Brian Earl Smith v. State of Indiana ( 2014 )


Menu:
  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before                                         Jun 25 2014, 10:00 am
    any court except for the purpose of
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:
    BRIAN EARL SMITH                                    GREGORY F. ZOELLER
    Plymouth, Indiana                                   Attorney General of Indiana
    KATHERINE MODESITT COOPER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    BRIAN EARL SMITH,                                   )
    )
    Appellant-Defendant,                         )
    )
    vs.                                  )      No. 50A05-1308-CR-444
    )
    STATE OF INDIANA,                                   )
    )
    Appellee-Plaintiff.                          )
    APPEAL FROM THE MARSHALL SUPERIOR COURT
    The Honorable Robert O. Bowen, Judge
    Cause No. 50D01-0908-FC-35
    June 25, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    MAY, Judge
    Brian Earl Smith appeals the trial court’s summary denial of his motion to withdraw
    his guilty plea. We reverse and remand for a hearing.
    FACTS AND PROCEDURAL HISTORY
    In August 2009, the State charged Smith with one misdemeanor and six felony drug
    counts. Smith pled guilty to one of the felonies, and the trial court entered the conviction as a
    class A misdemeanor. The trial court sentenced Smith to one year in jail, all suspended to
    probation.
    In July 2013, Smith, acting pro se, filed a verified motion to withdraw his guilty plea.
    Smith explained his plea was entered due to ineffective counsel. Specifically, Smith
    explained that he “was not aware of the ramifications that a guilty plea would have on the
    suppression of evidence in this cause and was not advised of such.” (Appellant’s Amended
    App. at 19.) The trial court summarily denied the motion without a hearing. Smith appeals.
    DISCUSSION AND DECISION
    Smith argues that the trial court erred in summarily denying his motion without a
    hearing. Pursuant to Ind. Code §35-35-1-4(c), a motion to withdraw a guilty plea after
    sentencing is treated as a petition for post-conviction relief. State v. Oney, 
    993 N.E.2d 157
    ,
    161 (Ind. 2013). A post-conviction court errs in summarily disposing of a petition unless
    “the pleadings conclusively show that petitioner is entitled to no relief . . . .” Indiana Post-
    Conviction Rule 1, Section 4(f). If the facts pled raise an issue of possible merit, then the
    petition should not be disposed of under section 4(f). Allen v. State, 
    791 N.E.2d 748
    , 752
    (Ind. Ct. App. 2003), trans. denied. This is true even though the petitioner has only a remote
    2
    chance of establishing his claim. 
    Id. The allegation
    of ineffective assistance of counsel is
    generally a question of fact that precludes summary disposition in a petition for post-
    conviction relief. Evolga v. State, 
    722 N.E.2d 370
    , 372 (Ind. Ct. App. 2000). In Evolga, we
    held that the effectiveness of Evolga’s counsel was a question of fact that precluded summary
    disposition where Evolga asserted multiple allegations that counsel was ineffective and the
    State responded with only an unverified general denial. 
    Id. at 374.
    Here, Smith alleges his guilty plea was entered because his counsel was ineffective
    and he was not aware of the ramifications that a guilty plea would have on the suppression of
    evidence in this case and was not advised of such. It appears the State did not respond. Thus
    the pleadings do not conclusively show that Smith is not entitled to relief because questions
    of fact remain regarding whether Smith received effective assistance of counsel. We
    therefore reverse and remand for a hearing at which Smith can present evidence in support of
    his ineffective assistance of counsel claim. See Binkley v. State, 
    993 N.E.2d 645
    (Ind. Ct.
    App. 2013).
    Reversed and remanded.
    VAIDIK, C.J., and RILEY, J., concur.
    3
    

Document Info

Docket Number: 50A05-1308-CR-444

Filed Date: 6/25/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021