MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Sep 12 2018, 5:48 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Weineke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert J. Price, II,                                     September 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-607
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1701-F3-113



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018                   Page 1 of 7
                                             Case Summary
[1]   Robert Price II appeals the trial court’s denial of his motion to withdraw his

      guilty plea. We affirm.


                                                     Issue
[2]   Price raises one issue, which we restate as whether the trial court properly

      denied Price’s motion to withdraw his guilty plea.


                                                     Facts
[3]   In January 2017, the State charged Price with the murder of Katie Nash. The

      State also alleged that Price was an habitual offender. In December 2017, Price

      and the State entered into a plea agreement. Price agreed to plead guilty to

      murder and “to accept the sentencing recommendations of the State of Indiana

      as set forth in this agreement.” Appellant’s App. Vol. II p. 68. The State

      agreed to recommend a sentence of sixty years in the Department of Correction

      (“DOC”) and to withdraw the request for an habitual offender enhancement.


[4]   At the guilty plea hearing on January 2, 2018, the following discussion

      occurred:


              THE COURT: Do you understand that this Plea Agreement
              does not allow the Court to make any changes in your sentence
              unless the State of Indiana agrees to it first, so to - that if the
              Court accepts the Plea Agreement, and you are sentenced
              pursuant to the Plea Agreement, the Court will not be able to
              consider changing the sentence unless the State of Indiana agrees
              to it first –


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 2 of 7
        THE DEFENDANT: Yes.


        THE COURT: - do you understand that?


        THE DEFENDANT: I do.


                                             *****


        THE COURT: Do you understand that if you went to trial and
        were found guilty, you would have the right to appeal your
        sentence or conviction to the Indiana Supreme Court or the
        Indiana Court of Appeals?


        THE DEFENDANT: I do.


        THE COURT: And do you understand by pleading guilty you
        are waiving your right to appeal?


        THE DEFENDANT: I do.


                                             *****


        THE COURT: Knowing all of these, all of the things that I have
        explained to you, how do you plead to Murder, a Felony?


        THE DEFENDANT: Guilty.


Guilty Plea Hrg. Tr. pp. 8-11. The trial court then took the plea agreement and

the guilty plea under advisement and set the matter for sentencing.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 3 of 7
[5]   On February 5, 2018, Price filed a motion to withdraw his guilty plea and plea

      agreement. Price alleged that he was “of the belief that he will lose his right to

      appeal and his right to post conviction relief if he enters into a voluntary plea of

      guilty . . . .” Appellant’s App. Vol. II p. 100. At the sentencing hearing, Price

      argued that he wanted to withdraw his guilty plea to preserve his appeal rights

      and his post-conviction relief rights. Price indicated that he “did not quite

      understand” that he would lose his right to appeal by entering into the guilty

      plea. Sentencing Hrg. Tr. p. 8. The trial court denied Price’s request to

      withdraw his guilty plea. Subsequently, the trial court entered judgment of

      conviction and sentenced Price to sixty years in the DOC pursuant to the plea

      agreement. Price now appeals.


                                                  Analysis
[6]   Price argues that the trial court erred by denying his motion to withdraw his

      guilty plea. “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’s decision only for an abuse of

      discretion. Id. “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 his guilty plea hearing to decide whether his plea was

      offered ‘freely and knowingly.’” Id. (quoting Coomer, 652 N.E.2d at 62).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 4 of 7
[7]   The withdrawal of a guilty plea before the imposition of a sentence is governed

      by Indiana Code Section 35-35-1-4(b), which provides:


              After entry of a plea of guilty . . . but before imposition of
              sentence, the court may allow the defendant by motion to
              withdraw his plea of guilty . . . for any fair and just reason unless
              the state has been substantially prejudiced by reliance upon the
              defendant’s plea. The motion to withdraw the plea of guilty . . .
              made under this subsection shall be in writing and verified. The
              motion shall state facts in support of the relief demanded, and the
              state may file counter-affidavits in opposition to the motion. 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 . . . whenever the
              defendant proves that withdrawal of the plea is necessary to
              correct a manifest injustice.


[8]   Consequently, the trial court “shall” allow a defendant to withdraw his guilty

      plea if the defendant proves it is “necessary to correct a manifest injustice.”

      Ind. Code § 35-35-1-4(b); Brightman, 758 N.E.2d at 44. In all other cases, the

      trial court “may allow” the withdrawal of the guilty plea for “any fair or 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).


[9]   Price argues that he “misunderstood the real ramifications” of the plea

      agreement and did not realize that he was giving up his right to appeal.

      Appellant’s Br. p. 9. According to Price, these circumstances resulted in

      manifest injustice. At the guilty plea hearing, however, Price indicated he

      understood that he was waiving his right to appeal his conviction and sentence.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 5 of 7
       The trial court asked Price: “Do you understand that if you went to trial and

       were found guilty, you would have the right to appeal your sentence or

       conviction to the Indiana Supreme Court or the Indiana Court of Appeals?”

       Guilty Plea Hrg. Tr. p. 10. Price agreed that he understood. The trial court

       also asked Price: “[D]o you understand by pleading guilty you are waiving your

       right to appeal?” Id. Price again agreed that he understood. Further, as the

       State points out, Price’s presentence investigation report reveals a lengthy

       criminal history and several previous guilty pleas. This was not Price’s first

       guilty plea. The trial court was well within its discretion when it did not give

       credit to Price’s claim of misunderstanding.


[10]   Price has failed to prove by a preponderance of the evidence that a manifest

       injustice has occurred that must be corrected by allowing him to withdraw his

       plea of guilty. In the absence of a manifest injustice, it was within the trial

       court’s discretion to grant or deny the motion. The trial court found that Price

       had “buyer’s remorse” and had simply “changed his mind.” Sentencing Hrg.

       Tr. p. 9. Under these circumstances, Price has failed to show the trial court

       abused its discretion when it denied Price’s request to withdraw his plea of

       guilty. See, e.g., Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (holding

       that the trial court did not abuse its discretion by denying the defendant’s

       motion to withdraw his guilty plea), trans. denied.


                                                 Conclusion
[11]   The trial court did not abuse its discretion by denying Price’s motion to

       withdraw his guilty plea. We affirm.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 6 of 7
[12]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-607 | September 12, 2018   Page 7 of 7
