Tabitha Lykins-Greene v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 03 2017, 11:18 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tabitha Lykins-Greene, October 3, 2017
Appellant-Defendant, Court of Appeals Case No.
78A01-1705-CR-1129
v. Appeal from the Switzerland
Circuit Court
State of Indiana, The Honorable W. Gregory Coy,
Appellee-Plaintiff. Judge
Trial Court Cause No.
78C01-1608-F4-306
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 1 of 9
Case Summary
[1] Tabitha Lykins-Greene (“Lykins-Greene”) appeals the trial court’s denial of her
motion to withdraw her plea of guilty. The only issue she raises is whether the
trial court’s decision denying her motion was an abuse of its discretion. We
affirm.
Facts and Procedural History
[2] On August 30, 2016, and September 21, 2016, the State charged Lykins-Greene
with count I, burglary of a dwelling, as a Level 4 felony;1 count II, theft, as a
Level 6 felony;2 count III, conspiracy to commit burglary, as a Level 4 felony; 3
count IV, conspiracy to commit theft, as a Level 6 felony; 4 and count V, theft,
as a Level 6 felony.5 These charges were based on allegations that she and her
husband, Jonathan Greene (“Jonathan”), had broken into Jonathan’s
grandmother’s house and stolen a crossbow and several firearms. On February
15, 2017, Lykins-Greene entered into a guilty plea wherein she admitted to an
amended burglary count as a Level 5 felony, and the State moved to dismiss the
remaining counts.
1
Ind. Code § 35-43-2-1(1).
2
I.C. § 35-43-4-2(a)(1)(B).
3
I.C. § 35-41-5-2 and I.C. § 35-43-2-1(1).
4
I.C. § 35-41-5-2 and I.C. § 35-43-4-2.
5
I.C. § 35-43-4-2(a)(1)(A).
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 2 of 9
[3] At Lykins-Greene’s guilty plea hearing on that same date, the trial court
advised her that she had the following rights: 1) a right to a public and speedy
trial by jury; 2) a right to face all witnesses against her, and to see, hear,
question, and cross-examine them; 3) a right to require witnesses to be present
at any hearing or trial and to testify on her behalf; 4) a right to not be forced to
make any statement or to testify against herself; 5) a right to remain silent; 6)
and a right to have the State prove beyond a reasonable doubt that she
committed the charged offenses before she could be found guilty. Lykins-
Greene acknowledged, under oath, that she understood all of those rights and
that, by pleading guilty, she was giving up all of those rights. Specifically as to
the amended Level 5 burglary count, Lykins-Greene acknowledged that she
understood that in the event of a trial the State would have to prove beyond a
reasonable doubt that she was guilty of that offense, and that by pleading guilty
she was admitting to that offense.
[4] Lykins-Greene also confirmed that she had discussed the plea agreement with
her attorney and she (Lykins-Greene) had signed it. The trial court then read
the entire plea agreement aloud to Lykins-Greene, and Lykins-Greene
acknowledged that she understood the agreement. Lykins-Greene confirmed
that no one “had forced or threatened [her] or placed [her] or anyone else in
fear to get [her] to plead guilty.” Tr. Vol. II at 8. Lykins-Greene pled guilty to
the charge of burglary as amended, admitted to the factual basis for the charge,
and confirmed that her plea of guilty was done “freely and voluntarily.” Id. at
8-9. The trial court then accepted Lykins-Greene’s plea of guilt, took it under
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 3 of 9
advisement, and set a date for sentencing so that a pre-sentence investigation
could be completed.
[5] In a letter to the court dated April 13, 2017 and file-stamped April 20, 2017,
Lykins-Greene stated, in relevant part:
I want to withdraw my current plea I signed on Feb-15-2017.
And I want my current lawyer[,] “Mary Jean Shotts[,]” to be
removed from my case. I have been forced to make a decision on
signing my plea, if I did not sign my plea I was guided by Miss
Stotts to believe I would in fact be found guilty and lose my case.
Considering I have never been in this situation and I thought my
lawyer had my best interest [sic][,] I signed the plea because[,]
according to her[,] that was as good as it was going to get for me,
which is and was a lie. I had previously made an attempt to
discuss the truth [with a] Detective on my case or to reason with
the prosecutor that I was innocent[,] but my lawyer lied to me[,]
saying they had refused. I even wanted to testify in front of a
jury to prove my innocence. But “Mrs[.] Shotts” made countless
attempts to keep me from going to trial. … I don’t deserve to go
to prison for something I did not do. I have and still want to take
my case to trial. … I am asking to take my case to trial.
***
I additionally know my current lawyer[,] “Mary Shotts[,]” has
letters in her file to show that I was wanting to testify and prove
my innocence. So that can be used to show where I was standing
in my case. And that she did[,] in fact[,] mislead me.
Appellant’s App. Vol. II at 56. The letter was signed “Sincerely, Tabitha
Greene,” but it was not verified.
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 4 of 9
[6] On May 1, 2017, at Lykins-Greene’s sentencing hearing, the trial court
addressed the request in Lykins-Greene’s letter. Because Lykins-Greene
indicated that she had reasons for her request in addition to those stated in the
letter, the trial court took her sworn testimony on the issue. Lykins-Greene
testified that she “originally” had wanted to testify against Jonathan but she
“was advised that the prosecutor and court were not willing to negotiate [her]
plea if [she were] to testify.” Tr. Vol. II at 13. She stated that she wanted to
take her case to trial because she was “generally innocent,” and did not want to
go to prison for something she did not do. Id. Lykins-Greene’s lawyer
(“Shotts”) stated to the court that she and Lykins-Greene “went word for word
with the plea agreement,” and that Shotts believed that Lykins-Greene “fully
understood what she was signing.” Id. at 18.
[7] Citing Indiana Code Section 35-35-1-4, the trial court noted that a defendant
must file a verified motion to withdraw a guilty plea rather than just a letter.
Based on Lykins-Greene’s failure to file such a motion and on her statements at
the February 15 plea hearing, the court concluded that she had been fully
advised of her rights and had freely and voluntarily pled guilty and admitted to
the factual basis of the plea. The trial court denied Lykins-Greene’s request to
withdraw her guilty plea, accepted the guilty plea, and sentenced her according
to the terms of the plea agreement. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 5 of 9
Discussion and Decision
[8] Lykins-Greene’s only contention on appeal is that the trial court erred in
denying her request to withdraw her guilty plea. This court has recently
summarized the applicable law and standard of review in such appeals:
Indiana Code section 35-35-1-4(b) governs motions to withdraw
guilty pleas. In general, after a defendant pleads guilty but before
a sentence is imposed, a defendant may move to withdraw a plea
of guilty. Id. 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.
We also note that 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.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 the guilty plea hearing to
decide whether the plea was offered “freely and knowingly.” Id.Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans. denied. “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.” Gross v. State,
22 N.E.3d 863, 868 (Ind. Ct. App. 2014), trans. denied. And “an appellant
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 6 of 9
seeking to overturn a trial court’s decision [denying the motion to withdraw]
faces a high hurdle.”6 Id.[9] Initially, we note that Lykins-Greene did not file a written, verified motion to
withdraw her guilty plea, as required by statute. I.C. § 35-35-1-4(b). A written
request to withdraw a guilty plea that is not in the form of a verified motion
does not satisfy the requirements of the statute, and “generally results in waiver
of the issue of wrongful denial of the request.” Carter v. State, 739 N.E.2d 126,
128 n.3 (Ind. 2000) (citing Flowers v. State, 528 N.E.2d 57, 59 (Ind. 1988)).
Because Lykins-Green did not file a verified motion to withdraw her guilty plea
but only an unverified letter making such a request, she has waived our review
of the trial court’s denial of that request.
[10] Waiver notwithstanding, Lykins-Greene failed to carry her burden of proving
the denial of her request to withdraw her plea caused a “manifest injustice” or
that her plea should be withdrawn for any other “fair and just reason.” Jeffries,
966 N.E.2d at 777. In her letter, Lykins-Greene contended that her lawyer
“lied” to her by telling her that a detective and the prosecutor had refused to
speak to Lykins-Greene about her alleged innocence and by advising Lykins-
Greene that the plea was the best deal she would get. Appellant’s App. Vol. II
at 56. She also claimed that her lawyer “misled” her. Id. However, she
provided no specific facts to support those contentions. Rather, the evidence
6
When a motion to withdraw a guilty plea is made after sentencing, it is treated as a petition for
postconviction relief. I.C. § 35-35-1-4(c).
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 7 of 9
shows that both Lykins-Greene’s lawyer and the court reviewed the plea
agreement, word for word, with Lykins-Greene, after which Lykins-Greene
expressly stated that she understood the agreement, that no one had forced her
to enter into the agreement, and that she entered into the agreement freely and
voluntarily.
[11] Nor are Lykins-Greene’s assertions of “general[]” innocence or of having a
good defense sufficient to show that acceptance of her guilty plea resulted in a
manifest injustice. Tr. Vol. II at 13. “[W]here a trial court has followed the
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.” Carter v. State, 724 N.E.2d 281, 285
(Ind. Ct. App. 2000), aff’d, 739 N.E.2d 126 (Ind. 2000). And, as we have
previously held, the existence of a potential defense based only on a defendant’s
own testimony does not carry the defendant’s burden of showing that
withdrawal is necessary to correct a manifest injustice, even in the absence of
prejudice to the State. Gipperich v. State, 658 N.E.2d 946, 949 (Ind. Ct. App.
1995), trans. denied. The trial court did not abuse its discretion in denying
Lykins-Greene’s request to withdraw her guilty plea based on her self-serving
claims of innocence and a good defense to the charge.
Conclusion
[12] The trial court did not abuse its discretion in denying Lykins-Greene’s request
to withdraw her guilty plea.
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 8 of 9
[13] Affirmed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 78A01-1705-CR-1129 | October 3, 2017 Page 9 of 9