      MEMORANDUM DECISION
                                                                            Mar 19 2015, 10:03 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
      Leanna Weissmann                                         Gregory F. Zoeller
      Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                               Jodi Kathryn Stein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Agnes E. Ande,                                           March 19, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A04-1409-CR-452
              v.                                               Appeal from the Dearborn Superior
                                                               Court
                                                               The Honorable Jonathan N. Cleary,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Case No. 15D01-1310-FA-27




      Bradford, Judge.



                                            Case Summary
[1]   In 2012, authorities received reports of high traffic at Appellant-Defendant

      Agnes Ande’s home in St. Leon, Indiana. On August 29, 2012, Indiana State

      Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015          Page 1 of 10
      Police Detective Tim Wuestefeld purchased oxycodone from Ande at her

      home, which home was located within 1000 feet of a school, during school

      hours. Appellee-Plaintiff the State of Indiana charged Ande with Class A

      felony dealing in a schedule II controlled substance.


[2]   In March of 2014, Ande pled guilty as charged. Three days later, Ande moved

      to withdraw her guilty plea and for the appointment of experts to determine her

      competence to stand trial. Ande argued that her guilty plea could not have

      been voluntary because she was “mentally retarded[,]” was illiterate, and was

      the subject of a guardianship. The trial court appointed two experts to evaluate

      Ande, and both concluded that she was competent to stand trial and was

      feigning symptoms of mental illness. The trial court denied Ande’s motion to

      withdraw her guilty plea and ultimately sentenced her to twenty-eight years of

      incarceration, with three suspended to probation. Ande contends that the trial

      court abused its discretion in denying her motion to withdraw her guilty plea

      and that her sentence is inappropriately harsh. We affirm.



                            Facts and Procedural History
[3]   In 2012, authorities began receiving reports of high traffic at Appellant-

      Defendant Agnes Ande’s home in Sunman. Ande moved to St. Leon, and high

      activity was observed there as well. On August 29, 2012, at the intersection of

      State Road 46 and Trojan Lane in Dearborn County, which was within 1000

      feet of East Central High School, Ande sold oxycodone to Detective

      Wuestefeld. On October 28, 2013, the State charged Ande with Class A felony

      Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 2 of 10
      dealing in a schedule II controlled substance. On March 17, 2014, Ande,

      represented by counsel, pled guilty as charged without a written plea

      agreement. After being fully advised of her rights and indicating that she

      understood each one of them, Ande indicated that she suffered from depression,

      but when asked if she “fully understood everything in today’s hearing[,]”

      indicated “[t]o [her] knowledge, yeah.” Tr. pp. 18-19.


[4]   On March 20, 2014, Ande filed an emergency motion to withdraw her guilty

      plea and for a psychiatric evaluation to determine her competence to stand trial.

      Ande argued that her plea could not have been voluntary because she was

      “mentally retarded[,]” could not read or write, and was the subject of an open

      guardianship over her person out of Ripley County. Tr. p. 26. The CCS for the

      guardianship case indicated the guardian had moved to terminate the

      guardianship in 2005, the hearing on the motion was continued several times

      due to failure of service on Ande (then Agnes Bradley), and the CCS contained

      no entries after September 13, 2006. Moreover, Ande introduced no evidence

      at any point that the guardianship was active, in any normally-understood sense

      of the word. After a hearing on Ande’s motions, the trial court appointed two

      experts to evaluate her for competence and took her motion to withdraw her

      guilty plea under advisement.


[5]   Clinical Psychologist Dr. Sarah Lacey-Horine, Psy.D., evaluated Ande and

      opined that she was competent to stand trial and that “[i]t is possible that she

      was feigning some of her symptoms due to the belief that it may help her to get

      out of trouble.” Appellant’s App. p. 107. Psychiatrist Dr. Joseph V. Cresci,

      Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 3 of 10
      M.D., evaluated Ande and concluded that, “In response to her manipulations

      and faking mental illness, it is my psychiatric opinion that she is able to stand

      trial and to maintain responsibility for her behavior.” Appellant’s App. p. 110.

      On August 5, 2014, following a hearing, the trial court denied Ande’s motion to

      withdraw her guilty plea. After a sentencing hearing on September 2, 2014, the

      trial court sentenced Ande to twenty-eight years of incarceration, with three

      suspended to probation.



                                Discussion and Decision
           I. Whether the Trial Court Abused its Discretion in
            Denying Ande’s Motion to Withdraw Guilty Plea
[6]   Indiana Code section 35-35-1-4 governs the withdrawal of guilty pleas and

      provides, in part, as follows:


              After entry of a plea of guilty, or guilty but mentally ill at the
              time of the crime, but before imposition of sentence, the court
              may allow the defendant by motion to withdraw his plea of
              guilty, or guilty but mentally ill at the time of the crime, for any
              fair and just reason unless the state has been substantially
              prejudiced by reliance upon the defendant’s plea.… The ruling
              of the court on the motion shall be reviewable on appeal only for
              an abuse of discretion. However, the court shall allow the
              defendant to withdraw his plea of guilty, or guilty but mentally ill
              at the time of the crime, whenever the defendant proves that
              withdrawal of the plea is necessary to correct a manifest injustice.
      “The trial court’s ruling on a motion to withdraw a guilty plea arrives in our

      Court with a presumption in favor of the ruling.” Johnson v. State, 734 N.E.2d


      Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 4 of 10
      242, 245 (Ind. 2000). “One who appeals an adverse decision on a motion to

      withdraw must therefore prove the trial court abused its discretion by a

      preponderance of the evidence.” Id. “We will not disturb the court’s ruling

      where it was based on conflicting evidence.” Id.


                                       A. Manifest Injustice
[7]   Indiana Code section 35-35-1-4(c) provides, in relevant part, as follows:

              For purposes of this section, withdrawal of the plea is necessary to
              correct a manifest injustice whenever:
                     (1) the convicted person was denied the effective assistance of
                     counsel;
                     (2) the plea was not entered or ratified by the convicted person;
                     (3) the plea was not knowingly and voluntarily made;
                     (4) the prosecuting attorney failed to abide by the terms of a plea
                     agreement; or
                     (5) the plea and judgment of conviction are void or voidable for
                     any other reason.

[8]   Ande contends that the fact that she was subject to an open guardianship when

      she pled guilty renders the plea a manifest injustice that the trial court was

      required to correct. Ande’s argument essentially is that incapacity can be

      inferred from her open guardianship, rendering her plea unknowing and

      involuntary.


[9]   Ande has failed to establish that her guilty plea must be withdrawn in order to

      correct a manifest injustice. First, Ande’s argument is premised on the notion

      that the same criteria are used to define an “incapacitated person” for purposes

      of a legal guardianship and declare a person incompetent to stand trial, which is

      not the case. Indiana Code section 35-36-3-1 defines incompetence to stand

      Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 5 of 10
       trial as “lack[ing] the ability to understand the proceedings and assist in the

       preparation of a defense[.]” Pursuant to Indiana Code section 29-3-1-7.5,


               “Incapacitated person” means an individual who:
               (1) cannot be located upon reasonable inquiry;
               (2) is unable:
               (A) to manage in whole or in part the individual’s property;
               (B) to provide self-care; or
               (C) both;
               because of insanity, mental illness, mental deficiency, physical
               illness, infirmity, habitual drunkenness, excessive use of drugs,
               incarceration, confinement, detention, duress, fraud, undue
               influence of others on the individual, or other incapacity; or
               (3) has a developmental disability (as defined in IC 12-7-2-61).
[10]   While there obviously could be some overlap between the two concepts, that is

       far from necessarily the case. Indeed, the guardianship at issue in this case was

       originally sought and awarded to Ande’s mother in 1985 “by reason of her

       incapacity in being able to care for her financial affairs and person[.]”

       Appellant’s App. p. 69. The petition for the appointment of a guardian

       included allegations that Ande had been diagnosed with “Mental Retardation”

       and was at a third-grade level in reading and arithmetic. Appellant’s App. p.

       64. Even assuming that Ande’s low mental functioning prevented her from

       adequately taking care of herself or her financial affairs at one point, it does not

       follow that it would prevent her from understanding criminal proceedings or

       assisting in her defense.


[11]   Moreover, there is no indication that the guardianship, while technically still

       open, has been active in any real sense since 2002, when Ande’s mother was

       removed as her original guardian and replaced by V. Jeanne Calhoun, the sister
       Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 6 of 10
       of her then-boyfriend. Calhoun petitioned the guardianship court for removal

       as Ande’s guardian on May 9, 2005, alleging that Ande was capable of handling

       her own affairs; Ande had, in fact, done so since February of 2002; and

       Calhoun had had “minimal to no contact” with Ande since being appointed as

       her guardian. Appellant’s App. p. 85. Ande points to no evidence to refute

       these allegations, and it appears that the only reason the petition for removal

       was not granted was because attempts to serve Ande with it were unsuccessful.

       In short, even to the extent that a legal guardianship would affect Ande’s ability

       to knowingly and voluntarily plead guilty, the record indicates that Ande has

       been living independently of her guardian since 2002. The mere existence of a

       dormant guardianship does not establish that Ande’s guilty plea was a manifest

       injustice.


[12]   Finally, Ande makes no attempt to refute the conclusions drawn by the experts

       appointed by the trial court to evaluate her competency, who both concluded

       that she was competent to stand trial and seemed to be faking symptoms of

       mental illness. While a finding that Ande was unable to comprehend the

       criminal proceedings against her would support a conclusion that her guilty

       plea was not knowing and voluntary, such a finding was not made. Ande has

       failed to establish that the withdrawal of her guilty plea was necessary to correct

       a manifest injustice.


                                      B. Fair and Just Reason
[13]   Ande contends that even if granting her motion to withdraw her guilty plea was

       not necessary to correct a manifest injustice, the trial court still abused its
       Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 7 of 10
       discretion in failing to find a fair and just reason. Ande argues that the evidence

       establishes that she has had to depend on others due to her diminished mental

       capacity–first her mother, then her aunt, and now her husband. Even if we

       assume that Ande does rely on others to help her, this does not establish that

       withdrawal of her guilty plea would be fair and just. As mentioned, before she

       pled guilty, Ande was fully advised of her rights and indicated that she fully

       understood the proceeding. Ande points to self-serving testimony that she is

       illiterate and that she only pled guilty because she was in jail and therefore

       assumed she was automatically guilty in any event. The trial court was not

       required to credit this evidence, and apparently did not. Ande has failed to

       establish that the trial court abused its discretion in denying her motion to

       withdraw her guilty plea.


                 II. Whether Ande’s Sentence is Inappropriate
[14]   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.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). The trial court sentenced Ande to twenty-eight

       years of incarceration, with three suspended to probation. The sentencing

       Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 8 of 10
       range for a Class A felony is twenty to fifty years, with an advisory sentence of

       thirty years. Ind. Code § 35-50-2-4.


[15]   The nature of Ande’s offense justifies her sentence. Ande sold oxycodone to an

       undercover police officer in her driveway during school hours, and Ande’s

       residence and East Central High School both lie on Trojan Lane. The police

       officer was able to observe “numerous kids at the soccer fields for gym class

       right there on Trojan Lane.” Tr. p. 89. Following Detective Wuestefeld’s

       purchase, he and Ande discussed future transactions. Ande told Detective

       Wuestefeld that she did not “normally” conduct business in her driveway

       because of “nosy neighbors” and discussed another customer of hers who

       received a volume discount. Tr. p. 90. Detective Wuestefeld testified to a

       subsequent purchase in Ripley County, where he purchased fifteen oxycodone

       tablets for $300.00 and Andre “seemed a little upset” that he did not purchase

       more. Tr. p. 94. The record indicates that Ande’s offense was not an isolated

       incident.


[16]   Ande’s character also justifies her sentence. Between 2004 and 2012, Ande had

       several contacts with the criminal justice system, including a 2004 charge for

       trafficking with an inmate that was dismissed, a 2005 charge for theft that was

       dismissed, a 2006 conviction for conversion, a 2009 charge for shoplifting in

       Kentucky that is listed as “fugitive[,]” 2011 charges for battery and interference

       with reporting of a crime, a 2012 charge for invasion of privacy, and a 2012

       charge for dealing in oxycodone in Ripley County. Appellant’s App. p. 117.

       Significantly, Ande does not deny the wrongdoing that resulted in many of her

       Court of Appeals of Indiana | Memorandum Decision 15A04-1409-CR-452 | March 19, 2015   Page 9 of 10
       dismissed charges, admitting to smuggling cigarettes to her incarcerated

       husband in 2004, stealing a “tube of foot … medicine” in 2005, and “chang[ing]

       the price tags on a meat thing in Kentucky at Kroger’s” in 2009. Tr. pp. 124,

       125. In summary, although it appears that Ande experiences moderate

       cognitive impairment, she appears to fully understand her behavior and its

       possible consequences. Yet, Ande has failed to take responsibility for her

       actions, repeatedly trying to deflect blame for her actions onto her husband and

       unsuccessfully attempting to feign mental illness. The trial court imposed a

       sentence much closer to the minimum sentence for a Class A felony than the

       maximum and less than the advisory sentence of thirty years. Ande has not

       established that a further reduction in her sentence is appropriate.


[17]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




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