Justin Scott Colvin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2017
• Docket: 36A05-1701-CR-107
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 31 2017, 10:46 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Angela Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Scott Colvin, May 31, 2017 Appellant-Defendant, Court of Appeals Case No. 36A05-1701-CR-107 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable William E. Vance, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 36C01-1412-F1-1

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 1 of 6 Statement of the Case [1] Justin Scott Colvin (“Colvin”) appeals the trial court’s denial of his request to

withdraw his guilty plea to Level 2 felony robbery resulting in serious bodily

injury1 and his admission that he was an habitual offender.2 He argues that the

trial court should have granted his request to withdraw his guilty plea because

he did not have sufficient time to consider the effect the plea would have on his

life. Because Colvin did not submit a written and verified motion to withdraw

his plea, we conclude that he has waived his argument. Waiver

notwithstanding, we also conclude that Colvin failed to adequately support his

motion.

[2] We affirm.

Issue Whether the trial court abused its discretion when it denied Colvin’s oral motion to withdraw his guilty plea.

Facts [3] On December 23, 2014, the State charged Colvin with Level 1 felony burglary, 3

Level 2 felony robbery resulting in serious bodily injury, Level 3 felony

1 IND. CODE § 35-42-5-1(2). 2 I.C. § 35-50-2-8. 3 I.C. § 35-43-2-1.

Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 2 of 6 aggravated battery,4 and Level 3 felony criminal confinement. Subsequently,

the State amended Colvin’s charges to add a charge of Level 1 felony attempted

murder and an allegation that Colvin was an habitual offender.

[4] Almost two years later, on October 27, 2016, Colvin pled guilty pursuant to a

written plea agreement with the State to Level 2 felony robbery resulting in

serious bodily injury and admitted to being an habitual offender. He and the

State agreed that he would serve an aggregate sentence of forty (40) years—

thirty (30) years for the Level 2 felony and an enhancement of ten (10) years for

the habitual offender adjudication—and that, in exchange for his guilty plea,

the State would dismiss the remaining four charges against him. Colvin also

signed an advisement of rights form.

[5] That same day, the trial court held a hearing on the guilty plea agreement and

confirmed that Colvin had signed both the negotiated plea agreement and the

advisement of rights form. The trial court also reviewed the sentencing ranges

for the two offenses to which Colvin was pleading guilty and asked if he still

wished to proceed with the guilty plea hearing. Colvin said he did, then

reviewed the guilty plea agreement and acknowledged that he had agreed to the

terms of the agreement. He then established the factual basis for his guilty plea

and pled guilty.

4 I.C. § 35-42-2-1.5(2).

Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 3 of 6 [6] On November 30, 2016, the trial court held a sentencing hearing. There,

Colvin made an oral motion to withdraw his guilty plea. The State argued that

the motion was not validly before the court because a motion to withdraw a

guilty plea must be in writing and verified. The State also noted that the guilty

plea had been free and voluntary and that the only portion of the agreement

that the trial court had taken under advisement was acceptance of the

sentencing portion of the agreement. The trial court agreed that it “had nothing

before it to consider” and denied the motion to withdraw. (Tr. 17). Thereafter,

the trial court sentenced Colvin according to the terms of the plea agreement.

Colvin now appeals.

Decision [7] On appeal, Colvin argues that the trial court abused its discretion when it

denied his motion to withdraw his guilty plea. He acknowledges that he signed

the plea agreement and pled guilty at the guilty plea hearing. However, he

asserts that the trial court should have granted the motion because he had not

had time to adequately consider the effect the plea would have on his life when

he entered into the plea agreement with the State.

[8] INDIANA CODE § 35-35-1-4(b) governs the withdrawal of a guilty plea prior to

sentencing. It provides:

[T]he court may allow the defendant by motion to withdraw his plea of guilty . . . for any fair and just reason unless the [S]tate has been substantially prejudiced by reliance upon the defendant’s plea. The motion to withdraw the plea of guilty . . . made under this subsection shall be in writing and verified. The motion shall Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 4 of 6 state facts in support of the relief demanded, and the [S]tate may file counter-affidavits in opposition of the motion. 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.

I.C. § 35-35-1-4(b) (emphasis added).

[9] Based on this provision, Indiana courts have noted that “‘[a] defendant’s failure

to submit a verified, written motion to withdraw a guilty plea generally results

in waiver of the issue of wrongful denial of the request.’” Peel v. State, 951

N.E.2d 269 (Ind. Ct. App. 2011) (quoting Carter v. State, 739 N.E.2d 126, 128

n.3 (Ind. 2000)) (finding waiver because Peel made an oral motion to withdraw

his guilty plea rather than a verified and written motion). Accordingly, because

Colvin did not submit a verified, written motion to withdraw his guilty plea, we

conclude that he has waived the issue of the trial court’s denial of the request.

See id.

[10] Waiver notwithstanding, we also conclude that the trial court did not abuse its

discretion when it denied Colvin’s motion to withdraw the plea agreement

because Colvin did not provide any “facts in support of the relief [he]

demanded,” as required by statute, and, therefore, did not present any facts

showing that withdrawal of the plea was necessary to correct a manifest

injustice. I.C. § 35-35-1-4(b).

[11] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 5 of 6 May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 6 of 6