Court of Appeals of Indiana | Memorandum Decision 18A-CR-2560 | August 27, 2019 Page 1 of 11

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.

ATTORNEYS FOR APPELLANT

Mark K. Leeman

Lindsay Ruby

Logansport, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremy Colon-Nieves,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 27, 2019

Court of Appeals Case No.

18A-CR-2560

Appeal from the Cass Superior 

Court

The Honorable Richard A. 

Maughmer, Judge

Trial Court Cause No.

09D02-1708-F4-24

Mathias, Judge.

[1] Jeremy Colon-Nieves (“Colon-Nieves”) was convicted in Cass Superior Court 

of Level 4 felony burglary and Level 6 felony resisting law enforcement. He 
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raises two issues, which we restate as 1) whether the trial court abused its 

discretion when it allowed the State to withdraw from the plea agreement, and 

2) whether sufficient evidence supports Colon-Nieves’s burglary conviction.

[2] We affirm.

Facts and Procedural History

[3] On August 3, 2017, at approximately 6:00 a.m., Ed Zimmerman noticed a 

vehicle blocking the driveway of his home in Logansport, Indiana. Shortly 

thereafter, he saw a man run from a nearby field and enter the passenger side of 

the vehicle. Because he was suspicious of the man’s behavior, Zimmerman 

called 911.

[4] Logansport Police Officer Jason Rozzi (“Officer Rozzi”) responded to the 911 

call and observed the vehicle backing down Zimmerman’s dead-end street. 

Officer Rozzi activated his emergency lights and approached Colon-Nieves, the 

driver of the vehicle. Colon-Nieves was “sweaty, nervous, [and] out of breath.” 

Tr. p. 106. Officer Rozzi instructed Colon-Nieves to turn off the vehicle, and he 

initially complied. However, when Officer Rozzi attempted to look at the 

license plate, Colon-Nieves restarted the car, “floored it,” and “drove through 

the yard” around the officer. Tr. pp. 106, 111. 

[5] A chase ensued, with multiple officers following Colon-Nieves through 

Logansport at extreme speeds. The vehicle chase ended when Colon-Nieves 

crashed the vehicle into a curb in a restaurant parking lot. Colon-Nieves and his 

passenger, Raul Serrano (“Serrano”), jumped out of the vehicle and fled on foot 
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in opposite directions. Colon-Nieves and Serrano were eventually apprehended 

and arrested.

[6] Colon-Nieves’s vehicle was searched pursuant to a warrant. There were several 

items in the vehicle, including a microwave and two tables. The items had grass 

on them suggesting that they had lain outside. On the date of the August 3, 

2017 search, none of the items had been reported stolen. Therefore, the vehicle 

and its contents were eventually returned to Colon-Nieves.

[7] That same day, police officers also returned to the field near Zimmerman’s 

residence. One officer discovered multiple sets of footprints in the dewy grass

leading from the field to a wooded area adjoining the Highpoint Apartment 

complex. Tr. pp. 124, 127–28. Two days later, on August 5, 2017, Adriana Jose 

(“Jose”) returned to her apartment in the Highpoint complex after a weeklong 

vacation. The door to the apartment had been kicked in and the apartment was 

a “disaster.” Tr. p. 146. Several items were missing including tables, a 

microwave, a gaming system, televisions, laptops, clothing and jewelry. The 

police showed Jose photographs of the items found in Colon-Nieves’s vehicle, 

and she informed them that the tables and microwave belonged to her. Jose was 

also familiar with Colon-Nieves, who had been in her apartment on multiple 

occasions as a guest of her boyfriend, Christian Talamantes.

[8] On August 5, 2017, Colon-Nieves was charged with Level 6 felony resisting law 

enforcement, and on August 28, 2017, in a separate cause, Colon-Nieves was 

charged with Level 4 felony burglary. On May 8, 2018, Colon-Nieves agreed to 
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plead guilty to both charges. He also agreed to plead guilty to an unrelated 

pending misdemeanor battery charge. The plea agreement provided that ColonNieves would be sentenced to eight years for burglary, with concurrent one-year 

sentences for resisting law enforcement and battery. The parties also agreed that 

Colon-Nieves could serve three years of his sentence in Community Corrections 

and two years would be suspended to probation. After a factual basis was 

established at the guilty plea hearing, the trial court took the plea agreement 

under advisement and ordered Colon-Nieves to report to probation for 

preparation of a pre-sentence investigation report and a possible urine screen.

[9] The parties appeared for sentencing on June 5, 2018. When asked, ColonNieves admitted that he would not be able to pass a drug screen. For this 

reason, the State asked to withdraw from the plea agreement. The trial court 

agreed, withdrew the plea agreement, and ordered Colon-Nieves to submit to a 

drug screen. At a pre-trial hearing held on July 30, 2018, the trial court 

specifically rejected the plea agreement tendered to the court on May 8, 2018. 

Tr. p. 60.

[10] A jury trial commenced on August 15, 2018, and the burglary and resisting law 

enforcement charges were consolidated for trial. Colon-Nieves was tried jointly 

with Serrano, and Colon-Nieves was found guilty of both charges. On 

September 17, 2018, the trial court ordered him to serve an aggregate term of 

seven years in the Department of Correction. Colon-Nieves now appeals.
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The Plea Agreement

[11] Colon-Nieves argues that the trial court abused its discretion when it allowed 

the State to withdraw from the plea agreement after Colon-Nieves admitted that 

he would not be able to pass a drug screen. Acceptance or rejection of a 

proffered plea agreement is within the discretion of the trial court. Campbell v. 

State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014). “If the court accepts a plea 

agreement, it shall be bound by its terms.” Ind. Code § 35-35-3-3(e). 

[12] First, Colon-Nieves claims that the trial court accepted the plea agreement 

before the State asked to withdraw from it. The binding nature of a courtaccepted plea agreement prevents trial courts from revoking such agreements 

and vacating previously entered judgments of conviction—even if the defendant 

has not yet been sentenced. See, e.g., Reffett v. State, 571 N.E.2d 1227, 1229–30 

(Ind. 1991); Kline v. State, 875 N.E.2d 435, 437 (Ind. Ct. App. 2007).

[13] On May 8, 2018, the trial court held a hearing at which the State and ColonNieves informed the court that Colon-Nieves agreed to plead guilty to the Level 

4 felony burglary charge and the Level 6 felony resisting law enforcement 

charge. He also agreed to plead guilty to the unrelated Class A misdemeanor 

battery charge. The parties agreed that Colon-Nieves would serve an aggregate 

sentence of eight years, with three years served in Community Corrections, if 

Colon-Nieves was qualified and accepted, and two years suspended to 

probation.
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[14] The trial court instructed Colon-Nieves that after a factual basis for the plea was 

established, it would order a pre-sentence investigation report from the 

probation department “and then decide whether or not to accept the Plea 

Agreement after reading the Report and hearing evidence at the Sentencing 

Hearing.” Tr. p. 37. The court further explained that if it accepted the plea 

agreement, the court was bound by it, but if the court rejected the plea 

agreement, then Colon-Nieves was not bound by it. Tr. p. 37. Colon-Nieves 

then pleaded guilty to the three charges, and a factual basis for each charge was 

established. Tr. pp. 39–45. The trial court determined that Colon-Nieves’s

guilty plea was “freely and voluntarily made.” Tr. p. 50. The court ordered a 

pre-sentence investigation report and set the matter for sentencing on June 5, 

2018. The trial court’s chronological case summary also states that ColonNieves’s guilty plea was “taken under advisement” on May 8, 2018.

[15] On that date, Colon-Nieves appeared for sentencing, and the court asked him if 

he could “pass a drug screen today.”1 Tr. p. 54. Colon-Nieves replied that he 

could not. Therefore, the court ordered him remanded into the custody of the 

1 Colon-Nieves argues that the trial court ordered him to submit to drug screens, which indicates that the 

court had accepted the plea agreement. The record does not support his argument. At the guilty plea hearing, 

the court ordered Colon-Nieves to report to probation for the purpose of preparing the pre-sentence 

investigation report. The court simply stated to Colon-Nieves that the probation department would “probably 

take a urine screen from you.” Tr. p. 51. At the sentencing hearing, before the plea agreement was 

withdrawn, Colon-Nieves was asked if he could pass a drug screen. He was not ordered to submit to one

until after he admitted that he could not pass the screen.
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Cass County Sheriff and stated he would be brought back into court when he 

could pass a drug screen. Id. 

[16] The State then asked to withdraw from the plea agreement and for the trial

court to reject it. The court allowed the State to withdraw from the plea 

agreement and set a jury trial date for the burglary and resisting charges. At the 

final pre-trial hearing, at the State’s request, the trial court specifically rejected

the plea agreement that was tendered to the court on May 8, 2018.

[17] Importantly, the trial court never accepted the plea agreement at issue in this 

appeal. And the State is free to withdraw from a plea agreement before it is 

accepted by the trial court. Mendoza v. State, 869 N.E.2d 546, 552 (Ind. Ct. App. 

2007), trans. denied.

[18] The only exceptions to the State’s freedom to withdraw from a plea agreement 

before the trial court accepts it “occur[] if the State has materially benefited 

from the terms of the agreement or the defendant has relied on the terms of the 

agreement to his substantial detriment.” Id. (citation omitted). Colon-Nieves 

claims both that the State materially benefited from the plea agreement and that 

he relied on it to his substantial detriment.

[19] First, he argues that the State “had the opportunity to use” the statements

Colon-Nieves made during the plea colloquy at Serrano’s first trial, which was

held three weeks after Colon-Nieves’s guilty plea hearing. Appellant’s Br. at 20. 

Serrano’s first trial resulted in a mistrial on the burglary charge. After the State 

withdrew from the plea agreement in this case, Colon-Nieves and Serrano were 
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tried together on the burglary charge. Therefore, Colon-Nieves claims that “[b]y 

entering into and subsequently reneging on a plea agreement with ColonNieves the State obtained valuable information that could be used in Serrano’s 

trial . . . and then got an opportunity to retry the defendants together.” Id. at 

20–21. 

[20] Colon-Nieves’s claim that the State materially benefitted from his plea is mere 

speculation. There is no evidence that the State used or benefited from the 

statements made at the plea hearing in Serrano’s first trial.2

[21] Colon-Nieves also argues that he relied on the terms of the plea agreement to 

his substantial detriment because he submitted to drug screens pursuant to the 

terms of the agreement. After the plea hearing, the trial court informed ColonNieves that the probation department would likely require him to submit to a 

urine screen during preparation of the pre-sentencing investigation report.3

Colon-Nieves would have had to submit to drug screens regardless of whether 

his conviction and sentence were the result of a plea agreement or trial. 

Therefore, we are not persuaded by his claim that he relied on the terms of the 

plea agreement to his substantial detriment.

2 The statements Colon-Nieves specifically references in his brief established his connection to Jose, her 

boyfriend and his familiarity with their apartment. Jose’s testimony at trial established nearly the same facts.

3 The record does not establish whether Colon-Nieves submitted to a drug screen after the guilty plea hearing.
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[22] For all of these reasons we conclude that because the trial court never accepted 

the plea agreement, the State was free to withdraw from the agreement when 

Colon-Nieves informed the court that he would not be able to pass a drug 

screen. 

Sufficient Evidence

[23] Colon-Nieves argues that the evidence is insufficient to support his burglary 

conviction. Our standard of review is well settled.

When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative 

evidence and reasonable inferences supporting the verdict. It is 

the fact-finder’s role, not that of appellate courts, to assess 

witness credibility and weigh the evidence to determine whether 

it is sufficient to support a conviction.... Appellate courts affirm 

the conviction unless no reasonable fact-finder could find the 

elements of the crime proven beyond a reasonable doubt. It is 

therefore not necessary that the evidence overcome every 

reasonable hypothesis of innocence. The evidence is sufficient if 

an inference may reasonably be drawn from it to support the 

verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, internal 

quotations, and emphasis omitted).

[24] Colon-Nieves argues that the State only proved that he possessed stolen 

property but failed to prove that he broke and entered Jose’s apartment with 

intent to commit theft. To convict Colon-Nieves of burglary, the State was 

required to prove that he broke and entered the apartment with the intent to 

commit theft therein. See Ind. Code § 35-43-2-1(1); Appellant’s App. p. 13. And 
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a person commits theft when he knowingly or intentionally exerts unauthorized 

control over the property of another person, with intent to deprive the other 

person of any part of its value or use. See Ind. Code § 35-43-4-2. 

[25] “A conviction may be based on circumstantial evidence alone so long as there 

are reasonable inferences enabling the factfinder to find the defendant guilty 

beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d 385, 388 (Ind. Ct. 

App. 2012) (citation omitted), trans. denied. Moreover,

the mere unexplained possession of recently stolen property 

standing alone does not automatically support a conviction for 

theft[,] ... such possession is to be considered along with the other 

evidence in a case, such as how recent or distant in time was the 

possession from the moment the item was stolen, and what are 

the circumstances of the possession (say, possessing right next 

door as opposed to many miles away).

Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010).

[26] The State presented evidence that on some date between July 30 and August 5, 

2017, a person forcibly entered Jose’s apartment by kicking in the door, and 

that person stole several items belonging to Jose. At 6:00 a.m. on August 3, 

2017, Colon-Nieves was in possession of Jose’s stolen tables and microwave. 

Jose parked his vehicle at the end of a quiet dead-end street adjacent to a field 

which adjoins Jose’s apartment complex. Jose can see the field from her 

apartment. A police officer observed multiple sets of footprints in the field’s 

dewy grass leading from an area near Jose’s apartment. The microwave and 
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tables found in Colon-Nieves’s vehicle were covered in grass, and a reasonable 

inference may be made that the items were lying in the grass at some point. 

[27] Colon-Nieves had been present in Jose’s apartment on multiple occasions as a 

guest of her boyfriend. When he was approached by Officer Rizzo on August 3, 

Colon-Nieves was “sweaty, nervous, [and] out of breath.” Tr. p. 106. He then 

fled from the officer, initiating a chase at extreme speeds in Logansport. After 

he crashed his vehicle, Colon-Nieves continued to flee on foot. See, e.g., Myers v. 

State, 27 N.E.3d 1069, 1077 (Ind. 2015) (noting that evidence of flight and 

attempts to avoid arrest may be circumstantial evidence “tend[ing] to show 

guilt”).

[28] From this evidence, it was entirely reasonable for the fact-finder to conclude 

that Colon-Nieves broke and entered Jose’s apartment with intent to commit 

theft therein.

Conclusion

[29] The trial court did not abuse its discretion when it allowed the State to 

withdraw from the plea agreement. In addition, Colon-Nieves’s burglary 

conviction is supported by sufficient evidence. For all of these reasons, we 

affirm Colon-Nieves’s convictions for burglary and resisting law enforcement.

[30] Affirmed.

May, J., and Brown, J., concur.