MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
this Memorandum Decision shall not be                                      Jun 27 2019, 8:19 am

regarded as precedent or cited before any                                      CLERK
                                                                           Indiana Supreme Court
court except for the purpose of establishing                                  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
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Josiah J. Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harrington James Westbrook,                              June 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-113
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D. Murray,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G02-1604-MR-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019                       Page 1 of 11
                                            Case Summary
[1]   Harrington James Westbrook (“Westbrook”) appeals the denial of his motion

      to withdraw his pleas of guilty to two counts of Murder, a felony,1 and he

      challenges his aggregate sixty-year sentence, with two years suspended to

      probation, as inappropriate. We affirm.



                                   Facts and Procedural History
[2]   We take our facts from the Stipulated Factual Basis, wherein Westbrook

      admitted that he knowingly or intentionally killed Amahn Jerrod Muldrow and

      Dawn Sharmaine Williams. The Stipulation provides in relevant part:


                 That Harrington James Westbrook, Amahn Jerrod Muldrow and
                 Dawn Sharmaine Johnson were at 1725 W 5th Ave, Gary, Lake
                 County, Indiana in the early morning hours of April 2, 2016.


                 That at or around 2:30 AM on April 2, 2016, Harrington James
                 Westbrook, Amahn Jerrod Muldrow and Dawn Sharmaine
                 Johnson got in a black Chrysler Town and Country minivan
                 driven by Eion Westbrook2 for the purpose of taking Amahn
                 Jerrod Muldrow and Dawn Sharmaine Johnson home.


                 That Harrington Westbrook was seated in the rear passenger side
                 of the vehicle, Amahn Jerrod Muldrow was seated in the front
                 passenger side of the vehicle, Dawn Sharmaine Johnson was




      1
          Ind. Code § 35-42-1-1.
      2
          Eion Westbrook is Westbrook’s uncle.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 2 of 11
        seated in the rear driver’s side of the vehicle and Eion Westbrook
        was driving the vehicle.


        That shortly after leaving the residence on 5th Ave, while
        traveling on Hayes Street in Gary, Lake County, Indiana,
        Harrington James Westbrook pulled out a black revolver that he
        had on his person, placed the weapon to the side of Amahn
        Jerrod Mulrow’s head, and shot Amahn Jerrod Muldrow, killing
        him.


        That Harrington James Westbrook, still armed with the weapon,
        advised Eion Westbrook to drive to the alley west of 2034 W 2 nd
        Avenue, where Harrington James Westbrook opened the front
        passenger side door and pulled Amahn Jerrod Muldrow’s body
        out, leaving it in the alley.


        That Harrington James Westbrook ordered Eion Westbrook, at
        gun point, to drive to the alley behind the 800 Block of Ohio
        Street in Gary, Lake County, Indiana.


        That once in the alley, Harrington James Westbrook ordered
        Dawn Sharmaine Johnson to exit the vehicle and Dawn
        Sharmaine Johnson asked Harrington James Westbrook not to
        kill her. That Harrington James Westbrook shot Dawn
        Sharmaine Johnson twice, killing her.


        That Harrington James Westbrook then ordered Eion Westbrook
        to driver [sic] around to various locations, and finally ordered
        Eion Westbrook to attempt to clean the blood of [sic] the black
        mini van in the alley behind 1725 W 5th Ave in Gary, Indiana.


(App. Vol. II, pg. 120.)




Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 3 of 11
[3]   On April 4, 2016, Harrington was charged with two counts of Murder. The

      State filed an amended information on June 23, 2017, adding an enhancement

      to each count for the use of a firearm. Harrington was also charged with

      Carrying a Handgun without a License. The State and Harrington reached an

      agreement that Harrington would plead guilty to two counts of Murder and

      receive an aggregate sentence capped at sixty years. The enhancements and

      handgun charge were to be dismissed.


[4]   On October 22, 2018, the trial court conducted a change of plea hearing and

      accepted Harrington’s guilty pleas. A sentencing hearing was scheduled for

      December 13, 2018. On December 10, 2018, Westbrook filed a motion to

      withdraw his guilty pleas, which he claimed were produced by coercion. The

      trial court conducted a hearing on the same day and denied Westbrook’s

      motion.


[5]   On December 13, 2018, Westbrook received concurrent sentences of sixty years

      imprisonment, with two years suspended to probation, on each Murder count.

      He now appeals.



                                 Discussion and Decision
                           Motion to Withdraw Guilty Pleas
[6]   After a defendant has entered a plea of guilty, the defendant may withdraw the

      plea only by obtaining the permission of the trial court. I.C. § 35-35-1-4. The

      trial court must grant a motion to withdraw a guilty plea “whenever the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 4 of 11
      defendant proves that withdrawal of the plea is necessary to correct a manifest

      injustice.” I.C. § 35-35-1-4(b). Otherwise, the trial court may grant the motion

      “for any fair and just reason unless the state has been substantially prejudiced

      by reliance upon the defendant’s plea.” Id. The defendant “has the burden of

      establishing his grounds for relief by a preponderance of the evidence.” I.C. §

      35-35-1-4(e). We review the trial court’s ruling for an abuse of discretion, I.C. §

      35-35-1-4(b), which occurs when the ruling is clearly against the logic and effect

      of the facts and circumstances before the trial court. Rhoades v. State, 675

      N.E.2d 698, 702 (Ind. 1996).


[7]   As a general matter, we will not second-guess a trial court’s evaluation of the

      facts and circumstances because the trial court “is in a better position to weigh

      evidence, assess the credibility of witnesses, and draw inferences.” Moshenek v.

      State, 868 N.E.2d 419, 424 (Ind. 2007). The trial court’s ruling upon a motion

      to withdraw a guilty plea “arrives in this Court with a presumption in favor of

      the ruling,” and the appellant faces a “high hurdle” in seeking to overturn the

      ruling. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).


[8]   Westbrook contends that his guilty pleas were involuntary because they were a

      product of “coercion by his attorney which caused him to plead guilty.”

      Appellant’s Brief at 8. He asks that we allow him to withdraw his pleas to

      correct a manifest injustice. “Manifest injustice” is a “necessarily imprecise”

      standard, nonetheless, “[c]oncerns about injustice carry greater weight when

      accompanied by credible evidence of involuntariness, or when the

      circumstances of the plea reveal that the rights of the accused were violated.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 5 of 11
       Coomer, 652 N.E.2d at 62. Pursuant to Indiana Code Section 35-35-1-4(c)(1),

       “withdrawal of the plea is necessary to correct a manifest injustice whenever the

       convicted person was denied the effective assistance of counsel.”


[9]    Eight days after pleading guilty, Westbrook filed a pro-se motion seeking the

       dismissal of his court-appointed attorney for an alleged conflict of interest.3

       Westbrook claimed that he felt forced to sign the plea agreement for fear that

       his attorney was not handling his case properly. On November 16, 2018,

       Westbrook sent a letter and reiterated to the trial court that he had signed the

       plea because he was “in total fear with his life” held in his attorney’s hands.

       (App. Vol. II, pg. 157). Westbrook sent an additional letter to the trial court on

       November 24, 2018, asking that his guilty pleas be withdrawn and expressing

       his feeling that, had he gone to trial with his current public defender, counsel

       would not have “fought for him.” Id. at 158.


[10]   Westbrook’s counsel filed a verified motion for withdrawal of the guilty pleas

       on December 10, 2018. The stated bases for the motion were that Westbrook

       had been told he would not be able to take the witness stand to defend himself

       and Westbrook had desired to have certain motions filed with the objective of

       “winning his life.” Id. at 174.




       3
         Harrington was seeking removal of his second court-appointed attorney. During his representation by his
       first court-appointed counsel, Harrington filed pro-se motions and addressed correspondence to the trial court
       to express his dissatisfaction with counsel’s representation and to seek her dismissal. Among Harrington’s
       criticisms of prior counsel were that she would not “do what I ask and she [is] not trying to get the case over
       and she makes me feel in fear for my life with her fighting for me.” (App. Vol. II, pg. 72.)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019                      Page 6 of 11
[11]   On the same day, the trial court conducted a hearing. Westbrook advised the

       trial court that he had signed the plea agreement because his attorney made him

       feel this was the only thing that the attorney could do to assist him and

       Westbrook had feared for his life. Westbrook also complained that his counsel

       had advised Westbrook that he “should not take the stand.” (Supp. Tr. Vol. II,

       pg. 7.) Westbrook expressed his belief that his counsel had been against him,

       and he asserted that he could explain his innocence if given the opportunity to

       testify. The trial court opined that Westbrook had been ably represented by

       both his court-appointed attorneys, and observed that Westbrook had received

       all statutory advisements and had acknowledged his understanding before the

       guilty pleas were accepted. The trial court then denied Westbrook’s motion for

       withdrawal of his guilty pleas.


[12]   On appeal, Westbrook does not claim that he established ineffectiveness of

       counsel to support the withdrawal of his guilty pleas. He clarifies that he is not

       “making a claim of ineffective assistance of counsel in this direct appeal;”

       instead he is “reserving any such issue for a potential post-conviction

       proceeding.” Appellant’s Brief at 10. He contends that he was coerced, but

       identifies no threat, false statement, or physical force. He focuses upon his

       subjective feelings of dissatisfaction with his attorney’s handling of the case.

       Distilled to its essence, Westbrook’s argument is that his lack of confidence in

       his attorney’s performance prompted him to fear an adverse outcome and

       significantly motivated his decision to plead guilty. Considering that the State’s

       discovery disclosures revealed an alleged eyewitness to the murders and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 7 of 11
       ballistics evidence implicating Westbrook, fear of an adverse outcome may well

       have been warranted.


[13]   That said, Westbrook has not shown that his counsel did anything to overcome

       Westbrook’s free will. Before accepting Westbrook’s pleas, the trial court

       confirmed that Westbrook understood the conditions and consequences of his

       pleas. One consequence was that he would not testify. Westbrook asserted that

       he was satisfied with counsel’s representation and that his pleas were voluntary.

       Subsequently, at the hearing on Westbrook’s motion to withdraw his pleas, the

       trial court chose not to credit Westbrook’s contradictory statements, and

       Westbrook failed to establish his claim of coercion. Having failed in his burden

       of proof, Westbrook has not demonstrated that the trial court abused its

       discretion by denying the motion for withdrawal of the guilty pleas.


                                 Appropriateness of Sentence
[14]   Pursuant to Indiana Code Section 35-50-2-3, the sentencing range for Murder is

       forty-five to sixty-five years, with an advisory sentence of fifty-five years.

       Westbrook’s aggregate sentence for two murders is sixty years, with two years

       suspended to probation. He asks that we revise his sentence to forty-five years,

       considering that he was only eighteen years old when he committed his crimes

       and he decided to plead guilty.


[15]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 8 of 11
       Appellate Rule 7(B). We assess the trial court’s recognition or non-recognition

       of aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

       Ct. App. 2006). Here, the trial court recognized as aggravating circumstances

       Westbrook’s juvenile adjudications for Intimidation and Robbery (with a

       subsequent violation of probation), and the nature and circumstances of the

       crimes (with no provocation, the victims were killed execution-style). As to

       mitigating circumstances, the trial court acknowledged Westbrook’s decision to

       plead guilty but accorded it no mitigating weight because of the significant

       benefit in terms of concurrent sentencing. The trial court also acknowledged

       that Westbrook had expressed remorse.


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 9 of 11
[17]   As to the nature of the offenses, Westbrook executed two people without

       provocation. He shot Amahn in the head, and then turned the handgun on the

       driver, demanding that he proceed to an alley. Once in the alley, Westbrook

       callously disposed of Amahn’s body and then forced Sharmaine to exit the

       vehicle. Sharmaine, who had just witnessed the murder of her fiancée, pled for

       her life. Westbrook showed her no mercy, instead shooting her twice. He then

       demanded that the van be cleaned up. As Westbrook necessarily concedes, the

       offenses were heinous in nature.


[18]   As to Westbrook’s character, the decision to plead guilty indicates some

       acceptance of responsibility for his actions. However, he received a significant

       benefit as the plea agreement provided for dismissal of a handgun charge and

       two enhancements and required concurrent sentences. The trial court stated

       that it would never have imposed concurrent sentences for multiple murders

       absent a plea agreement. Westbrook was only eighteen years old, but this is

       “beyond the age at which the law commands special treatment by virtue of

       youth.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). And he had

       already committed acts that would be Intimidation and Robbery, if committed

       by an adult. In sum, Westbrook has not shown that his sentence is

       inappropriate in light of the nature of his offenses and his character.



                                               Conclusion
[19]   Westbrook has not shown that the trial court abused its discretion by denying

       his motion for withdrawal of his guilty pleas. His sentence is not inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 10 of 11
[20]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-113 | June 27, 2019   Page 11 of 11
