Bryan Delaney v. State of Indiana ( 2013 )

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 establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER J. HAMMERLE GREGORY F. ZOELLER
CHRISTOPHER B. SERAK Attorney General of Indiana
Jacob, Hammerle & Johnson
Zionsville, Indiana JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE May 06 2013, 9:21 am
COURT OF APPEALS OF INDIANA
BRYAN DELANEY, )
)
Appellant-Defendant, )
)
vs. ) No. 06A01-1209-CR-435
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable Matthew C. Kincaid, Judge
Cause No. 06D01-1011-FB-427
May 6, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Bryan Delaney appeals the trial court’s denial of his motion to withdraw a guilty
plea. Delaney raises the following restated issue on appeal: whether the trial court
properly denied his motion to withdraw his guilty plea. Concluding that the denial was
within the trial court’s discretion and that discretion was not abused, we affirm.
Facts and Procedural History
In November 2010, Delaney was charged with sexual misconduct with a minor, as
a Class B felony. Initially, Delaney pleaded not guilty. Later, a plea agreement was
negotiated and was filed with the court on June 8, 2012. On June 26, 2012, the court
conducted a plea hearing.
At the plea hearing, the court started by telling Delaney that it expected him to tell
the court if he did not understand a question, and that he could speak with his lawyer at
any time during the hearing. The court then proceeded to go over Delaney’s
Constitutional rights, and to each of these, Delaney stated that he understood his rights.
The court then spoke to Delaney’s crime and told him that:
before you could be convicted of sexual misconduct with a minor the State
of Indiana would have to prove all the material elements of the charge
against you are true and I’m just going to go over that with you now. They
would have to prove beyond a reasonable doubt that between January 15,
2010 and March 15, 2010 in Boone County, State of Indiana that you Bryan
Delaney a person at least twenty-one years of age did perform or submit to
sexual intercourse with a child victim, a child at least fourteen years of age
but less than sixteen years of age to-wit: fifteen years of age. . . . If the
State didn’t prove all of that to be true you wouldn’t be convicted of that
offense. Do you understand that?
Transcript at 6. To which Delaney replied, “Yes sir Your Honor.” Id. The court went
over the possible sentences and fines for the crime. The court then asked Delaney
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whether he had signed the agreement, read it before he signed it, and discussed it with his
attorney. To all of these questions Delaney replied yes. The court went over the major
terms of the plea agreement to make sure that Delaney understood them, and gave him a
chance to tell the court if it had left out anything that was important to him. It asked him
again if he had read and understood the agreement, to which he replied yes. The court
then asked whether anyone promised him anything for pleading guilty or forced him to
plead guilty, and Delaney answered no. The court asked him whether it was his own free
choice, whether he was satisfied with the work of his lawyer, and whether he still
intended to plead guilty. To all of those questions, Delaney replied yes.
Delaney was then sworn in in order for the court to establish a factual basis of his
crime. Under oath, the following exchange occurred between Delaney, the court, and the
prosecutor, Ms. Jennings:
BY MS. JENNINGS: Judge if this matter were to proceed to trial the State
would be in a position to prove beyond a reasonable doubt that during the
time period of January 15th, 2010 to March 15th, 2010 here in Boone
County, State of Indiana Mr. Delaney did have a romantic relationship with
a juvenile who was fifteen years of age at the time. During that time period
he did engage in sexual intercourse with that juvenile. Her initial’s [sic] are
A P and he did know that she was under the age of sixteen at that time
Judge, thus committing the act of sexual misconduct with a minor as a class
B felony.
BY THE COURT: Mr. Delaney the Prosecutor just recited what she thinks
the facts are and did she make any mistakes at all?
BY DEFENDANT: No sir Your Honor
BY THE COURT: Is everything she said true?
BY DEFENDANT: Yes, that’s correct.
Tr. at 15. The court then asked Delaney’s counsel whether she saw any advantage to him
proceeding to a jury trial on the charge, and she replied no. Delaney then pleaded guilty
to the charge.
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At the end of the hearing, the court took the plea under advisement, and scheduled
a hearing for August 9. At the August 9 hearing, Delaney’s attorney withdrew, citing a
“breakdown in communication,” and the hearing was rescheduled for September 5, 2012;
the guilty plea remained under advisement. Tr. at 23. New counsel filed an appearance
on August 10. On August 31, Delaney filed a motion to withdraw his guilty plea. On
September 5, 2012, the court heard argument from each side regarding the motion to
withdraw the guilty plea. The court then determined that the State would be substantially
prejudiced if the court granted the motion and that Delaney had not shown that there
would be any manifest injustice if the motion were denied, and denied the motion. The
court sentenced Delaney to twelve years in the Department of Correction, with eight
years executed and four years suspended to probation. This appeal followed. Additional
facts will be supplied as necessary.
Discussion and Decision
I. Standard of Review
Indiana Code section 35-35-1-4(b) governs motions to withdraw guilty pleas.
Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans. denied. In general,
after a defendant pleads guilty but before a sentence is imposed, the defendant may move
to withdraw a plea of guilty and the court may, in its discretion, grant the motion for any
fair and just reason. Id. However, the court must deny the motion if the State would be
substantially prejudiced by the withdrawal of the plea. Id. On the other hand, the court
must grant the motion if withdrawal is necessary to correct a manifest injustice. Id.
Therefore, to the extent that substantial prejudice or manifest injustice are not implicated,
a grant or denial of the motion is within the discretion of the court.
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There is a presumption in favor of a trial court’s ruling on a motion to withdraw a
guilty plea, and we will reverse a trial court only for an abuse of discretion. Id. In
determining whether an abuse of discretion has occurred, we will examine statements by
the defendant at the plea hearing to decide whether the plea was offered “freely and
knowingly.” Id.
II. Motion to Withdraw Guilty Plea
A. Substantial Prejudice
The State argues that it would be substantially prejudiced by withdrawal of
Delaney’s plea because the victim would be traumatized by a trial and because the plea
proceedings have caused a delay that would hinder the State in putting on its case.
Regarding traumatization of the victim, we do not disagree that testifying at trial
and recounting events can be a traumatic experience for a victim. However, that
possibility does not substantially prejudice the State. A defendant has a right to a trial
unless he properly waives it, and as Delaney succinctly states, “[t]he exercise of
fundamental constitutional rights by a defendant should never in itself be defined as a
‘substantial prejudice’ to the State.” Appellant’s Reply Brief at 14. Further, it is not the
withdrawal of the guilty plea itself that would potentially traumatize the victim, it is the
trial—and any trauma related to going to trial would be no different where a plea was
withdrawn than if there had been no plea agreement in the first place.
As for delay, we agree that significant delays could potentially cause substantial
prejudice the State. As the State points out, witnesses’ memories fade, and evidence can
be degraded or lost over time. However, while it appears that there have been delays in
this case, relatively little of that time is attributable to the plea agreement and Delaney’s
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motion to withdraw that plea. It was more than a year-and-a-half after Delaney was
charged that the plea agreement was signed. From there, it was just two months before
Delaney filed his motion to withdraw the plea. Even now, it is just six months past the
court’s denial of Delaney’s motion and imposition of sentence. We cannot agree that this
delay is significant enough to be a substantial prejudice to the State, and the State makes
no specific argument as to any loss that has occurred in this case that would prevent it
from now trying the case. The State cites no other reason why it might be substantially
prejudiced by a withdrawal of Delaney’s plea, and so we disagree with the trial court that
the State would be substantially prejudiced by a grant of Delaney’s motion. Because
there was no substantial prejudice to the State, the trial court was not required to deny
Delaney’s motion.
B. Manifest Injustice
While the trial court was not required to deny Delaney’s motion because there was
no substantial prejudice to the State, it would have been required to grant it if Delaney
had shown that a withdrawal of his plea was necessary to correct a manifest injustice.
Delaney argues that there is a manifest injustice in this case in that his plea was not
knowingly or voluntarily made. We disagree.
At the plea hearing, the trial court questioned Delaney extensively about the plea.
Delaney admits that the trial court “asked each of the questions required by prevailing
case law to establish the knowing and voluntary nature of a tendered plea,” but argues
that the totality of the circumstances indicate that Delaney did not in fact fully understand
the plea agreement or its implications. Appellant’s Brief at 6. Delaney points to his
assertion of innocence in his motion to withdraw the guilty plea, as well as the fact that
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the attorney who represented him at the plea hearing later withdrew, citing a “complete
breakdown in communication,” as factors indicating that his answers at the plea hearing
were given despite his lack of understanding regarding the proceedings and the plea. Id.
at 7. Delaney argues that he did not understand everything he was waiving because he
was not aware of a statutory defense—ignorance of the victim’s age—until after the plea
hearing, when he was questioned for a pre-sentence investigation (“PSI”) report.
Delaney cites Allman v. State, 253 Ind. 14, 235 N.E.2d 56, 61 (1968), for the
proposition that a defendant may be found to have lacked understanding of a guilty plea’s
implications even where the court fully explained the plea and waiver of rights.
However, in Allman, the defendant was arrested and questioned without counsel, was
then charged, was arraigned a few minutes after being charged and did not have counsel
present at the arraignment, and entered a guilty plea at the arraignment. The facts of that
case indicated that the trial court itself had some concerns about Allman’s
comprehension, as it ordered two doctors to assess his sanity. That same day, his family
arranged for counsel to represent him and three days later counsel filed a motion to
vacate the plea and enter a plea of not guilty by reason of insanity. Ultimately, the court
denied the motion and found that Allman had been able, at the arraignment, to
intelligently enter a guilty plea. Id. at 59. Our supreme court reversed the trial court’s
decision. Id. at 62.
Allman is quite different from the current case. Here, Delaney had counsel when
he was offered the plea agreement. Almost three weeks passed between when the plea
was signed and when the plea hearing was held, and at the hearing Delaney confirmed
that he had read the plea and discussed it with his lawyer, and that he had no problems
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with his lawyer’s representation of him. The court thoroughly questioned Delaney’s
understanding of his rights and the plea agreement, and then the State presented an
overview of what it was prepared to prove if the case should go to trial. Included in that
was a statement about Delaney knowing the victim’s age. Delaney confirmed, under
oath, that the State had all of the facts correct. By the end of the plea hearing, we are
convinced that Delaney knowingly and voluntarily waived his rights and chose to plead
guilty, and was aware of the elements of the crime to which he was pleading guilty. It is
not clear what more the trial court could have possibly asked Delaney at the hearing to
further ensure he knowingly and voluntarily waived his rights, and Delaney does not
argue that the court fell short. Delaney frames his argument to imply that he was thrown
into the plea hearing unprepared and was not able to understand the gravity of his plea,
and so blindly answered yes to the court’s questions when he did not truly understand
them. However, he had weeks in which to read the plea, think it over, and discuss it with
his lawyer before the plea hearing took place.
Even if we believe that, by the time he got to the plea hearing—having had ample
time to discuss with his attorney the plea and the crime to which he would be pleading
guilty—he was unaware of a statutory defense regarding ignorance of the victim’s age,
we cannot say that this amounts to a manifest injustice. Delaney pleaded guilty after
affirming under oath that the facts as presented by the State were true, including that he
was aware of the victim’s age. A later protestation of innocence based on a newly
discovered defense does not require the trial court to grant a motion to withdraw a guilty
plea. See, e.g., Carter v. State, 724 N.E.2d 281, 285 (Ind. Ct. App. 2000), trans. granted,
opinion aff’d, 739 N.E.2d 126 (Ind. 2000) (“[W]here a trial court has followed the
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procedures outlined in the guilty plea statutes, and where the defendant’s guilty plea is
knowing and voluntary, his later assertion of innocence does not require the trial court to
set aside his guilty plea.”) (citing cases). Moreover, the “discovery” of a possible
defense, and Delaney’s assertion of innocence are rooted in the PSI. The trial court
found Delaney’s statements in the PSI, which were not under oath, not to be credible, and
we do not reweigh the evidence. See Weatherford v. State, 697 N.E.2d 32, 36 n.9 (Ind.
1998).
As for Delaney’s claim that a breakdown in communication with his attorney
points to a lack of understanding of the plea agreement, the record does not support this
contention. There was no testimony from Delaney or his attorney regarding the
attorney’s withdrawal as counsel, or whether it related to a misunderstanding about the
plea. At the plea hearing, Delaney affirmed that he had no problems with the attorney’s
representation of him. And while this attorney withdrew and cited a breakdown in
communication as the basis for withdrawal, it was the second time that an attorney
working with Delaney on this case had withdrawn and cited a breakdown in
communication as the basis. We cannot make the leap that the breakdown in
communication following the plea hearing indicates that Delaney did not knowingly
waive his rights or agree to the plea agreement.
Because withdrawal of Delaney’s plea was not necessary to correct a manifest
injustice, denial of the motion to withdraw was within the discretion of the trial court, and
the trial court did not abuse its discretion by denying the motion.
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Conclusion
We conclude that Delaney’s motion to withdraw his guilty plea implicated neither
substantial prejudice nor manifest injustice, and that it was therefore within the discretion
of the trial court to deny the motion. Concluding that Delaney offered his plea freely and
knowingly and thus that the court did not abuse its discretion, we affirm.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
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