MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                           May 11 2016, 8:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Leeman                                             Gregory F. Zoeller
Cass County Public Defender                             Attorney General of Indiana
Logansport, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Travis Scott Cunningham,                                May 11, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        09A02-1510-CR-1653
        v.                                              Appeal from the Cass Superior
                                                        Court
State of Indiana,                                       The Honorable Rick Maughmer,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        09D02-1312-FC-62



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016       Page 1 of 10
                                Case Summary and Issue
[1]   The State charged Travis Cunningham with burglary, theft, and criminal

      mischief, and alleged he was an habitual offender. Cunningham, who was

      represented by counsel, entered a plea of guilty to burglary, a Class C felony,

      and the State moved to dismiss all remaining counts. Before he was sentenced,

      Cunningham—without counsel’s acquiescence—orally moved to withdraw his

      guilty plea. The trial court explained it would not grant Cunningham’s motion,

      accepted Cunningham’s guilty plea, and sentenced Cunningham to eight years

      imprisonment, with three years suspended to probation, pursuant to the plea

      agreement. Cunningham raises a sole issue for our review: whether the trial

      court abused its discretion in denying Cunningham’s motion to withdraw his

      plea. Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History                              1




[2]   On the evening of October 26, 2012, an individual smashed the front window of

      the Cole Clothing Museum (“Museum”) in Logansport, Indiana, entered the

      Museum, and disturbed many of the Museum’s possessions. The following

      morning, a Museum employee discovered several blood stains inside the

      Museum. The police collected blood samples from the scene. A DNA analysis




      1
       We held oral argument in this case on April 18, 2016, at the Hammond Academy of Science & Technology.
      We commend counsel for their advocacy and thank the faculty, staff, and students at the school for their
      hospitality and participation.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016         Page 2 of 10
      indicated the DNA profile of the blood discovered in the Museum matched

      Cunningham’s DNA profile.


[3]   On December 13, 2013, the State of Indiana charged Cunningham with

      burglary, a Class C felony; theft, a Class D felony; and criminal mischief, a

      Class B misdemeanor. The State also filed an habitual offender enhancement.

      After being charged, Cunningham absconded to Florida. Cunningham was

      then caught and returned to Indiana, and the trial court appointed a public

      defender to represent Cunningham. Thereafter, Cunningham entered into a

      plea agreement with the State. The agreement provided for Cunningham to

      plead guilty to burglary as a Class C felony in exchange for the State dismissing

      the remaining counts.2 In addition, the agreement provided a sentence of eight

      years imprisonment, with three years suspended to probation.


[4]   At the guilty plea hearing on August 11, 2015, Cunningham affirmed under

      oath he intended to plead guilty; he had read, understood, and signed the plea

      agreement; he was previously treated for ADHD, but no mental illness affected

      his ability to understand the proceedings; he was not under the influence of

      drugs or alcohol; he understood all of the rights he was waiving by pleading

      guilty; he was satisfied with the services of his attorney; and he had not been




      2
       Unrelated to the plea agreement, the trial court—at the State’s request—dismissed the habitual offender
      enhancement.

      Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016             Page 3 of 10
forced or coerced into pleading guilty. Thereafter, the State provided a factual

basis for the guilty plea and asked Cunningham whether those facts were true:


        [Cunningham:] Some of it, yes.
        [State:] All right, well let’s cut to the main part of this is that you
        have to admit that the reason that your blood was in [the
        Museum] is that you were the one that broke in, is that true?
        [Cunningham:] Yes, I’ll admit that.
        [State:] All right and you did that with the intent to find
        something to steal?
        [Cunningham:] Yes.


Transcript, Volume I, at 16. The trial court then asked Cunningham why he

committed the burglary. Cunningham explained he had been drinking alcohol

and using drugs before breaking into the Museum, and he only entered the

Museum because he thought he saw his girlfriend enter seconds before him.

Cunningham further explained he was confused at the time and thought the

Museum was his personal residence. The following exchange then occurred:

        [Trial Court:] You just told the prosecutor that you broke in to
        steal something.
        [Cunningham:] Right. Well, I did—I guess my intention was to
        take something from there. I don’t know. I was under—I was, I
        don’t know.
        ***
        [Defense Counsel:] Maybe I can help out. Travis, you told me
        at one time in one of the letters that you wrote that you were
        looking—your girlfriend . . . something about a wedding dress
        that you were looking for something maybe to get married with
        or something?
        [Cunningham:] No, I don’t know about all that but I know that I
        went into the museum because I thought, you know, I thought

Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 4 of 10
              she had went in there. But it wasn’t her. I was seeing things, so.
              Because I was under the influence.
              [Defense Counsel:] But you thought also that you could find
              something to steal.
              [Cunningham:] See this is what happened. We was in an
              argument and I went to chase after her and I couldn’t find her. I
              thought she had went in that place. But she didn’t.
              [Trial Court:] But you went ahead and broke in?
              [Cunningham:] Yeah because I thought—
              [Trial Court:] Taking the opportunity to find something?
              [Cunningham:] Well, I broke in, yeah, to find her—I thought
              she had went in but it—I was seeing things was all because I was
              drinking.
              [Trial Court:] So I guess to make sure that I understand that I’m
              doing this right then you did take something from the building?
              Did you steal anything?
              [Cunningham:] Yeah, I guess, you can say I did, yes.
              [Trial Court:] We don’t deal with guess. Did you or not?
              [Cunningham:] Yes, I did.


      Id. at 17. Immediately thereafter, the trial court took the matter under

      advisement, ordered a pre-sentence investigation report, and scheduled a

      sentencing hearing for September 14, 2015.


[5]   The pre-sentence investigation report recommended the trial court reject the

      plea agreement “because [Cunningham] reported that he is not guilty of the

      crime of Burglary and he would prefer to go to Trial.” Appellant’s Appendix at

      89. At the sentencing hearing, Cunningham orally requested to withdraw his

      guilty plea. Cunningham claimed he provided a written motion to withdraw

      his plea to his counsel and the State, but defense counsel stated he never

      acquiesced to the filing of any motions. Despite this, the trial court explained


      Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 5 of 10
      to Cunningham he had to show withdrawal of his plea was necessary to correct

      a manifest injustice. Thereafter, Cunningham argued the plea agreement was in

      conflict with Evidence Rules 402, 403, and 410; the plea agreement

      contravened the “possession statute” in that he was “never in possession” of the

      property he was accused of stealing and the State was required to prove he was

      in possession of the property; he felt compelled to enter into the plea agreement,

      stating, “[M]y lawyer wasn’t representing me how I was asking his [sic] to

      represent me”; and he never broke into the building. Tr., Vol. II, at 11-12.

      After listening to a recording of the guilty plea hearing, the trial court concluded

      withdrawal of the plea was not necessary to correct a manifest injustice and

      accepted the plea agreement. This appeal ensued.



                                Discussion and Decision
                                     I. Standard of Review
[6]   Indiana Code section 35-35-1-4(b) governs a motion to withdraw a guilty plea

      that is filed after the defendant pleads guilty but before he is sentenced. “The

      motion to withdraw the plea of guilty . . . shall be in writing and verified.” Ind.

      Code § 35-35-1-4(b). The trial court must allow a defendant to withdraw his

      guilty plea if the defendant proves it is “necessary to correct a manifest

      injustice.” Id.; Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). The trial court

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

      the State. Ind. Code § 35-35-1-4(b). In all other cases, the trial court may grant

      the motion for “any fair and just reason.” Id. The defendant has the burden to

      Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 6 of 10
      prove by a preponderance of the evidence and with specific facts that he should

      be permitted to withdraw his plea. Ind. Code § 35-35-1-4(b), (e); see also Davis v.

      State, 770 N.E.2d 319, 327 (Ind. 2002) (noting the defendant is required to

      demonstrate “(1) a fair and just reason for withdrawal of the guilty plea and (2)

      no reliance by the State that resulted in substantial prejudice”).


[7]   The trial court’s ruling on a motion to withdraw a guilty plea arrives in our

      court with a presumption in favor of the ruling. Johnson v. State, 734 N.E.2d

      242, 245 (Ind. 2000). A trial court’s denial of a motion to withdraw a plea is

      reviewed for an abuse of discretion. Ind. Code § 35-35-1-4(b). “A trial court

      abuses its discretion only when the failure of the trial court to grant the motion

      would result in . . . a manifest injustice.” Davis, 770 N.E.2d at 326 (alteration in

      original) (quotation and citation omitted). In determining whether a trial court

      has abused its discretion in denying a motion to withdraw a guilty plea, we

      examine the statements made at the guilty plea hearing to decide whether the

      plea was made “freely and knowingly.” Brightman, 758 N.E.2d at 44 (citation

      omitted).


                                     II. Manifest Injustice
[8]   Cunningham contends the trial court abused its discretion in denying his

      motion to withdraw his guilty plea. The State counters Cunningham’s appeal is

      waived because he did not file a verified written motion to withdraw his guilty

      plea. As noted above, a motion to withdraw a guilty plea must be in writing

      and verified. Ind. Code § 35-35-1-4(b). In Peel v. State, 951 N.E.2d 269 (Ind. Ct.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 7 of 10
       App. 2011), Peel knowingly and voluntarily pleaded guilty. The trial court took

       the matter under advisement and set a date for sentencing. At the beginning of

       the sentencing hearing, Peel’s counsel orally moved to withdraw the guilty plea,

       which the trial court denied. On appeal, Peel argued the trial court abused its

       discretion in denying his motion to withdraw the guilty plea. Because the

       defendant did not file a written and verified motion to the trial court, we

       concluded the issue was waived. Id. at 272.


[9]    Similar to Peel, Cunningham knowingly and voluntarily pleaded guilty. The

       trial court took the matter under advisement and set a date for sentencing. At

       the beginning of the sentencing hearing, Cunningham orally moved to

       withdraw his guilty plea pro se. Cunningham claimed he provided a written

       motion to his counsel and the State, but Cunningham’s counsel did not

       acquiesce to the filing of the motion, Cunningham did not file his written

       motion with the trial court, and at no point did Cunningham, or his counsel,

       file with the trial court a verified written motion to withdraw the guilty plea.

       See Black v. State, 7 N.E.3d 333, 338 (Ind. Ct. App. 2014) (noting once a

       defendant is represented by counsel, a trial court is not required to respond to a

       defendant’s pro se request). Therefore, the issue is waived.


[10]   Waiver notwithstanding, Cunningham contends withdrawal of his plea was

       necessary to correct a manifest injustice. Specifically, Cunningham argues he

       entered a guilty plea while maintaining his innocence at the same time in that

       he stated at the guilty plea hearing that he entered the Museum with the intent

       to steal something in addition to stating he entered the Museum because he was

       Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 8 of 10
       intoxicated and thought he saw his girlfriend enter the Museum. See Ross v.

       State, 456 N.E.2d 420, 423 (Ind. 1983) (noting a trial court may not accept a

       guilty plea when the defendant pleads guilty while maintaining his innocence at

       the same time).3 Cunningham also argues his plea was not voluntary due to

       pressure from his counsel. As noted above, in determining whether a trial court

       has abused its discretion in denying a motion to withdraw a guilty plea, we

       examine the statements made at the guilty plea hearing to decide whether the

       plea was made “freely and knowingly.” Brightman, 758 N.E.2d at 44 (citation

       omitted).


[11]   Based upon our review of the record, we cannot say the trial court was required

       to grant Cunningham’s motion to withdraw his guilty plea. At the guilty plea

       hearing, the trial court properly advised Cunningham of the charges against

       him, the possible penalties that could result from trial, the terms of the plea

       agreement, and the rights he would be giving up by pleading guilty. In each

       case, Cunningham indicated he understood. Cunningham also affirmed under

       oath he intended to enter a plea of guilty, he was satisfied with the services of

       his attorney, he had not been forced or coerced into pleading guilty, and he




       3
         Cunningham additionally argues the trial court abused its discretion because the pre-sentence investigation
       report recommended the trial court not accept the plea because Cunningham claimed he was innocent during
       the pre-sentence investigative interview. However, a claim of innocence during a pre-sentence investigative
       interview is an unsworn out-of-court statement, and not only has our supreme court specifically declined to
       extend the Ross rule to out-of-courtroom protestations of innocence, “it also explicitly held the acceptance of
       a guilty plea from a defendant who protests his innocence to a probation officer in a presentence interview is
       not a basis for post-conviction relief.” Mayberry v. State, 542 N.E.2d 1359, 1361 (Ind. Ct. App. 1989), trans.
       denied.



       Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016               Page 9 of 10
       broke into the Museum with the intent to steal property. Moreover, at no point

       during the guilty plea hearing did Cunningham claim counsel was ineffective,

       nor did he deny entering the Museum with the intent to commit a felony. See

       Ind. Code § 35-43-2-1 (1999) (“A person who breaks and enters the building or

       structure of another person, with intent to commit a felony in it, commits

       burglary, a Class C felony.”). Rather, Cunningham protested his innocence

       and claimed counsel pressured him into pleading guilty only after the guilty plea

       hearing. Therefore, Cunningham has failed to prove withdrawal of his guilty

       plea was necessary to correct a manifest injustice.



                                              Conclusion
[12]   We conclude the trial court did not abuse its discretion in denying

       Cunningham’s pro se oral motion to withdraw his guilty plea. Accordingly, we

       affirm.


[13]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1510-CR-1653 | May 11, 2016   Page 10 of 10
