MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 20 2019, 7:42 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy A. Ebertshauser,                                 December 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-746
        v.                                               Appeal from the Scott Circuit
                                                         Court
State of Indiana,                                        The Honorable Jason Mount,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         72C01-1811-F5-62



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019                Page 1 of 6
                                       Statement of the Case
[1]   Timothy Ebertshauser (“Ebertshauser”) appeals the trial court’s denial of his

      motion to withdraw his guilty plea. Concluding that the trial court did not

      abuse its discretion when it denied Ebertshauser’s motion, we affirm the trial

      court’s denial.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion when it denied
              Ebertshauser’s motion to withdraw his guilty plea.


                                                     Facts
[3]   In December 2017, a confidential informant purchased methamphetamine from

      Ebertshauser. The informant was wearing audio and video recording devices,

      and sheriff’s department deputies were monitoring the transaction. The State

      subsequently charged Ebertshauser with Level 5 felony dealing in

      methamphetamine.


[4]   At a January 2019 hearing, the trial court advised Ebertshauser as follows:


              I must be satisfied that you fully understand your constitutional
              rights, that your plea of guilty is made freely and voluntarily and
              that you, in fact, committed the crime.


      (Tr. at 4). The trial court also asked Ebertshauser if he understood that, by

      pleading guilty, he would “be admitting to the offense as charged, [he’d] be


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019   Page 2 of 6
      judged guilty and sentenced without a trial.” (Tr. at 809). Ebertshauser

      responded that he did. Thereafter, Ebertshauser admitted under oath that he

      had “knowingly or intentionally deliver[ed] methamphetamine, pure or

      adulterated, to another individual.” (Tr. at 11). The trial court responded as

      follows:


              Upon your plea of guilty, the Court will find that you are guilty.
              We’ll accept, approve and order this agreement. We’ll find that
              Timothy A. Ebertshauser is 28 years of age, that he understands
              the nature of the charge against him to which he is pleading
              guilty, that he understands the potential penalties for the crime.
              His plea is feely and voluntarily made and there is a factual basis
              for the plea. Court accepts the plea of guilty and finds Timothy
              Ebertshauser guilty of count I, dealing in methamphetamine.


      (Tr. at 11-12). Thereafter, the trial court ordered a presentence investigation

      report and scheduled a sentencing hearing.


[5]   At the February 2019 sentencing hearing, Ebertshauser orally moved to

      withdraw his plea. According to Ebertshauser, he had seen the probable cause

      affidavit in the presentence investigation report and there was information in

      the affidavit that led him to believe that he could be acquitted at trial. The trial

      court set the matter for a hearing and directed Ebertshauser to file a written

      motion to withdraw his guilty plea. In response, Ebertshauser filed an

      unverified written motion, which requested that the trial court withdraw the

      guilty plea but did not set forth specific facts supporting the request.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019   Page 3 of 6
[6]   The trial court held a hearing on the motion in March 2019. At the hearing,

      Ebertshauser argued that: (1) he had not pled guilty at the January 2019

      hearing; and (2) after reading the probable cause affidavit that was attached to

      the presentence investigation report, he did not believe there was sufficient

      evidence to sustain a conviction. At the end of the hearing, the trial court noted

      that Ebertshauser had: (1) pled guilty pursuant to a signed and filed plea

      agreement; and (2) established a factual basis for the guilty plea. Thereafter, the

      trial court denied his motion to withdraw his guilty plea. Ebertshauser appeals

      the denial of his motion.


                                                  Decision
[7]   At the outset, we note that INDIANA CODE § 35-35-1-4(b) provides that the

      motion to withdraw the guilty plea “shall be in writing and verified.” The

      statute further provides that the motion “shall state the facts in support of the

      relief demanded[.]” Id. Ebertshauser’s motion was not verified and did not

      include the facts in support of the relief demanded. He has therefore waived

      appellate review of this issue. See Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind.

      2000) (explaining that a defendant’s failure to submit a verified, written motion

      to withdraw a guilty plea generally results in waiver of the issue of wrongful

      denial of the request).


[8]   Waiver notwithstanding, we find no error. After a defendant has entered a

      guilty plea, the defendant may withdraw the plea only by obtaining the

      permission of the trial court. I.C. § 35-35-1-4(b). The trial court must grant a

      motion to withdraw a guilty plea “whenever the defendant proves that
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019   Page 4 of 6
       withdrawal of the plea is necessary to correct a manifest injustice.” Id. The

       trial court may grant the motion “for any fair and just reason unless the state

       has been substantially prejudiced by reliance on the defendant’s plea.” Id. The

       defendant “has the burden of establishing the 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).


[9]    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 on 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. Croomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).


[10]   Ebertshauser first argues that the trial court abused its discretion when it denied

       his motion to withdraw his guilty plea because he did not plead guilty at the

       January 2019 hearing. According to Ebertshauser, withdrawal of his plea is

       necessary to correct this manifest injustice. However, our review of the

       transcript of that hearing reveals that Ebertshauser pled guilty when he

       admitted under oath that he had “knowingly or intentionally deliver[ed]

       methamphetamine, pure or adulterated, to another individual.” (Tr. at 11).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019   Page 5 of 6
       The trial court accepted this plea and found Ebertshauser to be guilty of dealing

       in methamphetamine. Ebertshauser’s argument therefore fails.


[11]   Ebertshauser further argues that the trial court erred in denying his motion to

       withdraw his guilty plea because information in the probable cause affidavit led

       him to believe that he could be acquitted at a trial. According to Ebertshauser,

       this information provides a fair and just reason for withdrawing his plea.

       Ebertshauser, however, has failed to set forth specific facts supporting his claim.

       He has, therefore, failed to meet his burden to show his grounds for relief by a

       preponderance of the evidence. See Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct.

       App. 1992) (explaining that a defendant has the burden to prove with specific

       facts that he should be permitted to withdraw his plea). The trial court did not

       abuse its discretion in denying Ebertshauser’s motion to withdraw his guilty

       plea.


       Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019   Page 6 of 6
