MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 31 2017, 10:46 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Angela Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Scott Colvin, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
36A05-1701-CR-107
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable William E. Vance,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
36C01-1412-F1-1
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 1 of 6
Statement of the Case
[1] Justin Scott Colvin (“Colvin”) appeals the trial court’s denial of his request to
withdraw his guilty plea to Level 2 felony robbery resulting in serious bodily
injury1 and his admission that he was an habitual offender.2 He argues that the
trial court should have granted his request to withdraw his guilty plea because
he did not have sufficient time to consider the effect the plea would have on his
life. Because Colvin did not submit a written and verified motion to withdraw
his plea, we conclude that he has waived his argument. Waiver
notwithstanding, we also conclude that Colvin failed to adequately support his
motion.
[2] We affirm.
Issue
Whether the trial court abused its discretion when it denied
Colvin’s oral motion to withdraw his guilty plea.
Facts
[3] On December 23, 2014, the State charged Colvin with Level 1 felony burglary, 3
Level 2 felony robbery resulting in serious bodily injury, Level 3 felony
1
IND. CODE § 35-42-5-1(2).
2
I.C. § 35-50-2-8.
3
I.C. § 35-43-2-1.
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 2 of 6
aggravated battery,4 and Level 3 felony criminal confinement. Subsequently,
the State amended Colvin’s charges to add a charge of Level 1 felony attempted
murder and an allegation that Colvin was an habitual offender.
[4] Almost two years later, on October 27, 2016, Colvin pled guilty pursuant to a
written plea agreement with the State to Level 2 felony robbery resulting in
serious bodily injury and admitted to being an habitual offender. He and the
State agreed that he would serve an aggregate sentence of forty (40) years—
thirty (30) years for the Level 2 felony and an enhancement of ten (10) years for
the habitual offender adjudication—and that, in exchange for his guilty plea,
the State would dismiss the remaining four charges against him. Colvin also
signed an advisement of rights form.
[5] That same day, the trial court held a hearing on the guilty plea agreement and
confirmed that Colvin had signed both the negotiated plea agreement and the
advisement of rights form. The trial court also reviewed the sentencing ranges
for the two offenses to which Colvin was pleading guilty and asked if he still
wished to proceed with the guilty plea hearing. Colvin said he did, then
reviewed the guilty plea agreement and acknowledged that he had agreed to the
terms of the agreement. He then established the factual basis for his guilty plea
and pled guilty.
4
I.C. § 35-42-2-1.5(2).
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 3 of 6
[6] On November 30, 2016, the trial court held a sentencing hearing. There,
Colvin made an oral motion to withdraw his guilty plea. The State argued that
the motion was not validly before the court because a motion to withdraw a
guilty plea must be in writing and verified. The State also noted that the guilty
plea had been free and voluntary and that the only portion of the agreement
that the trial court had taken under advisement was acceptance of the
sentencing portion of the agreement. The trial court agreed that it “had nothing
before it to consider” and denied the motion to withdraw. (Tr. 17). Thereafter,
the trial court sentenced Colvin according to the terms of the plea agreement.
Colvin now appeals.
Decision
[7] On appeal, Colvin argues that the trial court abused its discretion when it
denied his motion to withdraw his guilty plea. He acknowledges that he signed
the plea agreement and pled guilty at the guilty plea hearing. However, he
asserts that the trial court should have granted the motion because he had not
had time to adequately consider the effect the plea would have on his life when
he entered into the plea agreement with the State.
[8] INDIANA CODE § 35-35-1-4(b) governs the withdrawal of a guilty plea prior to
sentencing. It provides:
[T]he court may allow the defendant by motion to withdraw his
plea of guilty . . . for any fair and just reason unless the [S]tate
has been substantially prejudiced by reliance upon the
defendant’s plea. The motion to withdraw the plea of guilty . . . made
under this subsection shall be in writing and verified. The motion shall
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 4 of 6
state facts in support of the relief demanded, and the [S]tate may file
counter-affidavits in opposition of 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 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) (emphasis added).
[9] Based on this provision, Indiana courts have noted that “‘[a] defendant’s failure
to submit a verified, written motion to withdraw a guilty plea generally results
in waiver of the issue of wrongful denial of the request.’” Peel v. State, 951
N.E.2d 269 (Ind. Ct. App. 2011) (quoting Carter v. State, 739 N.E.2d 126, 128
n.3 (Ind. 2000)) (finding waiver because Peel made an oral motion to withdraw
his guilty plea rather than a verified and written motion). Accordingly, because
Colvin did not submit a verified, written motion to withdraw his guilty plea, we
conclude that he has waived the issue of the trial court’s denial of the request.
See id.
[10] Waiver notwithstanding, we also conclude that the trial court did not abuse its
discretion when it denied Colvin’s motion to withdraw the plea agreement
because Colvin did not provide any “facts in support of the relief [he]
demanded,” as required by statute, and, therefore, did not present any facts
showing that withdrawal of the plea was necessary to correct a manifest
injustice. I.C. § 35-35-1-4(b).
[11] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 5 of 6
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 6 of 6