Seth McCullough v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 27 2020, 9:10 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Seth McCullough, August 27, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-726
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Hon. Steven P. Meyer, Judge
Appellee-Plaintiff. Trial Court Cause No.
79D02-1812-F1-13
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 1 of 10
Case Summary
[1] On December 16, 2018, Seth McCullough spent the night at his cousin’s house
and, at some point, went into the room of his cousin’s four-year-old daughter
B.O. McCullough had vaginal intercourse with B.O. and inflicted head and
neck injuries on her. The State eventually charged McCullough with eight
counts, including Level 1 felony child molesting, Level 5 felony battery, and
Level 6 felony battery by bodily waste. In July of 2019, McCullough pled guilty
to those three charges, and the trial court took the matter under advisement
until sentencing. In February of 2020, McCullough’s trial counsel moved to
withdraw his guilty plea. After a hearing, the trial court denied McCullough’s
motion to withdraw and sentenced him to an aggregate sentence of fifty years of
incarceration with five years suspended to probation. McCullough contends
that the trial court abused its discretion in denying his motion to withdraw his
guilty pleas. Because we disagree, we affirm.
Facts and Procedural History
[2] On December 16, 2018, the HIV-positive McCullough and his brother went to
their cousin’s house in Tippecanoe County, in which the cousin lived with his
wife and his two daughters, including four-year-old B.O. McCullough drank
alcohol and at some point went into B.O.’s bedroom, had sexual intercourse
with her, and caused injuries to her head and neck. The next morning, after
McCullough and his brother left, B.O. told her mother that her vagina and head
hurt. B.O. was taken to Riley Children’s Hospital, where it was determined
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 2 of 10
that she had suffered lacerations to her vagina and anus and bruising and
lacerations to her head and neck. McCullough’s semen was identified in B.O.’s
underwear, his DNA was found on a genital swab, and, although B.O. did not
test positive for HIV, she did develop genital warts.
[3] Eventually, the State charged McCullough with two counts of Level 1 felony
child molesting, Level 4 felony child molesting, Level 5 felony battery, Level 6
felony strangulation, two counts of Level 6 felony battery by bodily waste, and
Level 6 felony failure to warn by a carrier of a dangerous communicable
disease. On July 15, 2019, McCullough executed a document indicating that he
had reviewed the evidence the State intended to use against him, had consulted
with his attorney regarding the benefits of a jury trial, understood his rights, and
intended to plead guilty to three charges. On July 16, 2019, McCullough pled
guilty to Level 1 felony child molesting, Level 5 felony battery, and Level 6
felony battery by bodily waste in exchange for dismissal of the other five
charges. On February 13, 2020, McCullough moved to withdraw his guilty
pleas. After a hearing held on February 28, 2020, the trial court denied
McCullough’s motion to withdraw his guilty pleas, and, on March 6, 2020, the
trial court sentenced McCullough to an aggregate sentence of fifty years of
incarceration with five years suspended to probation.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 3 of 10
Whether the Trial Court Abused its
Discretion in Denying McCullough’s
Motion to Withdraw his Guilty Pleas
[4] McCullough contends that the trial court abused its discretion in denying his
motion to withdraw his guilty pleas to Level 1 felony child molesting, Level 5
felony battery, and Level 6 felony battery by bodily waste. Indiana Code
Section 35-35-1-4(b) provides, in part, as follows:
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 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.
A trial court’s ruling on a motion to withdraw a guilty plea “arrives in this court
with a presumption in favor of the ruling.” Brightman v. State, 758 N.E.2d 41,
44 (Ind. 2001). In determining whether a trial court has abused its discretion in
denying a motion to withdraw a guilty plea, we examine the statements made
by the defendant at the change-of-plea hearing to decide whether the plea was
offered “freely and knowingly.” Id.A. Professed Lack of Memory of the Crimes
[5] McCullough first contends that the trial court abused its discretion in denying
his motion to withdraw his guilty pleas because he claimed to have no memory
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 4 of 10
of his crimes at his change-of-plea hearing. McCullough argues that this
professed lack of memory is equivalent to a denial of guilt. “[A]n Indiana trial
court may not accept a guilty plea that is accompanied by a denial of guilt.”
Carter v. State, 739 N.E.2d 126, 129 (Ind. 2000).
[A] plea of guilty tendered by one who in the same breath protests
his innocence, or declares he actually does not know whether or
not he is guilty, is no plea at all. Certainly it is not a sufficient plea
upon which to base a judgment of conviction. No plea of guilty
should be accepted when it appears to be doubtful whether it is
being intelligently and understandingly made, or when it appears
that, for any reason, the plea is wholly inconsistent with the
realities of the situation.
Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953).
[6] While it is true that trial court may not accept a defendant’s guilty plea when
the defendant pleads guilty but also professed innocence, that is not what
occurred here. During McCullough’s change-of-plea hearing, the following
exchange occurred between McCullough and his trial counsel:
Q And you have looked through all of the discovery materials
in this case that includes, but not limited to, police reports,
medical records, there’s a Certificate of Analysis, search warrants,
body cams, recorded statements, and all photographs, right?
A Yes.
Q Now, you don’t have any memory, but you’ve looked
through the discovery, and you are choosing to plead guilty today,
is that right?
A Yes.
[…]
Q Okay, so we’re gonna reference some of those, because as
we’ve stated before, you’ve reviewed all these materials and you
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 5 of 10
agree that even though you have no memory, the State has proven
their case beyond a reasonable doubt that you were guilty, is that
right?
A Yes.
Q And you are wanting to plead guilty because you believe
you are guilty, is that right?
A That’s right.
Q Okay. So, and you understand that voluntary intoxication
is not a defense to this?
A I understand that.
Q Okay. Now, reviewing Defendant’s Exhibit 1 here, which
is the summary of statements by Jeremy, Shannon, and the two
girls, right?
A Yes.
Q Now, you’ve also watched the recorded statements from
them including the victim in this case, B.O., correct?
A Yes.
Q And you believe B.O. is very credible in this case, is that
right?
A Yes.
Q And so, you are not contesting any of those allegations?
A I am not.
Appellant’s App. Vol. II pp. 21–22.
[7] McCullough did not attempt to retract or contradict any of the above and points
to no other statement made at the change-of-plea hearing that can be interpreted
as a denial of guilt. In other words, while McCullough claimed at his change-
of-plea hearing that he did not remember the events of December 16, 2018, far
from contesting that they occurred or claiming that he was innocent, he
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 6 of 10
specifically admitted that they did occur as B.O. had described them. Under
the circumstances of this case, at least, McCullough’s mere claim of a failure to
recall events, even if legitimate, does not amount to a protestation of innocence.
See Gibson v. State, 490 N.E.2d 297, 298 (Ind. 1986) (in case where defendant
claimed not to recall details of his crimes, concluding that “Appellant neither
claims nor does he show that his failure to recall details of his crime amounted
to a protestation of innocence”). Because McCullough’s professed lack of
memory at his change-of-plea hearing did not function as a claim of innocence,
it does not entitle him to a withdrawal of his guilty pleas. The trial court did
not abuse its discretion in this regard.
B. Voluntariness of Guilty Pleas
[8] McCullough next contends that his pleas were involuntary because he was
“coerced or bullied or pressured” into pleading guilty by his trial counsel. Tr.
Vol. II p. 33. Our analysis of whether a guilty plea was voluntary starts by
examining statements made at the change-of-plea hearing. See Brightman, 758
N.E.2d at 44. After McCullough affirmed that he was, in fact, guilty of the
crimes to which he was pleading guilty, the following exchange occurred:
THE COURT: Alright. Besides this plea agreement, have
you been offered anything else of value or been given anything, or
have been given any other agreements to get you to plead guilty
here today?
THE DEFENDANT: No.
THE COURT: Has anyone forced you or threatened you
or placed anyone else in fear of harm to get you to plead guilty
here today?
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 7 of 10
THE DEFENDANT: No.
THE COURT: You believe your plea of guilty then would
be your own free and voluntary choice?
THE DEFENDANT: Yes, I do.
THE COURT: Are you satisfied with the services of your
attorney and you feel she’s properly representing you?
THE DEFENDANT: Yes, I am.
THE COURT: Is it still your intention to plead guilty
pursuant to this plea agreement?
THE DEFENDANT: It is.
Tr. Vol. II pp. 17–18. Additionally, McCullough had executed a document the
day before his change-of-plea hearing which included the following: “I am
pleading guilty because I am guilty. I am knowingly and voluntarily pleading
guilty [and acknowledge] that no promises, threats or force have been used to
make me plead guilty.” Appellant’s App. Vol. II p. 25. McCullough’s
responses to the trial court’s questions, along with his declarations from the day
before, are more than sufficient to establish that his guilty pleas were voluntarily
made. See, e.g., Gross v. State, 22 N.E.3d 863, 868 (Ind. Ct. App. 2014)
(affirming trial court’s denial of motion to withdraw guilty plea where
defendant stated he understood his rights and the terms of plea, was not forced
or threatened, and was satisfied with his attorney’s services), trans. denied.
[9] That said, McCullough now claims that he felt “bullied” into the guilty plea
when his trial counsel allegedly threatened him with a 100-year sentence if he
did not plead guilty. McCullough’s trial counsel, however, testified at the
withdrawal hearing that she had not threatened McCullough but had merely
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 8 of 10
advised him that he faced a sentence of up to 100 years of incarceration for the
eight charges he was facing. Tr. Vol. II p. 51. The trial court was entitled to
credit McCullough’s trial counsel’s testimony on this matter, and we will not
disturb its ruling when it is based on conflicting evidence. See, e.g., Flowers v.
State, 528 N.E.2d 57, 59 (Ind. 1988) (in affirming denial of motion to withdraw
guilty plea, stating that “[w]e will not disturb the trial court’s ruling where such
ruling was based on conflicting evidence”). In the end, McCullough’s
argument is nothing more than an invitation to reweigh the evidence presented
at the withdrawal hearing, which we will not do. We conclude that the record
supports the trial court’s conclusion that McCullough entered his guilty plea
knowingly and voluntarily, his later claims of coercion notwithstanding. See
Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000) (in affirming trial court’s
refusal to allow the defendant to withdraw his guilty plea, noting that “[t]he
answers Johnson gave while pleading guilty belie his later assertion that the
only reason he entered a guilty plea is because his counsel pressured him”).
C. Automatism Defense
[10] Finally, McCullough contends that the trial court abused its discretion in not
granting his motion to withdraw his guilty plea based on his discovery of the
automatism defense. The only evidence to support this claim, however, is
McCullough’s self-serving testimony that he felt that he had a potential defense
to the charges against him based on an alleged sleep disorder. McCullough
presented no other evidence that he suffers from a sleep disorder, much less that
his alleged sleep disorder could provide him with a viable defense if he went to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 9 of 10
trial. We conclude that McCullough’s vague and unsupported testimony falls
short of establishing either that it would be fair and just to allow him to
withdraw his guilty pleas or that withdrawal is necessary to correct a manifest
injustice. See Smith v. State, 596 N.E.2d 257, 259 (Ind. Ct. App. 1992)
(concluding that “the existence of a potential defense for a defendant which is
based only on his own testimony, taken together with the absence of prejudice
to the State and the fact that the court had not yet formally accepted [his] plea,
fails to carry [his] burden to prove that withdrawal of his plea is necessary to
correct a manifest injustice”).
[11] We affirm the judgment of the trial court.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-726 | August 27, 2020 Page 10 of 10