      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Dec 31 2018, 7:58 am
      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
      estoppel, or the law of the case.                                          and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      K. Aaron Heifner                                        Curtis T. Hill, Jr.
      Heifner Law, Inc.                                       Attorney General of Indiana
      Anderson, Indiana                                       Chandra K. Hein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Robert L. Rickard III,                                  December 31, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              18A-CR-877
              v.                                              Appeal from the Madison Circuit
                                                              Court
      State of Indiana,                                       The Honorable Thomas Newman,
      Appellee-Plaintiff.                                     Jr., Judge
                                                              Trial Court Cause No.
                                                              48C03-1609-F2-2049



      Mathias, Judge.


[1]   Robert L. Rickard III (“Rickard”) pleaded guilty in Madison Circuit Court to

      Level 2 felony criminal confinement, Level 5 felony robbery, and Level 6 felony


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018              Page 1 of 12
      auto theft. Rickard later filed a motion to withdraw his guilty plea, which the

      trial court denied. Rickard appeals and claims that the trial court abused its

      discretion by denying his motion to withdraw his guilty plea.


[2]   We affirm.


                                      Facts and Procedural History1

[3]   On September 25, 2016, Jane Chambers (“Chambers”), Hazel Fellows

      (“Fellows), and Chambers’s young son were in a car in Anderson, Indiana.

      Rickard, whom they did not know, approached the car, got inside and told

      Chambers to drive. Chambers was frightened and ran out of the car with her

      son. Fellows, however, remained in the front passenger seat. Rickard climbed

      into the now-vacant driver’s seat and drove away. Chambers telephoned the

      police, who soon apprehended Rickard on Interstate 69.


[4]   On September 26, 2016, the State charged Rickard with Level 5 felony robbery

      and Level 6 felony auto theft. Four days later, the State filed an amended

      information charging Rickard with the additional offense of Level 2 felony

      criminal confinement. Rickard was subsequently evaluated by mental health

      professionals and determined to have been suffering from a mental illness at the

      time he committed his offenses.




      1
          We take the facts underlying this case from the factual basis set forth during the guilty plea hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018                       Page 2 of 12
[5]   On February 28, 2018, Rickard entered into an agreement with the State in

      which he agreed to plead guilty but mentally ill on all charges, and the State

      agreed that Rickard would be sentenced to fifteen years of incarceration. At the

      hearing on the guilty plea, the following exchange took place between Rickard

      and the trial court:


              [Court]:       Okay. I have before me a plea agreement umm...
                             before I can [accept] any plea from you I need to ask
                             you questions so I’m satisfied that you understand
                             your Constitutional Rights; that your plea is free and
                             voluntarily made; that it is accurate; that there is a
                             basis and fact for it, if at any time during the hearing
                             Mr. Rickard . . . If at any time you want me to stop so
                             you can talk to [defense counsel] I’ll be happy to do
                             that. Have you been treated for any mental illness or
                             do you now suffer from any mental or emotional
                             disability?

              [Rickard]: I do.

              [Court]:       I’m sorry.

              [Rickard]: Yes.

              [Court]:       Okay are you on medication for that sir?

              [Rickard]: Under medical order I should be however because of
                         the facility I’m being housed in I’m not.

              [Court]:       Okay would this condition cause you not to
                             understand what you’re doing right now?

              [Rickard]: That’s the way I understand it.

              [Court]:       You understand you’re here in the courtroom and
                             we’re having a hearing pursuant to a plea agreement.
                             Did you sign this plea agreement sir?
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 3 of 12
        [Rickard]: (NO VERBAL RESPONSE)

        [Court]:       That’s your signature there?

        [Rickard]: (NO VERBAL RESPONSE)

        [Court]:       Did you show him the signature?

        [Defense counsel]: Yeah we have the original right here.

        [Court]:       Is that his signature?

        [Defense counsel]: Yes.

        [Rickard]: Yes.

        [Court]:       Okay Mr. Rickard [your] Constitutional Rights are
                       that you have the right to a public and speedy trial by
                       jury. You have the right to face all witnesses against
                       you; to see or question, cross examine them, to have
                       your own witnesses appear and testify for you and if
                       you had a trial the State would have to prove your
                       guilt beyond a reasonable doubt before you could be
                       found guilty and you have the right to testify for
                       yourself and you also have the right to remain silent.
                       Those are your Constitutional Rights. Mr. Rickard do
                       you understand your rights?

        [Rickard]: Thank you yes.

        [Court]:       And you understand sir by pleading guilty you waive
                       your rights?

        [Rickard]: Yes.

        [Court]:       Okay if you had a trial and were found guilty and you
                       wanted to appeal and you didn’t have the funds to
                       hire an attorney we would provide one (1) for you at
                       no cost and by pleading guilty you’re admitting to the
                       truth of the allegations brought forth by the State and

Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 4 of 12
                       we will proceed with [judgment] of conviction and
                       sentence you without a trial. You’re pleading guilty to
                       a level 5 felony which is normally punishable by three
                       (3) years, up to three (3) can be added and two (2)
                       subtracted for one (1) to six (6) range.

        [Defense counsel]: F2.

        [Court]:       I’m sorry?

        [Defense counsel]: It’s an F2 [Level 2 felony] case.

        [Court]:       Oh [you’re] right. I’m sorry. It’s Count III. Alright
                       there is a level 5 in there and the level 2 case sir, that’s
                       a normal sentence of seventeen and [a] half (17.5)
                       years, twelve and [a] half (12.5) can be added and ten
                       (10) subtracted I mean sorry seven and [a] half (7.5)
                       subtracted for a ten (10) to thirty (30) range and up to
                       a ten thousand dollar ($10,000.00) fine. There also is
                       a level 6 felony here which is normally punishable by
                       one (1) year up to a year and [a] half (1.5) can be
                       added and [a] half (.5) year subtracted for a range of
                       six (6) months to two and [a] half (2.5) years and up
                       to a ten thousand dollar ($10,000.00) fine and under
                       some circumstances those level [sixes] can be reduced
                       to class A misdemeanors punishable by no time up to
                       one (1) year and up to a five thousand dollar
                       ($5,000.00) fine. Uhh. . . the court can take in to
                       consideration any prior criminal history you might
                       have and use it as an aggravating circumstance to add
                       time to the normal sentence[,] to run sentences
                       consecutive instead of concurrently and to execute
                       them instead of placing you on probation. If I do not
                       follow the terms of this plea agreement Mr. Rickard I
                       will allow you to reenter a plea of not guilty and the
                       proceedings we’re doing right now will not be made a
                       matter of record. Have you been offered any leniency


Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 5 of 12
                             or any special treatment other than this agreement to
                             cause you to plead guilty?

              [Rickard]: No your Honor.

              [Court]:       Have you been forced to plead guilty sir?

              [Rickard]: No.

              [Court]:       Do you feel as though your plea will be your own free
                             and voluntary act?

              [Rickard]: I do.

              [Court]:       And you’re satisfied with the way Mr. Beeman has
                             represented you?

              [Rickard]: Absolutely.

              [Court]:       Knowing all these things you still want to plead guilty
                             is that right?

              [Rickard]: (NO VERBAL RESPONSE).

              [Court]:       Okay is that right sir, do you want to plead guilty?

              [Rickard]: Just one (1) moment your Honor.

              [Court]:       Yes sir.

              [Rickard]: Yes your Honor.


      Tr. pp. 4–8.


[6]   The State then set forth the factual basis of the plea, and Rickard admitted that

      he committed the acts set forth in the factual basis. The trial court then asked

      Rickard directly what his plea was to the charges of robbery, auto theft, and

      criminal confinement. Rickard stated “[g]uilty” to each. Id. at 10. The trial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 6 of 12
      court then accepted Rickard’s plea, finding that Rickard understood the nature

      of the charges against him, understood his rights, and that his plea was freely

      and voluntarily made. Id. at 11.


[7]   On March 5, 2018, two days prior to the scheduled sentencing hearing, Rickard

      filed a motion to withdraw his guilty plea. In this motion, Rickard claimed that

      he had had time to “reflect” upon his plea and wanted to withdraw the plea to

      pursue an insanity defense at trial. Appellant’s App., p. 30. On March 7, the

      trial court held a hearing on Rickard’s motion to withdraw his guilty plea. At

      the hearing, Rickard testified that he had more time to think about it and

      desired to go to trial and attempt to assert an insanity defense. The trial court

      denied the motion and sentenced Rickard pursuant to the terms of the plea

      agreement, i.e. fifteen years executed. Rickard now appeals.


                                         Standard of Review
[8]   Indiana Code section 35-35-1-4 governs motions to withdraw guilty pleas. After

      a defendant pleads guilty, but before a sentence is imposed, a defendant may

      file a motion to withdraw a plea. Brightman v. State, 758 N.E.2d 41, 44 (Ind.

      2001) (citing I.C. § 35-35-1-4(b)). The court must allow the defendant to

      withdraw the plea if it is “necessary to correct a manifest injustice.” Id. (quoting

      I.C.§ 35-35-1-4(b)). Instances of manifest injustice may include any of the

      following: a defendant is denied the effective assistance of counsel, the plea was

      not entered or ratified by the defendant, the plea was not knowingly and

      voluntarily made, the prosecutor failed to abide by the terms of the plea


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 7 of 12
      agreement, or the plea and judgment of conviction are void or voidable. Jeffries

      v. State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012), trans. denied. But the court

      must deny the motion if withdrawal of the plea would “substantially

      prejudice[]” the State. Brightman, 758 N.E.2d at 44 (quoting I.C. § 35-35-1-4(b)).

      In all other cases, the trial court has the discretion to grant a defendant’s motion

      to withdraw a guilty plea “for any fair and just reason.” Id. (quoting I.C.§ 35-

      35-1-4(b)).


[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, and we will reverse the trial court

      only for an abuse of discretion. Id. In determining whether a trial court has

      abused its discretion, we examine the statements made by the defendant at his

      guilty plea hearing to decide whether his plea was offered freely and knowingly.

      Id. Moreover, because the moving party bears the burden of establishing his

      grounds for relief by a preponderance of the evidence, Gross v. State, 22 N.E.3d

      863, 868 (Ind. Ct. App. 2014), trans. denied (citing I.C. § 35-35-1-4(e)), Rickard

      appeals from a negative judgment. See Burnell v. State, 56 N.E.3d 1146, 1149–50

      (Ind. 2016). On appeal from a negative judgment, we will reverse only if the

      judgment is contrary to law, and a judgment is contrary to law if the evidence

      leads to but one conclusion and the trial court reached the opposite conclusion.

      Id. at 1150. We will consider the evidence in the light most favorable to the

      prevailing party, together with all reasonable inferences therefrom, and we

      neither reweigh the evidence nor judge the credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 8 of 12
                                      Discussion and Decision

[10]   Rickard claims that the trial court abused its discretion by denying his motion

       to withdraw his guilty plea. He argues that it was apparent at the guilty plea

       hearing that he did not understand the ramifications of his plea and that, due to

       his mental illness, the trial court should not have accepted the guilty plea.


[11]   As noted by the State, this is not the grounds advanced by Rickard below as

       justification for withdrawing his guilty plea. In his motion to withdraw, Rickard

       claimed that he had had time to reflect on his plea and wished to proceed to

       trial so that he could assert an insanity defense. A party may not present an

       argument for the first time on appeal, and the failure to present an argument

       below results in waiver on appeal. Leatherman v. State, 101 N.E.3d 879, 885

       (Ind. Ct. App. 2018). A trial court cannot be found to have erred as to an issue

       or argument that it never had an opportunity to consider. Id. Thus, as a general

       rule, a party may not present an argument or issue on appeal unless the party

       raised that argument or issue before the trial court. Id. (citing Marshall v. State,

       621 N.E.2d 308, 314 (Ind. 1993); See McGraw v. State, 938 N.E.2d 1218, 1220

       (Ind. Ct. App. 2010) (concluding that appellant waived argument that trial

       court coerced him into pleading guilty where defendant failed to make this

       argument to the trial court), trans. denied. But even if Rickard had presented this

       argument below and thus properly preserved this issue for appeal, he would not

       prevail.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 9 of 12
[12]   We first note that the grounds stated in Rickard’s motion to withdraw do not

       establish that the trial court was required to grant the motion to correct a

       “manifest injustice.” The grounds stated in the motion, and argued at the

       hearing on the motion, simply established that Rickard had more time to think

       about the plea, changed his mind, and decided that he would rather take the

       chance of going to trial with an insanity defense. Merely changing one’s mind

       does not establish the existence of a manifest injustice.


[13]   On appeal, Rickard argues that he was not in a proper mental state at the time

       he entered his plea of guilty. Rickard did claim to suffer from a mental illness at

       the guilty plea hearing, and the State does not deny this. But the trial court took

       care to confirm that Rickard understood the rights he was waiving by pleading

       guilty. The court asked questions to ensure that Rickard had not been forced to

       plead guilty, that his plea was his own free and voluntary act, and that he was

       satisfied with his counsel’s representation. The court also asked Rickard if,

       having been advised of his rights, he still wished to plead guilty. Rickard

       responded affirmatively.


[14]   As an appellate court, we have only a cold transcript before us to review. The

       trial court saw Rickard and how he presented himself in court and was

       accordingly in a much better position to determine if Rickard’s mental health

       issues impeded his ability to knowingly and voluntarily plead guilty. And we

       are unable to say that the trial court abused its discretion in concluding that

       Rickard’s plea was knowing and voluntary despite his mental illness.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 10 of 12
[15]   Our analysis is not altered by the fact that Rickard was also apparently mentally

       ill at the time of his offense. The fact that Rickard is mentally ill does not, in

       and of itself, mean that an insanity defense would be successful. See Barcroft v.

       State, 111 N.E.3d 997, 1002 (Ind. 2018) (“Proof of mental illness alone is not

       enough” to prove insanity defense) (citing Myers v. State, 27 N.E.3d 1069, 1075

       (Ind. 2015)). An insanity defense requires the defendant to establish by a

       preponderance of the evidence that he not only suffers from a mental disease or

       defect but that this rendered him unable to appreciate the wrongfulness of his

       conduct at the time of the offense. Id. (citing Ind. Code §§ 35-41-4-1(b), 35-41-3-

       6(a)). This is a difficult burden. See id. (affirming trial court’s rejection of

       defendant’s insanity defense despite the unanimous testimony of three mental

       health experts that defendant was mentally ill and unable to appreciate the

       wrongfulness of her conduct at the time of the offense).


[16]   Rickard also briefly claims that he was given too little time to adequately

       consider the plea; he claims that he had only three days to consider the plea

       before the guilty plea hearing. However, as noted by the State’s argument

       before the trial court, the State had first offered Rickard a plea deal as early as

       October 2016—one month after the offenses, and the State’s plea offers became

       more favorable to Rickard as time elapsed. This is not a case where the State

       surprised Rickard with a last-minute plea deal. Moreover, three days is not an

       insubstantial amount of time, and it does not necessarily follow that Rickard

       would have come to a different decision had he only been given more time.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 11 of 12
[17]   Lastly, there was evidence before the court that granting the motion to

       withdraw the guilty plea would prejudice the State’s case. At the time of the

       guilty plea hearing, the case had been pending for well over a year, and one of

       the witnesses had moved to England. Under the facts and circumstances of the

       present case, we cannot say that the trial court abused its discretion in denying

       Rickard’s motion to withdraw his guilty plea.


                                                 Conclusion

[18]   The trial court did not abuse its discretion by denying Rickard’s motion to

       withdraw his earlier plea of guilty. The argument Rickard presents on appeal is

       not the same argument he presented to the trial court, and Rickard cannot

       present this argument for the first time on appeal. But even if he could, the

       record indicates that Rickard knowingly and voluntarily pleaded guilty, and we

       will not second-guess the trial court’s assessment of Rickard’s competence to

       plead guilty, despite his uncontroverted mental illness. Also, granting Rickard’s

       motion to withdraw would have prejudiced the State’s case. For all of these

       reasons, we affirm the judgment of the trial court.


[19]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-877 | December 31, 2018   Page 12 of 12
