Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                          Mar 11 2013, 10:04 am
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:

MARK K. PHILLIPS                                  GREGORY F. ZOELLER
Boonville, Indiana                                Attorney General of Indiana

                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

DARVIN McCALLISTER,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 87A05-1208-CR-443
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE WARRICK CIRCUIT COURT
                            The Honorable David O. Kelley, Judge
                     Cause Nos. 87C01-1201-FD-36 and 87C02-1201-FD-49



                                         March 11, 2013

              MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       Following his pleas of guilty pursuant to a written sentencing agreement to

possession of methamphetamine1 and possession of a controlled substance,2 each as a

Class D felony, Darvin McCallister appeals the trial court’s order denying his motion to

set aside his guilty pleas, contending the trial court erred in denying his motion and that

such error constitutes a manifest injustice. We affirm.

       On       March     26,    2012,    McCallister   pleaded   guilty   to   possession   of

methamphetamine and possession of a controlled substance, and the written sentencing

agreement (“Sentencing Agreement”) signed by McCallister, his attorney, and the deputy

prosecutor was accepted by the trial court. The Sentencing Agreement provided that

McCallister was pleading guilty to both charges as Class D felonies, that a related

misdemeanor charge would be dismissed, and that the court would enter consecutive

sentences of eighteen months, suspended to probation, on each of the convictions.

       Following his sentencing pursuant to the Sentencing Agreement, McCallister filed

his motion to set aside his guilty pleas claiming that the Sentencing Agreement tendered

by the State and signed by him and his attorney did not reflect the parties’ agreement

regarding his plea and the sentence which was to be imposed. Specifically, he claimed

that the prosecutor agreed that, in exchange for his plea of guilty to possession of

methamphetamine, the State would dismiss the second felony charge and that McCallister

would have the opportunity to request the trial court to exercise its statutory discretion to

sentence him as a misdemeanant. He further claimed that he signed the Sentencing


       1
           See Ind. Code § 35-48-4-6.1.
       2
           See Ind. Code § 35-48-4-7.
                                                    2
Agreement without reading it. The trial court denied McCallister’s motion, and this

appeal ensued.

      Our review of this appeal begins with Indiana Code section 35-35-1-4(c), which

governs motions to withdraw guilty pleas after a sentence is imposed. The section

provides:

      After being sentenced following a plea of guilty, or guilty but mentally ill at
      the time of the crime, the convicted person may not as a matter of right
      withdraw the plea. However, upon motion of the convicted person, the
      court shall vacate the judgment and allow the withdrawal whenever the
      convicted person proves that withdrawal is necessary to correct a manifest
      injustice. . . . For purposes of this section, withdrawal of the plea is
      necessary to correct a manifest injustice whenever:
              (1) the convicted person was denied the effective assistance of
              counsel;
              (2) the plea was not entered or ratified by the convicted person;
              (3) the plea was not knowingly and voluntarily made;
              (4) the prosecuting attorney failed to abide by the terms of a plea
              agreement; or
              (5) the plea and judgment of conviction are void or voidable for any
              other reason.
      The motion to vacate the judgment and withdraw the plea need not allege,
      and it need not be proved, that the convicted person is innocent of the crime
      charged or that he has a valid defense.

       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.” Brightman v. State, 758 N.E.2d 41, 44 (Ind.

2001). We will reverse the trial court only for an abuse of discretion. Id. In determining

whether a trial court has abused its discretion in denying a motion to withdraw a guilty

plea, we examine the statements made by the defendant at the guilty plea hearing to

decide whether the plea was offered “freely and knowingly.” Id.




                                                3
      The transcript of McCallister’s guilty plea hearing discloses the following:

      1.     That McCallister and his attorney were both in attendance. Guilty Plea Tr.
             at 2, 4.

      2.     That the trial court clearly informed both McCallister and his attorney that
             the Sentencing Agreement provided that McCallister would plead guilty to
             the two possession charges. Id. at 4.

      3.     That McCallister was “going to be convicted as a felon.” Id.

      4.     That McCallister was going to be sentenced to eighteen months suspended
             to probation on both cases. Id.

      5.     That “Both of these cases are Class D felonies.” Id. at 6.

      6.     That the sentencing range for a Class D felony was six months to three
             years. Id.

      7.     That the Sentencing Agreement provided that the sentence would be
             eighteen months. Id.

      8.     That there was a sufficient factual basis for McCallister’s pleas. Id. at 7.

      9.     That McCallister’s guilty plea was his “own free and voluntary act.” Id. at
             8.

      10     That the trial court accepted McCallister’s pleas. Id. at 9.

      11.    That the court accepted the Sentencing Agreement. Id.

      12.    That the court found McCallister guilty of possession of methamphetamine
             and possession of a controlled substance “both as a Class D Felony.” Id.

      13.    That at no time during the hearing did either McCallister or his lawyer
             voice any objection or say or do anything to indicate that they did not agree
             with the express terms of the Sentencing Agreement that was tendered to
             and accepted by the trial court.

      On April 23, 2012, the trial court held its sentencing hearing. Again, McCallister

and his counsel appeared. Again, the trial court informed the parties that McCallister had


                                                4
entered guilty pleas to both possession charges as Class D felonies and had filed a

Sentencing Agreement that provided for “an eighteen month sentence in each case to be

served consecutively and suspended to reporting probation.” Sentencing Hr’g Tr. at 3.

The trial court then sentenced McCallister as provided in the Sentencing Agreement. Id.

at 4. Again, at no time during the sentencing did either McCallister or his lawyer voice

any objection. Indeed, the trial court specifically inquired of McCallister’s lawyer if the

sentence it imposed was what was negotiated in the Sentencing Agreement. He replied

that it was. Id.

       McCallister has failed to show that the trial court abused its discretion and has

similarly failed to demonstrate manifest injustice in the trial court’s denial of his motion

to set aside his guilty pleas. Accordingly, we affirm the trial court’s order.

       Affirmed.

MATHIAS, J. and CRONE, J., concur.




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