Opinion
23A-CR-2988
09-16-2024
Edward D. Kinnett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Switzerland Circuit Court The Honorable W. Gregory Coy, Judge Trial Court Cause No. 78C01-2109-F2-334
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE.
Case Summary
[¶ 1] Edward D. Kinnett pleaded guilty to Level 3 felony possession of methamphetamine and admitted to being a habitual offender. Kinnett later moved to withdraw his guilty plea, which the trial court denied. On appeal, Kinnett contends the trial court abused its discretion when it denied his motion because he misunderstood the plea agreement terms and therefore did not freely and knowingly enter his plea. We affirm.
Ind. Code § 35-48-4-6.1(a) & (d) (2014).
I.C. § 35-50-2-8 (2017).
Facts and Procedural History
[¶ 2] On September 15, 2021, Kinnett led a dangerous, high-speed police chase through Switzerland and Jefferson Counties. While fleeing, he threw a package containing at least fifty-four grams of methamphetamine out the driver's side window. The State charged Kinnett with seven offenses in Switzerland County, including Level 3 felony possession of methamphetamine. The State also alleged Kinnett was a habitual offender after identifying the requisite prior offenses in his extensive criminal record. And for actions Kinnett took in Jefferson County during the same incident, the State charged him with offenses under cause number 39D01-2111-F6-1196 ("Cause 1196") in that county.
The State submitted only half of the recovered 110 grams for testing; those fifty-four grams tested positive for methamphetamine.
[¶ 3] In this case-arising from the Switzerland County charges-Kinnett entered into an agreement to plead guilty to Level 3 felony possession of methamphetamine and admit to being a habitual offender. The "open" plea agreement called for an aggregate sentence of fourteen to twenty-three years executed in the Indiana Department of Correction ("DOC"). Under the agreement's terms, the sentence in this case would be consecutive to any sentence imposed under Cause 1196, which was then pending but undecided. In exchange, the State agreed to dismiss the remaining six counts in this case.
[¶ 4] The trial court held a plea hearing on August 7, 2023. The court read the terms of the agreement into the record, including that Kinnett's sentence would be consecutive to any imposed under Cause 1196. Kinnett acknowledged he understood the agreement and his plea was voluntary. At the end of the hearing, the trial court found Kinnett's plea was free and voluntary, took the plea under advisement, and ordered the preparation of a presentence investigation report.
[¶ 5] Before the sentencing hearing, Kinnett, by counsel, moved to withdraw his guilty plea, in part on the grounds he was unaware his sentence in this case would run consecutive to any sentence imposed under Cause 1196. The next day, Kinnett filed a pro se motion to withdraw his guilty plea, asserting generally the same reasons his counsel put forth. The trial court denied counsel's motion; it disregarded Kinnett's pro se motion because he was represented when it was filed.
[¶ 6] After a hearing, the trial court sentenced Kinnett to sixteen years for possession of methamphetamine and seven years for being a habitual offender, for an aggregate sentence of twenty-three years, all executed in the DOC.
The trial court did not abuse its discretion in denying Kinnett's motion to withdraw his guilty plea.
[¶ 7] Kinnett argues his plea was not free and knowing because he expressed confusion about the plea agreement terms during the plea hearing, specifically related to the maximum executed term. He also argues the trial court "never addressed the extent to which [his] sentence would be consecutive or concurrent with sentencing in another County for charges related to the same underlying incident." Appellant's Br. at 8.
[¶ 8] After a defendant enters a guilty plea, but before the trial court imposes a sentence, the court may allow the defendant to withdraw his guilty plea "for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea." I.C. § 35-35-1-4(b) (1983). The motion shall be in writing, be verified, and state the facts in support of the relief demanded. Id. The defendant bears the burden of establishing the grounds for relief by a preponderance of the evidence. I.C. § 35-35-1-4(e).
[¶ 9] We review the trial court's ruling on a motion to withdraw a guilty plea for an abuse of discretion. I.C. § 35-35-1-4(b); 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 his guilty plea hearing to decide whether his plea was offered 'freely and knowingly.'" Id. (quoting Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995)).
[¶ 10] Kinnett pleaded guilty under a written plea agreement containing an extensive list of his rights and an acknowledgment he waived certain rights by pleading guilty. The writing stated the sentence in this case would be "[c]onsecutive to any sentence imposed under [Cause 1196]" and "[a]ll other counts to be dismissed as to actions taken within Switzerland [C]ounty only." Appellant's App. Vol. 2 at 126. Kinnett initialed and signed the agreement.
[¶ 11] At the beginning of the sentencing hearing, the trial court engaged Kinnett in a series of questions about the voluntariness of his plea. The trial court read aloud the terms of the agreement, including that the sentence would be "consecutive to any sentence imposed under [Cause 1196.]" Tr. Vol. 2 at 15. Kinnett showed his understanding by stating, "Yes, sir." Id.
[¶ 12] The trial court then questioned the State about the fourteen- to twenty-three-year sentencing range, specifically whether "anything imposed within that range shall be executed or may be executed." Id. (emphasis added). The prosecutor clarified the agreed-upon sentencing range was the aggregate executed sentence, such that the trial court could sentence Kinnett beyond twenty-three years if it suspended any term above that threshold. Defense counsel then asked his own questions, clarifying he could not argue for an executed sentence below fourteen years. At the end of this colloquy, defense counsel requested time to discuss the parameters with Kinnett off the record, which the trial court granted. On resuming the hearing, defense counsel stated, "[Kinnett] is decided that he will proceed with the plea as . . . within the primers [sic] that we discuss[ed] on the record." Id. at 19.
[¶ 13] The trial court then asked whether Kinnett was offering to plead guilty voluntarily, to which Kinnett responded affirmatively. Kinnett next admitted to the factual basis of the possession of methamphetamine charge and being a habitual offender.
[¶ 14] After reviewing the record, we are satisfied the trial court did not abuse its discretion in denying Kinnett's request to withdraw his guilty plea. The trial court adequately advised Kinnett of his rights. The record shows the trial court and parties cleared up any potential confusion regarding the executed portion of Kinnett's sentence during the hearing. The trial court orally informed Kinnett his sentence in this case would be consecutive to any sentence in Cause 1196. Kinnett sought counsel's advice during the hearing, after which he proceeded with the plea. Kinnett's statements demonstrate he freely and knowingly pleaded guilty. See Brightman, 758 N.E.2d at 44-46 (concluding defendant's plea was free and voluntary where the trial court questioned defendant about whether he wanted to plead guilty, explained his rights, read the plea agreement terms, obtained a factual basis for the plea, allowed the defendant to confer with counsel, and clarified any points of confusion during the hearing).
Conclusion
[¶ 15] The trial court did not abuse its discretion by denying Kinnett's motion to withdraw his guilty plea.
[¶ 16] Affirmed.
Felix, J., and Riley, Sr.J., concur.