Brian Earl Smith v. State of Indiana (NFP)
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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. Jun 25 2014, 10:00 am APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: BRIAN EARL SMITH Plymouth, Indiana GREGORY F. ZOELLER Attorney General of Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA BRIAN EARL SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 50A05-1308-CR-444 APPEAL FROM THE MARSHALL SUPERIOR COURT The Honorable Robert O. Bowen, Judge Cause No. 50D01-0908-FC-35 June 25, 2014 MEMORANDUM DECISION - NOT FOR PUBLICATION MAY, Judge Brian Earl Smith appeals the trial court s summary denial of his motion to withdraw his guilty plea. We reverse and remand for a hearing. FACTS AND PROCEDURAL HISTORY In August 2009, the State charged Smith with one misdemeanor and six felony drug counts. Smith pled guilty to one of the felonies, and the trial court entered the conviction as a class A misdemeanor. The trial court sentenced Smith to one year in jail, all suspended to probation. In July 2013, Smith, acting pro se, filed a verified motion to withdraw his guilty plea. Smith explained his plea was entered due to ineffective counsel. Specifically, Smith explained that he was not aware of the ramifications that a guilty plea would have on the suppression of evidence in this cause and was not advised of such. (Appellant s Amended App. at 19.) The trial court summarily denied the motion without a hearing. Smith appeals. DISCUSSION AND DECISION Smith argues that the trial court erred in summarily denying his motion without a hearing. Pursuant to Ind. Code ยง35-35-1-4(c), a motion to withdraw a guilty plea after sentencing is treated as a petition for post-conviction relief. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). A post-conviction court errs in summarily disposing of a petition unless the pleadings conclusively show that petitioner is entitled to no relief . . . . Indiana PostConviction Rule 1, Section 4(f). If the facts pled raise an issue of possible merit, then the petition should not be disposed of under section 4(f). Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003), trans. denied. This is true even though the petitioner has only a remote 2 chance of establishing his claim. Id. The allegation of ineffective assistance of counsel is generally a question of fact that precludes summary disposition in a petition for postconviction relief. Evolga v. State, 722 N.E.2d 370, 372 (Ind. Ct. App. 2000). In Evolga, we held that the effectiveness of Evolga s counsel was a question of fact that precluded summary disposition where Evolga asserted multiple allegations that counsel was ineffective and the State responded with only an unverified general denial. Id. at 374. Here, Smith alleges his guilty plea was entered because his counsel was ineffective and he was not aware of the ramifications that a guilty plea would have on the suppression of evidence in this case and was not advised of such. It appears the State did not respond. Thus the pleadings do not conclusively show that Smith is not entitled to relief because questions of fact remain regarding whether Smith received effective assistance of counsel. We therefore reverse and remand for a hearing at which Smith can present evidence in support of his ineffective assistance of counsel claim. See Binkley v. State, 993 N.E.2d 645 (Ind. Ct. App. 2013). Reversed and remanded. VAIDIK, C.J., and RILEY, J., concur. 3
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