Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                             Jul 09 2013, 6:28 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                               GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     BRIAN REITZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RAYMOND E. SCHAKEL,                                  )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 24A01-1301-CR-42
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                     APPEAL FROM THE FRANKLIN CIRCUIT COURT
                           The Honorable J. Steven Cox, Judge
                             Cause No. 24C01-1207-FC-1046



                                           July 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Raymond E. Schakel appeals his conviction for class A felony child molesting

following a guilty plea. The sole issue presented on appeal is whether the trial court abused

its discretion when it denied Schakel’s motion to withdraw his guilty plea. Finding an abuse

of discretion, we reverse.

                              Facts and Procedural History

       On July 13, 2012, the State charged sixty-nine-year-old Schakel with class C felony

child molesting. During the initial hearing, on July 18, 2012, Schakel appeared without an

attorney and indicated that he wished to plead guilty to the offense. The State then moved to

amend the charge from a class C felony to a class A felony, asserting that the facts alleged in

the probable cause affidavit supported the heightened charge. The trial court granted the

motion to amend and advised Schakel of his rights as well as the sentencing range for a class

A felony. The record indicates that at various points during the hearing, Schakel seemed

confused, had difficulty hearing, and did not seem to fully understand the nature of the

proceedings. Nevertheless, Schakel maintained that he wished to plead guilty. The State

subsequently read the following factual basis in open court:

       If the matter proceeded to trial, the State would prove beyond a reasonable
       doubt that on or about between January and April 2012 in Franklin County,
       State of Indiana, Raymond E. Schakel, a person at least twenty-one (21) years
       of age, did then and there unlawfully with a child under the age of fourteen
       (14) to wit: V.H. age eleven (11) at the time of the incident perform deviate
       sexual conduct.




                                              2
Tr. at 11, 21. The trial court asked Schakel, “Is that what happened?” Id.                              Schakel

responded, “Yes, sir.” Id. at 21. Thereafter, Schakel pled guilty to class A felony child

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

        A sentencing hearing was held on December 19, 2012. Schakel appeared with counsel

and orally moved to withdraw his guilty plea. The trial court took the matter under

advisement and, on January 2, 2013, denied Schakel’s motion to withdraw. The trial court

sentenced Schakel to twenty-five years’ imprisonment, with five years suspended to

probation. This appeal ensued.

                                         Discussion and Decision

        After a defendant pleads guilty but before a sentence is imposed, a defendant may

move to withdraw a plea of guilty. Ind. Code § 35-35-1-4(b). The trial court must allow a

defendant to withdraw a guilty plea if “necessary to correct a manifest injustice.” Id. By

contrast, the trial court must deny the motion if withdrawal of the plea would substantially

prejudice the State. Id. “In all other cases, the court may grant the defendant’s motion to

withdraw a guilty plea ‘for any fair and just reason.’” Brightman v. State, 758 N.E.2d 41, 44

(Ind. 2001) (quoting Ind. Code § 35-35-1-4(b)). 1




        1
          Indiana Code Section 35-35-1-4(b) requires that a motion to withdraw the guilty plea “shall be in
writing and verified” and must state facts in support of it. It appears from the record that Schakel’s motion to
withdraw his plea was oral and that he did not submit any form of written motion to the trial court. Generally,
a defendant’s failure to submit a verified, written motion to withdraw a guilty plea results in waiver of the issue
of wrongful denial of the request. Peel v. State, 951 N.E.2d 269, 272 (Ind. Ct. App. 2011). However, the
State did not raise a waiver claim before the trial court or on appeal, and we choose to address Schakel’s
motion on the merits.


                                                        3
       The trial court’s ruling on a motion to withdraw a guilty plea arrives in this court with

a presumption in favor of the ruling, and we will reverse a trial court only for an abuse of

discretion. Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans. denied. In

determining whether a trial court abused its discretion in denying a motion to withdraw a

guilty plea, “we examine the statements made by the defendant at the guilty plea hearing to

decide whether the plea was offered ‘freely and knowingly.’” Id. (quoting Brightman, 758

N.E.2d at 44).

       Here, Schakel argues that the trial court abused its discretion in denying his motion to

withdraw his guilty plea because there was an insufficient factual basis for his plea. A court

may not accept a guilty plea unless the court determines that a sufficient factual basis exists

to support the plea. Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App. 2011). A factual

basis may be established by relatively minimal evidence about the elements of the crime from

which the court could reasonably conclude that the defendant is guilty. Id. We presume that

the trial court’s finding of an adequate factual basis is correct. Id. Indeed, the standard for a

sufficient factual basis to support a guilty plea is less rigorous than that required to support a

conviction, as reasonably concluding that a defendant is guilty for purposes of a factual basis

is not the same as concluding guilt beyond a reasonable doubt. Id.

       “An adequate factual basis for the acceptance of a guilty plea may be established in

several ways: (1) by the State’s presentation of evidence on the elements of the charged

offenses; (2) by the defendant’s sworn testimony regarding the events underlying the charges;

(3) by the defendant’s admission of the truth of the allegations in the information read in


                                                4
court; or (4) by the defendant’s acknowledgement that he understands the nature of the

offenses charged and that his plea is an admission of the charges.” Oliver v. State, 843

N.E.2d 581, 588 (Ind. Ct. App. 2006), trans. denied.

       Under the circumstances presented here, we cannot say that the State established a

sufficient factual basis to support the trial court’s acceptance of Schakel’s guilty plea to the

amended class A felony charge. Sixty-nine-year-old Schakel was not represented by an

attorney when he appeared at the initial hearing to face a charge of class C felony child

molesting. The hearing began with Schakel stating, “I read [the charge], and I’m guilty of

it.” Tr. at 5. Schakel stated numerous times that he simply wished to spare the victim from

having to appear in court. However, when the trial court began advising Schakel of his

rights, Schakel twice indicated that he did not understand that he had been charged with a

crime or what was happening. Id. When asked whether he was pleading guilty to the charge

freely and voluntarily, Schakel, who had no prior criminal history, responded, “Sir, I have no

charges against me at all.” Id. at 9.

       The State then moved to amend the original charging information from class C felony

child molesting to a class A felony child molesting, asserting that the probable cause affidavit




                                               5
contained facts sufficient to support deviate sexual conduct.2 Neither the probable cause

affidavit nor the specific facts alleged in the affidavit were referenced at the hearing, and

there is no indication in the record that Schakel had ever read or been provided a copy of the

affidavit prior to the hearing. Although Schakel cursorily indicated that he understood the

amended class A felony charge, there was no verbal exchange between the trial court and

Schakel regarding the nature of the heightened charge or the specific factual allegations

underlying the charge. When asked if he would like an attorney appointed for him, he

responded, “I would like to have one, sir, so I could understand what’s going on.” Id. at 13.

Schakel informed the court that he had bad hearing and it was difficult for him to understand

what was being said. When the court questioned Schakel as to whether he understood that by

pleading guilty he would be waiving his right to counsel, Schakel, apparently thinking that

the trial court was referencing some sort of psychological treatment, responded, “Sir, I don’t

need counseling because I know I’m guilty.” Id. at 17.




        2
           Indiana Code Section 35-42-4-3(b) provides in relevant part that “[a] person who, with a child under
fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older
person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits
child molesting, a Class C felony.” Subsection (a) of that same provision states that “A person who, with a
child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct
commits child molesting, a Class B felony. However, the offense is a Class A felony if: (1) it is committed by
a person at least twenty-one (21) years of age….” Ind. Code § 35-42-4-3(a). “Deviate sexual conduct” means
“an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the
penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-41-1-9. The probable cause
affidavit here alleged that, in addition to engaging in several acts of fondling with intent to arouse, Schakel
penetrated V.H.’s vagina with his finger on at least one occasion. A finger is considered an object within the
definition of deviate sexual conduct. Hardwood v. State, 555 N.E.2d 513, 515 (Ind. Ct. App. 1990).




                                                      6
       Despite Schakel’s evident confusion, the State makes much of the fact that the

amended class A charging information was recited in open court and Schakel admitted the

truth of the allegations. Generally, a defendant’s admission of guilt after hearing a recitation

of the charges against him can be a sufficient factual basis. Oliver, 843 N.E.2d at 588.

However, under the totality of the circumstances presented, we cannot say that the mere

reading of the contemporaneously amended class A felony charging information provided a

sufficient factual basis to support Schakel’s guilty plea to the heightened charge. We agree

with Schakel that it appears from the record that he did not have any idea what deviate sexual

conduct is, much less what he was specifically alleged to have done that constituted deviate

sexual conduct, or what facts differentiated the original class C felony charge from the

amended class A felony charge. As already noted, there is no indication that Schakel had

ever read or been provided the probable cause affidavit prior to pleading guilty. Schakel’s

confusion regarding the proceedings in general coupled with the lack of specificity in the

State’s recitation of the facts underlying the amended charge leads us to conclude that the

State failed to provide a sufficient factual basis to support the trial court’s acceptance of

Schakel’s guilty plea to class A felony child molesting.

       Under the circumstances, permitting withdrawal of Schakel’s guilty plea is not only

fair and just but is also necessary to correct a manifest injustice. Accordingly, we conclude

that the trial court abused its discretion when it denied Schakel’s motion to withdraw his

guilty plea. We reverse Schakel’s conviction and remand for further proceedings consistent

with this opinion.


                                               7
     Reversed and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.




                                      8
