Harrington James Westbrook v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jun 27 2019, 8:19 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Josiah J. Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harrington James Westbrook, June 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-113
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D. Murray,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G02-1604-MR-2
Bailey, Judge.
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Case Summary
[1] Harrington James Westbrook (“Westbrook”) appeals the denial of his motion
to withdraw his pleas of guilty to two counts of Murder, a felony,1 and he
challenges his aggregate sixty-year sentence, with two years suspended to
probation, as inappropriate. We affirm.
Facts and Procedural History
[2] We take our facts from the Stipulated Factual Basis, wherein Westbrook
admitted that he knowingly or intentionally killed Amahn Jerrod Muldrow and
Dawn Sharmaine Williams. The Stipulation provides in relevant part:
That Harrington James Westbrook, Amahn Jerrod Muldrow and
Dawn Sharmaine Johnson were at 1725 W 5th Ave, Gary, Lake
County, Indiana in the early morning hours of April 2, 2016.
That at or around 2:30 AM on April 2, 2016, Harrington James
Westbrook, Amahn Jerrod Muldrow and Dawn Sharmaine
Johnson got in a black Chrysler Town and Country minivan
driven by Eion Westbrook2 for the purpose of taking Amahn
Jerrod Muldrow and Dawn Sharmaine Johnson home.
That Harrington Westbrook was seated in the rear passenger side
of the vehicle, Amahn Jerrod Muldrow was seated in the front
passenger side of the vehicle, Dawn Sharmaine Johnson was
1
Ind. Code § 35-42-1-1.
2
Eion Westbrook is Westbrook’s uncle.
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seated in the rear driver’s side of the vehicle and Eion Westbrook
was driving the vehicle.
That shortly after leaving the residence on 5th Ave, while
traveling on Hayes Street in Gary, Lake County, Indiana,
Harrington James Westbrook pulled out a black revolver that he
had on his person, placed the weapon to the side of Amahn
Jerrod Mulrow’s head, and shot Amahn Jerrod Muldrow, killing
him.
That Harrington James Westbrook, still armed with the weapon,
advised Eion Westbrook to drive to the alley west of 2034 W 2 nd
Avenue, where Harrington James Westbrook opened the front
passenger side door and pulled Amahn Jerrod Muldrow’s body
out, leaving it in the alley.
That Harrington James Westbrook ordered Eion Westbrook, at
gun point, to drive to the alley behind the 800 Block of Ohio
Street in Gary, Lake County, Indiana.
That once in the alley, Harrington James Westbrook ordered
Dawn Sharmaine Johnson to exit the vehicle and Dawn
Sharmaine Johnson asked Harrington James Westbrook not to
kill her. That Harrington James Westbrook shot Dawn
Sharmaine Johnson twice, killing her.
That Harrington James Westbrook then ordered Eion Westbrook
to driver [sic] around to various locations, and finally ordered
Eion Westbrook to attempt to clean the blood of [sic] the black
mini van in the alley behind 1725 W 5th Ave in Gary, Indiana.
(App. Vol. II, pg. 120.)
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[3] On April 4, 2016, Harrington was charged with two counts of Murder. The
State filed an amended information on June 23, 2017, adding an enhancement
to each count for the use of a firearm. Harrington was also charged with
Carrying a Handgun without a License. The State and Harrington reached an
agreement that Harrington would plead guilty to two counts of Murder and
receive an aggregate sentence capped at sixty years. The enhancements and
handgun charge were to be dismissed.
[4] On October 22, 2018, the trial court conducted a change of plea hearing and
accepted Harrington’s guilty pleas. A sentencing hearing was scheduled for
December 13, 2018. On December 10, 2018, Westbrook filed a motion to
withdraw his guilty pleas, which he claimed were produced by coercion. The
trial court conducted a hearing on the same day and denied Westbrook’s
motion.
[5] On December 13, 2018, Westbrook received concurrent sentences of sixty years
imprisonment, with two years suspended to probation, on each Murder count.
He now appeals.
Discussion and Decision
Motion to Withdraw Guilty Pleas
[6] After a defendant has entered a plea of guilty, the defendant may withdraw the
plea only by obtaining the permission of the trial court. I.C. § 35-35-1-4. The
trial court must grant a motion to withdraw a guilty plea “whenever the
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defendant proves that withdrawal of the plea is necessary to correct a manifest
injustice.” I.C. § 35-35-1-4(b). Otherwise, the trial court may grant the motion
“for any fair and just reason unless the state has been substantially prejudiced
by reliance upon the defendant’s plea.” Id. The defendant “has the burden of
establishing his grounds for relief by a preponderance of the evidence.” I.C. §
35-35-1-4(e). We review the trial court’s ruling for an abuse of discretion, I.C. §
35-35-1-4(b), which occurs when the ruling is clearly against the logic and effect
of the facts and circumstances before the trial court. Rhoades v. State, 675
N.E.2d 698, 702 (Ind. 1996).
[7] As a general matter, we will not second-guess a trial court’s evaluation of the
facts and circumstances because the trial court “is in a better position to weigh
evidence, assess the credibility of witnesses, and draw inferences.” Moshenek v.
State, 868 N.E.2d 419, 424 (Ind. 2007). The trial court’s ruling upon a motion
to withdraw a guilty plea “arrives in this Court with a presumption in favor of
the ruling,” and the appellant faces a “high hurdle” in seeking to overturn the
ruling. Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).
[8] Westbrook contends that his guilty pleas were involuntary because they were a
product of “coercion by his attorney which caused him to plead guilty.”
Appellant’s Brief at 8. He asks that we allow him to withdraw his pleas to
correct a manifest injustice. “Manifest injustice” is a “necessarily imprecise”
standard, nonetheless, “[c]oncerns about injustice carry greater weight when
accompanied by credible evidence of involuntariness, or when the
circumstances of the plea reveal that the rights of the accused were violated.”
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Coomer, 652 N.E.2d at 62. Pursuant to Indiana Code Section 35-35-1-4(c)(1),
“withdrawal of the plea is necessary to correct a manifest injustice whenever the
convicted person was denied the effective assistance of counsel.”
[9] Eight days after pleading guilty, Westbrook filed a pro-se motion seeking the
dismissal of his court-appointed attorney for an alleged conflict of interest.3
Westbrook claimed that he felt forced to sign the plea agreement for fear that
his attorney was not handling his case properly. On November 16, 2018,
Westbrook sent a letter and reiterated to the trial court that he had signed the
plea because he was “in total fear with his life” held in his attorney’s hands.
(App. Vol. II, pg. 157). Westbrook sent an additional letter to the trial court on
November 24, 2018, asking that his guilty pleas be withdrawn and expressing
his feeling that, had he gone to trial with his current public defender, counsel
would not have “fought for him.” Id. at 158.
[10] Westbrook’s counsel filed a verified motion for withdrawal of the guilty pleas
on December 10, 2018. The stated bases for the motion were that Westbrook
had been told he would not be able to take the witness stand to defend himself
and Westbrook had desired to have certain motions filed with the objective of
“winning his life.” Id. at 174.
3
Harrington was seeking removal of his second court-appointed attorney. During his representation by his
first court-appointed counsel, Harrington filed pro-se motions and addressed correspondence to the trial court
to express his dissatisfaction with counsel’s representation and to seek her dismissal. Among Harrington’s
criticisms of prior counsel were that she would not “do what I ask and she [is] not trying to get the case over
and she makes me feel in fear for my life with her fighting for me.” (App. Vol. II, pg. 72.)
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[11] On the same day, the trial court conducted a hearing. Westbrook advised the
trial court that he had signed the plea agreement because his attorney made him
feel this was the only thing that the attorney could do to assist him and
Westbrook had feared for his life. Westbrook also complained that his counsel
had advised Westbrook that he “should not take the stand.” (Supp. Tr. Vol. II,
pg. 7.) Westbrook expressed his belief that his counsel had been against him,
and he asserted that he could explain his innocence if given the opportunity to
testify. The trial court opined that Westbrook had been ably represented by
both his court-appointed attorneys, and observed that Westbrook had received
all statutory advisements and had acknowledged his understanding before the
guilty pleas were accepted. The trial court then denied Westbrook’s motion for
withdrawal of his guilty pleas.
[12] On appeal, Westbrook does not claim that he established ineffectiveness of
counsel to support the withdrawal of his guilty pleas. He clarifies that he is not
“making a claim of ineffective assistance of counsel in this direct appeal;”
instead he is “reserving any such issue for a potential post-conviction
proceeding.” Appellant’s Brief at 10. He contends that he was coerced, but
identifies no threat, false statement, or physical force. He focuses upon his
subjective feelings of dissatisfaction with his attorney’s handling of the case.
Distilled to its essence, Westbrook’s argument is that his lack of confidence in
his attorney’s performance prompted him to fear an adverse outcome and
significantly motivated his decision to plead guilty. Considering that the State’s
discovery disclosures revealed an alleged eyewitness to the murders and
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ballistics evidence implicating Westbrook, fear of an adverse outcome may well
have been warranted.
[13] That said, Westbrook has not shown that his counsel did anything to overcome
Westbrook’s free will. Before accepting Westbrook’s pleas, the trial court
confirmed that Westbrook understood the conditions and consequences of his
pleas. One consequence was that he would not testify. Westbrook asserted that
he was satisfied with counsel’s representation and that his pleas were voluntary.
Subsequently, at the hearing on Westbrook’s motion to withdraw his pleas, the
trial court chose not to credit Westbrook’s contradictory statements, and
Westbrook failed to establish his claim of coercion. Having failed in his burden
of proof, Westbrook has not demonstrated that the trial court abused its
discretion by denying the motion for withdrawal of the guilty pleas.
Appropriateness of Sentence
[14] Pursuant to Indiana Code Section 35-50-2-3, the sentencing range for Murder is
forty-five to sixty-five years, with an advisory sentence of fifty-five years.
Westbrook’s aggregate sentence for two murders is sixty years, with two years
suspended to probation. He asks that we revise his sentence to forty-five years,
considering that he was only eighteen years old when he committed his crimes
and he decided to plead guilty.
[15] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
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Appellate Rule 7(B). 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). Here, the trial court recognized as aggravating circumstances
Westbrook’s juvenile adjudications for Intimidation and Robbery (with a
subsequent violation of probation), and the nature and circumstances of the
crimes (with no provocation, the victims were killed execution-style). As to
mitigating circumstances, the trial court acknowledged Westbrook’s decision to
plead guilty but accorded it no mitigating weight because of the significant
benefit in terms of concurrent sentencing. The trial court also acknowledged
that Westbrook had expressed remorse.
[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 culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Id. at 1224. 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).
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[17] As to the nature of the offenses, Westbrook executed two people without
provocation. He shot Amahn in the head, and then turned the handgun on the
driver, demanding that he proceed to an alley. Once in the alley, Westbrook
callously disposed of Amahn’s body and then forced Sharmaine to exit the
vehicle. Sharmaine, who had just witnessed the murder of her fiancée, pled for
her life. Westbrook showed her no mercy, instead shooting her twice. He then
demanded that the van be cleaned up. As Westbrook necessarily concedes, the
offenses were heinous in nature.
[18] As to Westbrook’s character, the decision to plead guilty indicates some
acceptance of responsibility for his actions. However, he received a significant
benefit as the plea agreement provided for dismissal of a handgun charge and
two enhancements and required concurrent sentences. The trial court stated
that it would never have imposed concurrent sentences for multiple murders
absent a plea agreement. Westbrook was only eighteen years old, but this is
“beyond the age at which the law commands special treatment by virtue of
youth.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). And he had
already committed acts that would be Intimidation and Robbery, if committed
by an adult. In sum, Westbrook has not shown that his sentence is
inappropriate in light of the nature of his offenses and his character.
Conclusion
[19] Westbrook has not shown that the trial court abused its discretion by denying
his motion for withdrawal of his guilty pleas. His sentence is not inappropriate.
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[20] Affirmed.
Riley, J., and Pyle, J., concur.
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