MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jul 27 2020, 9:56 am

regarded as precedent or cited before any                                          CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Devon M. Sharpe                                           Curtis T. Hill, Jr.
Jenner & Pattison                                         Attorney General of Indiana
Madison, Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian M.E. Skirvin,                                       July 27, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-308
        v.                                                Appeal from the Jefferson Circuit
                                                          Court
State of Indiana,                                         The Honorable Richard Striegel,
Appellee-Plaintiff.                                       Sr. Judge
                                                          Trial Court Cause Nos.
                                                          39C01-1810-F4-1048
                                                          39C01-1901-F6-27
                                                          39C01-1902-F6-115
                                                          39C01-1902-CM-148
                                                          39C01-1906-F3-736



Rucker, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020                           Page 1 of 11
                                          Statement of the Case
[1]   Under separate written agreements Brian M.E. Skirvin pleaded guilty to

      robbery, escape, and resisting law enforcement. He also admitted to a

      probation violation. Prior to sentencing Skirvin moved to withdraw his guilty

      plea. The trial court denied the motion and Skirvin now appeals contending the

      trial court abused its discretion in so doing. We disagree and affirm.


                                   Facts and Procedural History
[2]   Prior to January 2, 2019 Skirvin was serving a term of probation for the

      unlawful possession of a syringe and was required to wear an ankle bracelet.

      On that date he was charged with Escape (for intentionally removing an
                                                                  1
      electronic monitoring device) a Level 6 felony and Resisting Law Enforcement
                                     2
      also a Level 6 felony. A month later he was charged with Resisting Law
                                                           3
      Enforcement as a Class A misdemeanor. Skirvin negotiated an agreement with

      the State whereby he would plead guilty as charged and admit to a probation

      violation. Sentencing was left to the discretion of the trial court.


[3]   At the April 3, 2019 change of plea hearing the trial court administered Skirvin

      the oath and reviewed with him the terms of his plea agreement which Skirvin



      1
          Ind. Code § 35-44.1-3-4(b) (2014).


      2
          Ind. Code § 35-44.1-3-1(b) (2016).


      3
          Ind. Code § 35-44.1-3-1(a) (2016).

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 2 of 11
acknowledged he had gone over with his lawyer and had signed. The trial

court established that Skirvin had never “been treated for any sort of mental

health issues” and was not “now under the influence of any alcohol or drugs or

even any medicine.” Tr. Vol. II, p. 5. The trial court advised Skirvin of his

constitutional rights, to which Skirvin responded “Yes” or “Yes, sir” to the

questions “Do you understand that?” Id. at 5-7. Skirvin freely and voluntarily

waived his rights. The trial court then reviewed the range of sentences for each

offense to which Skirvin declared “Yes” when asked if he understood. Id. at 7.

When the trial court inquired, “Are you satisfied with how you’ve been

represented by your attorney?” and “Do you feel that pleading guilty to one

charge in each of these four things would be your own free and voluntary

decision?” Skirvin answered, “Yes, Sir.” Id. at 8. As a factual basis for the

plea the State read into the record the charging information for each offense.

Skirvin agreed with the facts as established and admitted those facts were true.

He then pleaded guilty as charged and admitted to a probation violation. The

Court then declared:


        [T]he Court now finds that the Defendant is 19 years old, that he
        understood the nature of the charges to which he plead and the
        possible sentences and fines thereunder, that his pleas were made
        freely and voluntarily and they were accurate and supported by
        the facts. So the Court accepts the pleas and finds the Defendant
        guilty of one count of Resisting Law Enforcement, a Level 6
        felony; one count of Escape, a Level 6 felony; one count of
        Resisting Law Enforcement, a Class A misdemeanor, and of
        violating conditions of probation in the oldest of these four cases.



Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 3 of 11
      Id. at 13-14. Pending sentencing the trial court released Skirvin to the Fort

      Wayne Adult Rehabilitation Center.


[4]   On June 14, 2019 – while Skirvin was on release from the Center – he was
                                                             4
      charged with Robbery as a Level 3 felony. Thereafter Skirvin entered an

      agreement with the State to dispose of all charges. Under the terms of the

      agreement Skirvin would plead guilty to robbery a Level 5 felony as a lesser-

      included offense and be sentenced to a term of five years. For the remaining

      offenses to which Skirvin had already pleaded guilty he would receive the

      following sentences: one year for resisting law enforcement as a Level 6 felony;

      one year for escape as a Level 6 felony; zero days for resisting law enforcement

      as a Class A misdemeanor; and 218 days of Skirvin’s previously suspended

      sentence would be revoked. All sentences were to be served consecutively at

      the Indiana Department of Correction for a total term of seven years and 218

      days.


[5]   At the December 5, 2019 plea hearing Skirvin acknowledged that he had gone

      over the plea agreement with his attorney and that he had signed the same. The

      trial court established that Skirvin was not “under the influence of any drugs or

      alcohol . . . prescription or otherwise.” Id. at 22. The trial court advised

      Skirvin of his constitutional rights, which he freely and voluntarily waived.

      When the trial court inquired, “Did anybody force, threaten or coerce you or




      4
          Ind. Code § 35-42-5-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 4 of 11
      place you in fear to get you to plead guilty?” and “Did anybody [ ] promise you

      or anybody else anything to get you to plead guilty?” Skirvin responded “No.”

      Id. at 24-25. The trial court asked, “Do you feel your plea of guilty is your own

      free and voluntary act?” Skirvin answered “Yes.” Id. at 25. When asked, “Are

      you satisfied with your attorney in this case?” Skirvin responded “Yeah.” Id. A

      factual basis for the plea was made part of the record. Skirvin agreed with the

      facts as established and admitted those facts were true. He then pleaded guilty

      to robbery as charged. The trial court took the matter under advisement,

      ordered a Presentence Investigation Report, and remanded Skirvin to the

      custody of the county jail.


[6]   As the court convened on January 9, 2020 for the sentencing hearing Skirvin

      made an oral motion to withdraw his guilty plea. After questioning Skirvin on

      the record, the trial court denied the motion and sentenced Skirvin under the

      terms of the agreement. This appeal followed. Additional facts will be

      provided as necessary.


                                   Discussion and Decision
                                        I. Standard of Review
[7]   Indiana Code section 35-35-1-4(b) (1983) governs motions to withdraw guilty

      pleas. In general, after a defendant pleads guilty but before a sentence is

      imposed a defendant may move to withdraw a plea of guilty. Id. The trial

      court must permit a defendant to withdraw a plea if it is “necessary to correct a

      manifest injustice.” Id. On the other hand, the motion to withdraw the plea


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 5 of 11
      should be denied if the plea’s withdrawal would substantially prejudice the

      State. Id. In all other cases, the court may grant the defendant’s motion to
                                                                                   5
      withdraw a guilty plea “for any fair and just reason.” Id.


[8]   “A trial court’s ruling on a motion to withdraw a guilty plea ‘arrives in this

      Court with a presumption in favor of the ruling.’” Brightman v. State, 758

      N.E.2d 41, 44 (Ind. 2001) (quoting Coomer v. State, 652 N.E.2d 60, 62 (Ind.

      1995)). We will reverse the trial court only for an abuse of discretion.

      Brightman, 758 N.E.2d at 44. In determining whether a trial court has 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 Coomer, 652 N.E.2d

      at 62).


                                            II. Skirvin’s Claim
[9]   Skirvin contends the trial court abused its discretion in denying his motion to

      withdraw his guilty plea. According to Skirvin, “after pleading guilty but before

      being sentenced, he had learned of other possible outcomes to his cases. After

      doing further research, he realized the full consequences of his guilty plea and




      5
        We note Skirvin does not advance this claim on appeal. And the State does not argue it would be
      substantially prejudiced by withdrawal of the plea. We thus confine our discussion to the “manifest
      injustice” component of the statute.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020                    Page 6 of 11
       asked to withdraw it. By not allowing him to do so, a manifest injustice

       occurred. Thus, the trial court abused its discretion.” Appellant’s Br. p. 9.


[10]   We first observe this issue is waived. Skirvin’s oral motion did not comply with

       the requirements of Indiana Code section 35-35-1-4(b). The statute clearly

       provides that such a motion “shall be in writing and verified.” Id. Failure to

       submit a written motion to withdraw waives the issue for review. Flowers v.

       State, 528 N.E.2d 57, 59 (Ind. 1988); see also Davis v. State, 418 N.E.2d 256, 259

       (Ind. Ct. App. 1981) (declaring the trial court did not abuse its discretion in

       denying defendant’s oral motion to withdraw his guilty plea because it was not

       “properly made”). Waiver notwithstanding Skirvin’s claim fails on the merits.


[11]   At the start of the sentencing hearing counsel for Skirvin declared: “Well,

       Judge, to begin with Mr. Skirvin is requesting to withdraw his prior plea. He’s

       given me two reasons for that. Number one, he believes he’s entitled to three

       plea offers and he didn’t get them. Secondly, he has indicated he’d prefer to do

       an open sentence.” Tr. Vol. II, p. 30. After objection by the State and brief

       arguments by both sides the trial court administered Skirvin the oath and the

       following exchange occurred:


               THE COURT: All right. Know of any legal reason why you
               should not be sentenced at this time?


               THE DEFENDANT: I said it was because my counsel – I
               thought I got defective counsel, but I don’t want to go to trial on
               a Level 3 felony. My attorney – the last time I was here, we
               talked, and [he] acted like that it was the only plea I was going to
               get. He told me if not then I’m going to trial, and that’s why I
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 7 of 11
               went through with it, but as I started talking to people that’s been
               doing – like I just (inaudible) convicts, but like they’re trying to
               help me out because I don’t know much about the law, but they
               told me that I shouldn’t have signed my first plea, that – that –
               you know what I mean?


               THE COURT: So people in jail were telling you – giving you
               legal advice, and they’re in jail?


               THE DEFENDANT: I mean that’s – that’s the only advice I’ve
               got at the moment though so –


               THE COURT: So jail – jailhouse lawyers were –


               THE DEFENDANT: Yes, pretty much.


               THE COURT: – telling you what – giving you legal advice?


               THE DEFENDANT: Yes, and – and then like my parents. I
               talked to my parents too. I’m just trying to get all the
               information on how to do this. I mean I’ve been in trouble and
               stuff before, but I’ve never been in on a serious case like this. I
               just had a newborn son, so like it’s all just – you know, I mean
               I’m – I don’t know much about it. I’m trying to figure out what I
               can.


               THE COURT: Well, I’m going to deny your request and
               proceed with the sentencing.


       Id. at 32-33.


[12]   It appears that Skirvin’s motivation for moving to withdraw his guilty plea was

       that he simply changed his mind after getting legal advice from other inmates

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 8 of 11
       and his parents. This does not rise to the level of “manifest injustice” which is a

       necessarily imprecise standard. See Coomer, 652 N.E.2d at 62. And an

       appellant seeking to overturn a trial court’s decision faces a high hurdle. Id.

       Instances of manifest injustice, such as would require permitting a defendant to

       withdraw a guilty plea, may include any of the following: a defendant is denied

       the effective assistance of counsel, the plea was not entered or ratified by the

       defendant, the plea was not knowingly and voluntarily made, the prosecutor

       failed to abide by the terms of the plea agreement, or the plea and judgment of

       conviction are void or voidable. Jeffries v. State, 966 N.E.2d 773, 778 (Ind. Ct.

       App. 2012), trans. denied.


[13]   There is no claim made in this appeal that the prosecutor failed to abide by the

       terms of the plea agreement or that the plea and judgment are void or voidable.

       And the record reflects that all the necessary procedural safeguards were in

       place during both plea hearings. As recounted in more detail above, Skirvin

       was represented by counsel who went over the terms of the plea agreements,

       and Skirvin expressly agreed with the terms and signed the agreements. The

       trial court advised Skirvin of his constitutional rights and Skirvin stated that he

       understood them and understood that he was waiving them by pleading guilty.

       Skirvin stated that he did not suffer from a mental or emotional disability and

       that he was not under the influence of alcohol or drugs. Skirvin was informed

       of the charges against him and the sentence he faced. The State laid a factual

       foundation for the charges to which Skirvin was pleading guilty. Skirvin




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 9 of 11
       admitted to such and stated he was satisfied with the representation of his

       counsel.


[14]   Skirvin’s asserted preference for an open sentence and his claim that advice

       from other inmates and his parents caused him to reconsider his guilty plea do

       not satisfy any recognized category of manifest injustice. See Jeffries, 966

       N.E.2d at 778. And Skirvin’s belief that he was entitled to three plea offers

       from the State lacks merit. See In re Flatt-Moore, 959 N.E.2d 241, 244 (Ind.

       2012) (“A criminal defendant is not entitled to a plea offer of any sort”).

       Skirvin’s implication on appeal that he did not fully understand or comprehend

       his guilty plea and that he received ineffective assistance of counsel is

       inconsistent with his affirmations on the record. We will not disturb the court’s

       ruling where it is based on conflicting evidence. Weatherford v. State, 697

       N.E.2d. 32, 34 (Ind. 1998). Further, Skirvin’s claim is insufficient to satisfy his

       burden to show an abuse of discretion or manifest injustice. See Gross v. State,

       22 N.E.3d 863, 868-69 (Ind. Ct. App. 2014) (rejecting challenge to trial court’s

       denial of motion to withdraw guilty plea when defendant affirmed that he

       understood his potential sentence but later claimed that he did not fully

       comprehend his possible sentence), trans. denied (2015).


                                                 Conclusion
[15]   By failing to comply with the writing and verification requirements of Indiana

       Code section 35-35-1-4(b) Skirvin waived his challenge to the denial of his

       motion to withdraw his guilty plea. Waiver notwithstanding, Skirvin has not


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 10 of 11
shown that he was subjected to a manifest injustice. Therefore, the trial court

did not abuse its discretion in denying Skirvin’s motion. We thus affirm the

judgment of the trial court.


Najam, J., and Pyle J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-308 | July 27, 2020   Page 11 of 11
