      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                  Nov 09 2015, 5:49 am
      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
      Jeffrey E. Stratman                                      Gregory F. Zoeller
      Aurora, Indiana                                          Attorney General of Indiana
                                                               Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Donald G. Huntington,                                    November 9, 2015
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A05-1504-CR-143
              v.                                               Appeal from the Dearborn Circuit
                                                               Court
      State of Indiana,                                        The Honorable James D.
      Appellee-Plaintiff.                                      Humphrey, Judge
                                                               Trial Court Cause No.
                                                               15C01-0911-FB-29



      Kirsch, Judge.


[1]   After pleading guilty to Class B felony possession of a firearm by a serious

      violent felon and being an habitual offender, Donald G. Huntington now


      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 1 of 10
      appeals and raises one issue: whether the trial court abused its discretion when

      it denied his oral request at the sentencing hearing to withdraw his guilty plea.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 20, 2009, the State charged Huntington with Count I, Class C

      felony burglary; Count II, Class D felony theft; Count III, Class D felony

      criminal mischief; Count IV, Class B felony possession of a firearm by a serious

      violent felon, and with being an habitual offender. The charges stemmed from

      a burglary at a car wash located in Dearborn County on October 29, 2008. The

      initial hearing was delayed because of Huntington’s involvement in criminal

      proceedings in Ripley County, but was eventually held on January 1, 2014.

      Huntington and his counsel appeared at the February 13, 2015 final pretrial

      conference. On that date, Huntington and the State entered into a negotiated

      plea agreement (“Agreement”), under which Huntington agreed to plead guilty

      to Count IV and the habitual offender enhancement, and the State agreed to

      dismiss the remaining charges. The Agreement provided for a maximum

      aggregate sentence of thirty years with ten years suspended.


[4]   At the guilty plea hearing, the trial court had the following dialogue with

      Huntington:

              Q: Sir, I need to know have you ever been treated for any mental
              illness?



      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 2 of 10
              A: Yes, I have.


              Q: What is the nature of that, sir?


              A: I’m not on medication no more.


              Q: Okay. What is your diagnosis?


              A: Schizophrenic.


              Q: OK. And, are you still suffering from that condition?


              A: I’m not . . . I’m no longer on medication.


              Q: Okay. So does this condition [a]ffect your ability to
              understand what we’re doing here today?


              A: No, sir.


      Tr. at 4-5. Then the trial court asked defense counsel:


              Q: [Counsel], does this raise any possible defenses or [a]ffect Mr.
              Huntington’s ability to proceed here today?

              A: Not to my knowledge, Judge.


      Id. at 5.


[5]   Thereafter, the trial court, among other things, advised Huntington of his

      constitutional rights, informed him of the State’s burden of proof if he went to

      trial, and explained that he was giving up the right to appeal his conviction by

      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 3 of 10
      pleading guilty. The trial court confirmed that Huntington was represented by

      counsel and that he was satisfied with his counsel’s representation. The trial

      court reviewed the charges, and confirmed that Huntington understood the

      charges and the potential penalties he would face if he went to trial. The trial

      court reviewed the specific terms of the plea agreement and established that

      Huntington had not received anything in value in exchange for his plea and that

      it was made freely. Huntington agreed to the factual basis for the Class B

      felony unlawful possession of a firearm charge, including that which caused

      him to be classified a serious violent offender, and he agreed to the habitual

      offender enhancement. Huntington acknowledged that it was his decision to

      plead guilty.


[6]   After determining that Huntington’s plea was knowingly and freely made, and

      that a factual basis existed for the plea, the trial court took particular note of the

      mental health issue and stated,

              I’m also going to note based upon Mr. Huntington’s comments
              about his . . . appears to be a previous mental condition, that Mr.
              Huntington appears to have fully understood the discussion
              we’ve had here today, and appears to be . . . [] this has played no
              part . . . and again, affecting his ability to understand this . . .
              these proceedings and enter this plea.


      Tr. at 18 (ellipses in original, alteration added in brackets). Huntington’s

      counsel then stated, “That’s been my perception as well in my dealing with Mr.

      Huntington, Judge[,]” to which the State followed up with, “And, I would

      agree as well, Your Honor.” Id. The trial court took the matter under

      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 4 of 10
      advisement, ordered preparation of a presentence investigation report, and

      scheduled the matter for a sentencing hearing on March 13, 2015.


[7]   At the beginning of the sentencing hearing, Huntington’s counsel orally made a

      motion to withdraw Huntington’s guilty plea. Huntington was sworn in as a

      witness, and his counsel examined him, during which Huntington testified to

      the basis of his desire to withdraw the guilty plea, initially stating that “nobody

      ever had me evaluated[.]” Tr. at 22. He continued, “Plus, I never did have the

      full discovery of my case” prior to the guilty plea, asserting that his attorney

      “kept it all hid from me” and was “ineffective.” Id. Huntington stated that he

      had attempted suicide and that his “parole lady” had mistreated him, and that

      he had been through treatments “since I’ve been down at Pendleton.” Id. at 22-

      23. His counsel inquired further about Huntington’s reference to psychological

      treatment, and Huntington indicated he was treated in 2009 and for some

      period thereafter, but that he was taken off medication “a little over a year ago,”

      while he was housed “at Miami[.]”1 Id. at 25. His counsel asked him,


                 Q: So, being taken off the medication, did that . . . does that
                 affect your ability to read?

                 A: No, no, it don’t affect my ability to read.

                 Q: Okay. Does it affect your ability to understand this
                 Negotiated Plea Agreement?




      1
          It appears Huntington is referring to the Miami Correctional Facility.


      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 5 of 10
              A: No, but I still need treatment, I’m going right back through
              the same mess again.


      Id. When Huntington’s counsel asked Huntington to explain to the trial court

      why it should allow him “to get out of” the Agreement, Huntington said, “All

      Right. Your Honor, I would like to go ahead and excuse him for ineffective

      Counsel[.]” Id. at 26. The trial court ended the testimony, opining, “I think

      Mr. Huntington just wants to get out of his plea[.]” Id. It thereafter denied

      Huntington’s motion, and Huntington now appeals.


                                     Discussion and Decision
[8]   Indiana Code section 35-35-1-4(b) governs motions to withdraw guilty pleas. It

      provides that a defendant may move to withdraw a plea of guilty after pleading

      guilty but before a sentence is imposed. Ind. Code § 35-35-1-4(b). Our courts

      have explained:


              The court must allow a defendant to withdraw a guilty plea if
              “necessary to correct a manifest injustice.” By contrast, the court
              must deny the motion if withdrawal of the plea would
              “substantially prejudice[ ]” the State. In all other cases, the court
              may grant the defendant’s motion to withdraw a guilty plea “for
              any fair and just reason.”


      Peel v. State, 951 N.E.2d 269, 271 (Ind. Ct. App. 2011) (internal citations

      omitted) (quoting Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001)). Indiana

      Code section 35-35-1-4(b) requires that the motion “shall be in writing and

      verified.” A defendant has the burden to establish his grounds for relief by a

      preponderance of the evidence. Ind. Code § 35-35-1-4(e).
      Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 6 of 10
[9]    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, 758 N.E.2d at 44

       (citing Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995)); McGraw v. State, 938

       N.E.2d 1218, 1220 (Ind. Ct. App. 2010) (trial court’s ruling on motion to

       withdraw guilty plea is presumed to be correct), trans. denied. The trial court’s

       ruling on the motion “shall be reviewable on appeal only for an abuse of

       discretion.” Ind. Code § 35-35-1-4(b). We will not disturb the trial court’s

       ruling where it was based on conflicting evidence. Smallwood v. State, 773

       N.E.2d 259, 264 (Ind. 2002). 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.” Brightman, 758 N.E.2d at 44.


[10]   As an initial matter, we note that Indiana Code section 35-35-1-4(b) required

       Huntington to tender a written and verified motion that presented specific facts

       to support the withdrawal of the guilty plea. He did not do so. Rather,

       Huntington orally moved for withdrawal of his guilty plea at the beginning of

       the sentencing hearing. By failing to submit a written, verified motion, he has

       waived the issue of whether the trial court wrongfully denied his request. See

       Peel, 951 N.E.2d at 272 (citing Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind.

       2000) (“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.”)).




       Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]   Page 7 of 10
[11]   Waiver notwithstanding, we find no trial court error. Here, Huntington “does

       not argue that manifest injustice [] occurred[,]” such that the trial court would

       have been required under the statute to grant his motion. Appellant’s Br. at 5.

       Rather, Huntington argues that his “well-established” mental health condition

       “was fair and just reason for the trial court to allow [him] to withdraw his guilty

       plea” and that the trial court abused its discretion when it did not permit him to

       do so.2 Id. at 6. However, upon review, we discern an exercise of discretion,

       not an abuse of it.


[12]   Here, at the commencement of the sentencing hearing, after Huntington moved

       for withdrawal of his plea, the trial court received testimony from Huntington,

       which included that he had not been evaluated psychologically, had not

       received full discovery prior to pleading guilty, and had previously undergone

       psychological treatment in 2009 and for some period thereafter. Huntington

       testified that he had been taken off medications “a little over a year ago” while

       at the Miami Correctional Facility. Tr. at 25. He expressly testified that being

       taken off medication did not affect his ability to understand the plea agreement.

       Id.




       2
         Huntington suggests, “At a minimum, the [trial] court should have allowed a continuance of the sentencing
       hearing to investigate further the state of [Huntington’s] mental capacity.” Appellant’s Br. at 3. According to
       the record before us, no party requested a continuance of the hearing. On appeal, Huntington provides no
       additional argument or authority for the proposition that the trial court should have sua sponte ordered a
       continuance or that it committed reversible error by failing to do so. Huntington has thus waived, and we do
       not further address, the argument. Ind. Appellate Rule 46(A)(8); Jackson v. State, 758 N.E.2d 1030, 1037
       (Ind. Ct. App. 2001) (failure to cite appropriate authority results in waiver).

       Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]            Page 8 of 10
[13]   In order to determine whether a plea was freely and voluntarily made, we also

       review the statements made by a defendant during a guilty plea hearing.

       McGraw, 938 N.E.2d at 1220. Here, at the guilty plea hearing, Huntington

       stated that previously he had been diagnosed “schizophrenic” and treated for

       that condition. Tr. at 5. The trial court asked Huntington if he was still

       suffering from that condition, to which Huntington replied, “I’m not . . . I’m no

       longer on medication.” Id. The trial court specifically questioned Huntington,

       “Does this condition [a]ffect your ability to understand what we are doing here

       today?” and Huntington responded, “No, sir.” Id. Huntington gave lucid and

       appropriate responses to each question posed to him. Before the conclusion of

       the proceedings, the trial court recognized that Huntington’s testimony reflected

       a previous mental condition, but continued that “Huntington appears to have

       fully understood the discussion we’ve had here today[.]” Id. at 18. Thereafter,

       Huntington’s counsel and the prosecutor each affirmatively indicated that he

       did not perceive any issues with regard to Huntington’s ability to understand

       the proceedings and enter the guilty plea. Given the record before us, we

       cannot say that the trial court’s decision to deny Huntington’s oral motion to

       withdraw his guilty plea was an abuse of discretion.3




       3
         In his Reply Brief, Huntington continues to argue that it was an abuse of discretion to deny his motion, but
       alternatively argues that “manifest injustice” existed under the circumstances because his trial counsel was
       not rendering effective assistance, such that he “was left to argue his motion in a pro se manner.” Reply Br. at
       4. He claims that, because his mental capacity was at issue, it constituted manifest injustice “to expect [him]
       to properly file a written and pro se request to withdraw his guilty plea, or to expect him to communicate that
       desire effectively to his appointed counsel.” Id. at 2. Therefore, he claims, the trial court was required under
       Indiana Code section 35-35-1-4(b) to grant his motion. Huntington acknowledges that “[he] did not raise an
       issue of manifest injustice in his original brief[.]” Id. at 5. Because Huntington failed to raise the issue in his

       Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]               Page 9 of 10
[14]   Affirmed.


       Najam, J., and Barnes, J. concur.




       principal appellate brief, the issue is waived. Ind. Appellate Rule 46(C) (“No new issues shall be raised in the
       reply brief.”); Sisson v. State, 985 N.E.2d 1, n.8 (Ind. Ct. App. 2012) (party cannot raise argument for first time
       in reply brief), trans. denied. Regardless of waiver, we find that the facts before us do not demonstrate that
       withdrawal of Huntington’s guilty plea was necessary to correct a manifest injustice.

       Court of Appeals of Indiana | Memorandum Decision 15A05-1504-CR-143 | November 9, 2015]             Page 10 of 10
