Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any               Mar 27 2014, 9:58 am
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:

TIMOTHY P. BRODEN                                GREGORY F. ZOELLER
Lafayette, Indiana                               Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

TY C. WILKERSON,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 79A02-1307-CR-609
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Thomas H. Busch, Judge
                                Cause No. 79D02-1302-FC-8



                                       March 27, 2014


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Ty Wilkerson appeals his conviction and eight-year sentence for Class C felony

battery resulting in serious bodily injury. We affirm.

                                         ISSUES

       Wilkerson presents two issues: (1) whether the trial court abused its discretion by

denying defense counsel’s motion to withdraw his appearance, and (2) whether

Wilkerson’s sentence is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       On February 7, 2013, Wilkerson and Aaron Miller were detained in the

Tippecanoe County Jail. Miller was in the common dayroom waiting for lunch trays to

arrive when Wilkerson walked up and said Miller’s teeth looked like pea gravel. Miller

responded by calling Wilkerson “Smeagol,” a character from a movie they had just seen.

They both laughed. Wilkerson then approached Miller as if he was going to hit him but

walked off instead.

       Miller talked with another inmate waiting for the lunch trays when he was

suddenly “hit out of nowhere.” Tr. p. 104. Wilkerson had punched him and left. The

punch broke one of Miller’s teeth and caused his cheek to bleed, so he went to his cell to

clean off his face. As he was wiping blood from his face, Wilkerson entered his cell and

struck him repeatedly in the face.

       Miller was taken to a Lafayette hospital, where a CT scan showed several fractures

in his face.   He was transported to St. Vincent Hospital in Indianapolis, where he

underwent surgery on his orbital bone that involved placing a titanium plate in his face.

                                             2
        On February 13, 2013, the State charged Wilkerson with Class C felony battery

resulting in serious bodily injury. The same day, the trial court held an initial hearing and

set the case for a jury trial on May 14, 2013. Wilkerson filed a pro se motion for an early

trial on February 20, 2013, and defense counsel filed an appearance on February 26,

2013.    The trial date was reaffirmed on March 15, 2013 and April 12, 2013, with

Wilkerson specifically agreeing on April 12, 2013 to enlarge the speedy trial deadline to

include May 14, 2013.

        On April 30, 2013, the trial court ordered jurors to be summoned for Wilkerson’s

trial. The next day on May 1, 2013, defense counsel filed a motion to withdraw his

appearance. The motion stated that: (1) Wilkerson had requested new counsel; (2) the

relationship between Wilkerson and defense counsel had “deteriorated to the point that

Counsel does not feel that he can effectively continue to represent” Wilkerson; (3)

Wilkerson believed he could not rely on counsel’s advice; and (4) Wilkerson was aware

that the appointment of new counsel would effectively waive his speedy trial right.

Appellant’s App. p. 53.

        The trial court held a hearing on the motion on May 2, 2013. At the hearing,

defense counsel stated that the motion was based on events during a hearing the previous

week on Wilkerson’s motion to withdraw his guilty plea in a separate case. At that

hearing, defense counsel explained, he and Wilkerson testified to differing recollections

about what had occurred in that case. Thereafter, defense counsel continued, Wilkerson

did not believe he could rely on counsel’s advice. When the trial court asked for the

State’s position, the deputy prosecutor agreed that Wilkerson and his counsel had

                                             3
provided conflicting testimony at the hearing on the other case but left the decision on the

motion to withdraw appearance to the court’s discretion. The court denied the motion.

       Wilkerson’s jury trial began twelve days later as scheduled. Miller testified that

he continued to experience impaired vision, difficulty breathing through his nose, and

pain in his face as a result of the attack. Wilkerson testified in his own defense, admitting

he struck Miller once in the dayroom. However, he denied attacking Miller in his cell.

Instead, he said he went to Miller’s cell to check on him because Miller was yelling and

screaming, and while he was there he saw Miller bang his own head against the sink.

       The jury found Wilkerson guilty as charged. At Wilkerson’s sentencing hearing,

the trial court identified three aggravating circumstances: (1) his history of criminal or

delinquent activity; (2) his recent violations of the conditions of probation and the rules

of a detention facility; and (3) his lack of remorse. The court also identified three

mitigating circumstances: (1) his emotional state at the time of the crime; (2) his mental

health issues; and (3) his difficult childhood. Finding that the aggravators outweighed the

mitigators, the trial court sentenced Wilkerson to eight years. Wilkerson now appeals.

                             DISCUSSION AND DECISION

              I. DENIAL OF MOTION TO WITHDRAW APPEARANCE

       Wilkerson first contends the trial court erred by denying defense counsel’s motion

to withdraw his appearance. An indigent defendant has the right to representation by

counsel; however, he has no right to representation by court-appointed counsel of his

choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Whether to allow counsel to

withdraw is within a trial court’s sound discretion. Bronaugh v. State, 942 N.E.2d 826,

                                             4
829 (Ind. Ct. App. 2011), trans. denied. A trial court may refuse a motion to withdraw if

it determines withdrawal will result in a delay in the administration of justice. Moore,

557 N.E.2d at 668. Further, a defendant must demonstrate that he was prejudiced before

we may reverse on this issue. Bronaugh, 942 N.E.2d at 830.

       Wilkerson’s May 14, 2013 trial date was set on February 13, 2013 and reaffirmed

on both March 15, 2013 and April 12, 2013. On April 30, 2013, the trial court ordered

jurors to be summoned for trial. It was not until May 1, 2013, less than two weeks before

trial, that defense counsel filed the motion to withdraw.

       At a hearing on the motion the next day, the trial court acknowledged the

conflicting testimony between Wilkerson and defense counsel at a hearing in a separate

cause number just the week before but noted the subject of that hearing had been at issue

since before Wilkerson had filed his speedy trial motion in this case. Tr. pp. 3-4. The

court also noted that the May 14, 2013 trial date had been set for some time and that

Wilkerson and defense counsel’s disagreement in the separate cause did not rise to the

level of the kind of conflict that would require last-minute scheduling changes in this

case. Id. at 4, 6.

       Under the circumstances here, the trial court was within its discretion in

determining that defense counsel’s withdrawal would delay the administration of justice.

More significantly, Wilkerson fails to demonstrate that he was prejudiced by defense

counsel’s continued representation. Although the motion to withdraw stated Wilkerson

did not believe he could rely on counsel’s advice, he fails to point to anything counsel did

or did not do while representing him in this case that resulted in prejudice.

                                              5
       We thus conclude the trial court did not abuse its discretion by denying defense

counsel’s motion to withdraw his appearance. See Moore, 557 N.E.2d at 668 (denial of

motion to withdraw not abuse of discretion where motion arose within three weeks of

trial and appellant did not demonstrate that continued representation prejudiced him);

Bronaugh, 942 N.E.2d at 830 (denial of motion to withdraw not abuse of discretion

where hearing on motion was one month before trial and appellant did not demonstrate

that continued representation prejudiced him).

                            II. INAPPROPRIATE SENTENCE

       Wilkerson next contends his sentence is inappropriate. Although a trial court may

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6

of the Indiana Constitution authorize independent appellate review and revision of a

sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

(2007)).   The defendant has the burden of persuading us that his sentence is

inappropriate. Id.

       We first look to the statutory range established for the class of the offense.

Wilkerson was convicted of a Class C felony. The statutory range for a Class C felony is

between two and eight years, with the advisory sentence being four years. Ind. Code §

35-50-2-6(a) (2005). Wilkerson received the maximum sentence of eight years.

                                             6
       We next look to the nature of the offense and Wilkerson’s character. As to the

nature of the offense, Wilkerson attacked Miller while they were detained in the

Tippecanoe County Jail. As the trial court noted, “An assault in the jail on a fellow

detainee or fellow prisoner, as the case may be, is about as serious of an assault as you

can think of because both parties are under --- both parties have limited ability to walk

away from a fight . . . .” Tr. p. 220. Without warning, Wilkerson punched Miller in the

dayroom, knocking out a tooth. He then followed Miller into his cell, where he struck

him repeatedly in the face.      Miller’s injuries required him to be transported to an

Indianapolis hospital, where a titanium plate was placed in his face.

       As to his character, Wilkerson was twenty years old at the time of this offense, yet

at that young age he already had a substantial record. As a juvenile, he was adjudicated a

delinquent child for what would be petty theft/grand theft, trespass, and receiving stolen

property if committed by an adult. As an adult, he has misdemeanor convictions for

Class A false informing, Class B public intoxication, Class C illegal consumption of an

alcoholic beverage, and Class C operating without ever receiving a license. He has

felony convictions for Class A dealing in a narcotic drug and Class C burglary. Although

his previous crimes have not involved violence, the current Class C felony battery

resulting in serious bodily injury conviction shows an escalation in his criminal behavior.

       Moreover, this crime was committed while Wilkerson was detained awaiting

disposition of his Class A dealing case. That he would attack a fellow inmate while in

jail awaiting the disposition of a major felony case demonstrates his poor character and

his lack of respect for others and for the law.

                                              7
      In short, Wilkerson has failed to persuade us that his sentence is inappropriate.

                                    CONCLUSION

      We therefore affirm his conviction and sentence.

RILEY, J., and MAY, J., concur.




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