MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 28 2016, 9:03 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 Debra S. Andry Gregory F. Zoeller Lawrence County Public Defender Attorney General of Indiana Agency Bedford, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon D. Godsey, November 28, 2016 Appellant-Defendant, Court of Appeals Case No. 47A01-1603-CR-547 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael Robbins, Appellee-Plaintiff Judge Trial Court Cause No. 47D01-1308-FA-1017
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 1 of 7 Case Summary [1] Brandon D. Godsey appeals his convictions for two counts of class A felony
child molesting following his guilty plea pursuant to a plea agreement. His sole
argument on appeal is that the trial court abused its discretion by denying his
motion to withdraw guilty plea. Concluding that the trial court did not abuse
its discretion, we affirm.
Facts and Procedural History [2] Between May 2010 and March 2013, Godsey, who was at least twenty-one
years old, had sexual intercourse with A.M.G., a child that Godsey knew was
under twelve years old. Godsey also engaged in deviate sexual conduct with
A.M.G. by touching her sex organ with his mouth. In August 2013, the State
charged Godsey with three counts of class A felony child molesting. Godsey
entered a plea of not guilty.
[3] On August 25, 2015, Godsey entered into a plea agreement with the State in
which he agreed to plead guilty to two counts of class A felony child molesting
and the State agreed to recommend concurrent sentences of twenty-four years
on each count and dismiss the third count. At the change of plea hearing,
Godsey acknowledged that he understood that by pleading guilty he was
admitting the truth of the allegations against him and that he was giving up
certain rights. Tr. at 13. He also acknowledged that his plea was freely and
voluntarily given. Id. at 14. Godsey testified under oath that he committed the
acts that constituted the charges against him. Id. at 16-18. The trial court found
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 2 of 7 that there was a factual basis for the charged crimes, took Godsey’s guilty plea
and the State’s motion to dismiss under advisement, and set the matter for
sentencing.
[4] On August 28, 2015, the State submitted supplemental discovery to Godsey
consisting of a police report (“the Police Report”) from an unrelated
investigation in which A.M.G. had recanted an allegation that she was the
victim of a sex crime by a different man. On September 22, 2015, Godsey filed
a motion to withdraw guilty plea, alleging that the Police Report contained
exculpatory evidence and that withdrawal of the plea was necessary to correct a
manifest injustice. On October 7, 2015, the trial court held a hearing on
Godsey’s motion and requested that the parties provide the court with a copy of
the Police Report and submit memorandums of law. In his memorandum of
law, Godsey argued that A.M.G.’s false allegations of sexual abuse against a
different man were admissible evidence and that he was “entitled to withdraw
his plea at this time in order to more fully develop this new information [and]
be afforded the opportunity to weigh this evidence as he considers whether or
not to proceed to trial.” Appellant’s App. at 51. On November 10, 2015, the
trial court denied Godsey’s motion on the ground that Godsey, after being fully
apprised of his rights both in writing and by the trial court “did, by his
voluntary admissions under oath, testify” that when he was over the age of
twenty-one, he had sexual intercourse and engaged in oral sex with the twelve-
year-old victim. Id. at 56.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 3 of 7 [5] On December 21, 2015, the same day as the sentencing hearing, Godsey filed a
motion to reconsider, arguing that the Police Report contained evidence that
“clearly impeaches the credibility of the alleged victim” and that the State
violated his state and federal constitutional rights to due process by failing to
provide him with exculpatory evidence. Id. at 59. The trial court denied the
motion to reconsider and sentenced Godsey to twenty-four years on each count,
with four years suspended to probation, to be served concurrently.
[6] On January 20, 2016, Godsey filed a motion to correct error, arguing for the
first time that the State violated Lawrence County Local Rules of Court by
failing to provide him with the Police Report before he entered into the plea
agreement with the State. On February 9, 2016, following a hearing, the trial
court denied Godsey’s motion. This appeal ensued.
Discussion and Decision [7] Godsey challenges the trial court’s denial of his motion to withdraw his guilty
plea. Withdrawals of pleas are governed by Indiana Code Section 35-35-1-4(b),
which provides,
After entry of a plea of guilty … but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty … for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant’s plea. …. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea of guilty … whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 4 of 7 (Emphasis added.)
[8] Our supreme court has explained that
[t]he court is required to grant [a motion to withdraw guilty plea] only if the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice. The court must deny a motion to withdraw a guilty plea if the withdrawal would result in substantial prejudice to the State. Except under these polar circumstances, disposition of the petition is at the discretion of the court.
Coomer v. State, 652 N.E.2d 60, 61-62 (Ind. 1995) (citation and quotation marks
omitted). The defendant “has the burden of establishing his grounds for relief by
a preponderance of the evidence.” Ind. Code § 35-35-1-4(e). 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.”
Davis v. State, 770 N.E.2d 319, 327 (Ind. 2002). “Trial court rulings on
[motions to withdraw guilty plea] are presumptively valid, and parties
appealing an adverse decision must prove that a court has abused its
discretion.” Id. at 326. “A trial court abuses its discretion only ‘when the
failure of the trial court to grant the motion would result in ... a manifest
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 28 2016, 9:03 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 Debra S. Andry Gregory F. Zoeller Lawrence County Public Defender Attorney General of Indiana Agency Bedford, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon D. Godsey, November 28, 2016 Appellant-Defendant, Court of Appeals Case No. 47A01-1603-CR-547 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael Robbins, Appellee-Plaintiff Judge Trial Court Cause No. 47D01-1308-FA-1017
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 1 of 7 Case Summary [1] Brandon D. Godsey appeals his convictions for two counts of class A felony
child molesting following his guilty plea pursuant to a plea agreement. His sole
argument on appeal is that the trial court abused its discretion by denying his
motion to withdraw guilty plea. Concluding that the trial court did not abuse
its discretion, we affirm.
Facts and Procedural History [2] Between May 2010 and March 2013, Godsey, who was at least twenty-one
years old, had sexual intercourse with A.M.G., a child that Godsey knew was
under twelve years old. Godsey also engaged in deviate sexual conduct with
A.M.G. by touching her sex organ with his mouth. In August 2013, the State
charged Godsey with three counts of class A felony child molesting. Godsey
entered a plea of not guilty.
[3] On August 25, 2015, Godsey entered into a plea agreement with the State in
which he agreed to plead guilty to two counts of class A felony child molesting
and the State agreed to recommend concurrent sentences of twenty-four years
on each count and dismiss the third count. At the change of plea hearing,
Godsey acknowledged that he understood that by pleading guilty he was
admitting the truth of the allegations against him and that he was giving up
certain rights. Tr. at 13. He also acknowledged that his plea was freely and
voluntarily given. Id. at 14. Godsey testified under oath that he committed the
acts that constituted the charges against him. Id. at 16-18. The trial court found
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 2 of 7 that there was a factual basis for the charged crimes, took Godsey’s guilty plea
and the State’s motion to dismiss under advisement, and set the matter for
sentencing.
[4] On August 28, 2015, the State submitted supplemental discovery to Godsey
consisting of a police report (“the Police Report”) from an unrelated
investigation in which A.M.G. had recanted an allegation that she was the
victim of a sex crime by a different man. On September 22, 2015, Godsey filed
a motion to withdraw guilty plea, alleging that the Police Report contained
exculpatory evidence and that withdrawal of the plea was necessary to correct a
manifest injustice. On October 7, 2015, the trial court held a hearing on
Godsey’s motion and requested that the parties provide the court with a copy of
the Police Report and submit memorandums of law. In his memorandum of
law, Godsey argued that A.M.G.’s false allegations of sexual abuse against a
different man were admissible evidence and that he was “entitled to withdraw
his plea at this time in order to more fully develop this new information [and]
be afforded the opportunity to weigh this evidence as he considers whether or
not to proceed to trial.” Appellant’s App. at 51. On November 10, 2015, the
trial court denied Godsey’s motion on the ground that Godsey, after being fully
apprised of his rights both in writing and by the trial court “did, by his
voluntary admissions under oath, testify” that when he was over the age of
twenty-one, he had sexual intercourse and engaged in oral sex with the twelve-
year-old victim. Id. at 56.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 3 of 7 [5] On December 21, 2015, the same day as the sentencing hearing, Godsey filed a
motion to reconsider, arguing that the Police Report contained evidence that
“clearly impeaches the credibility of the alleged victim” and that the State
violated his state and federal constitutional rights to due process by failing to
provide him with exculpatory evidence. Id. at 59. The trial court denied the
motion to reconsider and sentenced Godsey to twenty-four years on each count,
with four years suspended to probation, to be served concurrently.
[6] On January 20, 2016, Godsey filed a motion to correct error, arguing for the
first time that the State violated Lawrence County Local Rules of Court by
failing to provide him with the Police Report before he entered into the plea
agreement with the State. On February 9, 2016, following a hearing, the trial
court denied Godsey’s motion. This appeal ensued.
Discussion and Decision [7] Godsey challenges the trial court’s denial of his motion to withdraw his guilty
plea. Withdrawals of pleas are governed by Indiana Code Section 35-35-1-4(b),
which provides,
After entry of a plea of guilty … but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty … for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant’s plea. …. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea of guilty … whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 4 of 7 (Emphasis added.)
[8] Our supreme court has explained that
[t]he court is required to grant [a motion to withdraw guilty plea] only if the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice. The court must deny a motion to withdraw a guilty plea if the withdrawal would result in substantial prejudice to the State. Except under these polar circumstances, disposition of the petition is at the discretion of the court.
Coomer v. State, 652 N.E.2d 60, 61-62 (Ind. 1995) (citation and quotation marks
omitted). The defendant “has the burden of establishing his grounds for relief by
a preponderance of the evidence.” Ind. Code § 35-35-1-4(e). 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.”
Davis v. State, 770 N.E.2d 319, 327 (Ind. 2002). “Trial court rulings on
[motions to withdraw guilty plea] are presumptively valid, and parties
appealing an adverse decision must prove that a court has abused its
discretion.” Id. at 326. “A trial court abuses its discretion only ‘when the
failure of the trial court to grant the motion would result in ... a manifest
injustice.’” Id. (quoting Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998)).
[9] Godsey argues that the Police Report contained exculpatory evidence and that
the State’s failure to disclose that evidence prior to the entry of his plea
agreement violated his due process rights under Article 1, Section 13 of the
Indiana Constitution and the Fourteenth Amendment to the United States
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 5 of 7 Constitution. However, at the hearing on his motion to correct error, Godsey
acknowledged that in United States v. Ruiz, 536 U.S. 622, 633 (2002), the
Supreme Court held that federal due process guarantees do not require the
government to disclose impeachment information prior to entering a plea
agreement with the defendant, and Godsey conceded that Ruiz “directly
contradict[s] our position in the motion to correct error with regard to the
arguments on the Federal Constitutional issue.” Tr. at 50. Godsey also
conceded that Ruiz was dispositive of his state constitutional claim. Id. at 50-
51. By abandoning his constitutional arguments, Godsey invited any error
with respect to those claims. See Chem. Waste Mgmt. of Indiana, L.L.C. v. City of
New Haven, 755 N.E.2d 624, 631 n.4 (Ind. Ct. App. 2001) (concluding that
because appellant abandoned argument at the trial level, appellant invited any
error as to that issue). Invited error is not subject to appellate review. Id.
[10] Godsey also argues that the State violated Lawrence County Local Rules LR47-
TR26-111(C)(1)(g) and -(h). However, Godsey raised this argument for the first
time in his motion to correct error, and therefore it is waived. See Shepherd
Props. Co. v. Int’l Union of Painters & Allied Trades, 972 N.E.2d 845, 849 n.3 (Ind.
2012) (“It is well established that a party may not raise issues for the first time
in a motion to correct error.”).
[11] Waiver notwithstanding, Godsey’s argument is unavailing. LR47-TR26-
111(C)(1)(g) requires the State to disclose “any record or prior criminal
convictions that may be used for impeachment of the persons [whom] the State
intends to call as witnesses at any hearing or trial.” Godsey conceded at the
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 6 of 7 hearing on his motion to correct error that Ruiz was controlling and contrary to
his position that the State’s noncompliance with this rule justified his
withdrawal of his guilty plea. Tr. at 51. As with his constitutional claims,
Godsey invited any error with regard to this rule, and therefore any error is not
subject to our review. See Chem. Waste Mgmt., 755 N.E.2d at 631 n.4.
[12] LR47-TR26-111(C)(1)(h) requires the State to disclose “any material or
information within its possession or control that tends to negate the guilt of the
accused as to the offenses charged or would tend to reduce the punishment for
such offenses.” Godsey argues that the evidence of A.M.G.’s false allegation is
material because it calls into question her credibility. However, impeachment
evidence is not information that tends to negate the guilt of the accused, and
therefore LR47-TR26-111(C)(1)(h) does not apply to the Police Report.
[13] We conclude that Godsey has failed to carry his burden to show that the trial
court abused its discretion in denying his motion to withdraw guilty plea. See
Coomer, 652 N.E.2d at 63 (concluding that denial of motion to withdraw guilty
plea was within trial court’s discretion and did not constitute manifest
injustice). Therefore, we affirm his convictions.
[14] Affirmed.
Kirsch, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 47A01-1603-CR-547 | November 28, 2016 Page 7 of 7