Terald A. Walthour v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 22 2020, 7:00 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terald A. Walthour, January 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2019
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Steven M. Fleece,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
10C01-1708-F1-4
Bailey, Judge.
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Case Summary
[1] Terald Walthour (“Walthour”) appeals his conviction of attempted murder, as
a Level 1 felony,1 following his entry of a plea agreement, and his sentence
therefor.
[2] We affirm.
Issues
[3] Walthour raises the following two restated issues on appeal:
1. Whether the trial court abused its discretion when it
denied his request to withdraw his guilty plea.
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
Facts and Procedural History
[4] On August 21, 2017, Walthour attended a party in the backyard of his
girlfriend’s house. Walthour became angry and violent with his girlfriend and
demanded that everyone leave. Corey Baker (“Baker”) left the party to go to
his car but returned to the backyard to retrieve a cell phone. When Walthour
1
Ind. Code § 35-42-1-1(1); I.C. § 35-41-5-1(a).
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saw Baker, Walthour became enraged and shot Baker in the face. As Baker
tried to crawl away, Walthour shot him two more times in the legs.
[5] The State charged Walthour with attempted murder, a Level 1 felony. On
February 21, 2019, the parties filed a signed plea agreement pursuant to which
Walthour agreed to plead guilty to the charge and the sentence was capped at
the advisory sentence of thirty years. The plea agreement also stated, “The
Defendant agrees that either party may unilaterally withdraw from this plea
agreement for any reason before a guilty plea is entered.” App. at 143.
[6] At a March 20 change of plea hearing, Walthour withdrew his previous plea of
not guilty and “enter[ed] a plea of guilty.” Id. at 18. In so doing, he admitted
the factual basis for the charge. The trial court advised him of the rights he was
waiving and confirmed that he was entering the guilty plea knowingly and
voluntarily. At the conclusion of the hearing, the trial court took the guilty
“plea under advisement.” Id.
[7] At the April 25 hearing that was scheduled for sentencing, Walthour told the
trial court he wanted to “back out of that plea” and take the case to trial pro se.
Tr. at 29. Walthour’s counsel requested a continuance of the sentencing
hearing, and the court granted that request and reset the hearing to May 9 to
give Walthour “some time to think about” his request to withdraw his guilty
plea and represent himself. Id. at 36. At the subsequent May 9 hearing, the
trial court granted Walthour’s request to proceed pro se, appointed stand by
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counsel for Walthour, and scheduled a hearing on his request to withdraw his
guilty plea.
[8] At a June 27 hearing, Walthour requested that his counsel be reappointed and
the court granted that request. Walthour requested that the hearing be reset to
allow him time to file a written motion to withdraw his guilty plea, and the
court also granted that request. On July 22, Walthour filed his written motion
to withdraw his guilty plea. At the July 25 hearing on that motion, the trial
court reviewed the recording of the March 20, 2019, change of plea hearing that
had been conducted by a different judge and concluded:
I found no indication that Mr. Walthour was sleeping through
the situation or failing to pay adequate attention or failing to
understand the proceedings. Instead, I found that there were a
number of really intelligent questions that were asked to clarify
certain things. And that the Judge then dealt with that and the
defense attorneys dealt with that. I was impressed with Mr.
Walthour[’s] understanding . . . If I had been convinced that Mr.
Walthour was, perhaps, not sharp enough to take it all in or
didn’t understand it, I’d be inclined to grant this, but my
impression from listening to that tape is that Mr. Walthour was
sharp enough to understand what he was saying and was not
under co-ersion [sic], and has voluntarily entered a plea, which is
legitimate and which can stand.
Id. at 66-67. The trial court denied Walthour’s motion to withdraw his guilty
plea.
[9] At Walthour’s subsequent August 22 sentencing hearing, the trial court found
his criminal history to be an aggravating factor. The court noted that, although
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Walthour had a number of offenses in California for which the Probation
Department was unable to ascertain the outcomes, the evidence established that
he had one prior confirmed misdemeanor conviction and two confirmed felony
convictions. The court also noted that Walthour had a pending charge of
battery resulting in moderate bodily injury, and he had charges of strangulation,
criminal confinement, and battery resulting in moderate bodily injury that had
been dismissed on the day of trial. Walthour also had an active warrant out for
his arrest in California and had recently violated the conditions of his probation
or parole. “[T]aking into account the [prior] convictions … and the plea in the
[instant] case,” the trial court found there would be aggravating circumstances
sufficient to justify the imposition of a higher sentence than the thirty-year
advisory cap that was included in the plea agreement. Id. at 74. The trial court
then sentenced Walthour to a thirty-year executed term in the Indiana
Department of Correction, i.e., the maximum sentence allowed under the plea
agreement. This appeal ensued.
Discussion and Decision
Denial of Motion to Withdraw Guilty Plea
[10] Walthour challenges the trial court’s denial of his motion to withdraw his guilty
plea. A trial court’s ruling on a motion to withdraw a guilty plea “arrives in
this court with a presumption in favor of the ruling.” Brightman v. State, 758
N.E.2d 41, 44 (Ind. 2001). We will reverse the trial court only for an abuse of
discretion. Id. When we review for an abuse of discretion, we do not reweigh
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the evidence. Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 38 (Ind. Ct. App.
2010), trans. denied. “In determining whether a trial court has abused its
discretion in denying a motion to withdraw a guilty plea, courts must examine
the statements made by the defendant at the guilty plea hearing to decide
whether the plea was offered ‘freely and knowingly.’” Jeffries v. State, 966
N.E.2d 773, 777 (Ind. Ct. App. 2012) (quoting Brightman, 758 N.E.2d at 44).
[11] Walthour first asserts that the trial court’s denial of his motion to withdraw
from the plea agreement was erroneous because that agreement2 allowed him to
withdraw from it prior to the court’s “acceptance” of his guilty plea.
Appellant’s Br. at 9. However, that is not what the plea agreement said.
Rather, it explicitly stated that Walthour could withdraw from the plea
agreement “before a guilty plea is entered in Court.” App. at 143 (emphasis
added). As the State points out, “[t]he ‘entry’ of a guilty plea and the court’s
subsequent ‘acceptance’ of that plea are two distinct stages of the plea process.”
Turner v. State, 843 N.E.2d 937, 941 (Ind. Ct. App. 2006). A defendant “enters
a plea when he offers it to the court.” Peel v. State, 951 N.E.2d 269, 271-72 (Ind.
Ct. App. 2011). Here, as the Chronological Case Summary notes, Walthour
“enter[ed] a plea of guilty” at the March 20, 2019, hearing on change of plea.
App. at 18 (emphasis added). He did not seek to withdraw that plea, even
informally, until the April 25, 2019, hearing. Because Walthour did not seek to
2
The parties do not dispute that the trial court accepted the plea agreement.
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withdraw from the plea agreement before he entered his guilty plea, his plea
withdrawal was not authorized by the terms of the plea agreement.
[12] Walthour alternatively contends that the trial court erred when it denied his
request to withdraw his guilty plea as permitted under Indiana Code Section 35-
35-1-4(b). Under that statute,
after a defendant pleads guilty but before a sentence is imposed, a
defendant may move to withdraw a plea of guilty. [I.C. § 35-35-
1-4(b).] The trial court must permit a defendant to withdraw a
guilty plea if it is “necessary to correct a manifest injustice.” Id.
On the other hand, the motion to withdraw the plea should be
denied if the plea’s withdrawal would substantially prejudice the
State. Id. In all other cases, the court may grant the defendant's
motion to withdraw a guilty plea “for any fair and just reason.”
Id.
***
Instances of manifest injustice may include any of the following
…: 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.”
Jeffries, 966 N.E.2d at 777-78.
[13] Walthour asserts that the denial of his motion to withdraw his guilty plea was a
manifest injustice because he “maintained his innocence and demonstrated that
he misunderstood the effect of his ‘guilty’ plea.” Appellant’s Br. at 14. That is,
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he maintains that his plea was “not knowingly and voluntarily made.” Jeffries,
966 N.E.2d at 778. However, the record does not support that claim. As the
trial court found, at the March 20 hearing on change of plea Walthour clearly
stated his desire to plead guilty to the charge of attempted murder, and he
admitted the underlying facts without hesitation. Tr. at 26-27, 66-67. Walthour
asked intelligent questions during the hearing regarding potential sentences, and
the trial court concluded that he was sharp enough to understand what he was
saying and was not under coercion. Walthour’s vague, general claims that he is
innocent and “fundamentally misunderstood the nature of his testimony and
admissions” do not overcome that evidence. Appellant’s Br. at 13. Rather, the
statements Walthour made at the guilty plea hearing support the trial court’s
conclusion that Walthour’s plea was knowing and voluntary. Jeffries, 966
N.E.2d at 777.
[14] Walthour has failed to prove withdrawal of the guilty plea is necessary to
correct a manifest injustice, and we do not discern any other “fair and just
reason” to allow withdrawal of the guilty plea. I.C. § 35-35-1-4(b). The trial
court did not abuse its discretion when it denied his request to withdraw his
guilty plea.
Inappropriateness of Sentence
[15] Walthour maintains that his sentence is inappropriate in light of the nature of
the offense and his character. Article 7, Sections 4 and 6, of the Indiana
Constitution authorize independent appellate review and revision of a trial
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court’s sentencing order. E.g., Livingston v. State, 113 N.E.3d 611, 613 (Ind.
2018). This appellate authority is implemented through Indiana Appellate Rule
7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of the nature of his
offenses and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or
non-recognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d
142, 147 (Ind. Ct. App. 2006). We consider not only the aggravators and
mitigators found by the trial court, but also any other factors appearing in the
record. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans.
denied. It is the defendant’s burden to “persuade the appellate court that his or
her sentence has met th[e] inappropriateness standard of review.” Roush v.
State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). And the
defendant “bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach
v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.
[16] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
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severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[17] We begin by noting that Walthour’s thirty-year executed sentence is the
advisory sentence for a Level 1 felony, I.C. § 35-50-2-4(b), and the advisory
sentence “is the starting point the Legislature selected as appropriate for the
crime committed,” Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Moreover, the
nature of Walthour’s offense was cruel and callous; he not only shot Baker in
the face but continued to shoot Baker as he attempted to crawl away. Thus,
Walthour’s crime was not accompanied by a show of “restraint” or “lack of
brutality” on his part. Stephenson, 29 N.E.3d at 122.
[18] Nor does Walthour’s character support a sentence revision. He has one prior
misdemeanor conviction and two prior felony convictions. At the time of
sentencing, he had an active warrant for his arrest in California, and he had
recently violated the terms of his probation or parole. Walthour’s criminal
history, in conjunction with the lack of restraint shown by his repeated shooting
of an injured victim as he attempted to crawl away, supports the trial court’s
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conclusion that it could have imposed a sentence above the advisory sentence if
not for the cap imposed by the plea agreement. Furthermore, Walthour points
to no mitigating evidence, such as substantial virtuous traits or persistent
examples of good character, and the trial court found none. Id.
[19] We cannot say that Walthour’s sentence is inappropriate in light of the nature
of his offense and his character.
Conclusion
[20] The trial court did not abuse its discretion when it denied Walthour’s motion to
withdraw his guilty plea made after he entered that plea but before sentencing.
And we find no reason to revise Walthour’s sentence as it is not inappropriate
in light of the nature of his offense and his character.
[21] Affirmed.
Kirsch, J., and Mathias, J., concur.
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