Timothy A. Ebertshauser v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 20, 2019
• Docket: 19A-CR-746
• 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 Dec 20 2019, 7:42 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 R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy A. Ebertshauser, December 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-746 v. Appeal from the Scott Circuit Court State of Indiana, The Honorable Jason Mount, Appellee-Plaintiff. Judge Trial Court Cause No. 72C01-1811-F5-62

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 1 of 6 Statement of the Case [1] Timothy Ebertshauser (“Ebertshauser”) appeals the trial court’s denial of his

motion to withdraw his guilty plea. Concluding that the trial court did not

abuse its discretion when it denied Ebertshauser’s motion, we affirm the trial

court’s denial.

[2] We affirm.

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

Facts [3] In December 2017, a confidential informant purchased methamphetamine from

Ebertshauser. The informant was wearing audio and video recording devices,

and sheriff’s department deputies were monitoring the transaction. The State

subsequently charged Ebertshauser with Level 5 felony dealing in

methamphetamine.

[4] At a January 2019 hearing, the trial court advised Ebertshauser as follows:

I must be satisfied that you fully understand your constitutional rights, that your plea of guilty is made freely and voluntarily and that you, in fact, committed the crime.

(Tr. at 4). The trial court also asked Ebertshauser if he understood that, by

pleading guilty, he would “be admitting to the offense as charged, [he’d] be

Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 2 of 6 judged guilty and sentenced without a trial.” (Tr. at 809). Ebertshauser

responded that he did. Thereafter, Ebertshauser admitted under oath that he

had “knowingly or intentionally deliver[ed] methamphetamine, pure or

adulterated, to another individual.” (Tr. at 11). The trial court responded as

follows:

Upon your plea of guilty, the Court will find that you are guilty. We’ll accept, approve and order this agreement. We’ll find that Timothy A. Ebertshauser is 28 years of age, that he understands the nature of the charge against him to which he is pleading guilty, that he understands the potential penalties for the crime. His plea is feely and voluntarily made and there is a factual basis for the plea. Court accepts the plea of guilty and finds Timothy Ebertshauser guilty of count I, dealing in methamphetamine.

(Tr. at 11-12). Thereafter, the trial court ordered a presentence investigation

report and scheduled a sentencing hearing.

[5] At the February 2019 sentencing hearing, Ebertshauser orally moved to

withdraw his plea. According to Ebertshauser, he had seen the probable cause

affidavit in the presentence investigation report and there was information in

the affidavit that led him to believe that he could be acquitted at trial. The trial

court set the matter for a hearing and directed Ebertshauser to file a written

motion to withdraw his guilty plea. In response, Ebertshauser filed an

unverified written motion, which requested that the trial court withdraw the

guilty plea but did not set forth specific facts supporting the request.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 3 of 6 [6] The trial court held a hearing on the motion in March 2019. At the hearing,

Ebertshauser argued that: (1) he had not pled guilty at the January 2019

hearing; and (2) after reading the probable cause affidavit that was attached to

the presentence investigation report, he did not believe there was sufficient

evidence to sustain a conviction. At the end of the hearing, the trial court noted

that Ebertshauser had: (1) pled guilty pursuant to a signed and filed plea

agreement; and (2) established a factual basis for the guilty plea. Thereafter, the

trial court denied his motion to withdraw his guilty plea. Ebertshauser appeals

the denial of his motion.

Decision [7] At the outset, we note that INDIANA CODE § 35-35-1-4(b) provides that the

motion to withdraw the guilty plea “shall be in writing and verified.” The

statute further provides that the motion “shall state the facts in support of the

relief demanded[.]” Id. Ebertshauser’s motion was not verified and did not

include the facts in support of the relief demanded. He has therefore waived

appellate review of this issue. See Carter v. State, 739 N.E.2d 126, 128 n.3 (Ind.

2000) (explaining 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).

[8] Waiver notwithstanding, we find no error. After a defendant has entered a

guilty plea, the defendant may withdraw the plea only by obtaining the

permission of the trial court. I.C. § 35-35-1-4(b). The trial court must grant a

motion to withdraw a guilty plea “whenever the defendant proves that Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 4 of 6 withdrawal of the plea is necessary to correct a manifest injustice.” Id. The

trial court may grant the motion “for any fair and just reason unless the state

has been substantially prejudiced by reliance on the defendant’s plea.” Id. The

defendant “has the burden of establishing the 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).

[9] As a general matter, we will not second-guess a trial court’s evaluation of the

facts and circumstances because the trial court “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). The 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. Croomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).

[10] Ebertshauser first argues that the trial court abused its discretion when it denied

his motion to withdraw his guilty plea because he did not plead guilty at the

January 2019 hearing. According to Ebertshauser, withdrawal of his plea is

necessary to correct this manifest injustice. However, our review of the

transcript of that hearing reveals that Ebertshauser pled guilty when he

admitted under oath that he had “knowingly or intentionally deliver[ed]

methamphetamine, pure or adulterated, to another individual.” (Tr. at 11).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 5 of 6 The trial court accepted this plea and found Ebertshauser to be guilty of dealing

in methamphetamine. Ebertshauser’s argument therefore fails.

[11] Ebertshauser further argues that the trial court erred in denying his motion to

withdraw his guilty plea because information in the probable cause affidavit led

him to believe that he could be acquitted at a trial. According to Ebertshauser,

this information provides a fair and just reason for withdrawing his plea.

Ebertshauser, however, has failed to set forth specific facts supporting his claim.

He has, therefore, failed to meet his burden to show his grounds for relief by a

preponderance of the evidence. See Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct.

App. 1992) (explaining that a defendant has the burden to prove with specific

facts that he should be permitted to withdraw his plea). The trial court did not

abuse its discretion in denying Ebertshauser’s motion to withdraw his guilty

plea.

Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-746 | December 20, 2019 Page 6 of 6