MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2017, 9:00 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 Samuel J. Beasley Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Craig Allen Decker, December 5, 2017 Appellant-Defendant, Court of Appeals Case No. 18A04-1705-CR-1097 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable John M. Feick, Appellee-Plaintiff. Judge Trial Court Cause No. 18C04-1303-FA-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 1 of 8 Case Summary [1] After pleading guilty to Child Molesting, as a Class B felony, 1 Craig Allen
Decker (“Decker”) moved to withdraw his guilty plea, and the trial court
denied his motion. Decker focuses his appeal on whether the trial court abused
its discretion in denying his motion to withdraw the plea.
[2] We affirm.
Facts and Procedural History [3] On March 1, 2013, the State charged Decker with four counts of Child
Molesting (two as Class A felonies2 and two as Class C felonies3) and one count
of Intimidation, as a Class C felony.4 Decker and the State subsequently
reached a plea agreement whereby Decker would plead guilty to a single count
of Child Molesting as a Class B felony—a lesser-included offense of Count 1—
in exchange for dismissal of the remaining counts. A hearing was held on
October 5, 2016, at which Decker confirmed that he understood the terms of
the plea agreement and that he wished to plead guilty. The trial court took the
plea under advisement pending review of a pre-sentence investigation report.
1 Ind. Code § 35-42-4-3(a) (2012). 2 I.C. § 35-42-4-3(a)(1) (2012). 3 I.C. § 35-42-4-3(b) (2012). 4 I.C. §§ 35-45-2-1(a) (2013), -2-1(b)(2) (2013).
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 2 of 8 [4] Six months later, Decker moved to withdraw the guilty plea. In support of his
motion, Decker asserted his innocence and stated that “[a]dditional evidence
and/or witnesses heretofore unavailable ha[d] come forward with exculpatory
evidence.” App. Vol. II. at 142. The trial court held a hearing, which included
testimony from several witnesses. Among the witnesses was Decker, who
claimed that he was intoxicated on the evening in question, and remembered
waking up at a friend’s house the following morning. Decker also claimed that
he was under the influence of marijuana when pleading guilty.
[5] The trial court also heard testimony from Amy Friskey (“Friskey”), a former
girlfriend of Decker’s with whom Decker has two children. Friskey testified
that Decker was away from their shared residence when the victim spent the
night there. Friskey also testified that she had spoken negatively about Decker
to her sister—the victim’s mother—expressing concern that Decker would take
custody of the children. According to Decker, Friskey’s testimony suggested
that the victim could have been influenced to make allegations against Decker.
[6] The trial court denied the motion to withdraw the plea, and sentenced Decker
to fifteen years in the Department of Correction. This appeal ensued.
Discussion and Decision [7] 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; see
Carter v. State, 739 N.E.2d 126, 131 (Ind. 2000) (“[C]ourt permission is required
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 3 of 8 to withdraw a guilty plea, even when the plea has not been accepted and the
withdrawal request is based upon a protestation of innocence.”). The trial court
must grant a motion to withdraw a guilty plea “whenever the 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). As a general matter, we will not second-guess a trial court’s
evaluation of the facts and circumstances because it “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). Moreover, “[t]he trial
court’s ruling on 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] Decker contends that his guilty plea was involuntary, and that withdrawal of
the plea was therefore necessary 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
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 4 of 8 involuntariness, or when the circumstances of the plea reveal that the rights of
the accused were violated.” Id. at 62.
[9] “The long-standing test for the validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this
objective, Indiana Code Section 35-35-1-2 requires that the trial court make
several determinations before accepting a plea of guilty, among them, that the
defendant has been informed of the consequences of pleading guilty.
[10] Decker does not argue that the advisements he received were inadequate or that
the change of plea process was itself flawed.5 Indeed, Decker admits that “at
the time he offered his plea, he did so of his own volition, in that he balanced
the pros and cons of the then-prevailing circumstances, and, as such, did so
‘voluntarily.’” Appellant’s Br. at 12. Decker instead directs our attention to
Friskey’s “alibi” testimony, allegedly proffered because she “want[ed] to do the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 05 2017, 9:00 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 Samuel J. Beasley Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Craig Allen Decker, December 5, 2017 Appellant-Defendant, Court of Appeals Case No. 18A04-1705-CR-1097 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable John M. Feick, Appellee-Plaintiff. Judge Trial Court Cause No. 18C04-1303-FA-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 1 of 8 Case Summary [1] After pleading guilty to Child Molesting, as a Class B felony, 1 Craig Allen
Decker (“Decker”) moved to withdraw his guilty plea, and the trial court
denied his motion. Decker focuses his appeal on whether the trial court abused
its discretion in denying his motion to withdraw the plea.
[2] We affirm.
Facts and Procedural History [3] On March 1, 2013, the State charged Decker with four counts of Child
Molesting (two as Class A felonies2 and two as Class C felonies3) and one count
of Intimidation, as a Class C felony.4 Decker and the State subsequently
reached a plea agreement whereby Decker would plead guilty to a single count
of Child Molesting as a Class B felony—a lesser-included offense of Count 1—
in exchange for dismissal of the remaining counts. A hearing was held on
October 5, 2016, at which Decker confirmed that he understood the terms of
the plea agreement and that he wished to plead guilty. The trial court took the
plea under advisement pending review of a pre-sentence investigation report.
1 Ind. Code § 35-42-4-3(a) (2012). 2 I.C. § 35-42-4-3(a)(1) (2012). 3 I.C. § 35-42-4-3(b) (2012). 4 I.C. §§ 35-45-2-1(a) (2013), -2-1(b)(2) (2013).
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 2 of 8 [4] Six months later, Decker moved to withdraw the guilty plea. In support of his
motion, Decker asserted his innocence and stated that “[a]dditional evidence
and/or witnesses heretofore unavailable ha[d] come forward with exculpatory
evidence.” App. Vol. II. at 142. The trial court held a hearing, which included
testimony from several witnesses. Among the witnesses was Decker, who
claimed that he was intoxicated on the evening in question, and remembered
waking up at a friend’s house the following morning. Decker also claimed that
he was under the influence of marijuana when pleading guilty.
[5] The trial court also heard testimony from Amy Friskey (“Friskey”), a former
girlfriend of Decker’s with whom Decker has two children. Friskey testified
that Decker was away from their shared residence when the victim spent the
night there. Friskey also testified that she had spoken negatively about Decker
to her sister—the victim’s mother—expressing concern that Decker would take
custody of the children. According to Decker, Friskey’s testimony suggested
that the victim could have been influenced to make allegations against Decker.
[6] The trial court denied the motion to withdraw the plea, and sentenced Decker
to fifteen years in the Department of Correction. This appeal ensued.
Discussion and Decision [7] 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; see
Carter v. State, 739 N.E.2d 126, 131 (Ind. 2000) (“[C]ourt permission is required
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 3 of 8 to withdraw a guilty plea, even when the plea has not been accepted and the
withdrawal request is based upon a protestation of innocence.”). The trial court
must grant a motion to withdraw a guilty plea “whenever the 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). As a general matter, we will not second-guess a trial court’s
evaluation of the facts and circumstances because it “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). Moreover, “[t]he trial
court’s ruling on 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] Decker contends that his guilty plea was involuntary, and that withdrawal of
the plea was therefore necessary 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
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 4 of 8 involuntariness, or when the circumstances of the plea reveal that the rights of
the accused were violated.” Id. at 62.
[9] “The long-standing test for the validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this
objective, Indiana Code Section 35-35-1-2 requires that the trial court make
several determinations before accepting a plea of guilty, among them, that the
defendant has been informed of the consequences of pleading guilty.
[10] Decker does not argue that the advisements he received were inadequate or that
the change of plea process was itself flawed.5 Indeed, Decker admits that “at
the time he offered his plea, he did so of his own volition, in that he balanced
the pros and cons of the then-prevailing circumstances, and, as such, did so
‘voluntarily.’” Appellant’s Br. at 12. Decker instead directs our attention to
Friskey’s “alibi” testimony, allegedly proffered because she “want[ed] to do the
5 At the hearing on the motion to withdraw the plea, Decker suggested that he may have been under the influence of marijuana at the time he pleaded guilty. Decker refers to this testimony in his brief, but does not direct appellate argument to the issue of intoxication. We nonetheless observe that where there is credible evidence that a defendant was intoxicated when pleading guilty, the trial court must permit the defendant to withdraw the plea. See Coomer, 652 N.E.2d at 62 (citing Vonderschmidt v. State, 226 Ind. 439, 81 N.E.2d 782, 783 (1948)). Here, the trial court determined that Decker was “not credible.” Tr. Vol. II at 63. Moreover, the trial court observed that at the change of plea hearing, Decker “was able to take the oath and answer questions from his attorney and the court,” and did not appear to be intoxicated or unable to understand what was happening. App. Vol. II at 156. Thus, the trial court did not abuse its discretion in declining to permit withdrawal of the plea on the basis of alleged intoxication. Cf. Vonderschmidt, 81 N.E.2d at 783-84 (determining that withdrawal of a guilty plea was required where the defendant had displayed the effects of alcohol, smelled of alcohol, and an officer acknowledged that the defendant had consumed alcohol).
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 5 of 8 right thing.” Tr. Vol. II at 36. Decker essentially argues that, in hindsight—
given his alleged intoxication on the evening in question—he “was operating on
deficient and incorrect information at the time of his plea, and that this
information made it impossible for him to voluntarily enter a plea of guilty
pursuant to the plea agreement.” Appellant’s Br. at 10.
[11] At bottom, Decker’s argument amounts to an assertion of innocence that is
purportedly backed by newfound evidentiary support. Yet, “where a trial court
has followed the procedures outlined in the guilty plea statutes, and where the
defendant’s guilty plea is knowing and voluntary, his later assertion of
innocence does not require the trial court to set aside his guilty plea.” Carter v.
State, 724 N.E.2d 281, 285 (Ind. Ct. App. 2000), summarily aff’d, 739 N.E.2d at
131. Moreover, “[a]dmissions of guilt and assertions of innocence come in
many shades of gray, and the trial judge is best situated to assess the reliability
of each.” Carter, 739 N.E.2d at 129.
[12] In arguing that reversal is necessary to correct a manifest injustice, Decker
likens this case to Turner v. State, 843 N.E.2d 938, 944 (Ind. Ct. App. 2006).
There, the defendant pleaded guilty, and before he was sentenced, the Indiana
Supreme Court articulated a new approach to applicable constitutional law.
Turner, 843 N.E.2d at 941. The approach produced a new, credible defense that
was not available at the time of the guilty plea, and this Court ultimately
reasoned that the defendant “should have a fair opportunity to vindicate” his
constitutional rights. Id. at 944. Here, however, Decker has not identified any
development in constitutional law. Further, any “alibi” defense was not
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 6 of 8 entirely new, in that Decker claimed to remember waking up at a friend’s
house. Moreover, the trial court did not find Decker’s testimony to be credible,
and specifically observed that Decker had previously confessed and given
details about the molestation during a recorded police interview.6 The trial
court also observed that during the pre-sentence investigation interview, Decker
indicated that the decision to plead guilty was pragmatic. Furthermore, the trial
court expressed a “real credibility problem” with Friskey. Id. at 36. Giving
deference to the trial court’s evaluation of the facts and circumstances, we
cannot say that the trial court abused its discretion in determining that Decker
had not proved, by a preponderance of the evidence, that withdrawal of the plea
was necessary to correct a manifest injustice. See I.C. § 35-35-1-4.
[13] Even where there is no manifest injustice, the permissive statute gives the trial
court discretion to permit withdrawal of a plea “for any fair and just reason
unless the state has been substantially prejudiced by reliance upon the
defendant’s plea.” I.C. § 35-35-1-4(b). Here, the trial court determined that the
State had been substantially prejudiced due to the passage of time, observing
that it had been several years since the alleged incidents, and that attempting to
prove the allegations would involve testimony from children whose memories
may have faded. Nonetheless, even if we assume arguendo that the State failed
to demonstrate that it had been substantially prejudiced by its reliance on the
6 The trial court relied, in part, upon this police-recorded interview with Decker. On appeal, however, the recording was omitted from the record. Decker subsequently filed a motion to correct this oversight and asked us to include this interview in the record on appeal. In a separate order, we granted his request.
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 7 of 8 plea, in light of the credibility determination made against Decker, we cannot
say that the trial court abused its discretion in declining to grant the motion. See
Carter, 739 N.E.2d at 131 (determining that the trial court did not err in denying
permission to withdraw a guilty plea, despite a later protestation of innocence).
Conclusion [14] Decker has not demonstrated that the trial court abused its discretion in
denying his motion to withdraw the plea of guilty.
[15] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A04-1705-CR-1097 | December 5, 2017 Page 8 of 8