Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 27 2014, 9:58 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TY C. WILKERSON, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1307-CR-609 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1302-FC-8
March 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge STATEMENT OF THE CASE
Ty Wilkerson appeals his conviction and eight-year sentence for Class C felony
battery resulting in serious bodily injury. We affirm.
ISSUES
Wilkerson presents two issues: (1) whether the trial court abused its discretion by
denying defense counsel’s motion to withdraw his appearance, and (2) whether
Wilkerson’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On February 7, 2013, Wilkerson and Aaron Miller were detained in the
Tippecanoe County Jail. Miller was in the common dayroom waiting for lunch trays to
arrive when Wilkerson walked up and said Miller’s teeth looked like pea gravel. Miller
responded by calling Wilkerson “Smeagol,” a character from a movie they had just seen.
They both laughed. Wilkerson then approached Miller as if he was going to hit him but
walked off instead.
Miller talked with another inmate waiting for the lunch trays when he was
suddenly “hit out of nowhere.” Tr. p. 104. Wilkerson had punched him and left. The
punch broke one of Miller’s teeth and caused his cheek to bleed, so he went to his cell to
clean off his face. As he was wiping blood from his face, Wilkerson entered his cell and
struck him repeatedly in the face.
Miller was taken to a Lafayette hospital, where a CT scan showed several fractures
in his face. He was transported to St. Vincent Hospital in Indianapolis, where he
underwent surgery on his orbital bone that involved placing a titanium plate in his face.
2 On February 13, 2013, the State charged Wilkerson with Class C felony battery
resulting in serious bodily injury. The same day, the trial court held an initial hearing and
set the case for a jury trial on May 14, 2013. Wilkerson filed a pro se motion for an early
trial on February 20, 2013, and defense counsel filed an appearance on February 26,
2013. The trial date was reaffirmed on March 15, 2013 and April 12, 2013, with
Wilkerson specifically agreeing on April 12, 2013 to enlarge the speedy trial deadline to
include May 14, 2013.
On April 30, 2013, the trial court ordered jurors to be summoned for Wilkerson’s
trial. The next day on May 1, 2013, defense counsel filed a motion to withdraw his
appearance. The motion stated that: (1) Wilkerson had requested new counsel; (2) the
relationship between Wilkerson and defense counsel had “deteriorated to the point that
Counsel does not feel that he can effectively continue to represent” Wilkerson; (3)
Wilkerson believed he could not rely on counsel’s advice; and (4) Wilkerson was aware
that the appointment of new counsel would effectively waive his speedy trial right.
Appellant’s App. p. 53.
The trial court held a hearing on the motion on May 2, 2013. At the hearing,
defense counsel stated that the motion was based on events during a hearing the previous
week on Wilkerson’s motion to withdraw his guilty plea in a separate case. At that
hearing, defense counsel explained, he and Wilkerson testified to differing recollections
about what had occurred in that case. Thereafter, defense counsel continued, Wilkerson
did not believe he could rely on counsel’s advice. When the trial court asked for the
State’s position, the deputy prosecutor agreed that Wilkerson and his counsel had
3 provided conflicting testimony at the hearing on the other case but left the decision on the
motion to withdraw appearance to the court’s discretion. The court denied the motion.
Wilkerson’s jury trial began twelve days later as scheduled. Miller testified that
he continued to experience impaired vision, difficulty breathing through his nose, and
pain in his face as a result of the attack. Wilkerson testified in his own defense, admitting
he struck Miller once in the dayroom. However, he denied attacking Miller in his cell.
Instead, he said he went to Miller’s cell to check on him because Miller was yelling and
screaming, and while he was there he saw Miller bang his own head against the sink.
The jury found Wilkerson guilty as charged. At Wilkerson’s sentencing hearing,
the trial court identified three aggravating circumstances: (1) his history of criminal or
delinquent activity; (2) his recent violations of the conditions of probation and the rules
of a detention facility; and (3) his lack of remorse. The court also identified three
mitigating circumstances: (1) his emotional state at the time of the crime; (2) his mental
health issues; and (3) his difficult childhood. Finding that the aggravators outweighed the
mitigators, the trial court sentenced Wilkerson to eight years. Wilkerson now appeals.
DISCUSSION AND DECISION
I. DENIAL OF MOTION TO WITHDRAW APPEARANCE
Wilkerson first contends the trial court erred by denying defense counsel’s motion
to withdraw his appearance. An indigent defendant has the right to representation by
counsel; however, he has no right to representation by court-appointed counsel of his
choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Whether to allow counsel to
withdraw is within a trial court’s sound discretion. Bronaugh v. State, 942 N.E.2d 826,
4 829 (Ind. Ct. App. 2011), trans. denied. A trial court may refuse a motion to withdraw if
it determines withdrawal will result in a delay in the administration of justice. Moore,
557 N.E.2d at 668. Further, a defendant must demonstrate that he was prejudiced before
we may reverse on this issue. Bronaugh, 942 N.E.2d at 830.
Wilkerson’s May 14, 2013 trial date was set on February 13, 2013 and reaffirmed
on both March 15, 2013 and April 12, 2013. On April 30, 2013, the trial court ordered
jurors to be summoned for trial. It was not until May 1, 2013, less than two weeks before
trial, that defense counsel filed the motion to withdraw.
At a hearing on the motion the next day, the trial court acknowledged the
conflicting testimony between Wilkerson and defense counsel at a hearing in a separate
cause number just the week before but noted the subject of that hearing had been at issue
since before Wilkerson had filed his speedy trial motion in this case. Tr. pp. 3-4. The
court also noted that the May 14, 2013 trial date had been set for some time and that
Wilkerson and defense counsel’s disagreement in the separate cause did not rise to the
level of the kind of conflict that would require last-minute scheduling changes in this
case. Id. at 4, 6.
Under the circumstances here, the trial court was within its discretion in
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 27 2014, 9:58 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY P. BRODEN GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TY C. WILKERSON, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1307-CR-609 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1302-FC-8
March 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge STATEMENT OF THE CASE
Ty Wilkerson appeals his conviction and eight-year sentence for Class C felony
battery resulting in serious bodily injury. We affirm.
ISSUES
Wilkerson presents two issues: (1) whether the trial court abused its discretion by
denying defense counsel’s motion to withdraw his appearance, and (2) whether
Wilkerson’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
On February 7, 2013, Wilkerson and Aaron Miller were detained in the
Tippecanoe County Jail. Miller was in the common dayroom waiting for lunch trays to
arrive when Wilkerson walked up and said Miller’s teeth looked like pea gravel. Miller
responded by calling Wilkerson “Smeagol,” a character from a movie they had just seen.
They both laughed. Wilkerson then approached Miller as if he was going to hit him but
walked off instead.
Miller talked with another inmate waiting for the lunch trays when he was
suddenly “hit out of nowhere.” Tr. p. 104. Wilkerson had punched him and left. The
punch broke one of Miller’s teeth and caused his cheek to bleed, so he went to his cell to
clean off his face. As he was wiping blood from his face, Wilkerson entered his cell and
struck him repeatedly in the face.
Miller was taken to a Lafayette hospital, where a CT scan showed several fractures
in his face. He was transported to St. Vincent Hospital in Indianapolis, where he
underwent surgery on his orbital bone that involved placing a titanium plate in his face.
2 On February 13, 2013, the State charged Wilkerson with Class C felony battery
resulting in serious bodily injury. The same day, the trial court held an initial hearing and
set the case for a jury trial on May 14, 2013. Wilkerson filed a pro se motion for an early
trial on February 20, 2013, and defense counsel filed an appearance on February 26,
2013. The trial date was reaffirmed on March 15, 2013 and April 12, 2013, with
Wilkerson specifically agreeing on April 12, 2013 to enlarge the speedy trial deadline to
include May 14, 2013.
On April 30, 2013, the trial court ordered jurors to be summoned for Wilkerson’s
trial. The next day on May 1, 2013, defense counsel filed a motion to withdraw his
appearance. The motion stated that: (1) Wilkerson had requested new counsel; (2) the
relationship between Wilkerson and defense counsel had “deteriorated to the point that
Counsel does not feel that he can effectively continue to represent” Wilkerson; (3)
Wilkerson believed he could not rely on counsel’s advice; and (4) Wilkerson was aware
that the appointment of new counsel would effectively waive his speedy trial right.
Appellant’s App. p. 53.
The trial court held a hearing on the motion on May 2, 2013. At the hearing,
defense counsel stated that the motion was based on events during a hearing the previous
week on Wilkerson’s motion to withdraw his guilty plea in a separate case. At that
hearing, defense counsel explained, he and Wilkerson testified to differing recollections
about what had occurred in that case. Thereafter, defense counsel continued, Wilkerson
did not believe he could rely on counsel’s advice. When the trial court asked for the
State’s position, the deputy prosecutor agreed that Wilkerson and his counsel had
3 provided conflicting testimony at the hearing on the other case but left the decision on the
motion to withdraw appearance to the court’s discretion. The court denied the motion.
Wilkerson’s jury trial began twelve days later as scheduled. Miller testified that
he continued to experience impaired vision, difficulty breathing through his nose, and
pain in his face as a result of the attack. Wilkerson testified in his own defense, admitting
he struck Miller once in the dayroom. However, he denied attacking Miller in his cell.
Instead, he said he went to Miller’s cell to check on him because Miller was yelling and
screaming, and while he was there he saw Miller bang his own head against the sink.
The jury found Wilkerson guilty as charged. At Wilkerson’s sentencing hearing,
the trial court identified three aggravating circumstances: (1) his history of criminal or
delinquent activity; (2) his recent violations of the conditions of probation and the rules
of a detention facility; and (3) his lack of remorse. The court also identified three
mitigating circumstances: (1) his emotional state at the time of the crime; (2) his mental
health issues; and (3) his difficult childhood. Finding that the aggravators outweighed the
mitigators, the trial court sentenced Wilkerson to eight years. Wilkerson now appeals.
DISCUSSION AND DECISION
I. DENIAL OF MOTION TO WITHDRAW APPEARANCE
Wilkerson first contends the trial court erred by denying defense counsel’s motion
to withdraw his appearance. An indigent defendant has the right to representation by
counsel; however, he has no right to representation by court-appointed counsel of his
choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Whether to allow counsel to
withdraw is within a trial court’s sound discretion. Bronaugh v. State, 942 N.E.2d 826,
4 829 (Ind. Ct. App. 2011), trans. denied. A trial court may refuse a motion to withdraw if
it determines withdrawal will result in a delay in the administration of justice. Moore,
557 N.E.2d at 668. Further, a defendant must demonstrate that he was prejudiced before
we may reverse on this issue. Bronaugh, 942 N.E.2d at 830.
Wilkerson’s May 14, 2013 trial date was set on February 13, 2013 and reaffirmed
on both March 15, 2013 and April 12, 2013. On April 30, 2013, the trial court ordered
jurors to be summoned for trial. It was not until May 1, 2013, less than two weeks before
trial, that defense counsel filed the motion to withdraw.
At a hearing on the motion the next day, the trial court acknowledged the
conflicting testimony between Wilkerson and defense counsel at a hearing in a separate
cause number just the week before but noted the subject of that hearing had been at issue
since before Wilkerson had filed his speedy trial motion in this case. Tr. pp. 3-4. The
court also noted that the May 14, 2013 trial date had been set for some time and that
Wilkerson and defense counsel’s disagreement in the separate cause did not rise to the
level of the kind of conflict that would require last-minute scheduling changes in this
case. Id. at 4, 6.
Under the circumstances here, the trial court was within its discretion in
determining that defense counsel’s withdrawal would delay the administration of justice.
More significantly, Wilkerson fails to demonstrate that he was prejudiced by defense
counsel’s continued representation. Although the motion to withdraw stated Wilkerson
did not believe he could rely on counsel’s advice, he fails to point to anything counsel did
or did not do while representing him in this case that resulted in prejudice.
5 We thus conclude the trial court did not abuse its discretion by denying defense
counsel’s motion to withdraw his appearance. See Moore, 557 N.E.2d at 668 (denial of
motion to withdraw not abuse of discretion where motion arose within three weeks of
trial and appellant did not demonstrate that continued representation prejudiced him);
Bronaugh, 942 N.E.2d at 830 (denial of motion to withdraw not abuse of discretion
where hearing on motion was one month before trial and appellant did not demonstrate
that continued representation prejudiced him).
II. INAPPROPRIATE SENTENCE
Wilkerson next contends his sentence is inappropriate. Although a trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of a
sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a
sentence authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(2007)). The defendant has the burden of persuading us that his sentence is
inappropriate. Id.
We first look to the statutory range established for the class of the offense.
Wilkerson was convicted of a Class C felony. The statutory range for a Class C felony is
between two and eight years, with the advisory sentence being four years. Ind. Code §
35-50-2-6(a) (2005). Wilkerson received the maximum sentence of eight years.
6 We next look to the nature of the offense and Wilkerson’s character. As to the
nature of the offense, Wilkerson attacked Miller while they were detained in the
Tippecanoe County Jail. As the trial court noted, “An assault in the jail on a fellow
detainee or fellow prisoner, as the case may be, is about as serious of an assault as you
can think of because both parties are under --- both parties have limited ability to walk
away from a fight . . . .” Tr. p. 220. Without warning, Wilkerson punched Miller in the
dayroom, knocking out a tooth. He then followed Miller into his cell, where he struck
him repeatedly in the face. Miller’s injuries required him to be transported to an
Indianapolis hospital, where a titanium plate was placed in his face.
As to his character, Wilkerson was twenty years old at the time of this offense, yet
at that young age he already had a substantial record. As a juvenile, he was adjudicated a
delinquent child for what would be petty theft/grand theft, trespass, and receiving stolen
property if committed by an adult. As an adult, he has misdemeanor convictions for
Class A false informing, Class B public intoxication, Class C illegal consumption of an
alcoholic beverage, and Class C operating without ever receiving a license. He has
felony convictions for Class A dealing in a narcotic drug and Class C burglary. Although
his previous crimes have not involved violence, the current Class C felony battery
resulting in serious bodily injury conviction shows an escalation in his criminal behavior.
Moreover, this crime was committed while Wilkerson was detained awaiting
disposition of his Class A dealing case. That he would attack a fellow inmate while in
jail awaiting the disposition of a major felony case demonstrates his poor character and
his lack of respect for others and for the law.
7 In short, Wilkerson has failed to persuade us that his sentence is inappropriate.
CONCLUSION
We therefore affirm his conviction and sentence.
RILEY, J., and MAY, J., concur.