Timothy A. Ebertshauser v. State of Indiana (mem. dec.) ( 2019 )

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.
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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
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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.
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[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
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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).
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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.
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