MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 23 2019, 10:27 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
Mario Massillamany Curtis T. Hill, Jr.
Massillamany Jeter & Carson LLP Attorney General of Indiana
Fishers, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Quantae A. Johnson, January 23, 2019
Appellant-Defendant, Court of Appeals Case No.
29A05-1712-CR-2974
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Jonathan M.
Appellee-Plaintiff Brown, Judge
Trial Court Cause No.
29D02-1608-F6-6740
Baker, Judge.
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[1] Quantae Johnson appeals after he pleaded guilty to Level 5 Felony Neglect of a
Dependent1 and Level 6 Felony Neglect of a Dependent.2 We restate Johnson’s
arguments as follows: (1) the trial court erred by denying his request to
withdraw his guilty plea; (2) the trial court made multiple pretrial errors; and
(3) Johnson received the ineffective assistance of trial counsel. Finding that the
trial court did not err by denying Johnson’s request to withdraw his guilty plea
and that, by pleading guilty, Johnson waived his right to raise the other
arguments, we affirm.
Facts
[2] In August 2016, Carmel police learned of allegations regarding Johnson’s
treatment of his minor sons, Q.A.J. and Q.J.J., after Q.J.J. ran away from
home. A medical examination revealed that Q.J.J. was five feet tall and
weighed only seventy-two pounds, leading doctors to conclude that he was
severely malnourished. During the ensuing investigation, medical providers
determined that Q.A.J. was also underweight and suffering from
malnourishment. Johnson withheld food from his children as punishment. He
reported that he disciplined Q.J.J. by forcing him to engage in physical exercise
such as sit-ups and push-ups and tried to prevent Q.J.J. from running away by
1
Ind. Code § 35-46-1-4.
2
Id.
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requiring that the child wear only underwear or his sister’s clothes while he was
at home.
[3] On August 30, 2016, the State charged Johnson with Level 6 felony neglect of a
dependent, later adding a second count of the same charge and a count of Level
5 felony neglect of a dependent. On October 3, 2017, Johnson pleaded guilty to
one count of Level 6 and one count of Level 5 felony neglect of a dependent in
exchange for the dismissal of the second Level 6 felony charge. At the guilty
plea hearing, Johnson admitted to the factual basis underlying the charges and
stated that he had read, understood, and signed the plea agreement.
[4] At the November 27, 2017, sentencing hearing, Johnson told the trial court that
he felt like he had been forced into the plea agreement and that he wanted to
“back out” of the guilty plea. Tr. Vol. II p. 39. Johnson stated that he believed
his attorney had not had time to prepare for a trial and that Johnson felt “under
duress” when the prosecutor informed him that there would be no further plea
offers if Johnson did not plead guilty. Id. at 43. Johnson did not file a written
motion to withdraw his guilty plea. After reviewing the advisements and
Johnson’s statements from the guilty plea hearing, the trial court denied the
request to withdraw the plea agreement.
[5] The trial court imposed a sentence of 910 days for the Level 6 felony
conviction. Of that term, the trial court ordered that 870 days would be
suspended to probation and that 40 days would be served in the Department of
Correction. For the Level 5 felony conviction, the trial court imposed a
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consecutive term of six years, with four years and three months suspended to
probation, with the executed portion of the sentence to be served on home
detention. Johnson now appeals.
Discussion and Decision
I. Withdrawal of Guilty Plea
[6] We turn first to Johnson’s argument that the trial court erred by denying his
request to withdraw his guilty plea. After a guilty plea is entered but before the
sentence is imposed, a defendant may request to withdraw his guilty plea for
any fair and just reasons unless the State has been substantially prejudiced by its
reliance upon the plea. Ind. Code § 35-35-1-4(b). If the defendant proves by a
preponderance of the evidence that the withdrawal is necessary to correct a
manifest injustice, the trial court must grant the motion. Id. Absent such a
showing, the decision to grant or deny the motion rests solely in the trial court’s
discretion. Id. The 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, 62 (Ind. 1995).
[7] Indiana Code section 35-35-1-4(b) explicitly states that a motion to withdraw a
guilty plea “shall be in writing and verified . . . [,] shall state facts in support of
the relief demanded, and the state may file counter-affidavits in opposition to the
motion.” Here, Johnson did not file a written, verified motion, nor did the State
have the opportunity to file counter-affidavits in opposition. Therefore, by the
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plain terms of the statute, Johnson was not entitled to withdraw the plea and the
trial court did not err by denying his request.
[8] Failure to file a written motion notwithstanding, we note that none of his
arguments supporting his request to withdraw the plea are compelling. He argues
that he should have been permitted to withdraw the plea because the trial court
did not grant him a continuance, but at the time of the guilty plea, the case had
been pending for over a year and the trial court had already granted two
continuances to Johnson. He claims that he did not admit his guilt when he
pleaded guilty, but he plainly did just that at the guilty plea hearing and in the
plea agreement itself. Tr. Vol. II p. 16; Appellant’s App. Vol. II p. 148-49.
Indeed, Johnson made no protestation of innocence whatsoever at the guilty plea
hearing. See Ellis v. State, 67 N.E.3d 643, 650 (Ind. 2017) (noting that the rule
that a guilty plea accompanied by a denial of guilt may not be accepted is
explicitly contingent on the protestation of innocence occurring at the same time
the defendant attempts to enter the plea).
[9] Johnson seems to argue that he was unaware of the provision in the plea
agreement that waived his right to appeal his sentence, but he affirmed at the
guilty plea hearing that he had read, signed, and initialed the plea agreement. In
fact, the provision regarding waiver of the right to appeal bears Johnson’s initials.
See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (holding that a defendant may
waive the right to appellate review of his sentence as part of a written plea
agreement). Moreover, the trial court advised him that by pleading guilty, he
would be giving up multiple rights, including the right to appeal. Tr. Vol. II p. 7-
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8. And to the extent that he argues that he could not intelligently waive his right
to appeal because he did not know what sentence would be imposed, the plea
agreement plainly spells out precisely what the sentence would be, the trial court
explained what the sentence would be, and Johnson indicated at the guilty plea
hearing that he understood what the sentence would be. Id. at 8-12, 16-17;
Appellant’s App. Vol. II p. 145.
[10] Finally, Johnson claims that he pleaded guilty because he was “under duress and
panic[.]” Appellant’s Br. p. 18. But he did not raise this claim at the guilty plea
hearing, instead affirming that he was satisfied with his counsel’s representation
and was pleading guilty freely and voluntarily. See Johnson v. State, 734 N.E.2d
242, 245 (Ind. 2000) (noting that the answers the defendant gave “while pleading
guilty belie his later assertion that the only reason he entered a guilty plea is
because his counsel pressured him”). Having considered all of Johnson’s
arguments, we find that the trial court did not err by denying the motion to
withdraw his guilty plea.3
II. Remaining Arguments
[11] Johnson argues that the trial court erred in its pretrial rulings (related to his
request to join his case with his wife’s case and to his request for a change of
venue) and that his trial counsel was ineffective. As for the pretrial rulings, it is
3
Johnson also highlights recent amendments to the sentence modification statute and claims that because of
these changes, he should be allowed to withdraw his guilty plea. But this statute is irrelevant to this appeal,
as the statute relates to motions to modify a sentence, which is not at issue here. Ind. Code § 35-38-1-17.
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well established that a defendant may not question pretrial orders after pleading
guilty. E.g., Branham v. State, 813 N.E.2d 809, 811 (Ind. Ct. App. 2004).
Therefore, we decline to consider these arguments.
[12] As for his claim of ineffective assistance, it is well established that when a
defendant pleads guilty, he may not challenge the validity of his conviction on
direct appeal. E.g., Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997).
Indeed, the only claims a defendant may raise on direct appeal following a
guilty plea are (1) a challenge to the trial court’s sentencing decision where the
trial court exercised sentencing discretion; or (2) a challenge to the trial court’s
denial of a motion to withdraw a guilty plea before sentencing. Allen v. State,
865 N.E.2d 686, 688-89 (Ind. Ct. App. 2007). A challenge to the effectiveness
of counsel is not included in these options; therefore, this claim is not available
to Johnson on direct appeal.
[13] Even if we were to consider the ineffective assistance claim herein, we note that
Johnson fails to cite to the record or legal authority in support of this argument.
And indeed, it is well accepted that a post-conviction proceeding is normally
the preferred forum for adjudicating such claims because the presentation of
such arguments often requires the development of new facts not present in the
record, including testimony from trial counsel regarding his thought processes,
pretrial investigation, and consideration of possible defenses. McIntire v. State,
717 N.E.2d 96, 101 (Ind. 1999); Culvahouse v. State, 819 N.E.2d 857, 863 (Ind.
Ct. App. 2004). Under these circumstances, we find that Johnson has not
established that he received the ineffective assistance of counsel.
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[14] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
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