Abner C. Robertson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 19, 2019
• Docket: 18A-CR-2936
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 19 2019, 9:14 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Abner C. Robertson, June 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2936 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G06-1708-F3-28280

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 1 of 5 [1] Abner Robertson appeals the trial court’s denial of his motion to withdraw his

guilty plea. Finding no error, we affirm.

Facts [2] Between July 25 and 26, 2017, Robertson became angry with L.M., who was

the mother of his two children, because L.M. no longer wanted to be in a

relationship with him. He punched L.M. in the eye, resulting in broken bones,

loss of bone structure, and double vision in her right eye. The two children

were present at the time of the assault. L.M. had to have surgery as a result of

the altercation.

[3] On August 2, 2017, the State charged Robertson with multiple felony offenses

and later added an allegation that he was an habitual offender. On August 13,

2018, Robertson entered into a plea agreement but later withdrew, so the trial

court reset the matter for trial.

[4] On August 17, 2018, Robertson filed a motion to proceed pro se, which the trial

court granted. The trial court also granted Robertson’s motion for a

continuance of the trial over the State’s objection, and the trial was rescheduled

for October 5, 2018.

[5] On October 3, 2018, Robertson pleaded guilty to Level 3 felony aggravated

battery and admitted to being an habitual offender in exchange for the dismissal

of the remaining counts. The trial court accepted the guilty plea and scheduled

a sentencing hearing. Two days before the sentencing hearing, Robertson filed

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 2 of 5 a motion to withdraw his guilty plea and later filed a motion to proceed with

counsel.

[6] The trial court granted Robertson’s motion to proceed with counsel and held a

hearing on Robertson’s request to withdraw his guilty plea on November 8,

2018. The trial court denied the motion and sentenced Robertson to ten years,

enhanced by six years for his status as an habitual offender, with nine years to

be served in the Department of Correction, five years to be served in

community corrections, and two years suspended to probation. Robertson now

appeals.

Discussion and Decision [7] Robertson’s sole argument on appeal is that the trial court erred by denying the

motion to withdraw his guilty plea.

[8] After a guilty plea is entered but before the sentence is imposed, a defendant

may move to withdraw his guilty plea for any fair and just reasons unless the

State has been substantially prejudiced by its reliance upon the plea. Ind. Code

§ 35-35-1-4. The trial court shall grant the motion if the defendant proves by a

preponderance of the evidence that the withdrawal is necessary to correct a

manifest injustice, but absent such a showing, the decision to grant or deny the

motion rests solely in the trial court’s discretion. Id. In reviewing the trial

court’s ruling, which we must presume to be correct, we examine the

statements made by the defendant at the guilty plea hearing to determine

whether the plea was offered freely and knowingly. Coomer v. State, 652 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 3 of 5 60, 62 (Ind. 1995). We will not reverse if the ruling was based on conflicting

evidence. Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000).

[9] Robertson argues that leading up to his guilty plea, he had filed multiple

motions to compel discovery from the State and had requested a second

continuance of the trial, which the trial court had not yet ruled on. According

to Robertson, he pleaded guilty only because he had not received a substantial

amount of evidence from the State and felt that he had no chance of succeeding

at trial as a result.

[10] The trial court disagreed:

At the guilty plea hearing [Robertson] asked many questions which the Court did its best to answer. At no point did he say he was missing discovery. At no point did he say he felt pressured or threatened to plead guilty. At no point did he ask me for additional time. At no point did he ask to discuss this matter with his standby counsel. I think this is simply a matter of he’s changed his mind in the interim between the guilty plea and the sentencing hearing, and the Court is not going to allow him to withdraw from his plea.

Tr. Vol. II p. 39. Indeed, at the guilty plea hearing, Robertson stated that he

was pleading guilty to the charges because he was guilty. Id. at 5.

[11] Given this record, we find that Robertson failed to show by a preponderance of

the evidence that the withdrawal was necessary to correct a manifest injustice.

We likewise find no error in the trial court’s exercise of its discretion in denying

the motion to withdraw.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 4 of 5 [12] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2936 | June 19, 2019 Page 5 of 5