Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Feb 13 2014, 8:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW T. STOUT, )
)
Appellant-Defendant, )
)
vs. ) No. 62A01-1305-CR-222
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PERRY CIRCUIT COURT
The Honorable Lucy Goffinet, Judge
Cause No. 62C01-1109-FB-636
February 13, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Andrew T. Stout appeals the denial of his motion to withdraw his guilty pleas for
burglary as a class B felony and theft as a class D felony. Stout raises one issue which
we revise and restate as whether the trial court abused its discretion in denying his
request to withdraw his guilty pleas. On cross-appeal, the State asserts that the trial court
abused its discretion by allowing Stout to file a belated notice of appeal. We affirm.
FACTS AND PROCEDURAL HISTORY
On September 9, 2011, the State charged Stout with Count I, burglary as a class B
felony; and Count II, theft as a class D felony under cause number 62C01-1109-FB-636
(“Cause No. 636”). Count I alleged that between July 1, 2011, and July 6, 2011, Stout
broke and entered the dwelling of Daniel Blandford with the intent to commit a felony
therein. Count II alleged that on the same date, time, and location he knowingly exerted
unauthorized control over Blandford’s property including custom fishing poles, tackle,
power tools, leaf blowers, a saw, and firearms. On March 2, 2012, the court released
Stout on bond with the conditions that he be employed full-time, participate in the Perry
County Community Corrections Day Reporting Program, and be placed on GPS House
Monitoring through community corrections and to be either at home or at work. On April
4, 2012, Stout filed a motion to allow him to attend Narcotics Anonymous meetings, and
the trial court granted the motion on April 9, 2012.
On April 18, 2012, Stout filed a plea agreement in which he agreed to plead guilty
as charged and the State agreed that he would be sentenced to the Department of
Correction for concurrent executed terms of six years on Count I and two years on Count
II for an aggregate sentence of six years.
2
That same day, the court held a pretrial conference with respect to Cause No. 636
and six other causes involving Stout. Stout indicated that he wished to plead guilty in
this cause as well as other causes. The court informed Stout of his rights including the
right to an appeal, and Stout indicated that he understood his rights. The court informed
Stout that he would be giving up his rights as a result of his plea of guilty. Stout
indicated that no one threatened him into pleading guilty and that he was pleading guilty
voluntarily. The court found that Stout’s pleas were made knowingly, voluntarily, and
intelligently. The court also indicated that it was taking the plea agreement under
advisement, ordered the probation department to prepare a presentence investigation
report, and scheduled a sentencing hearing for May 16, 2012.
On May 9, 2012, Stout filed a verified motion to withdraw guilty plea and plea
agreement in Cause No. 636 as well as three other cause numbers, alleging that the
State’s best interest and Stout’s rehabilitation would be better served by a direct
commitment to house arrest under the supervision of the Perry County Community
Corrections Program where he could continue to work and attend Narcotics Anonymous
meetings.
On May 22, 2012, the court held a hearing on Stout’s motion. Stout’s mother
testified that she believed that Stout could be better rehabilitated by continuing under the
community corrections program and that it would be helpful to have him continue with
his program so that he could help her. Francis Heeke, a volunteer at the jail, testified that
he counseled Stout and that it would be in his best interest to be able to work, continue
counseling, and develop beneficial character qualities. Eric Doogs, Stout’s employment
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supervisor, testified that Stout was serious and committed to his rehabilitation and had
been a great employee. Dale Sprinkle, a part owner of the business that employed Stout,
testified that he hoped that the court would “give [Stout] a chance to continue where he’s
at and see how he would perform.” Id. at 44.
Stout testified that he discussed the plea agreement and his pleas extensively with
his attorney, that he decided he wanted to seek substance abuse treatment on his own, he
had been attending substance abuse classes three times a week, and he wanted to continue
with his path of rehabilitation at the local level rather than going back to the Department
of Correction. On cross-examination, Stout indicated that he previously pled guilty to a
number of burglaries and thefts and was originally given the opportunity to be on
probation but behaved in such a manner that the State then had to file a notice of
violation of probation, and he was placed in the Department of Correction. Stout also
conceded that he had been out of jail for approximately six weeks between March 2nd
and April 18th, the day that he pled guilty. When asked what changed in the twenty-one
days between his guilty plea on April 18th and his motion to withdraw his plea on May
9th, Stout answered: “That’s hard to describe. It’s just 10 years. It’s a long time, and
I’ve just been doing real good, and I would like to, you know, for everything I’ve been
doing out here now to be considered.” Id. at 55.
The court found that Stout failed to present any fair or just reason to grant his
motion and then sentenced him to six years for Count I, burglary as a class B felony, and
a concurrent sentence of two years for Count II, theft as a class D felony. The court also
sentenced him in other cause numbers including a sentence of four years in one cause to
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be served consecutive to the sentences under Cause No. 636 for an aggregate sentence of
ten years. After entering the sentences, the trial court did not inform Stout that he had the
right to appeal. On May 24, 2012, the court entered a judgment order.
On August 22, 2012, Stout, pro se, filed a motion for modification of sentence and
a petition for home detention. On October 3, 2012, Stout, pro se, filed a petition to run
sentences concurrent under Cause No. 636 as well as other cause numbers. On
November 27, 2012, Stout, pro se, filed a motion for alternative placement. On
November 29, 2012, the court denied Stout’s motion for modification of sentence and
petitions for home detention and to run sentences concurrent. On December 4, 2012, the
court denied Stout’s motion for alternative placement.
On December 17, 2012, Stout filed a verified motion for appointment of counsel.
On December 27, 2012, the court appointed the Public Defender of Indiana. On January
7, 2013, the Public Defender filed acceptance of appointment and formal notice of
appointment of outside counsel. That same day, Stout filed a notice of appeal of the
court’s December 4, 2012 order denying his motion for alternative placement.1
On April 12, 2013, Stout filed a verified motion for leave to file a belated notice of
appeal. The motion alleged that the court appointed the Public Defender to represent him
on December 27, 2012, which was two days prior to the deadline for filing a timely
notice of appeal with respect to the motions denied on November 29, 2012, and that the
Public Defender did not receive notice of the appointment until after the deadline for
1
The appellant’s appendix contains a notice of appeal without a file stamp and without a cause
number. The table of contents indicates the notice was filed on January 3, 2013. According to the
chronological case summary, the notice of appeal was filed on January 7, 2013.
5
filing a timely notice of appeal. The motion indicated that Stout’s appellate counsel filed
a notice of appeal challenging the trial court’s denial of the motion for alternative
placement, that such an appeal proceeded, that Stout was unaware of his right to appeal
the denial of his motion to withdraw his guilty plea, and that once appellate counsel
reviewed the transcript and discovered “the trial court’s lack of appellate advisements or
Stout’s forced waiver of his appellate rights,” Stout was then advised for the first time as
to his appellate rights with regard to his original sentence. Appellant’s Appendix at 164.
The motion alleged that immediately after receiving Stout’s response, appellate counsel
filed a verified petition to remand to allow the filing of a belated notice of appeal in the
Court of Appeals on March 18, 2013, and this court granted that request by order dated
April 1, 2013. The motion further stated that Stout acted expeditiously in requesting
permission to file a belated notice of appeal and would be prejudiced irreparably if the
court did not allow the filing. On April 15, 2013, the court granted Stout’s motion for
leave to file a belated notice of appeal. On May 15, 2013, Stout filed a belated notice of
appeal from the orders dated May 24, 2012; November 29, 2012; and December 4, 2012.
DISCUSSION
I.
We first address the State’s argument that the trial court abused its discretion by
granting Stout’s motion for a belated appeal because, if it has merit, it would be
dispositive of Stout’s claims. Generally, the decision whether to grant permission to file
a belated notice of appeal or belated motion to correct error is within the sound discretion
of the trial court. Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007), reh’g denied.
6
However, if the trial court does not hold a hearing before granting or denying a petition to
file a belated notice of appeal, the appellate court owes no deference to the trial court’s
decision, and the review of the granting of the petition is de novo. Baysinger v. State,
835 N.E.2d 223, 224 (Ind. Ct. App. 2005). Here, Stout filed a verified motion for leave
to file a belated notice of appeal on April 12, 2013, and the court granted the motion on
April 15, 2013. The State indicates that no hearing was held on the petition, Stout does
not dispute this fact, and our review of the record does not reveal that a hearing was held.
Therefore, we will review the trial court’s grant of the petition de novo. See id.
Ind. Post-Conviction Rule 2 permits a defendant to seek permission to file a
belated notice of appeal and provides:
(a) Required Showings. An eligible defendant[2] convicted after a trial
or plea of guilty may petition the trial court for permission to file a
belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due
to the fault of the defendant; and
(3) the defendant has been diligent in requesting
permission to file a belated notice of appeal under this
rule.
“The defendant bears the burden of proving by a preponderance of the evidence
that he was without fault in the delay of filing and was diligent in pursuing permission to
file a belated motion to appeal.” Moshenek, 868 N.E.2d at 422-423. There are no set
2
“An ‘eligible defendant’ for purposes of this Rule is a defendant who, but for the defendant’s
failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a
trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.”
Ind. Post-Conviction Rule 2.
7
standards of fault or diligence, and each case turns on its own facts. Id. at 423. The
Indiana Supreme Court has held that several factors are relevant to the defendant’s
diligence and lack of fault. Id. “These include ‘the defendant’s level of awareness of his
procedural remedy, age, education, familiarity with the legal system, whether the
defendant was informed of his appellate rights, and whether he committed an act or
omission which contributed to the delay.’” Id. (citing Tredway v. State, 579 N.E.2d 88,
90 (Ind. Ct. App. 1991), trans. denied). The Court also set forth factors specifically
related to diligence. Id. at 424. “Among them are the overall passage of time; the extent
to which the defendant was aware of relevant facts; and the degree to which delays are
attributable to other parties . . . .” Id.
The State concedes that the preponderance of the evidence showed Stout was
without fault at the time of his sentencing hearing, but argues that Stout failed to satisfy
the second prong of the rule and show he was diligent in requesting to file a belated
notice. The State argues that Stout does not explain why his first attempt to seek
modification of his sentence occurred three months after his sentencing hearing. The
State also argues that Stout has had cases disposed by a plea agreement and that “it is
plain that [Stout] has had extensive experience in the criminal justice system such that he
would be aware that any act of discretion by a judge is subject to review by this Court
whether or not he is specifically advised to that effect in a given case.” Appellee’s Brief
at 8-9. Stout points out that the trial court did not inform him of the right to appeal the
denial of his motion to withdraw his guilty pleas and argues that the court did not err in
granting him permission to file a belated notice of appeal.
8
The record reveals that the court informed Stout of his rights including the right to
an appeal at the guilty plea hearing and that Stout would be giving up his rights as a result
of his plea of guilty. After entering the sentence, the trial court did not inform Stout that
he had the right to appeal. Nor does the written judgment order inform Stout of his right
to appeal. Stout filed three pro se motions regarding his sentence within a little over six
months of the trial court’s sentencing order before filing a motion for appointment of
counsel.
The verified motion for leave to file a belated notice of appeal alleged that Stout
was unaware of his right to appeal the denial of his motion to withdraw his guilty plea,
that once appellate counsel reviewed the transcript in the appeal of the denial of his pro
se motion for alternative placement and discovered “the trial court’s lack of appellate
advisements or Stout’s forced waiver of his appellate rights,” Stout was then advised for
the first time as to his appellate rights with regard to his original sentence, and that
appellate counsel immediately filed a petition to remand to allow the filing of a belated
notice of appeal and subsequently filed the verified motion for leave to file a belated
notice of appeal. Under the circumstances, we cannot say that the court erred in granting
Stout’s permission to file a belated notice of appeal.
II.
The next issue is whether the trial court abused its discretion in denying his
request to withdraw his guilty pleas. Ind. Code § 35-35-1-4(b) governs motions to
withdraw guilty pleas filed after a defendant has pled guilty but before the trial court has
imposed a sentence. The trial court must allow a defendant to withdraw a guilty plea if
9
“necessary to correct a manifest injustice.” Brightman v. State, 758 N.E.2d 41, 44 (Ind.
2001) (quoting Ind. Code § 35-35-1-4(b)). By contrast, the trial court must deny the
motion if withdrawal of the plea would “substantially prejudice” the State. Id. (quoting
Ind. Code § 35-35-1-4(b)). In all other cases, the trial court may grant the defendant’s
motion to withdraw a guilty plea “for any fair and just reason.” Id. (quoting Ind. Code §
35-35-1-4(b)). A defendant has the burden to prove by a preponderance of the evidence
and with specific facts that he should be permitted to withdraw his plea. Ind. Code § 35-
35-1-4(e); Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct. App. 1992).
“Manifest injustice” and “substantial prejudice” are necessarily imprecise
standards, and an appellant seeking to overturn a trial court’s decision faces a high hurdle
under the current statute and its predecessors. Coomer v. State, 652 N.E.2d 60, 62 (Ind.
1995). “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.” Id. We will reverse the trial court only
for an abuse of discretion. Id. In determining whether a trial court has abused its
discretion in denying a motion to withdraw a guilty plea, we examine the statements
made by the defendant at his guilty plea hearing to decide whether his plea was offered
“freely and knowingly.” Id. See also Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002)
(holding that a trial court’s decision on a request to withdraw a guilty plea is
presumptively valid, and a party appealing an adverse decision must prove that the court
has abused its discretion), reh’g denied.
Stout argues that he proved by a preponderance of the evidence a fair and just
reason for withdrawal of his guilty plea because the evidence supported placement of him
10
on home detention or in another community corrections program. Specifically, he argues
that by the time of the sentencing hearing, he was demonstrating a deep and sincere
desire to change his life, he had made himself indispensable to his employer, and he was
aggressively pursuing recovery for the addictions which had plagued him as a teenager
and young adult. Stout notes that absent the withdrawal of the plea agreement, he could
not continue on home detention through Perry County Community Corrections despite
his success in that program since his release from jail.
Stout further contends that the State would not have suffered any prejudice from
the withdrawal of his guilty plea. He points out that he filed his motion to withdraw his
guilty plea only twenty-one days after he pled guilty, and contends that the withdrawal
was not prejudicial because no trial date was pending and, if he was sentenced to home
detention or another community corrections program, the State would save money.
The State argues that Stout failed to show a manifest injustice in the acceptance of
his plea and a fair or just reason for withdrawing the plea. The State contends that the
trial court was entitled to find there was no manifest injustice to correct because the plea
hearing contained the advisements required by Ind. Code § 35-35-1-2 and Stout did not
display any uncertainty about what he was pleading to or the ramifications of pleading
guilty. The State also points out that the prosecutor had expressed the intention to take
the causes to trial with a potential sentence far exceeding ten years and that there was no
certainty that Stout would have been granted home detention following a trial. The State
concedes that the record indicates that Stout had done well on home detention pending
resolution of the cases, but points to Stout’s criminal history and argues that “the weight
11
attributable to this short stint of good behavior must be held in context and judged
accordingly.” Appellee’s Brief at 11 n.2.
Stout’s criminal history indicates that he is not unfamiliar with the criminal justice
system.3 At the guilty plea hearing, he indicated that he wished to plead guilty in this
cause as well as other causes. The court informed Stout of his rights, and Stout informed
the trial court that he understood his rights, that no one threatened him to plead guilty and
that he was pleading guilty voluntarily. The court found that Stout’s pleas were made
knowingly, voluntarily, and intelligently.
Based upon our review of the record and under the circumstances, we conclude
that Stout has not overcome the presumption of validity accorded the trial court’s denial
of his petition to withdraw his guilty pleas. Such a denial was within the discretion of the
court, and we cannot say its refusal to allow Stout to withdraw his guilty pleas constitutes
manifest injustice. See Coomer, 652 N.E.2d at 63 (holding that the refusal to allow
defendant to withdraw his guilty plea did not constitute manifest injustice); Jeffries v.
State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012) (“Instances of manifest injustice may
include any of the following, none of which are present here: a defendant is denied the
effective assistance of counsel, the plea was not entered or ratified by the defendant, the
plea was not knowingly and voluntarily made, the prosecutor failed to abide by the terms
of the plea agreement, or the plea and judgment of conviction are void or voidable.”),
trans. denied.
3
The presentence investigation report indicates that Stout has convictions for five counts of
burglary as class C felonies and six counts of theft as class D felonies, and that his probation was revoked
in April 2010.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Stout’s petition to
withdraw guilty pleas.
Affirmed.
ROBB, J., and BARNES, J., concur.
13
Andrew T. Stout v. State of Indiana
Combined Opinion