§ 35-35-1-4 — Withdrawal of plea; motion; requisites; procedures

Indiana § 35-35-1-4

• Jurisdiction: Indiana
• Art. 35: PLEADING AND PROCEDURE
• Ch. 1: Pleas

Text

(a) A motion to withdraw a plea of not guilty
for the purpose of entering a plea of guilty, or guilty but mentally ill at
the time of the crime, may be made orally in open court and need not
state any reason for the withdrawal of the plea.
(b) After entry of a plea of guilty, or guilty but mentally ill at the
time of the crime, but before imposition of sentence, the court may
allow the defendant by motion to withdraw his plea of guilty, or guilty
but mentally ill at the time of the crime, for any fair and just reason
unless the state has been substantially prejudiced by reliance upon the
defendant's plea. The motion to withdraw the plea of guilty or guilty
but mentally ill at the time of the crime made under this subsection
shall be in writing and verified. The motion shall state facts in support
of the relief demanded, and the state may file counter-affidavits in
opposition to 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, or guilty
but mentally ill at the time of the crime, whenever the defendant proves
that withdrawal of the plea is necessary to correct a manifest injustice.
(c) After being sentenced following a plea of guilty, or guilty but
mentally ill at the time of the crime, the convicted person may not as
a matter of right withdraw the plea. However, upon motion of the
convicted person, the court shall vacate the judgment and allow the
withdrawal whenever the convicted person proves that withdrawal is
necessary to correct a manifest injustice. A motion to vacate judgment
and withdraw the plea made under this subsection shall be treated by
the court as a petition for postconviction relief under the Indiana Rules
of Procedure for Postconviction Remedies. For purposes of this section,
withdrawal of the plea is necessary to correct a manifest injustice
whenever:
(1) the convicted person was denied the effective assistance of
counsel;
(2) the plea was not entered or ratified by the convicted person;
(3) the plea was not knowingly and voluntarily made;
(4) the prosecuting attorney failed to abide by the terms of a plea
agreement; or
(5) the plea and judgment of conviction are void or voidable for
any other reason.
The motion to vacate the judgment and withdraw the plea need not
allege, and it need not be proved, that the convicted person is innocent
of the crime charged or that he has a valid defense.
(d) A plea of guilty, or guilty but mentally ill at the time of the
crime, which is not accepted by the court or is withdrawn shall not be
admissible as evidence in any criminal, civil, or administrative
proceeding.
(e) Upon any motion made under this section, the moving party has
the burden of establishing his grounds for relief by a preponderance of
the evidence. The order of the court upon a motion made under
subsection (b) or (c) of this section shall constitute a final judgment
from which the moving party or the state may appeal as otherwise
provided by law. The order of the court upon a motion made under
subsection (a) of this section is not a final judgment and is not
appealable but is reviewable upon appeal from a final judgment
subsequently entered.
As added by Acts 1981, P.L.298, SEC.4. Amended by Acts
1982, P.L.204, SEC.25; P.L.320-1983, SEC.17.