      MEMORANDUM DECISION
                                                                                    FILED
      Pursuant to Ind. Appellate Rule 65(D), this                              Feb 28 2018, 8:32 am
      Memorandum Decision shall not be regarded as
                                                                                    CLERK
      precedent or cited before any court except for the                        Indiana Supreme Court
                                                                                   Court of Appeals
      purpose of establishing the defense of res judicata,                           and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      T. Andrew Perkins                                         Curtis T. Hill, Jr.
      Peterson Waggoner & Perkins, LLP                          Attorney General of Indiana
      Rochester, Indiana
                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Matthew S. Simons,                                       February 28, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               25A03-1708-CR-1841
              v.                                               Appeal from the Fulton Circuit
                                                               Court.
                                                               The Honorable A. Christopher Lee,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               25C01-1404-FD-213




      Friedlander, Senior Judge

[1]   Matthew S. Simons appeals the trial court’s denial of his motion to withdraw

      his guilty plea. We affirm.


[2]   Simons presents two issues for our review, which we restate as:



      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018          Page 1 of 20
                 1. Whether Simons’s waiver of his right to counsel was made
                 knowingly and intelligently.
                 2. Whether the trial court erred in denying Simons’s motion to
                 withdraw his guilty plea.
[3]   On April 8, 2014, Simons was charged with possession of methamphetamine, a
                               1                                                        2
      Class D felony; possession of illegal drug lab, a Class D felony; resisting law
                                              3
      enforcement, a Class D felony; and possession of marijuana, a Class A
                           4
      misdemeanor. Three years later on May 2, 2017, the morning of trial, Simons

      entered into a plea agreement in which he would plead guilty to the charge of

      possession of an illegal drug lab as a Class D felony. In exchange, the State

      would dismiss the remaining three charges in this case as well as the charges of

      possession of methamphetamine and possession of paraphernalia in another

      cause.


[4]   After entry of his plea but prior to sentencing, Simons filed his pro se

      appearance with a motion to withdraw his guilty plea on June 13. At the

      hearing on Simons’s motion, the court told Simons it would not grant him a

      different attorney and asked if he wanted to continue being represented by his

      public defender or to represent himself. Simons replied that he wanted to

      represent himself. After admonishing Simons regarding the dangers of self-




      1
          Ind. Code § 35-48-4-6.1 (2006).
      2
          Ind. Code § 35-48-4-14.5 (2013).
      3
          Ind. Code § 35-44.1-3-1 (2013).
      4
          Ind. Code § 35-48-4-11 (2013).


      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 2 of 20
      representation, the court granted his request to withdraw the appearance of the

      public defender and proceeded with the hearing with Simons representing

      himself. Following the hearing, the court denied Simons’s motion to withdraw

      his guilty plea.


[5]   At sentencing on July 17, 2017, the court accepted Simons’s plea agreement

      and sentenced him accordingly to three years with no time suspended,

      consecutive to his sentence in another cause. Simons now appeals.


[6]   We first note that generally a challenge to a guilty plea must be pursued through

      post-conviction proceedings rather than on direct appeal. Milian v. State, 994

      N.E.2d 342 (Ind. Ct. App. 2013), trans. denied. Nevertheless, a defendant who

      has sought to withdraw his guilty plea prior to sentencing may challenge the

      trial court’s denial on direct appeal. Id. This is such a case.


                                            1. Waiver of Counsel

[7]   Simons contends that his waiver of counsel at the hearing on his motion to

      withdraw guilty plea was not knowing or intelligent. The Sixth Amendment to

      the United States Constitution guarantees a criminal defendant the right to

      counsel, and this right encompasses the right to self-representation. McBride v.

      State, 992 N.E.2d 912 (Ind. Ct. App. 2013), trans. denied. Nevertheless, before a

      defendant waives his right to counsel and proceeds pro se, the trial court must

      determine that the defendant’s waiver of counsel is knowing, voluntary, and

      intelligent. Jackson v. State, 992 N.E.2d 926 (Ind. Ct. App. 2013), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 3 of 20
[8]   The defendant who waives his right to counsel and asserts his right to self-

      representation should be informed of the dangers and disadvantages of doing

      so. Parish v. State, 989 N.E.2d 831 (Ind. Ct. App. 2013). Our Supreme Court

      has stated that there are no prescribed “talking points” a trial court is required

      to include in its advisement to defendants but directed trial courts to come to a

      “considered determination” that a defendant is making a voluntary, knowing,

      and intelligent waiver. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). In

      making this determination, the Court has considered four factors: “(1) the

      extent of the court’s inquiry into the defendant’s decision, (2) other evidence in

      the record that establishes whether the defendant understood the dangers and

      disadvantages of self-representation, (3) the background and experience of the

      defendant, and (4) the context of the defendant’s decision to proceed pro se.”

      Id. at 1127-28. The Court noted that when applying these factors, the trial court

      is in the best position to assess whether a defendant has knowingly,

      intelligently, and voluntarily waived counsel, and the trial court’s decision will

      most likely be upheld where it has made the proper inquiries, conveyed the

      proper information, and reached a reasoned conclusion. Id. We review de

      novo the trial court’s determination that a defendant waived his right to

      counsel. McBride, 992 N.E.2d 912.


[9]   Further, the right to counsel guarantee applies at any “critical stage” of the

      prosecution where the absence of counsel might diminish the defendant’s right

      to a fair trial. Esmond v. State, 20 N.E.3d 213, 215 (Ind. Ct. App. 2014). The

      proper test for determining whether a particular proceeding is a critical stage to


      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 4 of 20
       which the assistance of counsel guarantee applies is whether the defendant is

       confronted with the intricacies of the law or the advocacy of the State. Id.


[10]   In the present case, Simons was advised by the court at his initial hearing in

       April 2014 that he had a right to be represented by counsel and that, if he could

       not afford one, the court would appoint counsel. Simons requested the court to

       appoint counsel, and, after questioning Simons regarding his ability to pay an

       attorney, the court appointed counsel.


[11]   Soon thereafter, Public Defender Saiz appeared as counsel for Simons.

       Subsequently, at the request of the parties, the court set a change of plea hearing

       for March 23, 2015. The hearing was then reset for April 13, 2015 at Simons’s

       request. However, Simons failed to appear for the April 13 hearing, and the

       court issued a warrant for his arrest.


[12]   In December 2015, while still represented by Public Defender Saiz, Simons

       filed his pro se Motion for Discovery Material, Motion for Transport Order,

       and Material and Information in Depositions Motion and informed the trial

       court that he was in the Cass County jail. The court issued an order stating it

       would take no action on Simons’s filings because he was represented by

       counsel.


[13]   In April 2016, private counsel filed his appearance for Simons, and Public

       Defender Saiz withdrew. Simons, now represented by private counsel, filed a

       pro se Motion for Transport. The court again issued an order stating it would

       not consider Simons’s motion because he was represented.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 5 of 20
[14]   In June 2016, private counsel filed a motion to withdraw his appearance,

       stating that “communication between counsel and the Defendant in the above-

       captioned causes of action has completely broken down” and that “counsel is

       unable to deal with the Defendant anymore [sic] regarding these cases.”

       Appellant’s App. Vol. 2, p. 61. The court granted counsel’s motion to

       withdraw and reappointed Public Defender Saiz. In August 2016, still

       represented by counsel, Simons filed pro se correspondence with the court

       seeking discovery materials. The court issued yet another order indicating it

       would not take any action on Simons’s pro se filings because he was

       represented by counsel.


[15]   On January 19, 2017, Simons, although still represented by counsel, filed

       correspondence with the court seeking transcripts from depositions in addition

       to lengthy correspondence addressed to the judge requesting a fast and speedy

       jury trial and outlining suppression of evidence issues he had discussed with his

       counsel. On January 24, 2017, Public Defender Saiz filed a motion to

       withdraw his appearance, stating “[t]here has been a breakdown in the

       attorney/client relationship.” Id. at 83. While counsel’s motion to withdraw

       was pending, Simons again filed correspondence addressed to the judge.

       During the hearing at which the court granted Public Defender Saiz’s request to

       withdraw, the court again explained to Simons that it would not consider his

       pro se filings while he was represented by counsel.


[16]   On January 31, Public Defender Breitenstein filed her appearance on behalf of

       Simons. At a status conference on April 27, less than a week prior to trial, she

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 6 of 20
informed the court that Simons had informed her that morning that he wanted

to request a continuance of the trial and wanted a different attorney. The court

then discussed the situation with Simons.


        COURT:           Okay. Is that right?
        SIMONS:          Correct, Your Honor.
        COURT:       I mean you’ve had a few attorneys in this case
        already, Mr. Simons.
Tr. p. 26. Simons then explained that, after viewing his taped statements, he

wanted his attorney to conduct a deposition of one of the officers and that his

counsel did not believe it was necessary. The court responded, and the

conversation continued:


        COURT:       All right. I’m going to deny your request for a new
        attorney. We’re on the eve of trial now. This case has been
        pending for some time. To the extent that there’s a request for a
        continuance that will be denied as well. We are set for trial on
        Tuesday, and we will commence on that date.
        *******
        SIMONS:          May I ask a question?
        COURT:           Go ahead.
        SIMONS: If I want to pursue to do the deposition and review
        the evidence of the case, and you’re not going to — you’re not
        going to give me another attorney, would I have to go pro se to
        be able to do that?
        COURT:       I think that’s something you need to talk to your
        attorney with in getting ready for trial. I mean we’re sitting here,
        we’ve got a jury panel out, I’ve gotten the instructions ready, and
        we’re ready to proceed with trial. And so, any concerns you
        have you need to address with your attorney at this point. Okay.


Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 7 of 20
       Id. at 27, 28.


[17]   On the morning of trial, represented by Public Defender Breitenstein and with

       the jurors waiting in the hallway, Simons entered into a plea agreement with

       the State. At the change of plea hearing, the judge asked Simons if he

       understood his right to be represented by an attorney, including during trial and

       appeal, and explained to him that, if he could not afford an attorney, the court

       would appoint one for him. Simons responded that he understood.


[18]   On June 13, Simons filed his pro se appearance and motion to withdraw guilty

       plea. In his motion, Simons stated his belief that he was “entitled to

       meaningful consultation with a new attorney.” Appellant’s App. Vol. 2, p. 114.

       Additionally, included in documents Simons filed with his motion was a letter

       he wrote to Public Defender Breitenstein in which he stated, “You are fired

       from representing me!” Id. at 124. The trial court set Simons’s motion for

       hearing, and, at the hearing, the following conversation ensued.


               COURT:         I set this for a hearing. Mr. Simons filed a motion
               on his own to withdraw from a plea. Typically, Mr. Simons, I
               just simply reject those, because you’re represented by counsel.
               Because there had been some discussion in your case about
               whether you’re going to represent yourself, or you weren’t going
               to represent yourself, and so forth, I decided to go ahead and set
               this for a hearing here today. Ms. Breitenstein, I guess, I’m —
               before we get started, I did not know if — what role you had to
               play in this, or if you had a role, or if you object to me even
               having a hearing at this point in time.
               MS. BREITENSTEIN: Your Honor, we were — I had been
               talking to my client about getting such a motion filed. He went

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 8 of 20
        ahead and submitted one, but I had already had another draft
        that was being worked on to be filed, so I don’t have an objection
        to proceeding.
        COURT:       All right. Did you have any evidence to present on
        your request?
        MS. BREITENSTEIN: Yes, Your Honor. We call — well,
        and I guess also — my understanding was the motion he filed
        also included a request either for a different attorney or — so I
        didn’t know if the Court wanted to deal with that first or — if
        not, I would just call Matt Simons to the stand.
        COURT:        Okay. I’m not going to grant a different attorney at
        this time, Mr. Simons. I think we’ve talked about that the last
        time I granted you another one. So do you want to have Ms.
        Breitenstein represent you or are you going to represent yourself
        moving forward?
        SIMONS:          I don’t – I want to represent myself.
        COURT:           You want to represent yourself?
        SIMONS:          Correct.
        COURT:        All right. Do you understand that there are dangers
        to self-representation and that, I’m assuming, you don’t have the
        education, the experience, the legal training, and the experience
        in representation; is that right?
        SIMONS: I have no other choice, Your Honor, if you’re not
        going to appoint me another counsel.
        COURT:        Mr. Simons, we have dealt with this issue, in this
        case for some period of time. I think when I appointed you an
        attorney the last time we got towards the end of the case, I told
        you I wasn’t going to do it again, and I’m not. And so, there are
        dangers to self-representation. You have been appointed a very
        competent, knowledgeable lawyer to represent you in this case.
        And if you don’t choose to utilize her services, then I’m going to
        be looking to you to present evidence and argument in this case.
        Do you understand that?


Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 9 of 20
               SIMONS: Yeah, MacKenzie Breitenstein was appointed with
               60 days on two trial cases, and she prepared depositions on a
               case that came before this case. And Danny Saiz was on my case
               for two years, on both cases, and he was allowed to withdraw.
               COURT:      Do you want to have a lawyer — do you want to
               have Ms. Breitenstein to represent you or not in this case?
               SIMONS:          No.
               COURT:        All right. You understand that you are going — I’m
               going to be looking to you to present evidence. So the next thing
               that’s going to happen is I’m going to turn to you and say, do you
               have any evidence to present on this verified motion?
               SIMONS:          I do.
               COURT:           Okay. And you’re prepared to present that
               evidence?
               SIMONS:          Yes, Your Honor. Can we proceed with that today?
               COURT:           I was planning on it.
               SIMONS:          Okay.
               COURT:        Okay. Ms. Breitenstein, I’m going to excuse you at
               this time. I’m going to find there’s been a willing, knowing
               waiver of an attorney at this point in time.
       Tr. pp. 44-46.


[19]   Simons then proceeded on the motion that he had prepared and filed and

       argued that (1) the fixed sentence of three years contained in the plea agreement

       was not the sentence he was told he would receive; (2) the State’s belated filing

       of an amended witness list constituted a manifest injustice to his case because it

       precluded his testing of the chain of custody; (3) certain scientific tests he

       requested were not conducted; (4) he did not view his taped interviews until the

       week of trial; (5) no deposition was taken of one of the police officers involved


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 10 of 20
       in the case; (6) Public Defender Breitenstein prepared for the trial of another of

       Simons’s cases before she prepared for the trial of the instant case; and (7) after

       Simons pleaded guilty, one of the police officers talked to him without his

       attorney present. The State responded to Simons’s contentions by questioning

       him about the accuracy of the facts he alleged and by calling Public Defender

       Breitenstein to testify. Simons then cross-examined her at length.


[20]   In Martin v. State, 588 N.E.2d 1291 (Ind. Ct. App. 1992), Martin entered a

       guilty plea pursuant to a plea agreement. At the sentencing hearing, he advised

       the trial court of his desire to withdraw his plea, expressed displeasure with his

       private counsel, requested the court to appoint counsel, indicated he was unsure

       of his competence to properly evaluate the withdrawal of his guilty plea, and

       stated he had alibi witnesses. The trial court approved the withdrawal of

       Martin’s attorney but denied his request for appointment of counsel. The trial

       court held a hearing on Martin’s motion to withdraw plea despite Martin being

       unrepresented and having raised substantial questions of law regarding his

       competency and alibi witnesses. Based on these circumstances, this Court

       concluded that Martin was entitled to the assistance of counsel at the hearing

       on his motion to withdraw plea and that he did not knowingly and voluntarily

       waive his right to counsel.


[21]   More recently, however, in Milian, 994 N.E.2d 342, a panel of this Court

       distinguished Martin. After pleading guilty while represented by counsel,

       Milian, pro se, moved to withdraw his guilty plea. Subsequently, he also filed a

       motion requesting the removal of his appointed counsel and expressing his

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 11 of 20
       desire to proceed pro se. The trial court held a status conference on Milian’s

       motions, at which it announced it would allow Milian to proceed pro se with

       his motion to withdraw plea and it would have his appointed counsel serve as

       standby counsel.


[22]   At the hearing on his motion to withdraw plea, Milian asserted that he was

       misled by his counsel as to the offense to which he was pleading and the

       inclusion of an habitual substance offender enhancement and that the State had

       withheld information from him by delaying discovery. The State responded to

       Milian’s contentions, and the trial court denied Milian’s motion. Finding that

       Milian made repeated requests to proceed pro se when he was represented by

       counsel and that his motion to withdraw guilty plea did not raise substantial

       questions of law or issues of fact, this Court concluded it was not error for the

       trial court to allow Milian to proceed pro se with his motion to withdraw plea.


[23]   We find the facts of the present case to be similar to the facts in Milian. Like

       Milian, Simons filed numerous pro se motions while represented by counsel

       and his motion to withdraw guilty plea did not raise substantial questions of

       law or issues of fact involving legal arguments. In addition, after being

       admonished of the dangers of self-representation and when given the choice

       between representation by appointed counsel or self-representation, Simons

       twice chose self-representation.


[24]   In considering the factors of a knowing and voluntary waiver of counsel within

       the circumstances of the present case, we first observe that the trial court


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 12 of 20
       admonished Simons that there are dangers to self-representation and warned

       him that he probably did not have the education, experience, or legal training to

       represent himself. The court also advised Simons that he had a competent,

       knowledgeable lawyer, and, if he chose not to utilize her services, the court

       would expect him to present evidence and argument on his own behalf. Simons

       twice unequivocally stated he wanted to represent himself, and then asked the

       court if it could proceed on his motion and indicated he was prepared to present

       evidence.


[25]   Further, it appears from the record that Simons is a high school graduate who

       has extensive experience with the criminal justice system and its proceedings.

       In general, the documents on appeal reveal a lengthy criminal history of both

       felony and misdemeanor convictions. More specifically, his plea agreement in

       the present case confirms he had another pending cause in Fulton County and

       other information in the record indicates additional criminal charges in Cass

       County as well as a very similar motion to withdraw plea in his case in Cass

       County. Additionally, Simons demonstrated his experience with criminal

       proceedings in his numerous, detailed pro se filings. In all, he filed nine

       different motions and/or correspondence with the court seeking discovery

       materials, transport orders, depositions of witnesses, scheduling of court dates,

       copies of deposition transcripts, a fast and speedy trial setting, entry of pro se

       appearance, and withdrawal of guilty plea as well as discussing the suppression

       of evidence, specific evidence of his case, and his relationships with his

       attorneys.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 13 of 20
[26]   Simons claims that he had no choice but to proceed pro se because the trial

       court declined to appoint new counsel. We note that the right to counsel in a

       criminal proceeding does not mean that the defendant has an absolute right to

       be represented by counsel of his own choosing. McBride, 992 N.E.2d 912. A

       trial court may, in the exercise of its sound discretion, deny a defendant’s

       request for a new court appointed attorney. Id. When Simons indicated his

       desire to sever ties with his appointed counsel and his intent to represent

       himself, the trial court reminded him that he had been warned previously that it

       would not appoint another new counsel. Prior to Public Defender Breitenstein,

       Simons had been represented by Public Defender Saiz, as well as private

       counsel, both of whom withdrew due to a breakdown in the attorney/client

       relationship. Simons was in no way forced to represent himself; rather, the

       court gave him the choice to represent himself or continue with his current

       public defender while making it clear that it would not pander to his cherry

       picking for counsel.


[27]   Moreover, trial courts need not unreasonably indulge a defendant who

       repeatedly fails to cooperate with appointed counsel. Poynter, 749 N.E.2d 1122.

       The record here demonstrates Simons’s inability to work with his counsel. Two

       different counsel, one private and one appointed, sought withdrawal from

       Simons’s case stating that they were unable to deal with him any longer and

       that there had been a breakdown in the relationship. Lastly, at the hearing on

       his motion to withdraw plea, Simons sought to dismiss Public Defender

       Breitenstein, his third counsel/second appointed counsel. The trial court was


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 14 of 20
       well within its discretion when it denied Simons’s request for new appointed

       counsel.


[28]   In light of the facts and circumstances before us, we determine that the hearing

       on Simons’s motion to withdraw plea was not a critical stage of the proceedings

       to which the assistance of counsel guarantee applied. Nevertheless, we

       conclude that Simons knowingly and intelligently exercised his right of self-

       representation.


                                       2. Withdrawal of Guilty Plea

[29]   Indiana Code section 35-35-1-4(b) (1983) governs motions to withdraw guilty

       pleas. The court must allow a defendant to withdraw a guilty plea if “necessary

       to correct a manifest injustice.” Id. By contrast, the 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.” Id. Here, we note Simons does not

       claim the existence of a manifest injustice and the State does not assert that it

       relied on Simons’s guilty plea such that withdrawal of the plea would be

       substantially prejudicial.


[30]   A trial court’s ruling on a motion to withdraw a guilty plea comes to this Court

       cloaked in a presumption of correctness, and we will reverse the trial court only

       for an abuse of discretion. Brightman v. State, 758 N.E.2d 41 (Ind. 2001). To

       determine whether a trial court has abused its discretion, we examine the




       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 15 of 20
       statements made by the defendant at his guilty plea hearing to decide whether

       his plea was made freely and knowingly. Id.


[31]   The judge began the plea hearing by confirming that the signature on the plea

       agreement was Simons’s and that he understood the terms of the agreement.

       The judge then explained that he was going to ask Simons several questions to

       ensure he understood his rights and was freely and voluntarily pleading guilty.

       The judge said, “If there is ever a point in time that you don’t understand the

       words that I use or the advisements that I give, please don’t hesitate to stop me,

       and I’ll be glad to go over them again with you.” Tr. p. 32. Simons responded,

       “Okay.” Id.


[32]   In further dialogue with the judge, Simons responded that he understood he

       had a right to a speedy trial by jury, to face and cross examine witnesses against

       him, to have witnesses testify on his behalf, to have the charges proved beyond

       a reasonable doubt, to remain silent, and to appeal his conviction following a

       trial. He also indicated his understanding that by pleading guilty he was giving

       up all these rights. The judge also confirmed that Simons understood his right

       to be represented by counsel.


[33]   The judge next read the charge of possession of an illegal drug lab and asked the

       prosecutor to read the relevant statute and explain the potential penalties. The

       judge then inquired as to Simons’s understanding of the statute defining the

       offense, the range of penalties, the fact that his plea of guilty is an admission

       that he committed the offense, the fact that he will be found guilty and


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 16 of 20
       sentenced without a trial, and the fact that the court will have knowledge of his

       criminal history in formulating his sentence. Simons answered that he

       understood.


[34]   The judge continued by asking Simons if anyone had made him any promises,

       given him anything, or forced or threatened him to plead guilty. Simons

       responded in the negative. The judge also asked Simons, “Do you feel like

       your decision to plead guilty is your own free choice and decision?” Id. at 37-

       38. Simons replied, “Yes, sir.” Id. at 38.


[35]   The judge then reviewed with Simons the sentence called for in the plea

       agreement:


               COURT:       Are you now on parole, probation, or a suspended
               sentence out of this court or any other court?
               SIMONS:          I’m currently sentenced out of another court.
               COURT:       Okay. And is that the Cass County case that’s in
               the plea agreement?
               SIMONS:          Correct, Your Honor.
               COURT:        Okay. The plea agreement calls for this sentence to
               run consecutively to that case. I think that that’s probably
               mandatory, but in any event, if I accept the plea agreement, then
               it will run consecutively to that case, which means that you will
               have to serve this sentence before you serve the other sentence or
               vice versa. In other words, they’re not going to be served at the
               same time. Do you understand?
               SIMONS:          And that is the statute?
               COURT:           What now?
               SIMONS:          That is the statute to run –


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 17 of 20
        COURT:           I suspect it is. I’m not sure of the timing of these
        cases.
        SIMONS:          Oh.
        COURT:      It is mandatorily consecutive, but in any event
        you’ve agreed that it will be consecutive in your plea agreement.
        SIMONS:          Okay.
        COURT:           Do you understand that?
        SIMONS:          I understand.
        STATE:       The Cass County case occurred while these were
        pending, so it would be mandatorily consecutive.
        SIMONS:          I understand.
        COURT:           Do you follow?
        SIMONS:          Yeah.
        *****
        COURT:        All right. Mr. Simons, one of the things about your
        plea agreement is that it is a fixed term plea agreement and if I
        accept it that means I’m bound by the terms of the plea
        agreement. And so, what you need to know is if I accept it,
        there’s not going to be an appeal because there’s no reason to
        appeal something you agree to. Do you understand that?
        SIMONS:          Yes, I do.
Id. at 36-37, 38. The judge asked Simons how he wished to plead, and, upon

his plea of guilty, the prosecutor read the factual basis for the plea. To conclude

the plea hearing, the judge found that Simons understood the nature of the

charge and the possible sentence, that his offer to plead guilty was freely and

voluntarily made, and that there was a factual basis to support the plea. A little

over a month later Simons filed his motion to withdraw plea.




Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 18 of 20
[36]   Before denying Simons’s motion to withdraw plea, the court listened to the

       recording of the change of plea hearing and considered Simons’s assertions at

       the hearing on his request to withdraw his plea. As we outlined previously,

       Simons claimed several reasons for the withdrawal of his plea. In response, the

       State confirmed with Simons that he was aware of all these facts prior to

       accepting the plea agreement and entering his guilty plea:


               STATE:         You said something to the effect that once you
               realized all these things had been done, then you realized you
               needed to file this motion to set aside your plea, but everything
               you listed, everything you stated happened before the trial,
               correct?
               SIMONS:          Everything I stated?
               STATE:        Yeah. You complained about the videotape, you
               complained about the editing of the videotape, you complained
               that [a police officer] wasn’t deposed, you complained that
               [another police officer] was deposed. You knew all of that before
               the day that you changed your plea. It wasn’t a secret is what
               I’m getting. You knew all of those things.
               SIMONS:          Yes.
       Id. at 67.


[37]   In denying Simons’s motion to withdraw plea, the judge explained:


               [Simons] was clearly explained his rights during the Change of
               Plea proceeding. The Court specifically addressed the fact that
               this was a fixed term plea and that if the Court accepted the plea
               the Court would be bound by its terms. The Court further
               advised [Simons] that he would be bound by the terms of the plea
               if accepted. [Simons] indicates no confusion as to the terms of
               the plea throughout the proceeding or his rights.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 19 of 20
       Appellant’s App. Vol. 2, p. 135. Having reviewed all of these same materials,

       we are satisfied that the trial court did not abuse its discretion in denying

       Simons’s request to withdraw his guilty plea.


[38]   For the foregoing reasons, we conclude that the hearing on Simons’s motion to

       withdraw plea was not a critical stage of the proceedings to which the assistance

       of counsel guarantee applied; nevertheless, Simons knowingly and intelligently

       waived his right to counsel at the hearing. We further conclude that the trial

       court did not abuse its discretion in denying his motion to withdraw his guilty

       plea.


[39]   Judgment affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1841 | February 28, 2018   Page 20 of 20
