MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 07 2018, 10:33 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
T. Andrew Perkins Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP Attorney General of Indiana
Rochester, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dewayne Van Alstine, Jr., November 7, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1555
v. Appeal from the Fulton Circuit
Court
State of Indiana, The Honorable A. Christopher
Appellee-Plaintiff Lee, Judge
Trial Court Cause No.
25C01-1701-F1-30
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 1 of 9
Case Summary
[1] Dewayne Cloyce Van Alstine Jr.1 appeals the trial court’s denial of his motion
to withdraw his guilty plea. We affirm.
Facts and Procedural History
[2] One night in January 2017, Van Alstine, who was on parole, and Amanda Lace
got into an argument about Amanda’s infidelity while he was incarcerated.
When Amanda did not give Van Alstine an answer that he liked, Van Alstine
pushed her down and kicked her in the ribs and face. Van Alstine then poured
beer on Amanda. When Amanda got in the shower to wash off the beer, Van
Alstine entered the bathroom and said he should kill her. Van Alstine then
stabbed Amanda through the shower curtain with a twelve-inch knife, slicing
Amanda’s arm as she raised it to cover her face. Van Alstine then opened the
shower curtain and hit Amanda above her left eye with the handle of the knife,
causing a laceration. When Amanda fell down in the shower, Van Alstine
threw a ball-peen hammer at her legs, causing an injury to her left knee. While
Amanda was still down, Van Alstine kicked her face, injuring her nose. When
Amanda was finally able to run out the back door, Van Alstine again said he
was going to kill her. Amanda flagged down a passing car and was taken to the
hospital, where she received stitches above her left eye, in her lip, and on her
1
The majority of the documents in this case spell the defendant’s last name as “Vanalstine,” but it is clear
from the defendant’s own signature that his last name is Van Alstine. See Appellant’s App. Vol. II pp. 41, 44.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 2 of 9
left knee and a staple to the back of her head. Amanda also had a broken nose
and bruising on her body.
[3] The State charged Van Alstine with Level 1 felony attempted murder and Level
3 felony aggravated battery. On April 3, 2018, two weeks before jury trial was
set to begin, Van Alstine and the State entered into a plea agreement.
According to the plea agreement, Van Alstine would plead guilty to attempted
murder and the State would dismiss aggravated battery. In addition, Van
Alstine would “receive a sentence of 20 years to the Indiana Department of
Correction[] none of which shall be suspended[.]” Appellant’s App. Vol. II p.
44.
[4] That same day, a guilty-plea hearing was held. The trial court advised Van
Alstine of his rights, read him the attempted-murder charging information, and
advised him of the penalties.2 The State established the factual basis for
attempted murder by reading Van Alstine the charging information, and Van
Alstine said the information contained in the charging information was
“factually true.” Tr. p. 20. The State asked the trial court to take judicial notice
of the probable-cause affidavit, and defense counsel said he had no objection.
2
The charging information for attempted murder provides:
On or about January 17, 2017, in Fulton County, State of Indiana, DeWayne Cloyce Vanalstine
Jr., did attempt to commit the crime of murder by knowingly or intentionally stabbing, verbally
threatening to kill Amanda Lace and striking Amanda Lace, said conduct constituting a
substantial step toward the commission of the crime of murder, to knowingly or intentionally
kill another human being.
Appellant’s App. Vol. II p. 12.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 3 of 9
The court then found that Van Alstine’s guilty plea was “freely and voluntarily
made” and that there was a factual basis to support it, namely, Van Alstine’s
testimony and the probable-cause affidavit. Id. at 21. Accordingly, the court
vacated the jury trial and scheduled a sentencing date. Appellant’s App. Vol. II
p. 46.
[5] On June 14, 2018, before sentencing, Van Alstine filed a motion to withdraw
his guilty plea alleging that “it is fair and just for the Court to allow me to
withdraw my previous plea of guilty for the following reasons”:
a. That at the time that I entered into this plea I felt that it was in
my best interests.
b. However I did not intend to murder Amanda Lace.
c. That I have maintained this throughout all consultations with
my attorney.
d. Consequently, although I thought at the time it may be best to
take the plea as offered by the State, I know that in reality it is
not best for me because I was not attempting to murder Amanda
Lace and I cannot go forward with this plea of guilty in good
consci[ence].
Id. at 166 (emphasis added).
[6] The next day, the trial court held a hearing on Van Alstine’s motion. It was not
an evidentiary hearing; rather, the parties presented argument only. See Tr. p.
25 (defense counsel telling trial court he was not going to present any evidence
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 4 of 9
and was going to “confine it to argument”).3 Defense counsel explained that
Van Alstine’s motion was based “on the discretionary power of the Court” to
allow a defendant to withdraw his guilty plea for “any fair and just reason.” Id.
at 27. Defense counsel told the court that Van Alstine “has always maintained
to me that . . . he was not attempting to kill Amanda Lace.” Id. at 28. In
addition, defense counsel said Van Alstine “took the plea of guilty comparing
what the plea agreement was, versus the possible ramifications, but as he has
thought more about this from the date that he has entered his plea he cannot, in
his own good consc[ience], go forward with that, because . . . he was not
attempting to kill Amanda Lace.” Id. The State argued that there was no fair
and just reason to allow Van Alstine to withdraw his guilty plea because it was
apparent that he “just want[ed] to change his mind.” Id. at 31. The court
denied Van Alstine’s motion, finding that there was “no fair and just reason to
allow [Van Alstine] to withdraw his plea.” Appellant’s App. Vol. II p. 168.
The court then accepted Van Alstine’s guilty plea, entered judgment of
conviction, and sentenced him to twenty years.
[7] Van Alstine now appeals.
3
The State did admit into evidence photos of Amanda’s injuries, the sliced shower curtain, and the knife. See
Exs. 2-5.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 5 of 9
Discussion and Decision
[8] Van Alstine contends that the trial court should have allowed him to withdraw
his guilty plea. The withdrawal of a guilty plea before the imposition of a
sentence is governed by Indiana Code section 35-35-1-4, which provides:
(b) After entry of a plea of guilty . . . but before imposition of
sentence, the court may allow the defendant by motion to
withdraw his plea of guilty . . . for any fair and just reason unless
the state 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 state facts in support of the relief demanded, and the
state may file counter-affidavits in opposition to 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.
Thus, the trial court “shall allow” a defendant to withdraw his guilty plea if the
defendant proves it is “necessary to correct a manifest injustice.” Ind. Code §
35-35-1-4(b); see also Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). In all
other cases, the trial court “may allow” the withdrawal of the guilty plea for
“any fair and just reason unless the state has been substantially prejudiced by
reliance upon the defendant’s plea.” I.C. § 35-35-1-4(b); Brightman, 758 N.E.2d
at 44. The defendant “has the burden of establishing his grounds for relief by a
preponderance of the evidence.” I.C. § 35-35-1-4(e).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 6 of 9
[9] On appeal, Van Alstine argues that withdrawal of his guilty plea “was required
to correct a manifest injustice” because he was not advised at his guilty-plea
hearing that specific intent is an element of attempted murder. See Patton v.
State, 810 N.E.2d 690, 696-97 (Ind. 2004) (holding that a defendant who pleads
guilty must have notice that specific intent is an element of attempted murder
but that the failure to advise a defendant that specific intent is an element will
constitute harmless error “where, during the course of the guilty plea or
sentencing hearings, the defendant unambiguously admits to, or there is other
evidence of, facts that demonstrate specific intent beyond a reasonable doubt”).
The State argues that Van Alstine has waived this issue for review because he
made a different argument below. See Hunter v. State, 72 N.E.3d 928, 932 (Ind.
Ct. App. 2017) (“Any grounds for objections not raised at trial are not available
on appeal, and a party may not add to or change his grounds in the reviewing
court.”), trans. denied.
[10] Van Alstine’s motion below specified only that he was asserting a “fair and just
reason” to withdraw his guilty plea, and defense counsel told the trial court that
the motion was being made for that reason only. As set forth above, it is within
a trial court’s discretion to grant a motion based on a “fair and just reason,”
while a trial court must grant a motion based on a “manifest injustice.” See I.C.
§ 35-35-1-4(b). Defense counsel then explained that as Van Alstine had thought
more about his guilty plea, he could not “in his own good consc[ience], go
forward with that, because . . . he was not attempting to kill Amanda Lace.”
Tr. p. 28. Defense counsel highlighted that Van Alstine had “always”
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 7 of 9
maintained to him that he was not attempting to kill Amanda. Id. At no point
did defense counsel argue that Van Alstine had not been advised that specific
intent is an element of attempted murder. In essence, Van Alstine claimed that
he did not commit attempted murder. See Carter v. State, 739 N.E.2d 126, 130
(Ind. 2000) (holding that when a defendant asserts innocence at sentencing after
having pled guilty, it is within a trial court’s discretion to grant or deny the
motion to withdraw because “[t]here is a substantive difference between a
defendant who maintains innocence but asks the court to impose punishment
without trial, and one who concedes guilt in one proceeding but contradicts that
admission by claiming innocence in a later proceeding”). Thus, there was no
discussion as to whether Van Alstine had notice that specific intent is an
element of attempted murder. Cf. Patton, 810 N.E.2d at 698 (in concluding that
Patton did not have notice that specific intent is an element of attempted
murder, our Supreme Court pointed out that defense counsel testified that he
did not advise Patton that specific intent is an element of attempted murder).
As a result, the trial court never had an opportunity to consider the fact-
sensitive argument that Van Alstine now makes. Van Alstine has thus waived
this issue for appeal by not raising it below. See Hunter, 72 N.E.3d at 932 (“The
argument Hunter makes on appeal is independent of and outside the specific
subject matter of the objection that was before the trial court. [Thus,] the trial
court never had an opportunity to consider the argument Hunter now makes to
this Court. Therefore, Hunter has waived this issue for appeal by not raising it
at trial.”). If Van Alstine believes that he did not have notice that specific intent
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 8 of 9
to kill Amanda is an element of attempted murder, he is free to make that claim
in a petition for post-conviction relief, where the record can be developed.
[11] Affirmed.
Riley, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1555 | November 7, 2018 Page 9 of 9