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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.

FILED
Dec 22 2011, 9:08 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JEFFREY A. FLORES Flores Law Office Madison, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SHAWN THOMAS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 39A04-1105-CR-259

APPEAL FROM THE JEFFERSON CIRCUIT COURT The Honorable Ted R. Todd, Judge Cause No. 39C01-1012-FB-152 Cause No. 39C01-1011-FA-141

December 22, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Shawn Thomas appeals from the trial court's denial of his Motion for Withdrawal of Guilty Plea. The sole issue on appeal is: Did the trial court abuse its discretion in denying Thomas's request to withdraw his guilty plea before the court accepted the plea and sentenced Thomas? We affirm. On November 6, 2010, Thomas and others, including Ashley Jansen, conspired to break into the residence of Ryan Gray to rob him of property, specifically to rob him of a synthetic drug known as "White Lightning." Guilty Plea Transcript at 14. On that day, Thomas and the others entered Gray's residence after Jansen, who was staying with Gray at the time, unlocked the front door that Gray had previously locked and sent a text to Thomas and the others directing them to come to Gray's residence. Once inside Gray's residence, Thomas and the others beat and robbed Gray of his "White Lightning," among other things. Id. As a result of this incident, on November 8, 2010, the State charged Thomas under Cause No. 39C01-1011-FA-141 (Cause FA-141) with Count I, class A felony burglary, Count II, class A felony conspiracy to commit burglary, Count III, class B felony robbery, and Count IV, class B felony conspiracy to commit robbery. On December 10, 2010, while Thomas was incarcerated in Cause FA-141, the State charged him under Cause No. 39C01-1012-FB-152 (Cause FB-152) with Count I, class B felony burglary, and Count II, class D felony theft. These charges stemmed from an incident that occurred on March 15, 2010, during which Thomas broke into and entered the dwelling of Jeffrey Buchanan, a structure used for religious worship, with the intent to commit a theft therein. In fact, Thomas took a television from the home.
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On January 12, 2011, Thomas entered into a plea agreement with the State that encompassed both causes and called for a total aggregate sentence of twenty-five years. The plea agreement provided Thomas with an advisement of his rights, the sentencing ranges for the offenses to which he was pleading, and advised him of the rights he was waiving by pleading guilty. Further, as part of the plea agreement, Thomas acknowledged that the facts as contained in the probable cause affidavits in the two causes were true and that they provided a sufficient factual basis for his guilty plea. On that same date, the court held a hearing on the guilty plea. Thomas acknowledged that he understood the plea agreement and his rights as set forth therein. The charging informations were read aloud and Thomas agreed therewith. A factual basis was then made for each offense to which Thomas was pleading. Thereafter, Thomas pleaded guilty pursuant to the terms of the plea agreement to Counts I and III under Cause FA-141 and to Count I under Cause FB-152, and the State dismissed the remaining charges. At the conclusion of the hearing, the trial court took Thomas's guilty plea under advisement. On February 9, 2011, Thomas filed a motion to withdraw his guilty plea. On April 20, 2011, the trial court held a hearing on Thomas's motion. At the beginning of that hearing, Thomas filed an amended motion to withdraw his guilty plea. In his amended motion, Thomas contended that he should be allowed to withdraw his guilty plea because (1) "due to his incarceration he was not clear-headed in evaluating his options, and made a hasty decision to plead guilty;" (2) the sentence set forth in the plea agreement "is not just when considering all the circumstances;" and (3) his guilty plea was not knowing and voluntary "in that it lacked a factual basis." Appellant's Appendix at 30. After hearing evidence and
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argument, the trial court denied Thomas's motion for withdrawal of his guilty plea. The court immediately proceeded to sentence Thomas pursuant to the terms of the plea agreement. Accordingly, Thomas was sentenced to twenty-five years for Count I (Cause FA141), fifteen years on Count III (Cause FA-141), and fifteen years on Count I (Cause FB152), with the sentences to be served concurrently. Thomas now challenges the trial court's denial of his motion to withdraw his guilty plea. On appeal, Thomas argues that the trial court abused its discretion when it denied his motion to withdraw his guilty plea prior to sentencing because his guilty plea was not knowingly and intelligently made due to the lack of an adequate factual basis for the plea and the fact that he was not on medication for his bi-polar condition at the time he entered his guilty plea. Motions to withdraw guilty pleas are governed by Ind. Code Ann.

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