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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JOHN PINNOW Special Assistant to the State Public Defender Greenwood, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRIAN B. ROBERTS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 24A05-0703-CR-190

APPEAL FROM THE FRANKLIN CIRCUIT COURT The Honorable J. Steven Cox, Judge Cause No. 24C01-0508-FB-790

December 5, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Following a guilty plea, Brian Roberts appeals his convictions and sentences for burglary, a Class B felony, and auto theft, a Class D felony. Roberts raises three issues, which we restate as: 1) whether the trial court abused its discretion in denying Roberts's motion to withdraw his guilty plea; 2) whether the trial court improperly ordered Roberts to serve his sentence consecutively to a sentence under a different cause number; and 3) whether the sentence is inappropriate based on the nature of the offense and Roberts's character. Concluding the trial court acted within its discretion in denying Roberts's motion to withdraw his guilty plea, the trial court properly ordered consecutive sentences, and the sentence is not inappropriate, we affirm. Facts and Procedural History Although the guilty plea transcript reveals little about the nature of Roberts's offenses, a more detailed version exists in the probable cause affidavit, which Roberts cites in his appellate brief in relating the following version of the offenses: Roberts, his housemate Bryan Dunham and a juvenile A.S. burglarized Richard Maggard's residence while he was gone. Roberts or A.S. kicked the door open and both entered the house. They stole six guns, two chain saws and a small safe from the house. They put the stolen items in Maggard's Ford Tempo and met with Dunham where the stolen items were put into Roberts's car. A.S. shot out two windows in the Ford Tempo. A.S., Dunham and Roberts confessed. The stolen items were recovered though the safe had been broken open. Maggard indicated he employed Roberts. Appellant's Brief at 7 (citations omitted). On August 31, 2005, the State charged Roberts with burglary, a Class B felony, and auto theft, a Class D felony. The trial court set a jury trial for January 8, 2007. On December 7, 2006, Roberts filed a motion for a continuance, 2

which the trial court granted on December 15, 2006, setting the jury trial for March 26, 2007. On December 18, 2006, the State added a count alleging that Roberts was an habitual offender. On December 21, 2006, the trial court vacated its order granting Roberts's motion for a continuance. On January 4, 2007, Roberts pled guilty to burglary and auto theft. Also on that date, Roberts pled guilty to possession of cocaine, a Class D felony, and theft, a Class D felony, under two separate cause numbers. On January 25, 2007, Roberts filed a pro se motion to withdraw his guilty plea. In this motion, Roberts stated that he had been coerced into pleading guilty and that he had lied about his participation in the crime at the guilty plea hearing because his attorney had told him the court would not accept his plea unless he lied and indicated that he had committed the crimes. On January 30, 2007, the trial court denied this motion. On January 31, 2007, the trial court held a sentencing hearing at which it sentenced Roberts to twenty years with five years suspended for burglary, and three years for auto theft. The court ordered the sentences to run concurrently. However, the trial court ordered the sentences to run consecutively to a three-year sentence for possession of cocaine and a threeyear sentence with one year suspended for theft. The trial court did not find aggravating or mitigating circumstances, but noted Roberts's criminal history at the sentencing hearing. Roberts now appeals his convictions and sentence.

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Discussion and Decision I. Motion to Withdraw Guilty Plea "After entry of a plea of guilty . . . but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty . . . for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea." Ind. Code

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