Abner C. Robertson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 19 2019, 9:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Abner C. Robertson, June 19, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2936
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G06-1708-F3-28280
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 1 of 5
[1] Abner Robertson appeals the trial court’s denial of his motion to withdraw his
guilty plea. Finding no error, we affirm.
Facts
[2] Between July 25 and 26, 2017, Robertson became angry with L.M., who was
the mother of his two children, because L.M. no longer wanted to be in a
relationship with him. He punched L.M. in the eye, resulting in broken bones,
loss of bone structure, and double vision in her right eye. The two children
were present at the time of the assault. L.M. had to have surgery as a result of
the altercation.
[3] On August 2, 2017, the State charged Robertson with multiple felony offenses
and later added an allegation that he was an habitual offender. On August 13,
2018, Robertson entered into a plea agreement but later withdrew, so the trial
court reset the matter for trial.
[4] On August 17, 2018, Robertson filed a motion to proceed pro se, which the trial
court granted. The trial court also granted Robertson’s motion for a
continuance of the trial over the State’s objection, and the trial was rescheduled
for October 5, 2018.
[5] On October 3, 2018, Robertson pleaded guilty to Level 3 felony aggravated
battery and admitted to being an habitual offender in exchange for the dismissal
of the remaining counts. The trial court accepted the guilty plea and scheduled
a sentencing hearing. Two days before the sentencing hearing, Robertson filed
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 2 of 5
a motion to withdraw his guilty plea and later filed a motion to proceed with
counsel.
[6] The trial court granted Robertson’s motion to proceed with counsel and held a
hearing on Robertson’s request to withdraw his guilty plea on November 8,
2018. The trial court denied the motion and sentenced Robertson to ten years,
enhanced by six years for his status as an habitual offender, with nine years to
be served in the Department of Correction, five years to be served in
community corrections, and two years suspended to probation. Robertson now
appeals.
Discussion and Decision
[7] Robertson’s sole argument on appeal is that the trial court erred by denying the
motion to withdraw his guilty plea.
[8] After a guilty plea is entered but before the sentence is imposed, a defendant
may move 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. The trial court shall grant the motion if the defendant proves by a
preponderance of the evidence that the withdrawal is necessary to correct a
manifest injustice, but absent such a showing, the decision to grant or deny the
motion rests solely in the trial court’s discretion. Id. In reviewing the trial
court’s ruling, which we must presume to be correct, we examine the
statements made by the defendant at the guilty plea hearing to determine
whether the plea was offered freely and knowingly. Coomer v. State, 652 N.E.2d
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60, 62 (Ind. 1995). We will not reverse if the ruling was based on conflicting
evidence. Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000).
[9] Robertson argues that leading up to his guilty plea, he had filed multiple
motions to compel discovery from the State and had requested a second
continuance of the trial, which the trial court had not yet ruled on. According
to Robertson, he pleaded guilty only because he had not received a substantial
amount of evidence from the State and felt that he had no chance of succeeding
at trial as a result.
[10] The trial court disagreed:
At the guilty plea hearing [Robertson] asked many questions
which the Court did its best to answer. At no point did he say he
was missing discovery. At no point did he say he felt pressured
or threatened to plead guilty. At no point did he ask me for
additional time. At no point did he ask to discuss this matter
with his standby counsel. I think this is simply a matter of he’s
changed his mind in the interim between the guilty plea and the
sentencing hearing, and the Court is not going to allow him to
withdraw from his plea.
Tr. Vol. II p. 39. Indeed, at the guilty plea hearing, Robertson stated that he
was pleading guilty to the charges because he was guilty. Id. at 5.
[11] Given this record, we find that Robertson failed to show by a preponderance of
the evidence that the withdrawal was necessary to correct a manifest injustice.
We likewise find no error in the trial court’s exercise of its discretion in denying
the motion to withdraw.
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[12] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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