MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Dec 14 2015, 9:12 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
Kelly N. Bryan                                          Gregory F. Zoeller
Muncie, Indiana                                         Attorney General of Indiana

                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Juan Carlos Brown,                                      December 14, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A04-1505-CR-454
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Marianne L.
Appellee-Plaintiff                                      Vorhees, Judge
                                                        Trial Court Cause Nos.
                                                        18C01-1208-FA-12
                                                        18C01-1212-FA-13
                                                        18C01-1312-FA-16



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 1 of 8
                                          Case Summary
[1]   Juan Carlos Brown (“Brown”) appeals the denial of his motion to withdraw his

      pleas of guilty to three Class B felonies: one count of Dealing in a Schedule 1

      Controlled Substance1 and two counts of Dealing in a Narcotic Drug.2 He

      presents the sole issue of whether the trial court abused its discretion by denying

      the motion for withdrawal. We affirm.



                                   Facts and Procedural History
[2]   On August 22, 2012, Brown was charged with two counts of Dealing in a

      Schedule I Controlled Substance, as Class A felonies, and one count of

      Resisting Law Enforcement,3 as a Class D felony. On November 20, 2012,

      Brown was charged with Conspiracy to Commit Dealing in a Narcotic Drug,4

      as a Class A felony, two counts of Dealing in a Narcotic Drug, as Class A

      felonies, Possession of a Narcotic Drug,5 as a Class A felony, Possession of an

      Altered Handgun,6 a Class C felony, and Maintaining a Common Nuisance, as

      a Class D felony.7 On December 13, 2013, Brown was charged with Dealing in



      1
          Ind. Code § 35-48-4-2.
      2
          I. C. § 35-48-4-1.
      3
          I.C. § 35-44.1-3-1.
      4
          I.C. §§ 35-41-5-2; 35-48-4-1.
      5
          I.C. § 35-48-4-6.
      6
          I.C. § 35-47-2-18.
      7
          I.C. § 35-48-4-13.


      Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 2 of 8
      a Narcotic Drug and Conspiracy to Commit Dealing in a Narcotic Drug, each

      as a Class A felony.


[3]   On November 14, 2014, Brown agreed to plead guilty to three Class B felonies.

      Pursuant to a plea agreement, the remaining charges would be dismissed and

      the sentence would be capped at twenty years. On February 16, 2015, Brown

      filed a Motion for Withdrawal of Guilty Plea.


[4]   On March 16, 2015, the trial court conducted a hearing on Brown’s motion.

      The motion was denied on April 6, 2015. On April 27, 2015, the trial court

      conducted a sentencing hearing and imposed upon Brown an aggregate

      sentence of eighteen years. Brown now appeals.



                                Discussion and Decision
[5]   Brown contends that his guilty pleas were involuntary because he received

      incorrect legal advice from his attorney. Brown’s former counsel, Michael

      Quirk (“Quirk”), testified at the withdrawal hearing that he had told Brown “if

      the PSI recommendation came back way out of whack and it was too harsh,

      then he would be able to withdraw his guilty plea, and if he did so, that he

      would waive his right to a jury trial and have a bench trial on that.” (Tr. at 56.)

      Brown now claims that he was led to believe that “his ability to withdraw his

      guilty plea was ‘guaranteed.’” (Appellant’s Br. at 7.)




      Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 3 of 8
[6]   Indiana Code Section 35-35-1-4(b) sets forth the applicable standard when a

      defendant pleads guilty pursuant to an agreement with the State and then

      requests to withdraw the plea:


              After entry of a plea of guilty ..., but before imposition of sentence,
              the court may allow the defendant by motion to withdraw his plea
              ... for any fair and just reason unless the state has been substantially
              prejudiced by reliance upon the defendant’s plea. The motion to
              withdraw the plea of guilty or guilty but mentally ill at the time of
              the crime made under this subsection shall be in writing and
              verified. The motion shall state facts in support of the relief
              demanded, and the state may file counter-affidavits in opposition to
              the motion. The ruling of the court on the motion shall be
              reviewable on appeal only for an abuse of discretion. However, the
              court shall allow the defendant to withdraw his plea ... whenever
              the defendant proves that withdrawal of the plea is necessary to
              correct a manifest injustice.



[7]   The court is required to grant a request to withdraw a guilty plea before

      sentencing only if the defendant proves that withdrawal of the plea “is

      necessary to correct a manifest injustice.” Coomer v. State, 652 N.E.2d 60, 62

      (Ind. 1995). The court must deny a motion to withdraw a guilty plea if the

      withdrawal would result in substantial prejudice to the State. Id. Except for

      those polar circumstances, disposition of the motion is within the sound

      discretion of the trial court and will be reversed only for abuse of discretion. Id.


[8]   “Manifest injustice” and “substantial prejudice” are necessarily imprecise

      standards, and an appellant seeking to overturn a trial court’s decision has

      historically faced a high hurdle under the statutory provisions. Id. at 62. A trial

      court’s ruling on a motion to withdraw a guilty plea “arrives in this court with a

      Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 4 of 8
       presumption in favor of the ruling.” Brightman v. State, 758 N.E.2d 41, 44 (Ind.

       2001).


[9]    Pursuant to Indiana Code Section 35-35-1-4(b), a movant must state facts in

       support of the relief demanded. Brown made a written claim that his pleas had

       been involuntary because he was presented with a blank form to sign, he

       expected the executed portion of his sentence to be only an additional sixteen

       months, he did not understand that he was to serve consecutive sentences, and

       he did not understand that he was subject to a mandatory minimum sentence

       due to prior felony convictions. At the hearing on his motion for withdrawal of

       his guilty pleas, Brown testified that he thought his most likely sentence would

       be “eight, do four.” (Tr. 33.) According to Brown, he also formed the belief,

       based on conversation with Quirk, that he was “guaranteed” an absolute right

       to withdraw his guilty plea. (Tr. at 34.)


[10]   Quirk testified and denied that he had presented a blank plea agreement form to

       Brown. He also contradicted any claims that Brown had been given incorrect

       advice as to his potential sentence. However, he acknowledged conveying to

       Brown the idea that a plea bargain could be withdrawn and a bench trial

       conducted.


[11]   The trial court resolved the conflicting testimony and concluded that Quirk did

       not present a blank form to Brown for his signature. The trial court also

       concluded that Brown had been properly advised of his potential sentence

       under the plea agreement, the statutory requirement of consecutive sentences


       Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 5 of 8
       for offenses committed by a defendant out on bond,8 and the requirement of

       mandatory minimum sentences in his circumstances.9 As for advice on the

       availability of plea withdrawal, the trial court concluded that “Brown was told

       he could withdraw his guilty pleas upon certain conditions.” (App. at 92.) The

       trial court further concluded that, because the conditions were unexplained,

       Brown could have believed he had a right to withdraw his plea at any time.

       This is now the sole contention as to involuntariness argued by Brown on

       appeal.


[12]   In assessing the voluntariness of a plea, we will review the statements made by

       a defendant during the guilty plea hearing in order to determine whether the

       plea was freely made. Brightman, 758 N.E.2d at 44. Here, the guilty plea

       hearing record indicates that Brown was aware that, regardless of any probation

       officer recommendation, the trial court could give him a sentence of up to

       twenty years. He also acknowledged that there were “no guarantees about how

       the Court is going to divide up that twenty years.” (G. Plea Tr. at 12-13.) He

       specifically denied that he had been given any promises outside the plea

       agreement.


[13]   Finally, the significant benefit that Brown obtained by pleading guilty militates

       against his claim that his pleas were a product of his expectation of flexibility in




       8
           I.C. § 35-50-1-2.
       9
           I.C. § 35-38-1-17.


       Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 6 of 8
       withdrawal. See Hunter v. State, 676 N.E.2d 14, 19 (Ind. 1997) (finding that a

       “misstatement” did not prejudicially influence a decision to plead guilty where

       a bargain saved the defendant fifty years but he had believed the savings to be

       seventy years). In three separate cause numbers, Brown was charged with eight

       Class A felonies, one Class C felony, and two Class D felonies. At that time,

       the potential sentence for a Class A felony was between twenty and fifty years,

       with thirty as the advisory sentence. I.C. § 35-50-2-4. The potential sentence

       for a Class C felony was between two and eight years, with four years as the

       advisory sentence. I.C. § 35-50-2-6. The potential sentence for a Class D felony

       was between six months and three years, with one and one-half years as the

       advisory sentence. I.C. § 35-50-2-7.


[14]   The majority of the charges against Brown were dismissed pursuant to the plea

       agreement and his significant exposure was reduced to a twenty-year sentencing

       cap. Even so, he received two years less than the capped sentence. In these

       circumstances, the trial court did not abuse its discretion by rejecting Brown’s

       claim that he would not have pled guilty given correct advice on the availability

       of withdrawing his pleas.



                                               Conclusion
[15]   Brown has not established that the withdrawal of his pleas is necessary to

       correct a manifest injustice. The trial court acted within its discretion by

       denying Brown’s motion to withdraw his guilty pleas.



       Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 7 of 8
[16]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A04-1505-CR-454 | December 14, 2015   Page 8 of 8
