MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 09 2018, 10:29 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Angela Sanchez
Supervising Deputy Attorney
General
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremiah J. Davis, February 9, 2018
Appellant-Defendant, Court of Appeals Case No.
33A01-1705-CR-1197
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable E. Edward
Appellee-Plaintiff. Dunsmore II, Judge Pro Tempore
Trial Court Cause Nos.
33C03-1402-FD-54
33C03-1409-F6-56
Mathias, Judge.
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[1] Jeremiah J. Davis (“Davis”) pleaded guilty under two separate cause numbers
in the Henry Circuit Court. Davis then filed a motion to withdraw both guilty
pleas, which the trial court denied. Davis now appeals and claims that the trial
court abused its discretion when it denied his motion.
[2] We affirm.
Facts and Procedural History
[3] On February 24, 2014, under cause number 33C03-1402-FD-54 (“FD-54”), the
State charged Davis with Class D felony possession of marijuana,1 Class A
misdemeanor possession of paraphernalia, and Class B misdemeanor visiting a
common nuisance. The State also filed a habitual substance offender
enhancement against Davis. On March 31, Davis entered into a plea agreement
with the State in which he pleaded guilty to Class D felony possession of
marijuana and admitted to qualifying as a habitual substance offender. 2 Davis
also signed an advisement and waiver of rights form.
[4] The trial court held a hearing on Davis’s guilty plea on May 21. During that
hearing, Davis confirmed that he had read and signed the advisement and
waiver of rights form and that he did not have any questions regarding any of
the rights listed on the form. Davis also informed the court that he understood
1
Davis was originally charged with Class A misdemeanor possession of marijuana; however, it was
enhanced to a Class D felony because of a prior conviction.
2
The State agreed to dismiss the Class A misdemeanor possession of paraphernalia and the Class B
misdemeanor visiting a common nuisance. Appellant’s App. p. 32.
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the terms of the plea agreement and that no one had forced or threatened him to
accept it. The court then stated, “I will find that your plea is freely and
voluntarily made, that there is a factual basis for your plea. I’m going to take
the acceptance of your plea and the acceptance of the plea agreement under
advisement at this time.” Supp. Tr. p. 7. Davis was then ordered to be
transported to the House of Hope in Madison County, Indiana for treatment.
[5] On June 9, Davis was released to the House of Hope; however, he was
discharged on July 29 for failing a drug screen. Subsequently, Davis failed to
attend his sentencing hearing on August 25. As a result, on September 15,
under cause number 33-C03-1409-F6-56 (“F6-56”), Davis was charged with
Level 6 felony failure to return to lawful detention and Level 6 felony failure to
appear. On the same day, the State also filed a habitual felony offender
enhancement against Davis. He was eventually located and arrested on
November 10.
[6] On February 2, 2015, Davis signed a second advisement and waiver of rights
form and entered into a plea agreement for cause F6-56 in which he pleaded
guilty to Level 6 felony failure to return to lawful detention, and he admitted to
qualifying as a habitual offender.3 The trial court held Davis’s guilty plea
hearing the same day. Davis again confirmed that he had read and signed the
advisement and waiver of rights form and that he did not have any questions
3
The State agreed to dismiss the Level 6 felony failure to appear. Appellant’s App. p. 48.
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regarding any of the rights listed on the form. He also informed the court that
he understood the terms of the plea agreement and that no one had forced or
threatened him to accept it. The trial court then stated, “I’m going to show that
your plea is freely and voluntarily made, that there is a factual basis for your
plea. I’m going to take the acceptance of your plea under advisement at this
point.” Supp. Tr. p. 13. The court then explained to Davis, “I hope that you
understand you’ve got quite a bit . . . riding on the fact that you go there to the
House of Hope and you don’t have any problems this time. You understand
that, because you’re looking at a very long period of time incarcerated if this
does not work out this time. You understand that.” Id. Davis responded in the
affirmative.
[7] Davis was released back to the House of Hope to continue treatment three days
after the hearing. On June 24, 2015, Davis was discharged from Blackwell
House, a different treatment facility, because he was under the influence of
drugs. A warrant was issued for Davis’s arrest the next day; however, he was
not arrested until March 31, 2017.
[8] On April 26, 2017, Davis filed a motion to withdraw both guilty pleas. The trial
court held Davis’s sentencing hearing on May 1. At the sentencing hearing,
Davis argued that when he pleaded guilty he did not understand the length of
the treatment program, and he did not understand that he could take his case to
trial. The following exchange followed between the trial court and Davis’s
counsel:
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[Court]: [T]he record indicates that Paragraph 12 of the
document he signed says you have the right to a
public and speedy trial by a jury, the right to
confront and cross examine witnesses against you,
the right to subpoena witnesses at no cost to you,
the right to require the State prove you guilty
beyond a reasonable doubt at a trial at which you
do not have to testify, but which you may testify if
you wish and the right to appeal any decision made
by the Judge. By pleading guilty, you give up and
waive each and everyone of these rights. His initials
appear on that and his signature appears at the
bottom of that document, along with all of the other
advisements of rights that are in that four page
document that he signed and initialed. Is he saying
he didn’t sign and initial that document?
[Counsel]: No, Your Honor.
[Court]: Is he saying he can’t read, write and understand the
English language?
[Counsel]: He states he didn’t read over it. He was just going
by what his attorney said.
Tr. pp. 6–7 (errors in original).
[9] The court then denied Davis’s motion to withdraw his guilty pleas. Under cause
FD-54, the trial court sentenced Davis to two years in the Department of
Correction (“DOC”) for the Class D felony possession of marijuana, with an
additional five years for the habitual substance offender enhancement. Under
cause F6-56, the trial court sentenced Davis to two years in the DOC for the
Level 6 felony failure to return to lawful detention and ordered this to be served
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consecutive to his cause FD-54 sentence.4 Because the trial court gave Davis
two years’ credit for time served, he was sentenced to an aggregate term of
seven years in the DOC. Davis now appeals.
Discussion and Decision
[10] Davis claims that the trial court abused its discretion when it denied his motion
to withdraw his guilty pleas. Motions to withdraw guilty pleas are governed by
Indiana Code section 35-35-1-4(b). After a defendant pleads guilty, but before a
sentence is imposed, a defendant may file a motion to withdraw a plea.
Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (citing I.C. § 35-35-1-4(b)). The
court must allow the defendant to withdraw the plea if it is “necessary to correct
a manifest justice.” Id. (quoting I.C.§ 35-35-1-4(b)). However, the court must
deny the motion if withdrawal of the plea would “substantially prejudice[]” the
State. Id. In all other cases, the trial court has the discretion to grant a
defendant’s motion to withdraw a guilty plea “for any fair and just reason.” Id.
[11] Our supreme court has explained,
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.
We will reverse the trial court only for an abuse of discretion. In
determining whether a trial court has abused its discretion in
denying a motion to withdraw a guilty plea, we examine the
4
The State asked for and the trial court dismissed the habitual offender enhancement on cause F6-56 during
sentencing. Tr. p. 19.
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statements made by the defendant at his guilty plea hearing to
decide whether his plea was offered freely and knowingly.
Brightman, 758 N.E.2d at 44 (citation and quotations omitted).
[12] Davis contends that that trial court abused its discretion by denying his motion
to withdraw “because he was not adequately advised of his rights and of the
plea agreement by his defense counsel,” and thus he “was effectively coerced
into accepting the State’s plea bargain.” Appellant’s Br. at 10. And also “his
guilty plea should have been withdrawn in order to correct a manifest
injustice.” Id. at 9. We disagree. Davis cannot demonstrate that the trial court’s
denial of his motion to withdraw his guilty plea was an abuse of discretion or
resulted in manifest injustice.
[13] As part of his plea agreements, Davis read and filled out two advisement and
waiver of rights forms. With the exception of the different crimes listed at the
top of each, they are identical. The forms contain the following relevant
paragraphs:
12. You have the right to a public and speedy trial by jury.
The right to confront and cross-examine witnesses against
you. The right to subpoena witnesses at no cost to you.
The right to require the State to prove you guilty beyond a
reasonable doubt at a trial at which you do not have to
testify, but in which you may testify if you wish. And the
right to appeal any decision made by the judge. By
pleading guilty, you will give up and waive each and every
one of these rights.
13. Your guilty plea is made knowingly and voluntarily and
no promises, threats or force have been used to make you
plead guilty.
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***
15. You have been given the opportunity to read the Charging
Information, and the Probable, including any attachments,
filed in this case and the facts contained in them are true
and constitute a factual basis for your plea.
16. You are able to read and understand the English language
and have understood the information contained in this
document.
Appellant’s App. pp. 30, 47. Davis initialed next to each paragraph on both
forms and signed each document.
[14] Moreover, Davis’s responses to the trial court during both of his plea hearings
indicate that he understood the rights he was waiving and had freely and
knowingly decided to plead guilty. During his May 21, 2014 plea hearing the
following exchange took place:
[Court]: I had received an Advisement and Waiver of Rights
form. It appears to me on that form that you’ve
initialed at the end of each of the applicable
paragraphs and signed the last page. Is that correct?
[Davis]: Yes.
[Court]: Did you read through that before you initialed and
signed it?
[Davis]: Yes.
[Court]: Do you have any questions concerning any of the
rights that are discussed on that form?
[Davis]: No.
[Court]: You do understand that if you enter a plea of guilty
today that you would be giving up and waiving the
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rights that are discussed on that form. You
understand that?
[Davis]: Yes.
[Court]: You also understand that part of that form indicates
you’ve been given the opportunity to review the
Charging Informations in your cases, Probable
Cause Affidavits and supporting documents and
you do understand that you are stipulating to the
fact that there will be a factual basis for your plea of
guilty pursuant to the agreement. You understand
that.
[Davis]: Yes.
***
[Court]: Has anyone forced you or threatened you to get you
to accept this agreement?
[Davis]: No.
Supp. Tr. pp. 4–6 (errors in original).
[15] And at Davis’s February 2, 2015 plea hearing:
[Court]: Alright, on the advisement and Waiver of Rights I
received, it looks like you’ve initialed at the end of
each of the applicable paragraphs. You’ve signed on
the last page. Is that correct?
[Davis]: Yes.
[Court]: Did you read through that before you initialed and
signed it?
[Davis]: Yes.
[Court]: Any questions about any of the rights that are
discussed on that form?
[Davis]: No.
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[Court]: You do understand if you enter a plea of guilty
today that you would be giving up and waiving the
rights that are discussed on that form. You
understand that?
[Davis]: Yes.
[Court]: Part of that form also indicates that you’ve been
given the opportunity to review the Charging
Information and Probable Cause Affidavit,
including any attachments filed in this case. You are
acknowledging the facts contained in those
documents are true and they would constitute a
factual basis for your plea of guilty. Is that correct?
[Davis]: Yes.
***
[Court]: Has anyone forced you or anyone threatened you to
get you to accept this agreement?
[Davis]: No.
Id. at pp. 11–12.
[16] Davis’s signed acknowledgement on the waiver and advisement of rights forms
as well as his statements during both plea hearings adequately demonstrate that
he voluntarily and knowingly pleaded guilty. It is clear that Davis was
sufficiently advised of his rights, and there is no evidence that he was coerced
into accepting the State’s plea bargain. Rather, Davis consistently indicated that
he was aware of the rights he was waiving, that he understood what he signed,
that he admitted to the factual basis for each plea, and that he understood the
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potential penalties he faced.5 Therefore, under the facts and circumstances
before us, the trial court acted within its discretion when it denied Davis’s
motion to withdraw his guilty pleas, and we cannot say that its denial
constitutes manifest injustice. See e.g., Jeffries v. State, 966 N.E.2d 773, 778 (Ind.
Ct. App. 2012), trans. denied.
Conclusion
[17] For all these reasons, we conclude that the trial court did not abuse its
discretion when it denied Davis’s motion to withdraw his guilty pleas.
Accordingly, we affirm.
Najam, J., and Barnes, J., concur.
5
To the extent Davis argues that he was misled by his trial counsel, this argument is better framed as a claim
of ineffective assistance of counsel. See Appellant’s Br. at 8–9. The voluntariness of a plea is distinct from a
claim of ineffective assistance of counsel, and the two claims are reviewed under different standards. Hanks v.
State, 71 N.E.3d 1178, 1189 (Ind. Ct. App. 2017), trans. denied. Voluntariness in Indiana “focuses on whether
the defendant knowingly and freely entered the plea, in contrast to ineffective assistance, which turns on the
performance of counsel and resulting prejudice.” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997). Because
we find that Davis knowingly and freely entered into both pleas, and that Davis has failed to support an
ineffective assistance claim with cogent reasoning, we decline to address Davis’s concerns with his trial
counsel. See Ind. Appellate Rule 46(8)(a).
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