MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                   Jan 23 2019, 10:27 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mario Massillamany                                       Curtis T. Hill, Jr.
Massillamany Jeter & Carson LLP                          Attorney General of Indiana
Fishers, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quantae A. Johnson,                                      January 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A05-1712-CR-2974
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan M.
Appellee-Plaintiff                                       Brown, Judge
                                                         Trial Court Cause No.
                                                         29D02-1608-F6-6740



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019              Page 1 of 8
[1]   Quantae Johnson appeals after he pleaded guilty to Level 5 Felony Neglect of a

      Dependent1 and Level 6 Felony Neglect of a Dependent.2 We restate Johnson’s

      arguments as follows: (1) the trial court erred by denying his request to

      withdraw his guilty plea; (2) the trial court made multiple pretrial errors; and

      (3) Johnson received the ineffective assistance of trial counsel. Finding that the

      trial court did not err by denying Johnson’s request to withdraw his guilty plea

      and that, by pleading guilty, Johnson waived his right to raise the other

      arguments, we affirm.


                                                     Facts
[2]   In August 2016, Carmel police learned of allegations regarding Johnson’s

      treatment of his minor sons, Q.A.J. and Q.J.J., after Q.J.J. ran away from

      home. A medical examination revealed that Q.J.J. was five feet tall and

      weighed only seventy-two pounds, leading doctors to conclude that he was

      severely malnourished. During the ensuing investigation, medical providers

      determined that Q.A.J. was also underweight and suffering from

      malnourishment. Johnson withheld food from his children as punishment. He

      reported that he disciplined Q.J.J. by forcing him to engage in physical exercise

      such as sit-ups and push-ups and tried to prevent Q.J.J. from running away by




      1
          Ind. Code § 35-46-1-4.
      2
          Id.


      Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 2 of 8
      requiring that the child wear only underwear or his sister’s clothes while he was

      at home.


[3]   On August 30, 2016, the State charged Johnson with Level 6 felony neglect of a

      dependent, later adding a second count of the same charge and a count of Level

      5 felony neglect of a dependent. On October 3, 2017, Johnson pleaded guilty to

      one count of Level 6 and one count of Level 5 felony neglect of a dependent in

      exchange for the dismissal of the second Level 6 felony charge. At the guilty

      plea hearing, Johnson admitted to the factual basis underlying the charges and

      stated that he had read, understood, and signed the plea agreement.


[4]   At the November 27, 2017, sentencing hearing, Johnson told the trial court that

      he felt like he had been forced into the plea agreement and that he wanted to

      “back out” of the guilty plea. Tr. Vol. II p. 39. Johnson stated that he believed

      his attorney had not had time to prepare for a trial and that Johnson felt “under

      duress” when the prosecutor informed him that there would be no further plea

      offers if Johnson did not plead guilty. Id. at 43. Johnson did not file a written

      motion to withdraw his guilty plea. After reviewing the advisements and

      Johnson’s statements from the guilty plea hearing, the trial court denied the

      request to withdraw the plea agreement.


[5]   The trial court imposed a sentence of 910 days for the Level 6 felony

      conviction. Of that term, the trial court ordered that 870 days would be

      suspended to probation and that 40 days would be served in the Department of

      Correction. For the Level 5 felony conviction, the trial court imposed a


      Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 3 of 8
      consecutive term of six years, with four years and three months suspended to

      probation, with the executed portion of the sentence to be served on home

      detention. Johnson now appeals.


                                   Discussion and Decision
                               I. Withdrawal of Guilty Plea
[6]   We turn first to Johnson’s argument that the trial court erred by denying his

      request to withdraw his guilty plea. After a guilty plea is entered but before the

      sentence is imposed, a defendant may request to withdraw his guilty plea for

      any fair and just reasons unless the State has been substantially prejudiced by its

      reliance upon the plea. Ind. Code § 35-35-1-4(b). If the defendant proves by a

      preponderance of the evidence that the withdrawal is necessary to correct a

      manifest injustice, the trial court must grant the motion. Id. Absent such a

      showing, the decision to grant or deny the motion rests solely in the trial court’s

      discretion. Id. 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. Coomer v. State,

      652 N.E.2d 60, 62 (Ind. 1995).


[7]   Indiana Code section 35-35-1-4(b) explicitly states that a motion to withdraw a

      guilty plea “shall be in writing and verified . . . [,] shall state facts in support of

      the relief demanded, and the state may file counter-affidavits in opposition to the

      motion.” Here, Johnson did not file a written, verified motion, nor did the State

      have the opportunity to file counter-affidavits in opposition. Therefore, by the



      Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 4 of 8
      plain terms of the statute, Johnson was not entitled to withdraw the plea and the

      trial court did not err by denying his request.


[8]   Failure to file a written motion notwithstanding, we note that none of his

      arguments supporting his request to withdraw the plea are compelling. He argues

      that he should have been permitted to withdraw the plea because the trial court

      did not grant him a continuance, but at the time of the guilty plea, the case had

      been pending for over a year and the trial court had already granted two

      continuances to Johnson. He claims that he did not admit his guilt when he

      pleaded guilty, but he plainly did just that at the guilty plea hearing and in the

      plea agreement itself. Tr. Vol. II p. 16; Appellant’s App. Vol. II p. 148-49.

      Indeed, Johnson made no protestation of innocence whatsoever at the guilty plea

      hearing. See Ellis v. State, 67 N.E.3d 643, 650 (Ind. 2017) (noting that the rule

      that a guilty plea accompanied by a denial of guilt may not be accepted is

      explicitly contingent on the protestation of innocence occurring at the same time

      the defendant attempts to enter the plea).


[9]   Johnson seems to argue that he was unaware of the provision in the plea

      agreement that waived his right to appeal his sentence, but he affirmed at the

      guilty plea hearing that he had read, signed, and initialed the plea agreement. In

      fact, the provision regarding waiver of the right to appeal bears Johnson’s initials.

      See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (holding that a defendant may

      waive the right to appellate review of his sentence as part of a written plea

      agreement). Moreover, the trial court advised him that by pleading guilty, he

      would be giving up multiple rights, including the right to appeal. Tr. Vol. II p. 7-

      Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 5 of 8
       8. And to the extent that he argues that he could not intelligently waive his right

       to appeal because he did not know what sentence would be imposed, the plea

       agreement plainly spells out precisely what the sentence would be, the trial court

       explained what the sentence would be, and Johnson indicated at the guilty plea

       hearing that he understood what the sentence would be. Id. at 8-12, 16-17;

       Appellant’s App. Vol. II p. 145.


[10]   Finally, Johnson claims that he pleaded guilty because he was “under duress and

       panic[.]” Appellant’s Br. p. 18. But he did not raise this claim at the guilty plea

       hearing, instead affirming that he was satisfied with his counsel’s representation

       and was pleading guilty freely and voluntarily. See Johnson v. State, 734 N.E.2d

       242, 245 (Ind. 2000) (noting that the answers the defendant gave “while pleading

       guilty belie his later assertion that the only reason he entered a guilty plea is

       because his counsel pressured him”).                       Having considered all of Johnson’s

       arguments, we find that the trial court did not err by denying the motion to

       withdraw his guilty plea.3


                                     II. Remaining Arguments
[11]   Johnson argues that the trial court erred in its pretrial rulings (related to his

       request to join his case with his wife’s case and to his request for a change of

       venue) and that his trial counsel was ineffective. As for the pretrial rulings, it is




       3
         Johnson also highlights recent amendments to the sentence modification statute and claims that because of
       these changes, he should be allowed to withdraw his guilty plea. But this statute is irrelevant to this appeal,
       as the statute relates to motions to modify a sentence, which is not at issue here. Ind. Code § 35-38-1-17.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019              Page 6 of 8
       well established that a defendant may not question pretrial orders after pleading

       guilty. E.g., Branham v. State, 813 N.E.2d 809, 811 (Ind. Ct. App. 2004).

       Therefore, we decline to consider these arguments.


[12]   As for his claim of ineffective assistance, it is well established that when a

       defendant pleads guilty, he may not challenge the validity of his conviction on

       direct appeal. E.g., Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997).

       Indeed, the only claims a defendant may raise on direct appeal following a

       guilty plea are (1) a challenge to the trial court’s sentencing decision where the

       trial court exercised sentencing discretion; or (2) a challenge to the trial court’s

       denial of a motion to withdraw a guilty plea before sentencing. Allen v. State,

       865 N.E.2d 686, 688-89 (Ind. Ct. App. 2007). A challenge to the effectiveness

       of counsel is not included in these options; therefore, this claim is not available

       to Johnson on direct appeal.


[13]   Even if we were to consider the ineffective assistance claim herein, we note that

       Johnson fails to cite to the record or legal authority in support of this argument.

       And indeed, it is well accepted that a post-conviction proceeding is normally

       the preferred forum for adjudicating such claims because the presentation of

       such arguments often requires the development of new facts not present in the

       record, including testimony from trial counsel regarding his thought processes,

       pretrial investigation, and consideration of possible defenses. McIntire v. State,

       717 N.E.2d 96, 101 (Ind. 1999); Culvahouse v. State, 819 N.E.2d 857, 863 (Ind.

       Ct. App. 2004). Under these circumstances, we find that Johnson has not

       established that he received the ineffective assistance of counsel.

       Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 7 of 8
[14]   The judgment of the trial court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019   Page 8 of 8
