MEMORANDUM DECISION
                                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 08 2016, 7:43 am

this Memorandum Decision shall not be                                                  CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           Court of Appeals
                                                                                      and Tax Court
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
John T. Wilson                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua S. Black,                                         April 8, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         33A01-1509-CR-1361
        v.                                               Appeal from the Henry Circuit
                                                         Court
State of Indiana,                                        The Honorable Kit C. Dean-
Appellee-Plaintiff.                                      Crane, Judge
                                                         Trial Court Cause No.
                                                         33C02-1505-F4-4



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016               Page 1 of 9
                                   Case Summary and Issue
[1]   The State charged Joshua Black with five drug-related counts and alleged he

      was an habitual offender. Black entered a plea of guilty to dealing in

      methamphetamine, a Level 5 felony, and the State moved to dismiss all

      remaining counts. Before he was sentenced, Black moved to withdraw his

      guilty plea. The trial court denied Black’s motion and sentenced him to four

      years pursuant to the plea agreement. Black now appeals, raising the sole issue

      of whether the trial court abused its discretion in denying his motion to

      withdraw his guilty plea. Concluding Black failed to prove the trial court was

      required to grant his motion to correct a manifest injustice or that the trial court

      otherwise abused its discretion in denying his motion, we affirm.



                              Facts and Procedural History
[2]   The State charged Black with the following offenses based on an incident

      occurring on May 17, 2015: dealing in a narcotic drug, a Level 4 felony;

      dealing in methamphetamine, a Level 5 felony; possession of

      methamphetamine, a Level 6 felony; maintaining a common nuisance, a Level

      6 felony; and possession of paraphernalia, a Class A misdemeanor.1 At his

      initial hearing on May 19, 2015, Black requested a speedy trial, which was




      1
        Because Black entered a guilty plea, the only available facts are those elicited for the purpose of laying a
      factual basis for the plea.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016                   Page 2 of 9
      reduced to a written motion on May 28, 2015, by his appointed counsel; the

      trial court set his jury trial for July 7, 2015.


[3]   On June 19, 2015, the State filed an habitual offender enhancement. On June

      25, 2015, the parties appeared for an initial hearing on the enhancement and

      advised the trial court that they had reached a plea agreement. The plea

      agreement provided for Black to plead guilty to dealing in methamphetamine, a

      Level 5 felony, and be sentenced to four years at the Indiana Department of

      Correction; in return, the State would dismiss the remaining charges, including

      the habitual offender enhancement. Black affirmed under oath that he had read

      and signed the plea agreement, that he understood its terms, that he had never

      been treated for any mental illness and was not at the time suffering from any

      mental or emotional disability or under the influence of alcohol or drugs, that

      he understood all of the rights he was waiving by pleading guilty, that he was

      satisfied with the services of his attorney, and that he had not been forced or

      coerced into pleading guilty but was doing so by his “own free choice and

      decision.” Transcript at 31. Black then affirmed that on the particular date and

      at the particular location named in the charging information, he had possessed

      methamphetamine with the intent to deliver it to another person. The trial

      court accepted Black’s plea of guilty and set a sentencing hearing for July 23,

      2015.


[4]   On July 1 and July 13, 2015, the trial court received letters from Black

      requesting he be allowed to withdraw his guilty plea. The trial court entered an

      order with respect to each letter “[f]inding it to be submitted by a party

      Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 3 of 9
      currently represented by counsel [and] strikes it from the record . . . .”

      Appellant’s Appendix at 68, 80. On July 23, 2015, Black’s counsel filed a

      motion to withdraw. The trial court granted the motion, appointed new

      counsel, and continued the sentencing hearing to August 20, 2015. Black’s new

      counsel filed a formal motion to withdraw the guilty plea for the reasons set

      forth in Black’s earlier correspondence to the court, including pressure from his

      trial counsel to enter the plea and mental health issues before, and during, the

      guilty plea hearing.


[5]   The trial court held a hearing on the motion to withdraw on the date set for

      sentencing. Black testified that after the guilty plea hearing, “I . . . processed

      what had happened[,] what I had been through that day and my interaction

      with my attorney at that time and decided I didn’t think it was a very good idea

      and that I had pled guilty to something, an offense that I hadn’t committed.”

      Tr. at 37. Black stated he had “a lot of mental stuff going on at the jail” and

      had made multiple requests for medical attention regarding mental health issues

      that were never addressed, including filing with the trial court a motion for a

      mental health evaluation prior to pleading guilty. Id. at 38. Black claimed he

      was having an episode the morning he changed his plea and was tased at the

      jail just thirty to forty minutes before signing the plea agreement, which left him

      “confused [and] stunned.” Id. at 41. He further claimed he was in pain and

      bleeding while in court from being tased and felt the effects from the tasing for a

      day and a half. Black stated he wished to withdraw his plea because, “I didn’t

      really know or um understand that I was pleading to dealing.” Id. Finally,


      Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 4 of 9
      Black asserted he did not have an opportunity to fully explore his defense

      because he had changed his plea at his attorney’s urging just two months after

      the charges were filed. A nurse who saw Black every day at the jail prior to his

      guilty plea hearing testified that although he had indicated he wished to speak

      with someone about his mental health issues, he denied thoughts of harming

      himself or others, and she never saw signs of an emergent situation: “He was a

      little agitated but nothing out of the ordinary. He was talking, communicating,

      eating.” Id. at 49.


[6]   The trial court denied Black’s motion, finding:

              I had an opportunity June 25 to observe Mr. Black . . . . Mr.
              Black indicated today that he was bleeding that day, well if in
              fact he was bleeding it was not observable by the Court. Uh, Mr.
              Black indicated that he had been tased 30 to 40 minutes prior to
              the hearing, um, if in fact Mr. Black was tased that morning, I
              was able to observe his demeanor and his physical presence, um,
              reaction to my questions and answers and I received no
              indication whatsoever on June 25 that Mr. Black was under any
              mental or physical distress. . . . I questioned Mr. Black at length
              regarding his mental well being on that date um, and I came
              away with the impression that I was totally satisfied that his plea
              was freely and voluntarily entered and that it was knowingly
              entered. . . . I don’t see Sir where you’ve satisfied or met your
              burden by a preponderance of the evidence that it’s necessary to
              correct a manifest injustice.


      Id. at 62-64. The trial court denied Black’s motion to withdraw his plea of

      guilty and proceeded to sentencing. Black now appeals.




      Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 5 of 9
                                 Discussion and Decision
                                     I. Standard of Review
[7]   Indiana Code section 35-35-1-4(b) governs a motion to withdraw a guilty plea

      that is filed after the defendant pleads guilty but before he is sentenced. The

      trial court must 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 v. State, 758 N.E.2d 41, 44 (Ind. 2001). The trial court must

      deny the motion if withdrawal of the plea would substantially prejudice the

      State. Ind. Code § 35-35-1-4(b). In all other cases, the trial court may grant the

      motion for “any fair or just reason.” Id. The defendant has the burden to prove

      by a preponderance of the evidence and with specific facts that he should be

      permitted to withdraw his plea. Ind. Code § 35-35-1-4(b), (e); see also Davis v.

      State, 770 N.E.2d 319, 327 (Ind. 2002) (noting the defendant is required to

      demonstrate “(1) a fair and just reason for withdrawal of the guilty plea and (2)

      no reliance by the State that resulted in substantial prejudice”).


[8]   The trial court’s ruling is reviewed only for an abuse of discretion. Ind. Code §

      35-35-1-4(b). “A trial court abuses its discretion only when the failure of the

      trial court to grant the motion would result in . . . a manifest injustice.” Davis,

      770 N.E.2d at 326 (alteration in original) (quotation and citation omitted). In

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

      to withdraw a guilty plea, we examine the statements made at the guilty plea




      Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 6 of 9
       hearing to decide whether the plea was made freely and knowingly. Brightman,

       758 N.E.2d at 44.


                                       II. Manifest Injustice
[9]    Black contends the trial court abused its discretion in denying his motion to

       withdraw his guilty plea. He acknowledges that during the plea hearing, “he

       provided that he understood his rights and that the plea was [a] free and

       voluntary act.” Appellant’s Brief at 7. He argues, however, that the record

       demonstrates his plea was not knowing, in that he did not understand he was

       pleading guilty to dealing; his plea was not voluntary, in that his attorney

       pressured him to plead guilty; and it was not intelligent, in that he did not have

       the ability to research his case, know the evidence against him, or explore

       possible defenses before pleading guilty. Further, he notes he brought these

       concerns to the court promptly after pleading guilty. He therefore asserts

       withdrawal of his plea is necessary to correct a manifest injustice.


[10]   Based upon our review of the record, we cannot say the trial court was required

       to grant Black’s motion to correct a manifest injustice. Black is correct that his

       change of plea was made just two months after the charges were filed, but it

       was also just two weeks before his jury trial was scheduled; his request for a

       speedy trial necessarily accelerated the timeline of preparing for trial. At the

       guilty plea hearing, the trial court fully and correctly advised Black of the

       charges against him, the possible penalties that could result from trial, the terms

       of the plea agreement, and the rights he would be giving up by pleading guilty.


       Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 7 of 9
       In each case, Black indicated he understood. The trial court inquired into

       Black’s mental health, both past and present, and Black denied any mental

       health issues. The trial court asked whether he was satisfied with the services of

       his attorney, and Black stated he was. Black indicated he was entering the

       guilty plea of his own volition and had not been forced to do so. He also

       affirmatively stated that he had possessed methamphetamine with the intent to

       deliver it to another person. As the State points out, each of the claims Black

       now makes is inconsistent with statements he made at the guilty plea hearing.

       “[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.” Coomer v. State, 652 N.E.2d 60, 62

       (Ind. 1995). There is no credible evidence that Black’s plea was involuntary,

       and the transcript of the guilty plea hearing does not indicate that his rights

       were violated. Accordingly, Black has failed to prove a manifest injustice that

       must corrected by allowing him to withdraw his plea of guilty.


[11]   In the absence of a manifest injustice, it was within the trial court’s discretion to

       grant or deny the motion. The trial court chose to deny the motion. Although

       it might not have been an abuse of discretion for the trial court to grant Black’s

       motion, it is also not an abuse of discretion under these circumstances for the

       trial court to deny it. Black has failed to show the trial court abused its

       discretion when it did not allow him to withdraw his plea of guilty.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 8 of 9
                                               Conclusion
[12]   Black failed to prove that withdrawal of his guilty plea was necessary to correct

       a manifest injustice or to otherwise show the trial court abused its discretion in

       denying his motion. Accordingly, we do not disturb the trial court’s denial of

       Black’s motion, and his conviction and sentence are affirmed.


[13]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1509-CR-1361 | April 8, 2016   Page 9 of 9
