MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Sep 29 2016, 9:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Evan K. Hammond                                          Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ethan Gee,                                               September 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1510-CR-1699
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana Kenworthy,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D02-1306-FA-12



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016    Page 1 of 10
                                          Case Summary
[1]   Ethan Gee (“Gee”) appeals the denial of his motion to withdraw his plea of

      guilty to two counts of Child Molesting, one as a Class A felony and one as a

      Class C felony.1 He also challenges his thirty-six year aggregate sentence. We

      affirm.



                                                   Issues
[2]   Gee presents two issues for review:

                 I.       Whether the trial court was required to permit the
                          withdrawal of Gee’s guilty plea; and


                 II.      Whether the trial court abused its sentencing discretion by
                          ignoring significant mitigating circumstances.


                                   Facts and Procedural History
[3]   In June of 2013, Gee worked at a carnival in Grant County, Indiana, where

      thirteen-year-old H.M. was a patron. Gee fondled H.M. and engaged in sexual

      intercourse with her. On June 19, 2013, the State charged Gee with two counts

      of Child Molesting.


[4]   After some changes of court-appointed attorneys, a competency examination, a

      determination that Gee was competent to stand trial, and failed plea



      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 2 of 10
      negotiations, Gee appeared for a jury trial on June 23, 2015. As the jury was

      being impaneled, Gee notified the trial court that he wished to plead guilty but

      mentally ill to the charges against him. Sentencing was left to the discretion of

      the trial court, with the proviso that the sentences be concurrent. Gee entered

      his plea, a factual basis was established, and sentencing was deferred pending

      compilation of a presentence investigation report.


[5]   On August 10, 2015, Gee’s attorney requested that the trial court appoint a

      different public defender for the purpose of representing Gee in a motion to

      withdraw his guilty plea. The trial court granted the motion. On September 15,

      2015, Gee’s successor counsel filed a Verified Petition to Withdraw Plea of

      Guilty. In the motion, Gee stated that he had a valid defense to the charges,

      that is, he reasonably believed the victim to be of the age of consent. He also

      asserted that he suffered from mental illness, had difficulty comprehending

      information and making appropriate decisions, was confused regarding the

      benefit to be derived from a guilty plea, “felt the pressure of the looming jury

      selection,” and lacked adequate time to “thoughtfully think through the issues.”

      (App. at 36.)


[6]   On September 21, 2015, the trial court conducted a hearing on the motion for

      withdrawal and took the matter under advisement. On September 23, 2015, the

      trial court denied the petition for withdrawal. On October 5, 2015, the trial

      court conducted a sentencing hearing and sentenced Gee to thirty-six years

      imprisonment, with six years suspended to probation, for Class A felony Child



      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 3 of 10
      Molesting. Gee received a concurrent eight-year sentence for Class C felony

      Child Molesting. This appeal ensued.



                                 Discussion and Decision
                                 Withdrawal of Guilty Plea
[7]   Indiana Code Section 35-35-1-4(b) governs motions to withdraw guilty pleas

      after a defendant pleads guilty but before a sentence is imposed. The trial court

      must grant a verified written motion to withdraw a guilty plea if the defendant

      proves it is “necessary to correct a manifest injustice.” Id. On the other hand,

      the motion to withdraw the plea 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 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). We reverse the trial court only for an abuse of discretion. Id. In

      determining whether a trial court has abused its discretion in denying a motion

      for withdrawal, we examine the statements made by the defendant at the guilty

      plea hearing to decide whether the plea was offered “freely and knowingly.” Id.


[9]   As to the voluntariness of Gee’s plea, the record of the guilty plea hearing

      includes the following exchange between Gee and his counsel in open court:



      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 4 of 10
        Defense Counsel: through our discussions over the past weeks
        and particularly this morning, you’ve indicated, after discussing
        all your options, that it’s your intention to plead guilty but
        mentally ill to both charges here today. Is that correct?


        Gee: Yes.


        Defense Counsel: Okay. The Judge will advise, and have you
        had an opportunity to discuss your options with me, basically
        your options at this point are to proceed to trial today or to do
        what we’re set to do here which is to enter the plea.


        Gee: Enter the plea.


        Defense Counsel: And your choice is to enter the plea?


        Gee: Yes.


        Defense Counsel: Any, any questions or any information that
        you’re unsure of or have I given you the information and
        answered your questions sufficiently to, to allow you to make the
        decision?


        Gee: Yes.


        Defense Counsel: And I know it’s a tough decision, we’ve had
        significant conversations, haven’t we?


        Gee: Yes.


(Tr. at 5-6.) Gee then denied that he was under the influence of any

medication, drugs, or alcohol. He denied that he had a disability that would

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 5 of 10
       affect his understanding of the proceedings. However, he subsequently testified

       that he had been diagnosed and treated for mental illness, and that it affected

       his understanding “a little bit.” (Tr. at 8.) Defense counsel then offered his

       “lay opinion” to the trial court that Gee had been able to “appreciate”

       explanations in the past. (Tr. at 9.)


[10]   Gee was advised of his giving up certain constitutional rights by pleading guilty

       but mentally ill, and he stated that he understood that process. An exchange

       between the trial court and Gee then took place:

                Court: Mr. Gee, has anyone made any promises to you today to
               get, or any other day, to get you to plead guilty but mentally ill
               here this morning?


               Gee: No.


               Court: Is anyone forcing you or threatening you to get you to do
               so against your free will?


               Gee: No.


               Court: And at this point do you feel you’ve had adequate
               opportunity to talk with Mr. Persinger and come to that decision
               this morning?


               Gee: Yes.


               Court: Okay. Have you been satisfied with Mr. Persinger’s
               service in this case?



       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 6 of 10
                  Gee: Yes.


                  Court: Okay. Is it your intention at this time, Mr. Gee, to plead
                  guilty but mentally ill to counts one and two?


                  Gee: Yes.


       (Tr. at 13.) As such, the transcript of the guilty plea hearing does not support

       Gee’s claims that he was confused or lacked adequate time to make his

       decision. Moreover, at the hearing on his motion for withdrawal, Gee

       acknowledged that two examining psychologists had found him capable of

       understanding court proceedings despite mental health diagnoses. He further

       testified that he was aware of his potential defense “since the day [he was]

       arrested,” and had discussed it with one prior attorney, who opined “it wasn’t

       good to go to trial.” (Tr. at 38-39.) The record supports a determination that

       Gee’s guilty plea was offered freely and knowingly. The trial court did not

       abuse its discretion by denying the petition for withdrawal.


                                       Mitigating Circumstances
[11]   Upon pleading guilty to a Class A felony, Gee faced a sentencing range of

       between twenty and fifty years, with thirty years as the advisory sentence. 2 I.C.

       § 35-50-2-4. In imposing a sentence of thirty-six years, the trial court found

       Gee’s criminal history to be an aggravator and his likely response to short-term




       2
           By agreement with the State, his Class C felony sentence was to be a concurrent sentence.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016       Page 7 of 10
       incarceration to be a mitigator. According to Gee, the trial court should have

       also recognized his decision to plead guilty and his mental illness as mitigating

       circumstances.


[12]   “So long as the sentence is within the statutory range, it is subject to review

       only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This

       includes the finding of an aggravating circumstance and the omission to find a

       proffered mitigating circumstance. Id. at 490-91. When imposing a sentence

       for a felony, the trial court must enter “a sentencing statement that includes a

       reasonably detailed recitation of its reasons for imposing a particular sentence.”

       Id. at 491.


[13]   The trial court’s reasons must be supported by the record and must not be

       improper as a matter of law. Id. However, a trial court’s sentencing order may

       no longer be challenged as reflecting an improper weighing of sentencing

       factors. Id. A trial court abuses its discretion if its reasons and circumstances

       for imposing a particular sentence are clearly against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind.

       2007).


[14]   An allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is not only

       supported by the record but also that the mitigating evidence is significant.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 8 of 10
       Anglemyer II, 875 N.E.2d at 220-21. The trial court is not obligated to explain

       why it did not find a particular circumstance to be significantly mitigating.

       Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).


[15]   Gee decided to plead guilty but mentally ill, which demonstrates acceptance of

       responsibility for his crimes and at least partially confirms the mitigating

       evidence regarding his character. Cotto v. State, 829 N.E.2d 520, 525 (Ind.

       2005). Although a trial court should be “inherently aware of the fact that a

       guilty plea is a mitigating circumstance,” a guilty plea is not always a significant

       mitigating circumstance. Francis v. State, 817 N.E.2d 235, 237 n.2 (Ind. 2004).

       Here, Gee already received a significant benefit in exchange for his guilty plea,

       in that the sentences were to run concurrently and Gee was not to be designated

       a credit-restricted felon.


[16]   Where a trial court finds a defendant suffers from a long-standing and severe

       mental illness, the court may decide to recognize the defendant’s mental illness

       as a significant mitigating factor. Archer v. State, 689 N.E.2d 678, 685 (Ind.

       1997). On the other hand, where the mental illness is less severe or where the

       nexus between the defendant’s mental illness and the commission of the crime

       is less clear, the court may determine that the mental illness warrants little or no

       mitigating weight. Id. Gee had been diagnosed with a personality disorder

       with anti-social, depressed, and schizotypal features, poly-substance

       dependence, and intermittent explosive disorder. However, he did not present

       evidence to show a nexus between his mental illness and his crimes. The trial

       court will not be found to have abused its discretion by failing to find a

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016   Page 9 of 10
       mitigator not clearly advanced for consideration. Anglemyer II, 875 N.E.2d at

       221.



                                               Conclusion
[17]   Gee has not shown that the trial court abused its discretion by refusing to allow

       the withdrawal of his guilty plea, nor has Gee shown that the trial court abused

       its sentencing discretion.


[18]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1699 | September 29, 2016 Page 10 of 10
