Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Jun 25 2014, 10:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

BRIAN EARL SMITH                                    GREGORY F. ZOELLER
Plymouth, Indiana                                   Attorney General of Indiana

                                                    KATHERINE MODESITT COOPER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN EARL SMITH,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 50A05-1308-CR-444
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARSHALL SUPERIOR COURT
                           The Honorable Robert O. Bowen, Judge
                               Cause No. 50D01-0908-FC-35


                                          June 25, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Brian Earl Smith appeals the trial court’s summary denial of his motion to withdraw

his guilty plea. We reverse and remand for a hearing.

                        FACTS AND PROCEDURAL HISTORY

       In August 2009, the State charged Smith with one misdemeanor and six felony drug

counts. Smith pled guilty to one of the felonies, and the trial court entered the conviction as a

class A misdemeanor. The trial court sentenced Smith to one year in jail, all suspended to

probation.

       In July 2013, Smith, acting pro se, filed a verified motion to withdraw his guilty plea.

Smith explained his plea was entered due to ineffective counsel. Specifically, Smith

explained that he “was not aware of the ramifications that a guilty plea would have on the

suppression of evidence in this cause and was not advised of such.” (Appellant’s Amended

App. at 19.) The trial court summarily denied the motion without a hearing. Smith appeals.

                              DISCUSSION AND DECISION

       Smith argues that the trial court erred in summarily denying his motion without a

hearing. Pursuant to Ind. Code §35-35-1-4(c), a motion to withdraw a guilty plea after

sentencing is treated as a petition for post-conviction relief. State v. Oney, 993 N.E.2d 157,

161 (Ind. 2013). A post-conviction court errs in summarily disposing of a petition unless

“the pleadings conclusively show that petitioner is entitled to no relief . . . .” Indiana Post-

Conviction Rule 1, Section 4(f). If the facts pled raise an issue of possible merit, then the

petition should not be disposed of under section 4(f). Allen v. State, 791 N.E.2d 748, 752

(Ind. Ct. App. 2003), trans. denied. This is true even though the petitioner has only a remote

                                               2
chance of establishing his claim. Id. The allegation of ineffective assistance of counsel is

generally a question of fact that precludes summary disposition in a petition for post-

conviction relief. Evolga v. State, 722 N.E.2d 370, 372 (Ind. Ct. App. 2000). In Evolga, we

held that the effectiveness of Evolga’s counsel was a question of fact that precluded summary

disposition where Evolga asserted multiple allegations that counsel was ineffective and the

State responded with only an unverified general denial. Id. at 374.

       Here, Smith alleges his guilty plea was entered because his counsel was ineffective

and he was not aware of the ramifications that a guilty plea would have on the suppression of

evidence in this case and was not advised of such. It appears the State did not respond. Thus

the pleadings do not conclusively show that Smith is not entitled to relief because questions

of fact remain regarding whether Smith received effective assistance of counsel. We

therefore reverse and remand for a hearing at which Smith can present evidence in support of

his ineffective assistance of counsel claim. See Binkley v. State, 993 N.E.2d 645 (Ind. Ct.

App. 2013).

       Reversed and remanded.

VAIDIK, C.J., and RILEY, J., concur.




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