MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be                                       Dec 05 2017, 9:00 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
Samuel J. Beasley                                       Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Craig Allen Decker,                                     December 5, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A04-1705-CR-1097
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable John M. Feick,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        18C04-1303-FA-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017              Page 1 of 8
                                                 Case Summary
[1]   After pleading guilty to Child Molesting, as a Class B felony, 1 Craig Allen

      Decker (“Decker”) moved to withdraw his guilty plea, and the trial court

      denied his motion. Decker focuses his appeal on whether the trial court abused

      its discretion in denying his motion to withdraw the plea.


[2]   We affirm.



                                 Facts and Procedural History
[3]   On March 1, 2013, the State charged Decker with four counts of Child

      Molesting (two as Class A felonies2 and two as Class C felonies3) and one count

      of Intimidation, as a Class C felony.4 Decker and the State subsequently

      reached a plea agreement whereby Decker would plead guilty to a single count

      of Child Molesting as a Class B felony—a lesser-included offense of Count 1—

      in exchange for dismissal of the remaining counts. A hearing was held on

      October 5, 2016, at which Decker confirmed that he understood the terms of

      the plea agreement and that he wished to plead guilty. The trial court took the

      plea under advisement pending review of a pre-sentence investigation report.




      1
          Ind. Code § 35-42-4-3(a) (2012).
      2
          I.C. § 35-42-4-3(a)(1) (2012).
      3
          I.C. § 35-42-4-3(b) (2012).
      4
          I.C. §§ 35-45-2-1(a) (2013), -2-1(b)(2) (2013).


      Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017   Page 2 of 8
[4]   Six months later, Decker moved to withdraw the guilty plea. In support of his

      motion, Decker asserted his innocence and stated that “[a]dditional evidence

      and/or witnesses heretofore unavailable ha[d] come forward with exculpatory

      evidence.” App. Vol. II. at 142. The trial court held a hearing, which included

      testimony from several witnesses. Among the witnesses was Decker, who

      claimed that he was intoxicated on the evening in question, and remembered

      waking up at a friend’s house the following morning. Decker also claimed that

      he was under the influence of marijuana when pleading guilty.


[5]   The trial court also heard testimony from Amy Friskey (“Friskey”), a former

      girlfriend of Decker’s with whom Decker has two children. Friskey testified

      that Decker was away from their shared residence when the victim spent the

      night there. Friskey also testified that she had spoken negatively about Decker

      to her sister—the victim’s mother—expressing concern that Decker would take

      custody of the children. According to Decker, Friskey’s testimony suggested

      that the victim could have been influenced to make allegations against Decker.


[6]   The trial court denied the motion to withdraw the plea, and sentenced Decker

      to fifteen years in the Department of Correction. This appeal ensued.



                                Discussion and Decision
[7]   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; see

      Carter v. State, 739 N.E.2d 126, 131 (Ind. 2000) (“[C]ourt permission is required


      Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017   Page 3 of 8
      to withdraw a guilty plea, even when the plea has not been accepted and the

      withdrawal request is based upon a protestation of innocence.”). The trial court

      must grant a motion to withdraw a guilty plea “whenever the 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). As a general matter, we will not second-guess a trial court’s

      evaluation of the facts and circumstances because it “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). Moreover, “[t]he 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. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).


[8]   Decker contends that his guilty plea was involuntary, and that withdrawal of

      the plea was therefore necessary 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




      Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017   Page 4 of 8
       involuntariness, or when the circumstances of the plea reveal that the rights of

       the accused were violated.” Id. at 62.


[9]    “The long-standing test for the validity of a guilty plea is ‘whether the plea

       represents a voluntary and intelligent choice among the alternative courses of

       action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)

       (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this

       objective, Indiana Code Section 35-35-1-2 requires that the trial court make

       several determinations before accepting a plea of guilty, among them, that the

       defendant has been informed of the consequences of pleading guilty.


[10]   Decker does not argue that the advisements he received were inadequate or that

       the change of plea process was itself flawed.5 Indeed, Decker admits that “at

       the time he offered his plea, he did so of his own volition, in that he balanced

       the pros and cons of the then-prevailing circumstances, and, as such, did so

       ‘voluntarily.’” Appellant’s Br. at 12. Decker instead directs our attention to

       Friskey’s “alibi” testimony, allegedly proffered because she “want[ed] to do the




       5
         At the hearing on the motion to withdraw the plea, Decker suggested that he may have been under the
       influence of marijuana at the time he pleaded guilty. Decker refers to this testimony in his brief, but does not
       direct appellate argument to the issue of intoxication. We nonetheless observe that where there is credible
       evidence that a defendant was intoxicated when pleading guilty, the trial court must permit the defendant to
       withdraw the plea. See Coomer, 652 N.E.2d at 62 (citing Vonderschmidt v. State, 226 Ind. 439, 81 N.E.2d 782,
       783 (1948)). Here, the trial court determined that Decker was “not credible.” Tr. Vol. II at 63. Moreover,
       the trial court observed that at the change of plea hearing, Decker “was able to take the oath and answer
       questions from his attorney and the court,” and did not appear to be intoxicated or unable to understand
       what was happening. App. Vol. II at 156. Thus, the trial court did not abuse its discretion in declining to
       permit withdrawal of the plea on the basis of alleged intoxication. Cf. Vonderschmidt, 81 N.E.2d at 783-84
       (determining that withdrawal of a guilty plea was required where the defendant had displayed the effects of
       alcohol, smelled of alcohol, and an officer acknowledged that the defendant had consumed alcohol).

       Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017              Page 5 of 8
       right thing.” Tr. Vol. II at 36. Decker essentially argues that, in hindsight—

       given his alleged intoxication on the evening in question—he “was operating on

       deficient and incorrect information at the time of his plea, and that this

       information made it impossible for him to voluntarily enter a plea of guilty

       pursuant to the plea agreement.” Appellant’s Br. at 10.


[11]   At bottom, Decker’s argument amounts to an assertion of innocence that is

       purportedly backed by newfound evidentiary support. Yet, “where a trial court

       has followed the procedures outlined in the guilty plea statutes, and where the

       defendant’s guilty plea is knowing and voluntary, his later assertion of

       innocence does not require the trial court to set aside his guilty plea.” Carter v.

       State, 724 N.E.2d 281, 285 (Ind. Ct. App. 2000), summarily aff’d, 739 N.E.2d at

       131. Moreover, “[a]dmissions of guilt and assertions of innocence come in

       many shades of gray, and the trial judge is best situated to assess the reliability

       of each.” Carter, 739 N.E.2d at 129.


[12]   In arguing that reversal is necessary to correct a manifest injustice, Decker

       likens this case to Turner v. State, 843 N.E.2d 938, 944 (Ind. Ct. App. 2006).

       There, the defendant pleaded guilty, and before he was sentenced, the Indiana

       Supreme Court articulated a new approach to applicable constitutional law.

       Turner, 843 N.E.2d at 941. The approach produced a new, credible defense that

       was not available at the time of the guilty plea, and this Court ultimately

       reasoned that the defendant “should have a fair opportunity to vindicate” his

       constitutional rights. Id. at 944. Here, however, Decker has not identified any

       development in constitutional law. Further, any “alibi” defense was not

       Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017   Page 6 of 8
       entirely new, in that Decker claimed to remember waking up at a friend’s

       house. Moreover, the trial court did not find Decker’s testimony to be credible,

       and specifically observed that Decker had previously confessed and given

       details about the molestation during a recorded police interview.6 The trial

       court also observed that during the pre-sentence investigation interview, Decker

       indicated that the decision to plead guilty was pragmatic. Furthermore, the trial

       court expressed a “real credibility problem” with Friskey. Id. at 36. Giving

       deference to the trial court’s evaluation of the facts and circumstances, we

       cannot say that the trial court abused its discretion in determining that Decker

       had not proved, by a preponderance of the evidence, that withdrawal of the plea

       was necessary to correct a manifest injustice. See I.C. § 35-35-1-4.


[13]   Even where there is no manifest injustice, the permissive statute gives the trial

       court discretion to permit withdrawal of a plea “for any fair and just reason

       unless the state has been substantially prejudiced by reliance upon the

       defendant’s plea.” I.C. § 35-35-1-4(b). Here, the trial court determined that the

       State had been substantially prejudiced due to the passage of time, observing

       that it had been several years since the alleged incidents, and that attempting to

       prove the allegations would involve testimony from children whose memories

       may have faded. Nonetheless, even if we assume arguendo that the State failed

       to demonstrate that it had been substantially prejudiced by its reliance on the



       6
         The trial court relied, in part, upon this police-recorded interview with Decker. On appeal, however, the
       recording was omitted from the record. Decker subsequently filed a motion to correct this oversight and
       asked us to include this interview in the record on appeal. In a separate order, we granted his request.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017            Page 7 of 8
       plea, in light of the credibility determination made against Decker, we cannot

       say that the trial court abused its discretion in declining to grant the motion. See

       Carter, 739 N.E.2d at 131 (determining that the trial court did not err in denying

       permission to withdraw a guilty plea, despite a later protestation of innocence).



                                               Conclusion
[14]   Decker has not demonstrated that the trial court abused its discretion in

       denying his motion to withdraw the plea of guilty.


[15]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017   Page 8 of 8
