Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT John Kindley South Bend, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Chad E. Smith , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff May 16, 2019 Court of Appeals Ca se No. 19A

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- 68 Appeal from the Parke Circuit Court The Honorable Samuel A. Swaim, Judge Trial Court Cause No s

. 61C01

- 1806

- F5

- 191 61C01

- 1807

- CM

- 260

Baker , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

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[1] Chad Smith appeals the sentence imposed by the trial court after he pleaded guilty to Level 5 Felony Criminal Confinement, Level 6 Felony Strangulation, and Class A Misdemeanor Invasion of P rivacy, arguing that the trial court erred when it denied his motion to withdraw his guilty plea and that the sentence is inappropriate in light of the nature of the offenses and his character. Finding no error and that the sentence is not inappropriate, we affirm.



# Facts

[2] On or about June 19 , 2018, Sondra Knight came home after work to find Smith, her ex

- boyfriend, waiting for her. Knight and Smith did n ot live together. Smith had been contacting Knight repeatedly to try to convince her that they should get back together. Knight invited Smith inside, and after taking shots of alcohol, the two began to argue. Smith became aggressive, grabbing Knight by the hair and forcing her onto her bed. Smith proceeded to smother Knight by pressing his chest and stomach onto her body while placing his hands on her mouth and nose. After Smith released her, Knight ran into the bathroom. Smith followed her and pushed her i nto the toilet, breaking the lid. Smith then used a nearby pair of sweatpants to strangle Knight.

[3] Next, Smith forced Knight outside and into his truck. As they drove to Smith’s house, he warned her that if she screamed, he would kill her. Once at Smith’s house, Smith tied Knight up and stated that he was going to kill her and then commit suicide. Smith ordered Knight to write a note to her children in which she told them that she was going to die. Over the course of the evening, SmithCourt of Appeals of Indiana | Memorandum Decision 19A

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unplugged all the lights in his home, repeatedly tied up and untied Knight, boarded up the front and back doors of his house, and placed a solid object up against Knight’s head so that she believed it was a gun. Knight pleaded for her life multiple times, asking Smith to let her go. Later that night, after Smith fell asleep , Knight tried to escape . She discovered that the doors were boarded, but she was able to pull back enough wood to squeeze through. She then ran down the street to a nearby house and call ed the police. Soon after, o fficers arrived at Smith’s house and arrested him.

[4] On June 20, 2018, t he State charged Smith with Level 5 felony criminal confinement, Level 6 felony intimidation, and Level 6 felony domestic battery resulting in moderate bodily injury. On June 21, 2018, the trial court issued a no contact order, barring Smith from making any sort of contact with Knight until trial. Yet, leading up to Smith’s jury trial, he called K night more than twenty times. On June 25, 2018, the State also charged Smith with Level 5 felony kidnapping , Level 6 felony strangulation, and one additional count of Level 5 felony criminal confinement. Smith has a long criminal history and had previously been convicted of kidnapping, criminal confinement, battery resulting in bodily injury, and invasion of privacy “involving women and domestic stuff [.]” Tr. Vol. II p. 95

- 96

. On July 9, 2018, under a separate cause number, the State charged Smit h with one count of Class A misdemeanor invasion of privacy based on his violations of the no contact order

.

[5] On the morning of Smith’s October 9, 2018, jury trial, pursuant to an open plea agreement, Smith pleaded guilty to one count of Level 5 felony cr iminalCourt of Appeals of Indiana | Memorandum Decision 19A

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confinement, one count of Level 6 felony strangulation, and one count of Class A misdemeanor invasion of privacy in exchange for dismissal of the other charges. Before accepting Smith’s plea, the trial court advised Smith of the rights he was waivin g by pleading guilty

. The trial court also informed Smith of the crimes to which he would be pleading guilty and of the potential sentences that would be imposed. Smith stated that he understood and accepted the terms of the plea agreement , the potential s entences to be imposed, and the rights he was waiving. Id. at 37

- 41.

[6] At the December 7, 2018, sentencing hearing, Smith filed a motion to withdraw his guilty plea

. During a separate hearing on th at motion, Smith argu ed that he was not aware of the potential sentences he would face by pleading guilty and that he did not know he was pleading guilty to Class A misdemeanor invasion of privacy. The trial court denied his motion

.

[7] T he trial court sentenced Smith to an aggregate term o f eight and one

- half years to be served in the Department of Correction. Of that sentence, the trial court imposed the maximum sentence (six years) for the criminal confinement count and the maximum sentence (two and one

- half years) for the strangulation

c ount . The trial court gave Smith credit for the 170 days served in the Parke County jail, appellant’s app. vol. II p. 44, thereby leaving him with no time left

to serve for the invasion of privacy count. Smith now appeals.Court of Appeals of Indiana | Memorandum Decision 19A

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# Discussion and Decision
I. Gui lty Plea

[8] First, Smith argues that the trial court erred when it denied his motion to withdraw his guilty plea.

[9] There is a presumption in favor of the trial court’s ruling on a motion to withdraw a guilty plea. Coomer v. State , 652 N.E.2d 60, 62 (Ind. 199 5). In determining whether the trial court erred in its ruling, we examine statements made by the defendant at his guilty plea hearing to decide whether his plea was offered freely and knowingly. Brightman v. State , 758 N.E.2d 41, 44 (Ind. 2001).

[10] Indiana C ode section 35

- 35

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- 4(b) establishes when a defendant can move to withdraw a guilty plea:
(b) 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 mot ion 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 subst antially prejudiced by reliance upon the defendan t’s plea. . . . [T]he court shall allow the defendant to withdraw his plea of guilty [] . . . whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.

Therefore, the trial court must grant a defendant’s motion to withdraw his guilty plea if the defendant can prove that withdrawal will correct a manifest injustice.Court of Appeals of Indiana | Memorandum Decision 19A

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[11] Here, though Smith claims that he did not know he was pleading guilty to Class A misdemeanor invasion of privacy and that he was unaware of the potential sentencing ranges fo r his offenses, the record shows otherwise. Smith explicitly stated that he understood that he was waiving c ertain constitutional rights by pleading guilty and that he accepted the terms of his plea agreement. Furthermore, the trial court asked Smith numerous times if he understood that he w as pleading guilty to specific charges , including invasion of privacy. Once again, Smith stated that he understood the nature of his guilty plea, the offenses listed therein, and the potential sentences to be imposed

. Tr. Vol. II p. 37

- 41. As

suc h, Smith’s direct testimony undermine s any argument that he lacked knowledge of the sentence he would receive or that he was unaware of the crimes to which he was pleading guilty. There is no indication that Smith did

not offer his plea freely and knowingl y and at no point would Smith’s withdrawal have corrected a manifest injustice. Thus, the trial court did not err in denying Smith’s motion to withdraw his guilty plea.



# II. Appropriateness

[12] Next, Smith argues that the sentence imposed by the trial court is inappropriate in light of the nature of the offenses and his character.

[13] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if, after due consideration of the tria l court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense [s] and the character of the offender.” The defendant bears the burden of persuading usCourt of Appeals of Indiana | Memorandum Decision 19A

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that his sentence is inappropriate

. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). In determining whether a sentence is inappropriate, we will consider numerous factors such as culpability of the defendant, the severity of the crime, the damage done to others, and a “myriad [ of ] other factors that come to l ight in a given case.” Cardwell v. State , 895 N.E.2d 1219, 122 4 (Ind. 2008).

[14] The maximum sentence for a Level 5 felony criminal confinement conviction is six years and the minimum sentence is one year. Ind. Code § 35

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- 6(b). The advisory sentence is thr ee years. Id. The maximum sentence for a Level 6 felony strangulation conviction is two and one

- half years and the minimum sentence is six months. I.C. § 35

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- 7(b). The advisory sentence is one year

. Id. For a Class A misdemeanor invasion of privacy con viction, the defendant “shall be imprisoned for a fixed term of not more than one (1) year[.]” I nd. Code § 35

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. Here, the trial court imposed an aggregate sentence of eight and one

- half years, of which the trial court ordered the maximum six years fo r the criminal confinement count, the maximum two and one

- half years for the strangulation count, and credit given for time served for the invasion of privacy count.

[15] First, as to the nature of the offenses, Smith committed particularly heinous and brutal criminal acts against Knight. After Knight allowed him into her home, Smith smothered her face and pressed hard on her bod y after grabbing her and forcing her onto a bed. Then, after chasing Knight into the bathroom , slamming her into the toilet, and stran gling her with a pair of sweatpants, Smith forced Knight into his car so they could drive to his home. There, Smith continued to tie up, untie, berate, threaten , and essentially torture Knight for the rest of theCourt of Appeals of Indiana | Memorandum Decision 19A

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evening , even going so far as to order Knig ht to write a note telling her children that she was going to die . Moreover, Smith unplugged all the lights in his home and board ed up the doors to prevent Knight from escaping

. This experience has caused Knight severe psychological trauma , and the record evidences Smith’s deliberate attempt to harm Knight without any justification. Therefore, w e find that the nature of the offenses does not render Smith’s sentence inappropriate.

[16] Second, as to Smith’s character, Smith’s actions following his arrest are te lling. After the trial court issued a no contact order against him, Smith nevertheless called and harassed Knight more than twenty times before the time of trial. Additionally, the record shows that this is not his first criminal conviction

. Smith ha d previously been convicted of the very crimes ( criminal confinement and invasion of privacy) to which he pleaded guilty in this case , demonstrating poor and reprehensible character. See Bailey v. State , 763 N.E.2d 998, 1004 (Ind. 2002) (holding that a hist ory of criminal activity, even if those criminal actions did not lead to convictions, reflects poorly on a defendant’s character at sentencing). Moreover, w hile Smith contends that the trial court inappropriately imposed the maximum sentences for t wo count s, the trial court’s reasoning is explicit:
Ms. Knight was subject to a night of torture and terror for several hours [.] . . . The Court also finds that [Smith] does have a history of criminal behavior as outlined in the presentence report. The Court woul d also note the evidence presented today that [Smith] attempted to contact . . . the victim in excess of twenty times after a No Contact Order was issued. Now, the Court has considered the fact that [Smith] has not been in trouble, as argued by Defense cou nsel, for sixteen years and , I guess, the Court would’ve beenCourt of Appeals of Indiana | Memorandum Decision 19A

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willing to give you, Mr. Smith, some credit for that time, until today’s hearing, when you continued to try to shame the victim after you’ve already pled guilty. So, really, none of

--- nothing you said today makes much sense. There was no reason presented for the victim to lie about any of this. There’s no motive for her to do any of this. In fact, there would be every reason for a lot of women not to have the courage to come forward with any of this. So you’re not taking any responsibility for the crimes that you committed an d pled guilty to. Convictions have already been entered. I know you’re not low intelligence. You graduated high school. I see no reason why you wouldn’t understand what’s go ing on. Your conduct in the Courtroom, continually shaking your head, looking at the victim, also I find that to be threatening[.] . . . I don’t think you have any remorse whatsoever for the acts you’ve committed.
Tr. Vol. II p. 99

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. Even though Smith pleaded guilty, the trial court had ample reason s to impose the maximum sentences for those two counts

. Therefore, we find that Smith’s character does not render the sentence inappropriate. In sum, we will not revise Smith’s sentence pursuant to Indiana Ap pellate Rule 7(B).

[17] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur

.