MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this May 11 2015, 10:45 am
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
David T.A. Mattingly Gregory F. Zoeller
Mattingly Legal, LLC Attorney General of Indiana
Lafayette, Indiana
Eric P. BaBbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Lee McCollum, May 11, 2015
Appellant-Defendant, Court of Appeals Case No.
79A05-1409-CR-430
v. Appeal from the Tippecanoe Circuit
Court
State of Indiana, Honorable Randy J. Williams, Judge
Appellee-Plaintiff
Cause No. 79D01-1310-FB-29
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 1 of 10
[1] Terry Lee McCollum appeals from the denial of his motion to withdraw his
guilty plea to Possession of Methamphetamine,1 as a class D felony, and
Battery by Means of a Deadly Weapon,2 a class C felony. McCollum also
admitted to being a habitual offender. McCollum presents one issue for our
review: Did the trial court abuse its discretion in denying McCollum’s request
to withdraw his guilty plea?
[2] We affirm.
[3] According to the probable cause affidavit, on June 1, 2013, officers with the
Lafayette Police Department were dispatched to a residence in response to a
reported stabbing. When officers arrived at the location, they found the victim,
Jason Menk, lying on a couch with a stab wound to his lower abdomen. Menk
told the officers that McCollum had stabbed him. After Menk was transported
to and treated at the hospital, he informed the officers that he had known
McCollum for a long time and that he had recently been permitting McCollum
and his girlfriend to stay at his home. On this particular day, however, Menk
had told McCollum and his girlfriend that they could not stay at his home. At
1
Ind. Code Ann. § 35-48-4-6.1(a) (West, Westlaw 2013). Effective July 1, 2014, this offense has been
reclassified as a Level 6 felony. See Ind. Code Ann. § 35-48-4-6.1 (West, Westlaw current with P.L. 1-2015 to
P.L. 60-2015 of the First Regular Session of the 119th General Assembly with effective dates through April
23, 2015). Because McCollum committed this offense prior to that date, it retains its prior classification as a
class D felony.
2
Ind. Code Ann. § 35-42-2-1 (b)(1), (f)(2) (West, Westlaw 2013). Effective July 1, 2014, this offense has been
reclassified as a Level 5 felony. See Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with P.L. 1-2015 to
P.L. 60-2015 of the First Regular Session of the 119th General Assembly with effective dates through April
23, 2015). Because McCollum committed this offense prior to that date, it retains its prior classification as a
class C felony.
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 2 of 10
some point later that day, Menk and his girlfriend left the home. When they
returned, they found McCollum and his girlfriend asleep. Menk was upset that
McCollum and his girlfriend had entered his home without permission, so he
woke them up and told them to leave. A scuffle ensued, and McCollum
stabbed Menk in his side. McCollum and his girlfriend then gathered their
belongings and left Menk’s residence.
[4] Police officers received a report from someone in the vicinity of Menk’s
residence who stated that a man and a woman had run through his backyard.
Officers found some bags in that individual’s backyard that contained items that
were determined to be related to a methamphetamine lab, including reaction
vessels containing liquid that was later determined to contain ammonia and
methamphetamine. A canine was used to track where the man and woman had
fled, and ultimately tracked their movements to a residence a short distance
away, where several more bags were found abandoned. One bag contained
men’s clothing, knives, baggies that contained a substance that field-tested
positive for methamphetamine, coffee filters with a methamphetamine residue,
and paraphernalia. Another bag had women’s clothing and a bible that had the
name of McCollum’s girlfriend inside, among other items.
[5] Police officers eventually spoke with McCollum’s girlfriend on August 26,
2013, and she informed them that around the time of the incident involving
Menk, she and McCollum had been using methamphetamine almost every day
and that McCollum had been manufacturing methamphetamine. She stated
that after the altercation with Menk, she helped McCollum clean up his
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 3 of 10
methamphetamine lab by placing items in bags, which they then left in a nearby
yard. When asked about the knife McCollum used to stab Menk, she told the
officer’s where McCollum had stashed it. Police recovered a knife like the one
used to stab Menk in the location identified by McCollum’s girlfriend.
[6] On October 30, 2013, the State charged McCollum with possession of
methamphetamine, a class B felony; battery by means of a deadly weapon, a
class C felony; and criminal recklessness while armed with a deadly weapon, a
class D felony. The State later alleged that McCollum was a habitual substance
offender and a habitual offender. On April 17, 2014, McCollum entered into a
plea agreement with the State whereby he agreed to plead guilty to an amended
charge of possession of methamphetamine as a class D felony and battery by
means of a deadly weapon as a class C felony. McCollum also agreed to admit
to being a habitual offender. The plea agreement provided that all remaining
counts would be dismissed, that an additional charge would not be added, and
that the executed portion of McCollum’s sentence would be between fourteen
and eighteen years in the Department of Correction. McCollum also waived
his right to appeal his sentence. At a guilty plea hearing that same day, the trial
court took the plea agreement under advisement.
[7] On June 11, 2014, McCollum’s counsel filed a motion to withdraw his
appearance on behalf of McCollum. Six days later, June 17, McCollum, pro se,
filed a verified motion for withdrawal of guilty plea, asserting his belief that he
is innocent of the crimes to which he pleaded guilty. The trial court held a
hearing on McCollum’s motion for withdrawal on June 19, 2014. During the
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 4 of 10
hearing, McCollum testified that he had concerns about his attorney’s
representation of him. McCollum specifically testified that he believed his
attorney created a conflict of interest by demanding a large sum of money from
his father to continue with the representation. McCollum further explained to
the court that he felt his attorney misrepresented to him his chances at trial and
that he felt pressured to plead guilty. McCollum also testified that he was not in
his right mind when his defense counsel provided him with the plea agreement
because he had a tooth pulled that day. McCullom asked the trial court if he
could be allowed to seek a second opinion from a different attorney as to
whether he was “truly guilty or not.” Id. at 30.
[8] On June 20, 2014, the trial court issued an order denying McCollum’s request
to withdraw his guilty plea and granting defense counsel’s request to withdraw
his appearance. The trial court also ordered that new counsel be appointed to
represent McCollum. The court thereafter conducted a sentencing hearing on
August 19, 2014, and sentenced McCollum to eight years for the class C felony
battery conviction and enhanced such sentence by eight years for McCollum’s
status as a habitual offender. The trial court imposed a consecutive two-year
sentence for the class D felony possession of methamphetamine conviction, for
an aggregate sentence of eighteen years. The court ordered McCollum to serve
sixteen years in the Department of Correction and suspended two years to
probation.
[9] After a guilty plea is entered, but before a sentence is imposed, a defendant may
move to withdraw his guilty plea for any fair and just reason unless the State
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 5 of 10
has been substantially prejudiced by its reliance upon the plea. Ind. Code Ann.
§ 35-35-1-4(b) (West, Westlaw current with P.L. 1-2015 to P.L. 60-2015 of the
First Regular Session of the 119th General Assembly with effective dates
through April 23, 2015); Brightman v. State, 758 N.E.2d 41 (Ind. 2001). A
defendant shall be permitted to withdraw a plea of guilty whenever the
defendant proves that withdrawal of the plea is necessary to correct a manifest
injustice. I.C. § 35-35-1-4(b).
[10] 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. Coomer v. State, 652 N.E.2d 60 (Ind.
1995). A trial court’s ruling is reviewable on appeal only for an abuse of
discretion. I.C. § 35-35-1-4(b); Coomer v. State, 652 N.E.2d 60.
[11] On appeal, McCollum argues that the trial court abused its discretion in
denying his motion to withdraw his guilty plea. McCollum asserts two bases
upon which the trial court should have granted his request for withdrawal of his
guilty plea: (1) insufficient factual basis3 and (2) his guilty plea was not
knowingly and voluntarily made.
[12] With regard to his first argument, we note that a trial court cannot accept a
guilty plea unless there is an adequate factual basis for the plea. See I.C. § 35-
35-1-3(b) (West, Westlaw current with P.L. 1-2015 to P.L. 60-2015 of the First
3
Although McCollum did not make this argument to the trial court in support of his motion to withdraw his
guilty plea, we nevertheless choose to address it.
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 6 of 10
Regular Session of the 119th General Assembly with effective dates through
April 23, 2015). The purpose of the factual basis requirement is to ensure that a
person who pleads guilty is truly guilty. Butler v. State, 658 N.E.2d 72 (Ind.
1995). The presentation of facts need not prove guilt beyond a reasonable
doubt. Graham v. State, 941 N.E.2d 1091 (Ind. Ct. App. 2011). A factual basis
may be established by relatively minimal evidence about the elements of the
crime from which the court could reasonably conclude that the defendant is
guilty. Id. A trial court’s finding of an adequate factual basis is presumptively
correct. Id.
[13] Here, the factual basis for the offenses was established by defense counsel’s
questioning of McCollum during the April 17 guilty plea hearing. With regard
to his possession of methamphetamine conviction, McCollum agreed that on
June 1, 2013, he possessed methamphetamine, that he knew he possessed it,
and that he lacked a prescription. During follow-up questioning by the State,
McCollum unequivocally stated, “I know it was methamphetamine,” but he
also expressed confusion about knowing the difference between “pure or
adulterated methamphetamine.” Transcript at 19. When asked a third time
whether he possessed methamphetamine, McCollum responded, seemingly in a
snide manner, that he was “pretty sure” the substance he possessed was
methamphetamine. Id. Having reviewed the record, we do not find
McCollum’s response to repeated questioning on the subject that he was “pretty
sure” he possessed methamphetamine to be a qualification of his numerous,
unequivocal statements that he knowingly possessed methamphetamine as
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 7 of 10
charged. The trial court did not abuse its discretion in finding that an adequate
factual basis existed for McCollum’s guilty plea to class D felony possession of
methamphetamine.
[14] With regard to the factual basis for his battery conviction, McCollum focuses
his argument on his statement that he was running from Menk and that he
“wasn’t being rude.” Id. at 12. McCollum maintains that this statement calls
into question his actual guilt.
[15] We are not persuaded by McCollum’s argument. Upon questioning by defense
counsel, McCollum agreed that on June 1, 2013, he got into an altercation with
Menk and that he stabbed him one time with a knife. McCollum’s counsel
asked him, “And you hit---you stabbed him, I guess that, you did it in a rude,
insolent or angry manner?” to which McCollum responded, “It was an
altercation, yes.” Id. at 16. McCollum also acknowledged that the knife was a
deadly weapon. Upon questioning by the court, McCollum agreed that he
knowingly or intentionally touched Menk in a “rude, insolent or angry
manner,” that is, in a “not for fun” way, with the knife, which he again
affirmed was a deadly weapon, and that such touching resulted in bodily injury
to Menk. Id. at 23-24. By acknowledging that there was an altercation with
Menk, McCollum stated facts from which a reasonable inference could be
drawn that he touched Menk in a rude, insolent, or angry manner. Moreover,
when the trial court sought to clarify McCollum’s factual basis, McCollum
agreed that he touched Menk in a “not for fun” way with a knife. The court
could therefore have concluded that the stabbing was not an accident, but rather
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 8 of 10
was done in a rude, insolent, or angry manner during an altercation. The
record clearly establishes an adequate factual basis to support McCollum’s
guilty plea to class C felony battery by means of a deadly weapon.
[16] We now turn to McCollum’s second argument, i.e., that his guilty plea was not
knowing and voluntary. McCollum maintains that he was pressured to make a
decision, that he received conflicting information from his attorney, and that he
was “not in his right mind” on the day of the guilty plea hearing. Appellant’s
Brief at 14. To determine whether a defendant’s plea was knowingly and
voluntarily made, this court will examine the defendant’s statements at the plea
hearing. Brightman v. State, 758 N.E.2d 41 (Ind. Ct. App. 2001). As noted
above, the trial court must allow a defendant to withdraw a guilty plea if
“necessary to correct a manifest injustice.”4
[17] A review of the transcript of the plea hearing provides no basis for McCollum’s
argument. At the guilty plea hearing, the trial court reviewed the plea
agreement, and McCollum indicated that he understood the terms thereof. At
no point during the hearing did McCollum assert his innocence or indicate that
he did not desire to plead guilty. McCollum did inform the court that he felt
pressured to make a decision about whether to plead guilty or go to trial, but
also acknowledged that his decision to plead guilty was his own choice and that
he was not being forced to plead guilty. When asked if he was under the
4
We note that the State acknowledged that it would not be substantially prejudiced.
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 9 of 10
influence of any substances or suffered from any mental or emotional stability,
McCollum said no. The court continued with its standard dialogue for a
guilty plea, advising McCollum of his constitutional rights, the charging
allegations for each offense, and the range of penalties for each offense.
McCollum’s conclusory assertion nearly three months after his guilty plea
hearing that he was “not in his right mind” at the time of the guilty plea hearing
does not cast doubt on the knowing and voluntary nature of his guilty plea that
is evident from the record before us. The trial court did not abuse its discretion
in concluding that there was no manifest injustice to be avoided by allowing
McCollum to withdraw his guilty plea.
[18] Judgment affirmed.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision79A05-1409-CR-430 | May 11, 2015 Page 10 of 10