Travis Scott Cunningham v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 11 2016, 8:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Leeman Gregory F. Zoeller
Cass County Public Defender Attorney General of Indiana
Logansport, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Travis Scott Cunningham, May 11, 2016
Appellant-Defendant, Court of Appeals Case No.
09A02-1510-CR-1653
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Rick Maughmer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
09D02-1312-FC-62
Robb, Judge.
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Case Summary and Issue
[1] The State charged Travis Cunningham with burglary, theft, and criminal
mischief, and alleged he was an habitual offender. Cunningham, who was
represented by counsel, entered a plea of guilty to burglary, a Class C felony,
and the State moved to dismiss all remaining counts. Before he was sentenced,
Cunningham—without counsel’s acquiescence—orally moved to withdraw his
guilty plea. The trial court explained it would not grant Cunningham’s motion,
accepted Cunningham’s guilty plea, and sentenced Cunningham to eight years
imprisonment, with three years suspended to probation, pursuant to the plea
agreement. Cunningham raises a sole issue for our review: whether the trial
court abused its discretion in denying Cunningham’s motion to withdraw his
plea. Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History 1
[2] On the evening of October 26, 2012, an individual smashed the front window of
the Cole Clothing Museum (“Museum”) in Logansport, Indiana, entered the
Museum, and disturbed many of the Museum’s possessions. The following
morning, a Museum employee discovered several blood stains inside the
Museum. The police collected blood samples from the scene. A DNA analysis
1
We held oral argument in this case on April 18, 2016, at the Hammond Academy of Science & Technology.
We commend counsel for their advocacy and thank the faculty, staff, and students at the school for their
hospitality and participation.
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indicated the DNA profile of the blood discovered in the Museum matched
Cunningham’s DNA profile.
[3] On December 13, 2013, the State of Indiana charged Cunningham with
burglary, a Class C felony; theft, a Class D felony; and criminal mischief, a
Class B misdemeanor. The State also filed an habitual offender enhancement.
After being charged, Cunningham absconded to Florida. Cunningham was
then caught and returned to Indiana, and the trial court appointed a public
defender to represent Cunningham. Thereafter, Cunningham entered into a
plea agreement with the State. The agreement provided for Cunningham to
plead guilty to burglary as a Class C felony in exchange for the State dismissing
the remaining counts.2 In addition, the agreement provided a sentence of eight
years imprisonment, with three years suspended to probation.
[4] At the guilty plea hearing on August 11, 2015, Cunningham affirmed under
oath he intended to plead guilty; he had read, understood, and signed the plea
agreement; he was previously treated for ADHD, but no mental illness affected
his ability to understand the proceedings; he was not under the influence of
drugs or alcohol; he understood all of the rights he was waiving by pleading
guilty; he was satisfied with the services of his attorney; and he had not been
2
Unrelated to the plea agreement, the trial court—at the State’s request—dismissed the habitual offender
enhancement.
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forced or coerced into pleading guilty. Thereafter, the State provided a factual
basis for the guilty plea and asked Cunningham whether those facts were true:
[Cunningham:] Some of it, yes.
[State:] All right, well let’s cut to the main part of this is that you
have to admit that the reason that your blood was in [the
Museum] is that you were the one that broke in, is that true?
[Cunningham:] Yes, I’ll admit that.
[State:] All right and you did that with the intent to find
something to steal?
[Cunningham:] Yes.
Transcript, Volume I, at 16. The trial court then asked Cunningham why he
committed the burglary. Cunningham explained he had been drinking alcohol
and using drugs before breaking into the Museum, and he only entered the
Museum because he thought he saw his girlfriend enter seconds before him.
Cunningham further explained he was confused at the time and thought the
Museum was his personal residence. The following exchange then occurred:
[Trial Court:] You just told the prosecutor that you broke in to
steal something.
[Cunningham:] Right. Well, I did—I guess my intention was to
take something from there. I don’t know. I was under—I was, I
don’t know.
***
[Defense Counsel:] Maybe I can help out. Travis, you told me
at one time in one of the letters that you wrote that you were
looking—your girlfriend . . . something about a wedding dress
that you were looking for something maybe to get married with
or something?
[Cunningham:] No, I don’t know about all that but I know that I
went into the museum because I thought, you know, I thought
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she had went in there. But it wasn’t her. I was seeing things, so.
Because I was under the influence.
[Defense Counsel:] But you thought also that you could find
something to steal.
[Cunningham:] See this is what happened. We was in an
argument and I went to chase after her and I couldn’t find her. I
thought she had went in that place. But she didn’t.
[Trial Court:] But you went ahead and broke in?
[Cunningham:] Yeah because I thought—
[Trial Court:] Taking the opportunity to find something?
[Cunningham:] Well, I broke in, yeah, to find her—I thought
she had went in but it—I was seeing things was all because I was
drinking.
[Trial Court:] So I guess to make sure that I understand that I’m
doing this right then you did take something from the building?
Did you steal anything?
[Cunningham:] Yeah, I guess, you can say I did, yes.
[Trial Court:] We don’t deal with guess. Did you or not?
[Cunningham:] Yes, I did.
Id. at 17. Immediately thereafter, the trial court took the matter under
advisement, ordered a pre-sentence investigation report, and scheduled a
sentencing hearing for September 14, 2015.
[5] The pre-sentence investigation report recommended the trial court reject the
plea agreement “because [Cunningham] reported that he is not guilty of the
crime of Burglary and he would prefer to go to Trial.” Appellant’s Appendix at
89. At the sentencing hearing, Cunningham orally requested to withdraw his
guilty plea. Cunningham claimed he provided a written motion to withdraw
his plea to his counsel and the State, but defense counsel stated he never
acquiesced to the filing of any motions. Despite this, the trial court explained
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to Cunningham he had to show withdrawal of his plea was necessary to correct
a manifest injustice. Thereafter, Cunningham argued the plea agreement was in
conflict with Evidence Rules 402, 403, and 410; the plea agreement
contravened the “possession statute” in that he was “never in possession” of the
property he was accused of stealing and the State was required to prove he was
in possession of the property; he felt compelled to enter into the plea agreement,
stating, “[M]y lawyer wasn’t representing me how I was asking his [sic] to
represent me”; and he never broke into the building. Tr., Vol. II, at 11-12.
After listening to a recording of the guilty plea hearing, the trial court concluded
withdrawal of the plea was not necessary to correct a manifest injustice and
accepted the plea agreement. This appeal ensued.
Discussion and Decision
I. Standard of Review
[6] Indiana Code section 35-35-1-4(b) governs a motion to withdraw a guilty plea
that is filed after the defendant pleads guilty but before he is sentenced. “The
motion to withdraw the plea of guilty . . . shall be in writing and verified.” Ind.
Code § 35-35-1-4(b). The trial court must allow a defendant to withdraw his
guilty plea if the defendant proves it is “necessary to correct a manifest
injustice.” Id.; Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). The trial court
must deny the motion if withdrawal of the plea would substantially prejudice
the State. Ind. Code § 35-35-1-4(b). In all other cases, the trial court may grant
the motion for “any fair and just reason.” Id. The defendant has the burden to
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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(b), (e); see also Davis v.
State, 770 N.E.2d 319, 327 (Ind. 2002) (noting the defendant is required to
demonstrate “(1) a fair and just reason for withdrawal of the guilty plea and (2)
no reliance by the State that resulted in substantial prejudice”).
[7] The trial court’s ruling on a motion to withdraw a guilty plea arrives in our
court with a presumption in favor of the ruling. Johnson v. State, 734 N.E.2d
242, 245 (Ind. 2000). A trial court’s denial of a motion to withdraw a plea is
reviewed for an abuse of discretion. Ind. Code § 35-35-1-4(b). “A trial court
abuses its discretion only when the failure of the trial court to grant the motion
would result in . . . a manifest injustice.” Davis, 770 N.E.2d at 326 (alteration in
original) (quotation and citation omitted). In determining whether a trial court
has abused its discretion in denying a motion to withdraw a guilty plea, we
examine the statements made at the guilty plea hearing to decide whether the
plea was made “freely and knowingly.” Brightman, 758 N.E.2d at 44 (citation
omitted).
II. Manifest Injustice
[8] Cunningham contends the trial court abused its discretion in denying his
motion to withdraw his guilty plea. The State counters Cunningham’s appeal is
waived because he did not file a verified written motion to withdraw his guilty
plea. As noted above, a motion to withdraw a guilty plea must be in writing
and verified. Ind. Code § 35-35-1-4(b). In Peel v. State, 951 N.E.2d 269 (Ind. Ct.
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Ohio App. 2011), Peel knowingly and voluntarily pleaded guilty. The trial court took
the matter under advisement and set a date for sentencing. At the beginning of
the sentencing hearing, Peel’s counsel orally moved to withdraw the guilty plea,
which the trial court denied. On appeal, Peel argued the trial court abused its
discretion in denying his motion to withdraw the guilty plea. Because the
defendant did not file a written and verified motion to the trial court, we
concluded the issue was waived. Id. at 272.
[9] Similar to Peel, Cunningham knowingly and voluntarily pleaded guilty. The
trial court took the matter under advisement and set a date for sentencing. At
the beginning of the sentencing hearing, Cunningham orally moved to
withdraw his guilty plea pro se. Cunningham claimed he provided a written
motion to his counsel and the State, but Cunningham’s counsel did not
acquiesce to the filing of the motion, Cunningham did not file his written
motion with the trial court, and at no point did Cunningham, or his counsel,
file with the trial court a verified written motion to withdraw the guilty plea.
See Black v. State, 7 N.E.3d 333, 338 (Ind. Ct. App. 2014) (noting once a
defendant is represented by counsel, a trial court is not required to respond to a
defendant’s pro se request). Therefore, the issue is waived.
[10] Waiver notwithstanding, Cunningham contends withdrawal of his plea was
necessary to correct a manifest injustice. Specifically, Cunningham argues he
entered a guilty plea while maintaining his innocence at the same time in that
he stated at the guilty plea hearing that he entered the Museum with the intent
to steal something in addition to stating he entered the Museum because he was
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intoxicated and thought he saw his girlfriend enter the Museum. See Ross v.
State, 456 N.E.2d 420, 423 (Ind. 1983) (noting a trial court may not accept a
guilty plea when the defendant pleads guilty while maintaining his innocence at
the same time).3 Cunningham also argues his plea was not voluntary due to
pressure from his counsel. As noted above, in determining whether a trial court
has abused its discretion in denying a motion to withdraw a guilty plea, we
examine the statements made at the guilty plea hearing to decide whether the
plea was made “freely and knowingly.” Brightman, 758 N.E.2d at 44 (citation
omitted).
[11] Based upon our review of the record, we cannot say the trial court was required
to grant Cunningham’s motion to withdraw his guilty plea. At the guilty plea
hearing, the trial court properly advised Cunningham of the charges against
him, the possible penalties that could result from trial, the terms of the plea
agreement, and the rights he would be giving up by pleading guilty. In each
case, Cunningham indicated he understood. Cunningham also affirmed under
oath he intended to enter a plea of guilty, he was satisfied with the services of
his attorney, he had not been forced or coerced into pleading guilty, and he
3
Cunningham additionally argues the trial court abused its discretion because the pre-sentence investigation
report recommended the trial court not accept the plea because Cunningham claimed he was innocent during
the pre-sentence investigative interview. However, a claim of innocence during a pre-sentence investigative
interview is an unsworn out-of-court statement, and not only has our supreme court specifically declined to
extend the Ross rule to out-of-courtroom protestations of innocence, “it also explicitly held the acceptance of
a guilty plea from a defendant who protests his innocence to a probation officer in a presentence interview is
not a basis for post-conviction relief.” Mayberry v. State, 542 N.E.2d 1359, 1361 (Ind. Ct. App. 1989), trans.
denied.
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broke into the Museum with the intent to steal property. Moreover, at no point
during the guilty plea hearing did Cunningham claim counsel was ineffective,
nor did he deny entering the Museum with the intent to commit a felony. See
Ind. Code § 35-43-2-1 (1999) (“A person who breaks and enters the building or
structure of another person, with intent to commit a felony in it, commits
burglary, a Class C felony.”). Rather, Cunningham protested his innocence
and claimed counsel pressured him into pleading guilty only after the guilty plea
hearing. Therefore, Cunningham has failed to prove withdrawal of his guilty
plea was necessary to correct a manifest injustice.
Conclusion
[12] We conclude the trial court did not abuse its discretion in denying
Cunningham’s pro se oral motion to withdraw his guilty plea. Accordingly, we
affirm.
[13] Affirmed.
Riley, J., and Barnes, J., concur.
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