide by the terms of the plea agreement, or the plea and judgment of
                                               4
conviction are void or voidable.” Id.; see also Ind. Code § 35-35-1-4(c). Conversely, the

trial court must deny the motion to withdraw guilty plea if doing so would substantially

prejudice the State. Jeffries, 966 N.E.2d at 777. In all other cases, the motion may be

granted “for any fair and just reason.” Id. (quoting Ind. Code § 35-35-1-4(b)). A trial

court’s ruling on a motion to withdraw guilty plea is presumed to be correct, and we will

reverse only for an abuse of discretion. McGraw v. State, 938 N.E.2d 1218, 1220 (Ind. Ct.

App. 2010), trans. denied.

                      II. Denial of Motion to Withdraw Guilty Plea

                                 A. Voluntariness of Plea

       In order to determine whether a plea was freely made, we review the statements

made by the defendant during the guilty plea hearing. Brightman v. State, 758 N.E.2d 41,

44 (Ind. 2001). We should consider questions such as:

       Did the defendant understand the allegations to which he was pleading
       guilty? Did the defendant know about the right to trial? Was the decision to
       plead made with the benefit of counsel? Did the defendant appreciate the
       sentencing ramifications of admitting guilt? What was the defendant’s
       understanding of the bargain struck with the prosecutor?

Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).

       Fleenor asserts that his plea was not voluntary because he was suffering from a

“spell” that caused “exhaustion, numbness, and confusion” at the time he decided to accept

the plea agreement. Appellant’s Brief at 8-9. However, the guilty plea hearing record

indicates that Fleenor engaged in a lengthy colloquy with the trial court prior to changing

his plea. He gave lucid, appropriate responses to each question posed to him and clearly

indicated he understood his right to have the jury that was already seated hear his case but

that he nevertheless wished to plead guilty per the plea agreement. See Tr. at 9 (Fleenor
                                             5
stating, “I understand what I am signing, sir.”). Fleenor spoke plainly about the course his

case had taken, see id. at 6 (Fleenor telling the court, “I appreciate everything you did on

the quick and speedy trial . . . but some of my witnesses all of a sudden lost their memory

from what they told me before . . . .”), and specifically denied that he was suffering from

any mental illness or disability at the time of the hearing. Fleenor’s attorneys also attested

they believed he understood what was happening and that he was making an informed

decision in entering a guilty plea.

       During the hearing on the motion to withdraw his plea, Fleenor described his

“spells”: “I have spells where I just, I can’t think of nothin’, my hands go numb, my head

goes numb, I get . . . numbness in there and I just, I just can’t even think of my own name

at times.” Id. at 45. He testified that he was suffering from one of these spells the morning

of his change of plea hearing. This description does not fit with the responses he gave

during the change of plea hearing and the observations of counsel and the trial court at that

time, however. Moreover, Fleenor’s aunt, who was present at all court proceedings,

testified that although she observed that Fleenor was acting strangely during his initial

hearing akin to what he described as a “spell,” she did not remember him exhibiting strange

behavior at any other court proceeding, including the change of plea hearing. We will not

find an abuse of discretion in the denial of a motion to withdraw a guilty plea where there

is conflicting evidence. McGraw, 938 N.E.2d at 1220 (holding defendant who claimed he

had been under the influence of medications had not established that withdrawal of his plea

was necessary to correct a manifest injustice where he denied during his guilty plea hearing

that he was under the influence of drugs or alcohol and gave sensible responses to the

questions asked of him).
                                              6
                           B. Effective Assistance of Counsel

       To prevail on an ineffective assistance of counsel claim, the defendant must show

both deficient performance and resulting prejudice.       Brightman, 758 N.E.2d at 46.

Deficient performance is that which falls below an objective standard of reasonableness.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Prejudice is shown if “there is a

reasonable probability [i.e., probability sufficient to undermine confidence in the outcome]

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Brightman, 758 N.E.2d at 46 (quoting Strickland, 466 U.S. at 694). Counsel is

presumed to have performed competently, and a defendant must offer strong and

convincing evidence to overcome that presumption. Id. We determine whether counsel

performed reasonably under the circumstances by examining the whole of counsel’s work

on the case. Id.

       Fleenor also claims he should have been allowed to withdraw his guilty plea because

his counsel was ineffective in failing to adequately communicate with him, failing to

represent his interests aggressively enough, and failing to adequately investigate his case.

Fleenor did indicate while his case was pending that he was dissatisfied with Blevins’s

representation of him and he wanted a different public defender. On the day trial was to

begin, a second public defender entered his appearance to assist in Fleenor’s trial and was

present during plea negotiations and the change of plea hearing. Fleenor indicated prior to

pleading guilty that he was satisfied with the advice of counsel and with the outcome.

       The record leading up to trial indicates that Blevins was representing Fleenor’s

interests, as she filed several motions on his behalf, obtained medical assistance for him

pending trial, participated in discovery, subpoenaed Fleenor’s witnesses, and ultimately,
                                             7
obtained a favorable plea agreement. Fleenor’s main complaint seems to be that counsel

did not confer with his witnesses until the morning trial was to start and had she done so

earlier, he would not have been rushed into a decision to plead guilty. Fleenor requested a

speedy trial, which necessarily limited the time for investigation. The witnesses were not

prepared to testify as Fleenor expected, and Fleenor has not alleged any defense to the

charges against him; therefore, even if counsel had conferred with Fleenor’s witnesses

earlier, he has not shown a reasonable probability that the outcome would have been

different. In other words, even if counsel had acted as Fleenor alleges she should have,

there is little chance he would have proceeded to trial and even less chance that he would

have obtained a more favorable outcome had he gone to trial.

         The plea agreement Fleenor was offered was advantageous to him, especially

considering the stage of the proceedings. The State could have proceeded to trial on all

three counts before the selected jury rather than offering a plea agreement, and if Fleenor

was found guilty as charged, he could have been sentenced to an additional term of ten to

thirty years. Fleenor has not shown ineffective assistance of counsel led him to plead guilty

to his detriment.

                                                          Conclusion

         Fleenor has not shown that withdrawal of his guilty plea was necessary to correct a

manifest injustice,1 and accordingly, has failed to show the trial court’s denial of his motion




         1
            Additionally, the State argued at the withdrawal hearing and on appeal that it was substantially prejudiced
in reliance on Fleenor’s guilty plea because the firearms Fleenor was charged with possessing and using were released
from evidence into the custody of Fleenor’s aunt following the change of plea hearing, disrupting the chain of custody
and leading to the possibility of tampering. The trial court made no findings on this particular point in its order denying
the motion to withdraw, but we do note that a motion to withdraw must be denied if the court finds the State has been
substantially prejudiced. See Ind. Code § 35-35-1-4(b).
                                                            8
to withdraw his guilty plea was an abuse of discretion. Fleenor’s conviction and sentence

are affirmed.

      Affirmed.

BARNES, J., and BROWN, J., concur.




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