Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Sep 04 2013, 5:42 am
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:

JILL M. ACKLIN                                    GREGORY F. ZOELLER
Acklin Law Office, LLC                            Attorney General of Indiana
Westfield, Indiana
                                                  GEORGE P. SHERMAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSHUA BASEY,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 48A02-1301-CR-40
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable David A. Happe, Judge
                            Cause No. 48C04-1110-FD-2000



                                       September 4, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Joshua Basey appeals his conviction for Class D felony

battery. Appellee-Plaintiff the State of Indiana charged Basey with the crime after he

confessed to kicking a two-year-old child in the shin, causing bruises. Basey argues that

the trial court abused its discretion in denying his motion to withdraw his guilty plea,

claiming withdrawal was necessary to prevent manifest injustice. Specifically, Basey

contends that his plea was involuntarily and unknowingly made because, at the time of

his plea hearing, he was under the influence of three psychotropic medications. Finding

that Basey gave lucid and appropriate responses to the trial court’s inquiries during his

plea hearing, and that Basey and his counsel assured the court that Basey understood the

proceedings and was competent to enter his plea despite being medicated, we conclude

that the court could find that Basey voluntarily and knowingly pled guilty. Therefore, the

court was within its discretion in denying Basey’s motion to withdraw his guilty plea.

The judgment of the trial court is affirmed.

                           FACTS AND PROCEDURAL HISTORY

       On January 27, 2011, officers with the Elwood Police Department were called to a

home on a report regarding harassing text messages. After arriving, the officers noticed

that two-year-old K.R. had bruises on her left shin. K.R.’s mother and another witness

inside the home told the officers that Basey kicked the child in the shin two days earlier.

The officers located Basey at a different home and transported him to the police

department. There, Basey was advised of his Miranda1 rights, which he waived, and

interviewed by police. Basey confessed to the interviewing officers that he kicked K.R.
       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                      2
in the shin, explaining that she kicked him first. On October 24, 2011, Basey was

charged with Class D felony battery.2 Basey pled guilty to the charge on November 5,

2011.

        At his plea hearing, upon inquiry by the trial court, Basey acknowledged that he

intended to plead guilty to Class D felony battery without the benefit of a plea agreement

and that, in doing so, he would be admitting to the charges against him. Basey also

acknowledged that he understood the range of penalties he faced and that the judge had

discretion to choose a penalty within that range. After watching an informational DVD

regarding his constitutional and statutory rights, Basey further acknowledged that he

would be waiving those rights by pleading guilty.

        The trial court and Basey then exchanged the following questions and answers:

        [Court]: Are you now under the influence of alcohol or any drugs?
        [Basey]: No, sir.
        [Court]: Have you ever been treated for any mental illness or, to your
        knowledge, do you suffer from any mental or emotional disability?
        [Basey]: Uh, yeah. I’ve, uh, bipolar disorder.
        [Court]: All right, are ya any – on any medication right now?
        [Basey]: Yes.
        [Court]: What medication are you on?
        [Basey]: Uh, Lithium, Depicote [sic], and [Risperdal.]
        [Court]: All right. Are you satisfied that as you sit here today, you fully
        understand these proceedings and that you are able to knowingly and
        voluntarily participate in these proceedings?
        [Basey]: Yes.

        2
           Under Indiana Code section 35-42-2-1(a)(2)(B), Battery is a Class D felony when, as here, it
results in bodily injury to a person less than fourteen years of age and is committed by a person at least
eighteen years of age.
                                                    3
Tr. p. 6-7.

       The court made a similar inquiry of Basey’s counsel, who stated that he and Basey

had discussed the case and that Basey “indicated over a period of time that he wants to

plead guilty to the case.” Tr. p. 8. Basey’s counsel further informed the court that he was

satisfied that Basey fully understood the proceedings and was competent to move forward

despite his mental illness. Basey’s counsel emphasized that he and Basey had “been over

this case, in particular, and the idea that he may plead to it for quite some time. It wasn’t

something that was a knee-jerk reaction.” Tr. p. 8.

       Next, the prosecutor summarized the evidence against Basey, which included

Basey’s confession. After Basey affirmed the accuracy of the prosecutor’s summary, the

court asked Basey why he kicked K.R. Basey replied, “[I]t kind of surprised me [when

K.R. kicked me]. It startled me. [My kick] was just kind of a reaction, but … it

happened.” Tr. p. 11 (ellipses in original). Basey recognized that his response “was way

over the top” and offered his plea of guilty to the Class D felony battery charge. Tr. p.

11.   The trial court accepted Basey’s plea and scheduled a sentencing hearing for

November 26, 2012.

       At the commencement of the November 26, 2012 hearing, Basey made an oral

motion to withdraw his guilty plea. Basey told the court, “I didn’t mean to [plead guilty].

… “[I]t was an accident.” Tr. p. 23. Basey also denied that he kicked K.R. The court

probed further:

       [Court]: I asked you about the facts of the case [at your plea hearing]. We
       talked in detail about that. You said, “Yes, I did that. I committed a
       crime.” Why would you do that under oath if it – if that didn’t happen?

                                             4
      [Basey]: To get out of the Madison County Jail.
      [Court]: So you just..lied in Court to get out of jail?
      [Basey]: Yeah.
      ***
      [Court]: Um… That – that’s the only reason? You – you discovered it was
      an accident?
      [Basey]: Um – it – I – I want to withdraw my guilty plea. That’s all –
      that’s all I gotta say.
      [Court]: That doesn’t work. You have to have a reason for that. You have
      to have a credible explanation as to why that is…. You have anything else
      to say?
      [Basey]: No.

Tr. p. 24-25. The judge denied Basey’s motion to withdraw his guilty plea but granted a

continuance on Basey’s sentencing for reasons unrelated to this appeal.

      On December 17, 2012, Basey filed a written motion to withdraw his guilty plea.

In this motion, he claimed that the three psychotropic medications he was taking at the

time he pled guilty caused him “to take actions and think thoughts he would not

otherwise do.” Appellant’s App. p. 14. Basey again asserted that he did not kick K.R.

and that he did not intend to plead guilty. In support of his motion, Basey submitted two

printouts from the Mayo Clinic website containing information on his medications.

Specifically, one printout stated, “Using [Depakote] with any of the following

medicines[, including Resperdal,] may cause an increased risk of certain side effects, but

using both drugs may be the best treatment for you.” Appellant’s App. p. 18-19. The

printout continued, “More common” side effects include confusion, delusions, and

dementia. Appellant’s App. p. 25. The second printout stated, “Using [Resperdal] with

any of the following medicines[, including Lithium,] is not usually recommended, but

                                             5
may be required in some cases.” Appellant’s App. p. 35-37.

       At Basey’s rescheduled sentencing hearing on December 19, 2012, the judge

heard further evidence on Basey’s motion to withdraw his guilty plea. Basey testified

that the Madison County Jail had prescribed him Lithium, Depakote, and Risperdal, and

that, although he had taken two of these medications before, he had never taken all three

together. Basey further stated that, but for the medications, he would not have pled

guilty, and he maintained that he did not kick K.R. On cross-examination, Basey testified

that he recalled being in court on the date of his plea hearing, but he did not recall what

he said.

       Also at his sentencing hearing, Basey presented the testimony of K.R.’s mother.

K.R.’s mother testified that, after making her statement to police on January 27, 2011,

K.R. admitted to her that Basey did not kick K.R. K.R.’s mother further testified that

K.R. frequently makes up stories and suffers a lot of bruises because she is a “klutzy little

girl.” Tr. p. 50.

       After hearing this evidence, the trial court denied Basey’s motion to withdraw his

guilty plea. The court explained:

       The big problem that the court has, frankly with the theory that’s been put
       forward by Mr. Basey today is that in the probable cause affidavit he
       acknowledges to the officer in a recorded statement that in fact he did kick
       the child’s shin. And that’s inconsistent with the theory that medication
       cause[d] him to falsely plead guilty.

Tr. p. 57. Ultimately, Basey was sentenced to twenty-four months of incarceration.

                            DISCUSSION AND DECISION



                                             6
        Basey argues that the trial court abused its discretion in denying his motion to

withdraw his guilty plea. He claims that his plea was not voluntarily and knowingly

made and, therefore, that withdrawal was necessary to prevent manifest injustice.3

               Motions to withdraw guilty pleas are governed by Ind. Code § 35-
        35-1-4. After the plea of guilty but before sentencing, a court may grant the
        motion for “any fair or just reason.” Id. However, the court is required to
        grant the motion to prevent “manifest injustice” and is required to deny the
        motion when the State would be “substantially prejudiced.” Id.

Smallwood v. State, 773 N.E.2d 259, 264 (Ind. 2002).4                           “Manifest injustice” is

“necessarily [an] imprecise standard[], and an appellant seeking to overturn a trial court’s

decision has faced a high hurdle under the current statute and its predecessors.” Coomer

v. State, 652 N.E.2d 60, 62 (Ind. 1995). On appeal, the trial court’s ruling on a motion to

withdraw a guilty plea is presumed to be correct, and we will not disturb the court’s

ruling where it was based on conflicting evidence. Weatherford v. State, 697 N.E.2d 32,

34 (Ind. 1998).

        Basey contends that his psychotropic medications caused him to involuntarily and

unknowingly plead guilty. A guilty plea by one under the influence of prescription

medication is not per se invalid. See McGraw v. State, 938 N.E.2d 1218, 1220 (Ind. Ct.

App. 2010).         The influence must be such as to affect the defendant’s capacity to

voluntarily and knowingly make his plea. See id.; Commonwealth. v. Willis, 68 A.3d

        3
           Basey also claims that he presented the trial court with a “fair and just reason” for withdrawal.
This claim, however, is without merit. “A trial court abuses its discretion only ‘when the failure of the
trial court to grant the motion would result in either a manifest injustice to the defendant or in substantial
prejudice to the State.’” Johnson v. State, 734 N.E.2d 242, 244-45 (Ind. 2000) (quoting Weatherford v.
State, 697 N.E.2d 32, 34 (Ind. 1998)). “Except under these polar circumstances, disposition of the
petition is at the discretion of the trial court.” Weatherford, 697 N.E.2d at 34.
        4
            The State does not claim that denial was necessary to prevent substantial prejudice.
                                                       7
997, 1009 (Pa. Super. Ct. 2013) (“[T]he mere fact Appellant was taking prescribed

psychotropic medication at the time of his plea does not, of itself, result in the conclusion

he was unable to enter a knowing, voluntary, and intelligent guilty plea.”).

       To determine whether a defendant’s plea was voluntarily and knowingly made, we

examine the statements made by the defendant at his plea hearing. Brightman v. State,

758 N.E.2d 41, 44 (Ind. 2001). In McGraw, we held that a trial court did not abuse its

discretion in denying a defendant’s motion to withdraw his guilty plea, even though the

defendant later alleged to having been under the influence of controlled substances during

his plea hearing. 938 N.E.2d at 1220. Our review of the hearing transcript revealed that

the defendant denied being under the influence of drugs at the time and that he gave

“lucid, appropriate responses to the each question posed to him” by the trial court. Id.

Finding conflicting evidence as to whether the defendant’s plea was voluntarily and

knowingly made, we deferred to the trial court’s judgment. Id. (“We will not disturb the

court’s ruling where it was based on conflicting evidence.”).

       Here, the transcript of Basey’s plea hearing reveals that Basey acknowledged his

intent to plead guilty and understood the range of penalties he faced and the rights he

would be waiving. Basey also assured the court that, although he suffered from bipolar

disorder and was under the influence of three psychotropic medications, he fully

understood the proceedings and was able to voluntarily and knowingly participate.

Although many of Basey’s responses during his colloquy with the court were simply,

“Yes,” and “No,” he affirmatively and accurately advised the court of his bipolar disorder

and the medications he was taking. Basey also offered the court a readily intelligible—

                                             8
albeit inexcusable—explanation of why he kicked K.R. Additionally, Basey’s counsel

informed the court that Basey intended to plead guilty and that Basey had indicated this

intent “over a period of time.” Tr. p. 8. “It wasn’t something that was a knee-jerk

reaction.” Tr. p. 8. Basey’s counsel also assured the judge that he was satisfied that

Basey fully understood the proceedings and that, despite his mental illness, Basey was

competent to enter his plea.

       Given Basey’s lucid responses to the court’s inquiries and the assurances of

competency offered by Basey and his counsel, we conclude that the trial court could find

that Basey voluntarily and knowingly pled guilty. See McGraw, 938 N.E.2d at 1220.

Basey has failed to establish that withdrawal of his plea was necessary to prevent

manifest injustice; therefore, the court was within its discretion in denying Basey’s

motion to withdraw his guilty plea.

       The judgment of the trial court is affirmed.


BAILEY, J., and MAY, J., concur.




                                             9
