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                      May 30 2013, 9:16 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS C. ALLEN                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 JUSTIN F. ROEBEL
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

AARON WIEGAND,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A04-1210-CR-502
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                             Cause No. 02D05-1206-FB-93



                                        May 30, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
          Aaron Wiegand appeals the denial of his petition to withdraw his guilty pleas for

unlawful possession of a firearm by a serious violent felon as a class B felony and

criminal recklessness as a class C felony. Wiegand raises the issue of whether the trial

court abused its discretion in denying his request to withdraw his guilty pleas. We

affirm.

                                     PROCEDURAL HISTORY

          On June 7, 2012, the State charged Wiegand with unlawful possession of a firearm

by a serious violent felon as a class B felony and criminal recklessness as a class C

felony.1 The State and Wiegand entered into a plea agreement dated August 8, 2012,

pursuant to which Wiegand agreed to plead guilty as charged and the State agreed that

Wiegand would be sentenced to fourteen years with six years suspended for the class B

felony and to five years for the class C felony, that Wiegand would be placed on

probation for two years following the executed portion of his sentence, and that the

sentences would run concurrent with each other.

          On August 8, 2012, the court held a guilty plea hearing at which Wiegand pled

guilty as charged pursuant to the plea agreement, and the court scheduled a sentencing

hearing for September 7, 2012. At the start of the September 7, 2012 hearing, Wiegand




          1
          The information charging Wiegand with unlawful possession of a firearm by a serious violent
felon alleged that, “[o]n or about May 23, 2012, [Wiegand], a serious violent felon, did knowingly or
intentionally possess a firearm,” and the information charging Wiegand with criminal recklessness
alleged that, “[o]n or about May 23, 2012, [Wiegand], did while armed with a deadly weapon, to wit: a
firearm, recklessly, knowingly, or intentionally perform an act which created a substantial risk of bodily
injury to another person, to wit: Cortez Harris, by discharging said firearm at and/or in the direction of []
Harris, who was located in a place where people are likely to gather . . . .” Appellant’s Appendix at 32,
34.
                                                     2
indicated that he desired to withdraw his guilty pleas, and the court provided deadlines

for Wiegand to file a written request and for the State to file a response.

       On September 11, 2012, Wiegand filed a Verified Petition to Withdraw Guilty

Pleas arguing that he “wanted to take depositions of certain of the State’s witnesses to

help establish his innocence,” that “[i]n the meantime, [his] brother was incarcerated, and

[his] financial assistance went away with him,” and that “[w]ith [his] trial date

approaching and an inability in [his] mind to be properly prepared for trial in this case,

[he] felt pressured to accept the plea agreement offered by the State, so [he] signed the

agreement and entered pleas of guilty in the belief that it was [his] only option.”

Appellant’s Appendix at 12. Wiegand maintained that he was innocent of the charges

and that there was no evidence to support an argument that the State had been

substantially prejudiced by reliance upon his improper entry of pleas of guilty. On

September 17, 2012, the State filed a response to Wiegand’s petition in which it stated

that it expected “to establish by evidence at the hearing . . . that the victim [Cortez Harris]

of [Wiegand’s] alleged offense of criminal recklessness was shot to death approximately

three (3) days after [Wiegand] entered his plea of guilty” and that a “reasonable inference

from this fact . . . is that [Wiegand] wishes to withdraw his guilty plea not because he is

actually innocent, but because the victim is dead and [Wiegand] thinks this would make it

more difficult for the State to prove its case.” Id. at 18.

       On September 20, 2012, the court held a hearing on Wiegand’s petition to

withdraw his guilty pleas at which the State presented the testimony of Fort Wayne

Police Officer Thomas Strausborger and the parties presented arguments. Following

                                               3
arguments, the court denied Wiegand’s request to withdraw his guilty plea. The court

sentenced Wiegand to concurrent terms of fourteen years with six years suspended and

two years of probation for his conviction for unlawful possession of a firearm by a

serious violent felon as a class B felony and five years for his conviction for criminal

recklessness as a class C felony.

                                      DISCUSSION

       The issue is whether the trial court abused its discretion in denying Wiegand’s

petition to withdraw his guilty pleas. Ind. Code § 35-35-1-4(b) governs motions to

withdraw guilty pleas filed after a defendant has pled guilty but before the trial court has

imposed a sentence. The trial court must allow a defendant to withdraw a guilty plea if

“necessary to correct a manifest injustice.” Brightman v. State, 758 N.E.2d 41, 44 (Ind.

2001) (quoting Ind. Code § 35-35-1-4(b)). By contrast, the trial court must deny the

motion if withdrawal of the plea would “substantially prejudice” the State. Id. (quoting

Ind. Code § 35-35-1-4(b)). In all other cases, the trial court may grant the defendant’s

motion to withdraw a guilty plea “for any fair and just reason.” Id. (quoting Ind. Code §

35-35-1-4(b)).

       “Manifest injustice” and “substantial prejudice” are necessarily imprecise

standards, and an appellant seeking to overturn a trial court’s decision faces a high hurdle

under the current statute and its predecessors. Coomer v. State, 652 N.E.2d 60, 62 (Ind.

1995). “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.” Id. We will reverse the trial court only

for an abuse of discretion. Id. In determining whether a trial court has abused its

                                             4
discretion in denying a motion to withdraw a guilty plea, we examine the statements

made by the defendant at his guilty plea hearing to decide whether his plea was offered

“freely and knowingly.” Id. See also Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002)

(holding that a trial court’s decision on a request to withdraw a guilty plea is

presumptively valid, and a party appealing an adverse decision must prove that the court

has abused its discretion), reh’g denied.

       Wiegand contends that he presented evidence that there was a fair and just reason

to grant his petition to withdraw his guilty pleas and that he testified at the September 7,

2012 hearing that there was a witness he believed needed to be deposed, that he believed

he lost the financial ability to have the deposition taken by his private counsel when his

brother became incarcerated, and that the deadline to accept the plea agreement put

additional pressures on him and overcame his free will. Wiegand argues that there was

no evidence that the State would have been prejudiced by the withdrawal of the guilty

plea, that the untimely death of the victim of the gunshot did not create any prejudice as

the victim would not have been able to identify Wiegand as the person who fired the

shots but only that he had been shot, and that the State had other witnesses which were to

be used to identify him as the perpetrator.

       The State argues that Wiegand has not shown that the denial of his petition

resulted in manifest injustice and that the trial court was not required to believe

Wiegand’s representations that the guilty plea was the result of undue pressure. The

State also argues that the State would have suffered substantial prejudice if Wiegand was

permitted to withdraw his pleas, that the State presented evidence that the victim, Cortez

                                              5
Harris, was killed in a manner the prosecutor described as an execution three days after

Wiegand’s guilty plea, that the circumstances of Harris’s death made other witnesses

reluctant to testify, and that, while there may have been other avenues for the State to

prove Wiegand’s guilt, this change in circumstances following the guilty plea hearing

significantly complicated the State’s ability to prosecute the case.

       The record reveals that at the August 8, 2012 guilty plea hearing, Wiegand

indicated that he had never been treated for any mental illness and to his knowledge did

not suffer from any mental or emotional disability and that he was not under the influence

of alcohol or drugs that would affect his understanding of the proceedings. The court

questioned Wiegand regarding his understanding that he would be giving up certain

rights by pleading guilty, including the right to face all witnesses against him and to see,

hear, question, and cross-examine these witnesses, and Wiegand indicated that he

understood these rights. The trial court then asked Wiegand whether he understood

various constitutional rights, and Wiegand responded that he understood those rights. The

court asked Wiegand whether he understood that by pleading guilty to an agreement

calling for a specific term of years he waived his right to appeal the sentence, and

Wiegand responded affirmatively.        The trial court recited the information against

Wiegand, the State’s burden of proof, and the range of penalties and possible fines.

       The court also recited the terms of the plea agreement signed by Wiegand,

including the terms related to the sentences which would be imposed with respect to each

conviction. When questioned by the court, Wiegand indicated that no one had forced or

threatened him to cause him to plead guilty to the charges and that his plea of guilty was

                                              6
his own free and voluntary act. Wiegand admitted that, on May 23, 2012, he was in Fort

Wayne, Allen County, Indiana, that on that day he was in possession of a firearm, and

that on that date he was, based on a prior felony conviction, classified as a serious violent

felon. Wiegand further admitted that he fired the firearm at or in the vicinity of a person

named Cortez Harris, that he recklessly, knowingly, or intentionally fired the firearm

creating a substantial risk of bodily injury to Harris, and that at the time Harris had been

present at an apartment complex in an area where a number of people were gathered. The

court admitted into evidence an exhibit containing a certified copy of Wiegand’s prior

conviction as part of the factual basis for Wiegand’s plea of guilty to unlawful possession

of a firearm by a serious violent felon. The court found that Wiegand understood the

nature of the charges against him, understood the possible sentences and fines thereunder,

that his plea was freely and voluntarily made, and that the plea was accurate and there

was a factual basis for the plea.

       At the September 7, 2012 hearing, Wiegand indicated that he desired to withdraw

his guilty plea. The prosecutor stated that the State believed that Wiegand’s “newly

desired plea of innocence is based upon the fact that Cortez Harris was executed

subsequent to his plea of guilty in this matter so he’s no longer available” and that the

State “does have other witnesses but the plea was entered into with the evaluation of the

likelihood that witnesses would come forward and cooperate.”            September 7, 2012

Transcript at 5. Wiegand testified in part that “[u]nder the circumstances [he] [was]

innocent,” that at the time he signed the plea agreement he “was under a lot of pressure

and stress,” that the prosecutor “gave [him] a two day deadline and it was either that or

                                             7
trial and [he] only had two weeks for trial,” that he “felt like [he] wasn’t ready for trial,”

that he “didn’t get to do [his] depositions like [he] wanted to because [his] brother got

locked up and was means for paying [Wiegand’s] lawyer for trial,” and that he “signed

the plea under the impression that [] was [his] only option.” Id. at 7. The court asked

Wiegand whether he was lying when he signed the plea agreement and when he pled

guilty under oath on August 8, 2012, and Wiegand responded “Well I did if I didn’t

commit them crimes” and that he did not commit the crime. Id. at 9.

       At the September 20, 2012 hearing, Police Officer Thomas Strausborger testified

that he was one of the investigating officers of the shooting that occurred on May 23,

2012, at the apartment complex where Cortez Harris had been shot. Officer Strausborger

testified that Wiegand had been identified as the shooter by various witnesses and that

police were looking at the shooting as gang related. Officer Strausborger testified that

Harris was the victim of a homicide which occurred on August 11, 2012, that he assisted

with the investigation of the homicide, that the homicide was investigated as gang

related, and that police “felt it kind of odd that the victim of the original shooting that was

going to be a possible witness in a trial was a victim of a homicide.” September 20, 2012

Transcript at 8.

       Officer Strausborger further testified that police had video footage of the shooting

of Harris which showed that a vehicle pulled up alongside Harris, that Harris exited his

vehicle, and that there was a single gunshot to Harris’s face.          Officer Strausborger

testified that, prior to the August 11, 2012 death of Harris, he had been working with the

various witnesses who would be testifying against Wiegand and that, while they were

                                              8
hesitant, he believed they were going to be cooperative. Officer Strausborger testified

that he had contact with the witnesses since the death of Harris on August 11, 2012, and,

when asked if the witnesses are still expressing the same degree of cooperation, testified

that one of the witnesses was a juvenile and his mother was extremely fearful for her son

and that the other witnesses were very hesitant. Officer Strausborger indicated that in his

opinion he could not assure the court that those witnesses would come forward and

testify. On cross-examination, Officer Strausborger indicated that Harris was not an

identification witness in the case but a witness to the fact that he had been shot and

received treatment at the hospital and that the other witnesses in the case were the

identification witnesses.   Wiegand’s counsel argued in part that Harris was not an

identification witness, that the other witnesses are still available, and that the “alleged

prejudice . . . arises to no more th[a]n speculation at this juncture . . . .” Id. at 15. The

prosecutor argued that Harris was brutally murdered in an apparent act of an intentional

homicide, that Wiegand was not pressured into entering his plea of guilty, that Wiegand’s

defense counsel never communicated anything about needing depositions, that there were

three or four witness that were going to identify Wiegand, and that “[y]ou can’t tell” the

witnesses that their lives are “not in danger.” Id. at 20. The court found that Wiegand’s

self-serving statements did not support a withdrawal of his guilty pleas and that Wiegand

did not carry his burden to demonstrate a manifest injustice if the court did not allow him

to withdraw his pleas of guilty.

       A defendant has the burden to prove by a preponderance of the evidence and with

specific facts that he should be permitted to withdraw his plea. Ind. Code § 35-35-1-4(e);

                                             9
Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct. App. 1992). We observe that Wiegand

essentially contends that he lied under oath at the guilty plea hearing. The court was

permitted to find Wiegand’s testimony at the hearing on his petition to withdraw to be

less than credible. See Gipperich v. State, 658 N.E.2d 946, 949 (Ind. Ct. App. 1995)

(holding that “[t]he trial court did not abuse its discretion in determining that [the

defendant’s] self-serving statements after the guilty plea hearing were incredible and

constituted an attempt to manipulate the system” where the defendant alleged that he had

lied at the plea hearing when he admitted to the charges), trans. denied.

       We also observe that Wiegand succeeded in convincing the court at the guilty plea

hearing that he knew what he was doing when he pled guilty and that his decision was

not prompted by undue pressure or coercion. While there is always some chance that a

defendant might give less than candid responses, we cannot say under the circumstances

presented that the contradiction between Weigand’s testimony at the guilty plea hearing

and his subsequent claims of undue pressure, coercion, and an inability to depose certain

witnesses due to time or financial restraints as described by Wiegand present the factual

basis necessary to overcome the presumption favoring the trial court’s ruling.           See

Coomer, 652 N.E.2d at 62-63 (noting that the defendant’s testimony did not provide the

necessary factual basis to overcome the presumption favoring the trial court’s ruling

where there was a contradiction between the defendant’s testimony at the guilty plea

hearing and his subsequent claims of coercion); see also Brightman, 758 N.E.2d at 46

(holding that the trial court did not abuse its discretion in denying the defendant’s request

to withdraw his guilty plea where the trial court observed the defendant’s testimony at the

                                             10
guilty plea hearing and the hearing on his request to withdraw and found that his

testimony at the latter was not credible).

       Based upon our review of the record, we conclude that Wiegand has not overcome

the presumption of validity accorded the trial court’s denial of his petition to withdraw

his guilty pleas. Such a denial was within the discretion of the court, and we cannot say

its refusal to allow Wiegand to withdraw his guilty pleas constitutes manifest injustice.

See Coomer, 652 N.E.2d at 63 (holding that “Coomer has not overcome the presumption

of validity accorded the trial court's denial of his motion to withdraw his guilty plea” and

that “[s]uch a denial was within the discretion of the court, and we cannot say its refusal

to allow Coomer to withdraw his guilty plea constitutes manifest injustice.”).

                                      CONCLUSION

       For the foregoing reasons, we affirm the trial court’s denial of Wiegand’s petition

to withdraw guilty pleas.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




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