FILED
Jun 28 2019, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua E. Asher, June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2679
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Judith A. Stewart,
Appellee-Plaintiff Judge
Trial Court Cause No.
07C01-1608-F1-353
May, Judge.
[1] Joshua E. Asher pled guilty to two counts of Level 1 felony attempted murder. 1
Before the imposition of his sentence, Asher filed a motion to withdraw his
1
Ind. Code § 35-42-1-1 (murder); Ind. Code § 35-41-5-1 (attempt).
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guilty pleas, and the trial court denied his motion. Asher argues the denial was
an abuse of discretion because his pleas were not entered knowingly and
voluntarily. Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] On August 24, 2016, Asher was charged with two counts of Level 1 felony
attempted murder. On April 20, 2018, Asher entered pleas of guilty. On May
31, 2018, a pre-sentence investigation report was filed with the court. The
report indicated Asher wanted to withdraw his guilty pleas. On June 15, 2018,
Asher filed his amended motion to set aside the plea agreement and set the case
for a jury trial. The only rationale stated for his motion was that Asher did not
believe “he had the specific intent necessary to be guilty of attempted murder.”
(Appellant’s App. Vol. II at 145.)
[3] On July 6, 2018, the State filed its response, which asserted granting the
withdrawal would substantially prejudice the State because the State was
prepared to take this matter to jury trial on April 30, 2018. Attached to the
State’s response were three witness counter-affidavits asserting facts in
opposition to Asher’s motion to set aside his guilty pleas.
[4] On July 13, 2018, the court conducted a hearing on Asher’s motion. On July
19, 2018, the trial court denied Asher’s motion because “[he] failed to prove the
existence of a fair and just reason for withdrawal of [his] guilty plea.” (Id. at
163.) In so determining, the trial court found:
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The court does not take lightly a denial of a request to withdraw
a guilty plea, particularly to crimes of this magnitude. Even aside
from the specific language of I.C. 35-35-1-4(c), it is fundamental
that a guilty plea must be knowingly and voluntarily entered.
The court found and continues to find that Mr. Asher’s guilty
pleas were in fact knowingly and voluntarily made.
On April 23, 2018, the defendant pled guilty to two counts of
attempted murder. The defendant was represented by Mr.
Moore. The court accepted the plea and found the defendant
guilty of Count 1, attempted murder a Level 1 felony and Count
2, attempted murder a Level 1 felony. The plea agreement called
for the dismissal of the remaining counts, but left sentencing to
the court’s discretion with the State agreeing not to take a
position with respect to whether the sentences on the two counts
would run concurrently or consecutively. The court took
sentencing under advisement, ordered a presentence investigation
report and set the case for sentencing on June 7, 2018.
*****
In his amended verified motion to withdraw his plea of guilty,
Mr. Asher raised one reason for withdrawing his guilty plea,
“[t]hat after the guilty plea hearing, based upon his recollection
of the alleged events and upon his understanding of the concept
of specific intent, Mr. Asher does not believe he had the specific
intent necessary to be guilty of attempted murder.” No
additional affidavits or hearing testimony was offered to amplify
or further explain this assertion.
At the guilty plea hearing, the court read the charges to the
defendant, including the portion of each count that charged the
defendant with attempting to commit the crime of murder by
engaging in conduct, that is “knowingly or intentionally shoot
with intent to kill,” each victim. For each count, the defendant
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stated he understood that by pleading guilty he was admitting
those facts. For each count, the court asked if the defendant
understood that he could not be convicted unless the State
proved those elements, “including the specific intent to kill,” and
the defendant responded “yes.” When defense counsel was
asked if he was aware of any legal reason Mr. Asher should not
plead guilty, he responded negatively.
The court then requested an additional factual basis, and defense
counsel made inquiry of the defendant. During the factual basis
questioning, Mr. Asher agreed that he discharged a firearm; that
the bullets he fired struck both victims; that when he fired the
shots, he intended to hit both victims; that when he was firing the
shots he was walking, his aim was not steady and he did not
know precisely where the bullets were going to hit the victims.
He agreed that if the bullets had killed the victims it would be
murder; that he fired the shots in the direction of each victim and
the bullets hit each victim; and that shooting the victims was a
substantial step toward what would have been murder if the
victims had been killed.
Because the questions seemed calculated to avoid a specific
inquiry as to whether Mr. Asher intended to kill the victims when
he shot them, the court further inquired, asking, “Mr. Asher,
we’ve already covered this but I just want to make sure you
understand. Are you admitting that on or about August 23,
2016, in Brown County Indiana you attempted to commit the
crime of murder, which is to knowingly kill another human
being, Count 1 being Angel Mack and Count 2 being Nicole
Hillen, by engaging in conduct that is knowingly or intentionally
shoot with the intent to kill, which conduct constituted a
substantial step toward the commission of the crime of murder?”,
The defendant responded “yes.” The court then asked “and did
you do that with both Angel Mack and Nicole Hillen?” and
again the defendant responded “yes.” The court indicated it
found the factual basis sufficient, stating “[the defendant] has
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indicated the specific intent to kill he understands has to be
proven by the State as well as admitting it in the charging
information. Any other concerns there Mr. Moore? Anything
else you wish to…?” Neither defense counsel nor the defendant
raised any concerns with the requirement for specific intent to
kill. The discussion then turned to a somewhat lengthy inquiry
about the return of certain personal property under the terms of
the plea agreement. Toward the conclusion of the hearing, and
prior to accepting the defendant’s guilty pleas, the court returned
to the factual basis because of the court’s concern that the
questions asked of Mr. Asher by counsel during the factual basis
seemed to avoid the issue of specific intent to kill. Prior to
accepting Mr. Asher’s guilty pleas, the court stated, “And, I’m
gonna’ go back to the factual basis because there seems some
hesitation in terms of what he’s.. [sic] or not hesitation but
vagueness in terms of actually what was (sic) admitting. And
Mr. Asher, are you admitting that on August 23 you attempted to
commit the crime of murder against Angel Mack and also against
Nicole Hillen by engaging in conduct that took a substantial step
toward the commission of murder that conduct being knowingly
or intentionally shooting Angel Mack and Nicole Hillen with the
intent to kill? Do you admit?” Defendant stated, “yes.” The court
then accepted the defendant’s guilty plea and found him guilty of
both counts of attempted murder.
At the guilty plea hearing, the defendant agreed six (6) different
times that he was either admitting the facts charged including the
intent to kill or he understood that if he went to trial the State
would have to prove the elements of the crime including the
specific intent to kill. Although the questions asked of the
defendant during the factual basis laid by counsel did not include
a direct question of “did you intend to kill Angel Mack and
Nicole Hillen,” the court recognized this issue or “vagueness”
and twice more asked the defendant if he was admitting he
knowingly or intentionally shot the victims with the intent to kill.
He responded affirmatively. At the guilty plea hearing, the
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defendant never denied that he intended to kill the victims.
Moreover, even his current claim of lack of specific intent to kill
raises only a general assertion that upon his recollection of events
and upon “his understanding of the concept of specific intent, he
does not believe he had the specific intent necessary to be guilty
of attempted murder.” At the hearing, counsel argued that
specific intent to kill is a confusing concept particularly to a lay
person. He stated he had talked with Mr. Asher about the issue
of specific intent to kill and counsel thought there was a point at
which the defendant felt, “OK, I can take this plea and not be
lying, alright. …Upon reflection, though, sleeping on it if you
will, Mr. Asher no longer felt he had that specific intent.”
Having considered the evidence and arguments presented at the
July 13, 2018 hearing, as well as the State’s counter-affidavits
including a sworn statement of one victim that the defendant told
her she was going to die and that he stated to the other victim,
“die bitch,” the court finds the defendant has failed to prove the
existence of a fair and just reason for withdrawal of the
defendant’s guilty plea.
(Id. at 160-63.) 2
[5] On August 17, 2018, Asher was sentenced to consecutive thirty-year terms on
each of the two counts. Five years of each sentence were suspended, and those
ten years were to be served on probation after completion of his executed
sentence.
2
We thank the trial court for its thorough, informative, and well-written order, which greatly assisted our
consideration of Asher’s claims.
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Discussion and Decision
[6] Asher asserts the trial court abused its discretion in denying his motion to
withdraw his guilty pleas. The trial court “is required to grant such a request
only if the defendant proves that withdrawal of the plea ‘is necessary to correct
a manifest injustice.’” Coomer v. State, 652 N.E.2d 60, 61-62 (Ind. Ct. App.
1999) (quoting Ind. Code § 35-35-1-4(c) (1986)) (emphasis in original). Rulings
on motions to withdraw guilty pleas are presumptively valid, and parties
appealing an adverse decision must prove the court has abused its discretion.
Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002), reh’g denied. When evaluating
Asher’s arguments on this point, “‘we will not disturb the ruling where it was
based on conflicting evidence.’” Weatherford v. State, 697 N.E.2d 32, 34 (Ind.
1998) (quoting Smith v. State, 596 N.E.2d 57, 258 (Ind. Ct. App. 1992)), reh’g
denied.
[7] Asher maintains the trial court abused its discretion because: (1) his pleas were
not voluntary when he did not understand the nature of the charges against
him, and (2) the State was not substantially prejudiced by reliance upon his
guilty plea. We address each separately, beginning with the second.
[8] Asher contends the State was not substantially prejudiced by reliance upon his
guilty plea. However, lack of prejudice to the State did not mean the trial court
was required to grant his motion; it meant only that the court retained
discretion to grant his motion “for any fair and just reason[.]” See Ind. Code §
35-35-1-4(b) (“the court may allow the defendant by motion to withdraw his
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plea of guilty . . . for any fair and just reason unless the state has been
substantially prejudiced by reliance on the defendant’s plea”). Moreover, as a
factual matter, the trial court did not deny Asher’s motion based on the State’s
reliance on Asher’s guilty plea. Rather, the court considered the evidence and
arguments presented at the July 13, 2018, hearing and determined Asher “failed
to prove the existence of a fair and just reason for withdrawal of the defendant’s
guilty plea.” (Appellant’s App. Vol. II at 163.) We turn to the validity of that
finding next.
[9] During the guilty plea hearing, the court asked Asher multiple times whether he
attempted to commit the crime of murder, which is to knowingly kill another
human being, by knowingly or intentionally shooting with the intent to kill,
which constitutes a substantial step toward the commission of the crime of
murder. (Tr. Vol. I at 7; Tr. Vol. I at 13; Tr. Vol. I at 16). Asher answered in
the affirmative every time. When asked if he understood he would be admitting
he committed the crime as charged, Asher answered in the affirmative. When
asked if he understood that he could not be convicted unless the State proved
the elements of the counts—including the specific intent to kill—Asher
answered in the affirmative. When asked if he understood that by pleading
guilty, he would be judged guilty and sentenced without any trial, Asher
answered in the affirmative. At no point during the hearing did Asher mention
not understanding the nature of the charges against him. Thus, the record
indicates Asher understood the nature of the charges against him before his
guilty plea. Moreover, Asher’s counsel discussed the requisite intent for
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attempted murder with Asher before he pled guilty to both counts. (Tr. Vol. I at
47) (counsel stated, “I spoke with Mr. Asher about [specific intent]. I think
there was a point that he felt okay, I can take this plea and not be lying”). The
trial court was well within its discretion in determining that no fair and just
reason supported withdrawal of Asher’s guilty pleas. 3 See Johnson v. State, 734
N.E.2d 242, 246 (Ind. 2000) (finding no abuse of discretion in denial of motion
to withdraw guilty plea to murder where Johnson did not protest his innocence
until sentencing hearing).
Conclusion
[10] The trial court did not abuse its discretion when it denied Asher’s motion to
withdraw his guilty pleas. Accordingly, we affirm.
[11] Affirmed.
Mathias, J., and Brown, J., concur.
3
As Asher did not demonstrate a fair and just reason supported withdrawal of his pleas, he also could not
have met the higher standard of “manifest injustice,” pursuant to which the trial court would not have had
discretion to deny Asher’s motion. See Ind. Code § 35-35-1-4(b) (“the court shall allow the defendant to
withdraw his plea . . . whenever the defendant proves that withdrawal of the plea is necessary to correct a
manifest injustice”).
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