Allan J. Reid v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 19, 2014
• Docket: 20A04-1406-CR-259
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Nov 19 2014, 10:31 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DONALD R. SHULER GREGORY F. ZOELLER Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ALLAN J. REID, ) ) Appellant-Defendant, ) ) vs. ) No. 20A04-1406-CR-259 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-1311-FA-62

November 19, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Allan J. Reid brings this appeal challenging his plea of guilty for possession of

cocaine as a class B felony. The dispositive issue is whether Reid preserved for appeal

any alleged error regarding his plea of guilty. We dismiss.

FACTS AND PROCEDURAL HISTORY

On September 13, 2013, Reid knowingly possessed cocaine or a narcotic drug

within one thousand feet of a family housing complex. On November 18, 2013, the State

charged Reid with Count I, dealing in cocaine as a class A felony; and Count II,

possession of cocaine or narcotic drug as a class B felony. On March 13, 2014, Reid and

the State entered into a plea agreement (the “Plea Agreement”) in which Reid agreed to

plead guilty to Count II and the State agreed to dismiss Count I.1 The Plea Agreement

also provided that Reid’s sentence would be fourteen years executed with four years

suspended to probation and that he forfeited his right to have his sentence reviewed under

Ind. Appellate Rule 7(B). Reid, who was represented by counsel, signed the Plea

Agreement, and that same day the trial court held a hearing and accepted his plea, entered

a judgment of conviction on Count II, and scheduled a sentencing hearing for April 10,

2014.

On April 8, 2014, prior to Reid’s sentencing hearing, Reid, acting pro se, filed an

appearance and motion to withdraw his guilty plea, in which he stated that his guilty plea

1 The Plea Agreement also concerned charges under two other cause numbers, including a charge of Escape as a class D felony under Cause No. 20C01-1304-FD-400 (“Cause No. 400”), and charges of driving while suspended as a class A misdemeanor and improper or no tail or plate light as a class C infraction under Cause No. 20C01-1302-CM-182 (“Cause No. 182”). Pursuant to the Plea Agreement, Reid agreed to plead guilty to the escape count, and the State agreed to dismiss the charges under Cause No. 182. 2 “was not voluntary and intelligently made.” Appellant’s Appendix at 30. The court held

a hearing on April 10, 2014, at which Reid appeared and stated that he wanted to

represent himself and that he had a “piece of paper right here saying [he has] grounds to

take this to trial.” Transcript at 27A.2 On May 1, 2014, the court held a hearing, and

Reid again stated that he intended to represent himself and proceed to trial. The court,

after advising Reid of his right to counsel and potential pitfalls of self-representation,

scheduled a hearing for May 8, 2014. That same day, Reid filed a waiver of attorney and

demand to proceed pro se, each of which the court accepted. Reid also filed a motion to

suppress evidence and a “Discovery Order.” Appellant’s Appendix at 37.

On May 8, 2014, the court held a hearing at which Reid appeared pro se and was

accompanied by Attorney Matt Johnson from the public defender’s office as standby

counsel. The court began the hearing by observing that the hearing was to be on Reid’s

motion to suppress and the discovery order, which it noted was “in fact, a motion for

discovery,” and further noted that Reid had previously pled guilty and that sentencing

was scheduled. Transcript at 44. Reid agreed that these were the pending matters before

the court, the court asked Reid how he wanted to proceed, and Reid responded: “I’d like

to have Matt represent me. I want to go on and get a sentence.” Id. at 45. The court

asked Attorney Matt Johnson if he was prepared to go forward, Attorney Johnson replied

affirmatively, and the court stated: “So the defendant’s self-representing motions are now

2 As observed by the State in its brief, the Transcript includes page numbers 26-28 and immediately thereafter includes three different pages of text also numbered 26-28. We shall refer to the first set of pages 26-28 as 26A-28A and the second set of pages as 26B-28B. 3 moot.” Id. The remainder of the hearing concerned Reid’s sentence. At the hearing, the

court specifically asked Reid whether he understood that he was voluntarily waiving “his

right to challenge the sentence on the bases that it is erroneous, and waives his right to

have appellate review of his sentence under Indiana Appellate Rule 7(B),” and Reid

replied: “Yes.” Id. at 47. The court sentenced Reid in accordance with the Plea

Agreement. In its written sentencing order, the court specifically observed that Reid’s

pro se motions were “deemed moot” and that “[t]o the extent there is any ruling required,

they are all denied.” Appellant’s Appendix at 50.

On May 29, 2014, the court held a hearing in which Reid and the State appeared.

At the hearing, the court noted that the Plea Agreement contained “a paragraph 20 that

said you have the right to appeal your sentence but you’re giving it up; however, that was

marked no. Correct?” Transcript at 54. Reid replied affirmatively, the court asked “[s]o

you’re wanting to appeal your sentence,” and Reid responded: “That’s correct.” Id. Reid

soon after told the court “I want to appeal the whole case.” Id. The court appointed Reid

appellate counsel. This appeal ensued.

DISCUSSION

The issue is whether Reid preserved for appeal any alleged error regarding his plea

of guilty. In his brief, Reid frames the sole issue presented as “[w]hether or not the trial

court abused its discretion in denying [his] motion to withdraw his guilty plea.”

Appellant’s Brief at 1. The State responds by observing that “the trial court never

rejected [the] motion to withdraw guilty plea” and that instead, following Reid’s entering

4 into the Plea Agreement and then subsequently filing a pro se motion to withdraw the

guilty plea, Reid “specifically went to the trial court and declared that he wanted to be

represented by counsel again and wanted to be sentenced.” Appellee’s Brief at 4. The

State notes that the court did not reject Reid’s motion, but instead declared the motion

moot. The State argues that Reid “himself withdrew the withdrawal of his guilty plea”

and that “[b]ecause the trial court did not reject [the] motion . . . [Reid’s] argument is not

available here.” Id.

We agree with the State. Although the court stated in its sentencing order that

“[t]o the extent there is any ruling required, they are all denied,” Appellant’s Appendix at

50, at the outset of the May 8, 2014 hearing Reid told the court that he had decided not to

pursue proceeding pro se to challenge his previous guilty plea, wanted to have

representation, and wanted “to go on and get a sentence.” Transcript at 45. After

conferring with Attorney Johnson, the court specifically declared: “So the defendant’s

self-representing motions are now moot.” Id. Attorney Johnson did not attempt to

challenge Reid’s guilty plea or the court’s decision to declare Reid’s previous pro se

motion to withdraw the guilty plea as moot, and indeed the remainder of the hearing

concerned Reid’s sentence. To the extent that Reid believes he should have had the

opportunity to withdraw his guilty plea, we find that Reid invited the error. See Kingery

v. State, 659 N.E.2d 490, 494 (Ind. 1995) (“A party may not invite error, then later argue

that the error supports reversal, because error invited by the complaining party is not

5 reversible error.”), reh’g denied. We conclude that the issue Reid attempts to raise has

not been preserved for appeal and accordingly dismiss the appeal.

CONCLUSION

For the foregoing reasons, we dismiss Reid’s appeal.

Dismissed.

BARNES, J., and BRADFORD, J., concur.