MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             May 31 2017, 10:46 am
regarded as precedent or cited before any
                                                                       CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana
                                                        Angela Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin Scott Colvin,                                    May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        36A05-1701-CR-107
        v.                                              Appeal from the Jackson Circuit
                                                        Court
State of Indiana,                                       The Honorable William E. Vance,
Appellee-Plaintiff.                                     Senior Judge
                                                        Trial Court Cause No.
                                                        36C01-1412-F1-1



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017         Page 1 of 6
                                       Statement of the Case
[1]   Justin Scott Colvin (“Colvin”) appeals the trial court’s denial of his request to

      withdraw his guilty plea to Level 2 felony robbery resulting in serious bodily

      injury1 and his admission that he was an habitual offender.2 He argues that the

      trial court should have granted his request to withdraw his guilty plea because

      he did not have sufficient time to consider the effect the plea would have on his

      life. Because Colvin did not submit a written and verified motion to withdraw

      his plea, we conclude that he has waived his argument. Waiver

      notwithstanding, we also conclude that Colvin failed to adequately support his

      motion.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion when it denied
                 Colvin’s oral motion to withdraw his guilty plea.

                                                     Facts
[3]   On December 23, 2014, the State charged Colvin with Level 1 felony burglary, 3

      Level 2 felony robbery resulting in serious bodily injury, Level 3 felony




      1
          IND. CODE § 35-42-5-1(2).
      2
          I.C. § 35-50-2-8.
      3
          I.C. § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017   Page 2 of 6
      aggravated battery,4 and Level 3 felony criminal confinement. Subsequently,

      the State amended Colvin’s charges to add a charge of Level 1 felony attempted

      murder and an allegation that Colvin was an habitual offender.


[4]   Almost two years later, on October 27, 2016, Colvin pled guilty pursuant to a

      written plea agreement with the State to Level 2 felony robbery resulting in

      serious bodily injury and admitted to being an habitual offender. He and the

      State agreed that he would serve an aggregate sentence of forty (40) years—

      thirty (30) years for the Level 2 felony and an enhancement of ten (10) years for

      the habitual offender adjudication—and that, in exchange for his guilty plea,

      the State would dismiss the remaining four charges against him. Colvin also

      signed an advisement of rights form.


[5]   That same day, the trial court held a hearing on the guilty plea agreement and

      confirmed that Colvin had signed both the negotiated plea agreement and the

      advisement of rights form. The trial court also reviewed the sentencing ranges

      for the two offenses to which Colvin was pleading guilty and asked if he still

      wished to proceed with the guilty plea hearing. Colvin said he did, then

      reviewed the guilty plea agreement and acknowledged that he had agreed to the

      terms of the agreement. He then established the factual basis for his guilty plea

      and pled guilty.




      4
          I.C. § 35-42-2-1.5(2).


      Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017   Page 3 of 6
[6]   On November 30, 2016, the trial court held a sentencing hearing. There,

      Colvin made an oral motion to withdraw his guilty plea. The State argued that

      the motion was not validly before the court because a motion to withdraw a

      guilty plea must be in writing and verified. The State also noted that the guilty

      plea had been free and voluntary and that the only portion of the agreement

      that the trial court had taken under advisement was acceptance of the

      sentencing portion of the agreement. The trial court agreed that it “had nothing

      before it to consider” and denied the motion to withdraw. (Tr. 17). Thereafter,

      the trial court sentenced Colvin according to the terms of the plea agreement.

      Colvin now appeals.


                                                  Decision
[7]   On appeal, Colvin argues that the trial court abused its discretion when it

      denied his motion to withdraw his guilty plea. He acknowledges that he signed

      the plea agreement and pled guilty at the guilty plea hearing. However, he

      asserts that the trial court should have granted the motion because he had not

      had time to adequately consider the effect the plea would have on his life when

      he entered into the plea agreement with the State.


[8]   INDIANA CODE § 35-35-1-4(b) governs the withdrawal of a guilty plea prior to

      sentencing. It provides:


              [T]he court may allow the defendant by motion to withdraw his
              plea of guilty . . . for any fair and just reason unless the [S]tate
              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
      Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017   Page 4 of 6
                 state facts in support of the relief demanded, and the [S]tate may file
                 counter-affidavits in opposition of 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.


       I.C. § 35-35-1-4(b) (emphasis added).


[9]    Based on this provision, Indiana courts have noted that “‘[a] defendant’s failure

       to submit a verified, written motion to withdraw a guilty plea generally results

       in waiver of the issue of wrongful denial of the request.’” Peel v. State, 951

       N.E.2d 269 (Ind. Ct. App. 2011) (quoting Carter v. State, 739 N.E.2d 126, 128

       n.3 (Ind. 2000)) (finding waiver because Peel made an oral motion to withdraw

       his guilty plea rather than a verified and written motion). Accordingly, because

       Colvin did not submit a verified, written motion to withdraw his guilty plea, we

       conclude that he has waived the issue of the trial court’s denial of the request.

       See id.


[10]   Waiver notwithstanding, we also conclude that the trial court did not abuse its

       discretion when it denied Colvin’s motion to withdraw the plea agreement

       because Colvin did not provide any “facts in support of the relief [he]

       demanded,” as required by statute, and, therefore, did not present any facts

       showing that withdrawal of the plea was necessary to correct a manifest

       injustice. I.C. § 35-35-1-4(b).


[11]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017   Page 5 of 6
May, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017   Page 6 of 6
