MEMORANDUM DECISION
                                                               Mar 25 2015, 9:37 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Brian Reitz
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Luis Mandujano,                                         March 25, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1409-CR-424
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
                                                        Judge
Appellee-Plaintiff.
                                                        Case Nos. 49G06-1305-FB-29165
                                                                  49G06-1307-FB-38597
                                                                  49G06-1404-FB-18191




Vaidik, Chief Judge.



                                      Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 1 of 11
[1]   Luis Mandujano was charged, in three separate cases, with eleven felonies. He

      pled guilty to three of the felonies, and the State agreed to dismiss the rest.

      Three weeks later, before he was sentenced, Mandujano filed a motion to

      withdraw his guilty plea. The trial court denied the motion, finding that

      Mandujano had “buyer’s remorse,” and sentenced him to eighteen years in the

      Indiana Department of Correction.


[2]   Mandujano argues that the trial court was required to grant the motion to

      prevent a manifest injustice because he wrote two letters to the court

      complaining about his trial counsel. But at the guilty-plea hearing, which was

      after Mandujano wrote the letters to the trial court and while he was under oath,

      the trial court asked Mandujano if he was satisfied with the services of his

      lawyer, and Mandujano said yes. The trial court also asked Mandujano if he

      thought his lawyer should have done something for him that she did not do,

      and Mandujano said no. In addition, the court carefully advised Mandujano of

      the rights he was waiving and the charges he was pleading guilty to and

      concluded that Mandujano knowingly and voluntarily waived his rights.

      Although Mandujano later complained about his trial counsel at the hearing on

      his motion to withdraw his guilty plea, the trial court did not find him credible.

      We therefore affirm the trial court’s denial of Mandujano’s motion.



                            Facts and Procedural History
[3]   In May 2013, in Case No. 49G06-1305-FB-29165 (Case No. 29165), the State

      charged Mandujano with Class B felony robbery, Class C felony possession of a

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 2 of 11
      handgun with an obliterated serial number, Class C felony possession of a

      narcotic drug, and Class D felony criminal gang activity for events that

      occurred in Marion County, Indiana, between February and May 2013.

      Appellant’s App. p. 29-36. The State later amended the charging information

      to add a criminal-gang enhancement. Id. at 37 (alleging that Mandujano was a

      member of the Loketes 13 a/k/a Sur 13 and/or Chico Pride gang).


[4]   In July 2013, in Case No. 49G06-1307-FB-38597 (Case No. 38597), the State

      charged Mandujano with Class B felony battery, Class B felony neglect of a

      dependent, Class D felony neglect of a dependent, Class D felony criminal

      recklessness, and Class D felony battery for incidents involving his girlfriend’s

      four-year-old son in Marion County, Indiana, between February and May 2013.

      Id. at 94-97.


[5]   Finally, in April 2014, in Case No. 49G06-1404-FB-18191 (Case No. 18191),

      the State charged Mandujano with Class B felony prisoner in possession of a

      dangerous device for possessing a “shank” while incarcerated in the Marion

      County Jail.1 Id. at 129.


[6]   On July 21, 2014, the day the case was set for trial, Mandujano entered into a

      plea agreement with the State for all three cases. Specifically, Mandujano pled

      guilty to Class B felony robbery in Case No. 29165, Class B felony battery in




      1
       The record shows that Mandujano was in the Marion County Jail for Case No. 29165 from May 3, 2013, to
      July 21, 2014.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 3 of 11
      Case No. 38597, and Class B felony prisoner in possession of a dangerous

      device in Case No. 18191. In exchange, the State agreed to dismiss the

      remaining eight felonies. According to the plea agreement, Mandujano would

      serve an eighteen-year sentence that was “open to placement.” Id. at 65-66,

      110-11, 143-44.


[7]   That same day, the trial court held a guilty-plea hearing. After carefully

      reviewing the terms of Mandujano’s plea agreement with him, the trial court

      said:

              THE COURT:                       Are you doing this plea of your own free
                                               will?
              THE DEFENDANT:                   Yes, sir.
              THE COURT:                       Have there been any force, threats, or
                                               promises used to get you to plead guilty
                                               other than the promises that are in the
                                               plea agreement?
              THE DEFENDANT:                   No, sir.
              THE COURT:                       I want to make sure you understand the
                                               charges you’re pleading guilty to, sir. . . .
      Tr. p. 16. The trial court then discussed the charges with Mandujano, and

      Mandujano confirmed that when he pled guilty, he “admitt[ed] as true” the

      charges. Id. at 18. The following exchange occurred:

              THE COURT:                       Are you satisfied with the services of your
                                               lawyer, Ms. [Michelle] Wall?
              THE DEFENDANT:                   Yes, sir.
              THE COURT:                       Anything you think your lawyer should
                                               have done for you that she didn’t do?
              THE DEFENDANT:                   No, sir.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 4 of 11
      Id. The trial court then asked the State to establish a factual basis for the

      charges. The State outlined the factual basis for each charge, the trial court

      asked Mandujano if he agreed to the factual basis and was guilty, and

      Mandujano said he was. Id. at 20-24. When the trial court asked Mandujano if

      he still wanted the court to accept his plea, Mandujano replied yes. Id. at 24.

      The trial court found that

              Mandujano is 21 years of age; he understands the nature of the charges
              against him; he’s entered into a written plea agreement and the rights
              waiver. Court has made personal inquiry on him and finds he does
              knowingly and voluntarily waive his rights, not only on the basis of the
              conversation in open court, but also on the basis of a signed written
              plea agreement and rights waiver which the defendant has indicated he
              has reviewed with his attorney Ms. Wall and that he does understand.
              There is a factual basis for his plea; the Court accepts plea and the plea
              agreement; finds the defendant guilty of [Class B felony robbery, Class
              B felony battery, and Class B felony prisoner in possession of a
              dangerous device].
      Id. at 24-25.


[8]   Approximately three weeks later, on August 13, 2014, which was before

      Mandujano was sentenced, he filed a pro se motion to withdraw his guilty plea.

      He claimed that his attorney used “deceitful tactics” to “convince” him to plead

      guilty. Appellant’s App. p. 71. Two days later, Mandujano’s trial counsel filed

      a motion to withdraw his guilty plea. The motion alleges as follows:

              4. [Mandujano] has had time to reflect on the plea of guilty and desires
              to withdraw the plea and to go to trial on the above charges for the
              following fair and just reasons:
                      a. [Mandujano] says he felt pressured by counsel advising him
                      regardi ng the likely outcome of his cases should he go to trial.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 5 of 11
                  b. [Mandujano] says he is not satisfied with his counsel in that
                  he does not feel I provided my best efforts.
         5. The State has not been substantially prejudiced by any reliance on
         the plea.
         6. The withdrawal of the plea is necessary to correct a manifest
         injustice.
Id. at 114-15. That same day, the trial court held a hearing on Mandujano’s

motion. Both Mandujano and trial counsel testified. Mandujano explained his

allegations, stating trial counsel “hasn’t gave me the depositions,” “hasn’t done

depositions on Luther,” “I haven’t received . . . like no statements, question or

answer on none of the cases,” and “[t]he witnesses I wanted her to talk to didn’t

get talked to.” Tr. p. 35. In addition, Mandujano said that trial counsel knew

that “I’m not satisfied with her representing me. When we went over the plea

agreement, she told me that I had to say that I was satisfied with her

representing me.” Id. Mandujano also referred to handwritten letters that he

had sent to the trial court in May 20142 and July 20143 claiming the same thing

and a pro se supplemental witness list that he filed in July 2014. Appellant’s

App. p. 102-03, 135, 136. Trial counsel testified about the work she had done

on Mandujano’s case, including taking statements in two of the cases, as well as

a conversation that she had with Mandujano in his holding cell in which she




2
  This letter references Case No. 38597. For example, Mandujano requests a new public defender because
trial counsel “has done nothing but try to push me into put[t]ing my signature on a plea deal. . . . [I] am in
fear that [I] will be wrongly convicted because [of] her not assisting me.” Appellant’s App. p. 102-03.
3
 This letter references Case No. 18191. For example, Mandujano alleges that he has “evidence to prove I
did not do this, or that this was not used [as] a deadly weapon. . . . I want both Deput[ies] on this case
deposed. And I have evidence to compel[] for myself. My witness is Mexican and speaks 4% English.”
Appellant’s App. p. 135.

Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424             Page 6 of 11
      told him that when he pled guilty, the judge would ask him “if [he’s] satisfied

      with what [she] did.” Tr. p. 37.


[9]   The court denied Mandujano’s motion to withdraw his guilty plea. Id. at 45.

      The court said it “heard no evidence that . . . a manifest injustice would occur.”

      Id. Instead, the court explained, “All I’ve heard is that the Defendant basically

      says one thing on one day and then at best changes his mind because he doesn’t

      like the result after he’s had further opportunity to think about it. That’s not

      what manifest injustice implies.” Id. at 45-46. In addition, the court found that

      the State would be substantially prejudiced because Mandujano was a co-

      defendant in two of the cases, which meant that the State might have to reopen

      those cases and bring back a co-defendant from Texas. Id. at 46. Finally, the

      court found trial counsel’s testimony more credible than Mandujano’s

      testimony. Id. at 47. The court explained why:

              The Court does conduct an extensive questioning process at a guilty
              plea including the questioning that deals with potential ineffective
              assistance of counsel. It was very clear that Mr. Mandujano at
              previous times had complained about counsel and yet that was in
              May.[4] There was no indication at any time during the morning of
              trial, when the case could have been resolved, that he had issues about
              pre-trial preparation, discovery or available witnesses. The Court gave
              him every opportunity to do that and questioned him. He was under
              oath and what Mr. Mandujano would be basically saying is that he
              lied to this Court when he was under oath, in other words, that he
              committed a crime when he was going through his guilty plea. Again
              the Court believes that simply in this situation it’s more the equivalent



      4
        The trial court did not mention Mandujano’s July 2014 letter to the court. However, the court did note at
      the beginning of the hearing that “there are several letters from the Defendant in the files.” Tr. p. 34.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424          Page 7 of 11
               of buyer’s remorse. In weighing the credibility of Mr. Mandujano
               today as he appears before the Court, the Court did not find him
               credible in terms of his representations and therefore denies the motion
               to withdraw the guilty plea.
       Id. at 47-48. The parties proceeded to sentencing, and the trial court sentenced

       Mandujano to eighteen years executed in the DOC.


[10]   Mandujano now appeals.



                                 Discussion and Decision
[11]   Mandujano contends that the trial court erred in denying his motion to

       withdraw his guilty plea. Motions to withdraw guilty pleas are governed by

       Indiana Code section 35-35-1-4. After the plea of guilty but before sentencing, a

       court may grant the motion for “any fair or just reason.” Ind. Code § 35-35-1-

       4(b). However, the court is required to grant the motion to prevent “manifest

       injustice” and is required to deny the motion when the State would be

       “substantially prejudiced.” Id. The defendant bears the burden of establishing

       his grounds for relief by a preponderance of the evidence. I.C. § 35-35-1-4(e).


[12]   Upon appeal, 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. Smallwood v.

       State, 773 N.E.2d 259, 264 (Ind. 2002). The trial court’s decision is reviewed

       for abuse of discretion. I.C. § 35-35-1-4(b). We will not disturb the court’s

       ruling where it was based on conflicting evidence. Smallwood, 773 N.E.2d at

       264. In determining whether a trial court has abused its discretion in denying a

       motion to withdraw a guilty plea, we examine the defendant’s statements at his

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 8 of 11
       guilty-plea hearing to decide whether his plea was offered “freely and

       knowingly.” Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001).


[13]   Mandujano claims that a manifest injustice occurred in this case because he

       wrote letters to the trial court expressing displeasure with his trial counsel before

       he pled guilty; therefore, the trial court was “on notice” that he had “serious

       complaints with the representation of his attorney.” Appellant’s Br. p. 11. In

       light of this evidence,5 Mandujano’s argument continues, “much more was

       required of the trial court” in accepting his guilty plea. Id. at 13.


[14]   We, however, agree with the trial court that no manifest injustice occurred and

       that this was instead a case of “buyer’s remorse.”6 At the guilty-plea hearing,

       which was after Mandujano wrote the letters to the trial court and while he was

       under oath, the trial court asked Mandujano if he was satisfied with the services

       of his lawyer. Mandujano said, “Yes, sir.” The trial court then asked

       Mandujano if he thought his lawyer should have done something for him that

       she did not do. Mandujano said, “No, sir.” The trial court also carefully and

       thoroughly discussed the rights that Mandujano was waiving by pleading guilty




       5
         There are three plea agreements in this case, since there are three case numbers. Appellant’s App. p. 65-67,
       110-12, 143-45. Each plea agreement covers all three cases. Mandujano points out that for two of the plea
       agreements, Mandujano’s initials are missing from Numbers 11 and 13. Id. at 67, 112. In light of the fully
       completed plea agreement and the trial court’s questions at the guilty-plea hearing, we do not find this to be
       problematic. See id. at 63 (form that trial judge initials ensuring that judge fully explains each of the rights
       that the defendant is waiving).
       6
         The trial court also determined that the State would be substantially prejudiced by “having to potentially re-
       open those cases as well as having witnesses travel from Texas bearing the expense of having them here the
       first time . . . .” See Tr. p. 46. Notably, Mandujano does not respond to this finding by the trial court.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424             Page 9 of 11
       as well as the charges that Mandujano was pleading guilty to. See Tr. p. 2-19,

       11 (“Now, Mr. Mandujano, I’ve gone through the terms of the plea agreement

       as I understand them. But this is your life. It’s your freedom that’s at stake.

       So, [what] I want to make sure is . . . your understanding of the terms of the

       agreement?”). Specifically, the trial court asked Mandujano if his plea was of

       his “own free will,” and Mandujano said yes. Id. at 16. The court also asked

       Mandujano if there were any force, threats, or promises used to get him to

       plead guilty, and Mandujano said no. Id. In addition, Mandujano agreed with

       the factual basis that the State established for each of the offenses because he

       was “guilty.” When the trial court gave Mandujano one last chance,

       Mandujano confirmed that he wanted the trial court to his accept his plea. The

       court concluded that Mandujano knowingly and voluntarily waived his rights.

       The trial court was not required to do anymore.


[15]   But at the hearing on his motion to withdraw his guilty plea approximately

       three weeks later, Mandujano painted a very different picture, accusing his trial

       counsel of not doing what he asked her to do. He told the trial court that he

       addressed this issue in his letters to the court.7 Id. at 33. The trial court listened

       to both Mandujano and trial counsel and determined that Mandujano was not

       credible. The trial court reasonably determined that Mandujano knowingly and




       7
        Trial counsel explained to the court that she forwarded Mandujano’s May 2014 letter to Bob Hill and her
       supervisor at the Marion County Public Defender’s Office, and given the work she had performed on
       Mandujano’s case, they determined that Mandujano was not entitled to conflict counsel. See Appellant’s
       App. p. 102; Tr. p. 33-34.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424      Page 10 of 11
       voluntarily waived his rights at the guilty-plea hearing and only sought to

       withdraw his guilty plea because of “buyer’s remorse.” Accordingly, the trial

       court did not abuse its discretion in denying Mandujano’s motion to withdraw

       his guilty plea.


[16]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-424 | 49A04-1409-CR-424   Page 11 of 11
