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: ATTORNEYS FOR APPELLEE:

TIMOTHY P. BRODEN GREGORY F. ZOELLER

Lafayette, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TY C. WILKERSON, )

)

Appellant-Defendant, )

)

vs. ) No. 79A02-1307-CR-609

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Thomas H. Busch, Judge

Cause No. 79D02-1302-FC-8

March 27, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
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STATEMENT OF THE CASE

Ty Wilkerson appeals his conviction and eight-year sentence for Class C felony 

battery resulting in serious bodily injury. We affirm.

ISSUES

Wilkerson presents two issues: (1) whether the trial court abused its discretion by 

denying defense counsel’s motion to withdraw his appearance, and (2) whether 

Wilkerson’s sentence is inappropriate.

FACTS AND PROCEDURAL HISTORY

On February 7, 2013, Wilkerson and Aaron Miller were detained in the 

Tippecanoe County Jail. Miller was in the common dayroom waiting for lunch trays to 

arrive when Wilkerson walked up and said Miller’s teeth looked like pea gravel. Miller 

responded by calling Wilkerson “Smeagol,” a character from a movie they had just seen. 

They both laughed. Wilkerson then approached Miller as if he was going to hit him but 

walked off instead.

Miller talked with another inmate waiting for the lunch trays when he was 

suddenly “hit out of nowhere.” Tr. p. 104. Wilkerson had punched him and left. The 

punch broke one of Miller’s teeth and caused his cheek to bleed, so he went to his cell to 

clean off his face. As he was wiping blood from his face, Wilkerson entered his cell and 

struck him repeatedly in the face.

Miller was taken to a Lafayette hospital, where a CT scan showed several fractures 

in his face. He was transported to St. Vincent Hospital in Indianapolis, where he 

underwent surgery on his orbital bone that involved placing a titanium plate in his face.
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On February 13, 2013, the State charged Wilkerson with Class C felony battery 

resulting in serious bodily injury. The same day, the trial court held an initial hearing and 

set the case for a jury trial on May 14, 2013. Wilkerson filed a pro se motion for an early 

trial on February 20, 2013, and defense counsel filed an appearance on February 26, 

2013. The trial date was reaffirmed on March 15, 2013 and April 12, 2013, with 

Wilkerson specifically agreeing on April 12, 2013 to enlarge the speedy trial deadline to 

include May 14, 2013.

On April 30, 2013, the trial court ordered jurors to be summoned for Wilkerson’s 

trial. The next day on May 1, 2013, defense counsel filed a motion to withdraw his 

appearance. The motion stated that: (1) Wilkerson had requested new counsel; (2) the 

relationship between Wilkerson and defense counsel had “deteriorated to the point that 

Counsel does not feel that he can effectively continue to represent” Wilkerson; (3) 

Wilkerson believed he could not rely on counsel’s advice; and (4) Wilkerson was aware 

that the appointment of new counsel would effectively waive his speedy trial right. 

Appellant’s App. p. 53.

The trial court held a hearing on the motion on May 2, 2013. At the hearing, 

defense counsel stated that the motion was based on events during a hearing the previous 

week on Wilkerson’s motion to withdraw his guilty plea in a separate case. At that 

hearing, defense counsel explained, he and Wilkerson testified to differing recollections 

about what had occurred in that case. Thereafter, defense counsel continued, Wilkerson 

did not believe he could rely on counsel’s advice. When the trial court asked for the 

State’s position, the deputy prosecutor agreed that Wilkerson and his counsel had 
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provided conflicting testimony at the hearing on the other case but left the decision on the 

motion to withdraw appearance to the court’s discretion. The court denied the motion.

Wilkerson’s jury trial began twelve days later as scheduled. Miller testified that 

he continued to experience impaired vision, difficulty breathing through his nose, and 

pain in his face as a result of the attack. Wilkerson testified in his own defense, admitting 

he struck Miller once in the dayroom. However, he denied attacking Miller in his cell. 

Instead, he said he went to Miller’s cell to check on him because Miller was yelling and 

screaming, and while he was there he saw Miller bang his own head against the sink.

The jury found Wilkerson guilty as charged. At Wilkerson’s sentencing hearing, 

the trial court identified three aggravating circumstances: (1) his history of criminal or 

delinquent activity; (2) his recent violations of the conditions of probation and the rules 

of a detention facility; and (3) his lack of remorse. The court also identified three 

mitigating circumstances: (1) his emotional state at the time of the crime; (2) his mental 

health issues; and (3) his difficult childhood. Finding that the aggravators outweighed the 

mitigators, the trial court sentenced Wilkerson to eight years. Wilkerson now appeals.

DISCUSSION AND DECISION

I. DENIAL OF MOTION TO WITHDRAW APPEARANCE

Wilkerson first contends the trial court erred by denying defense counsel’s motion 

to withdraw his appearance. An indigent defendant has the right to representation by 

counsel; however, he has no right to representation by court-appointed counsel of his 

choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). Whether to allow counsel to 

withdraw is within a trial court’s sound discretion. Bronaugh v. State, 942 N.E.2d 826,
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829 (Ind. Ct. App. 2011), trans. denied. A trial court may refuse a motion to withdraw if 

it determines withdrawal will result in a delay in the administration of justice. Moore, 

557 N.E.2d at 668. Further, a defendant must demonstrate that he was prejudiced before 

we may reverse on this issue. Bronaugh, 942 N.E.2d at 830.

Wilkerson’s May 14, 2013 trial date was set on February 13, 2013 and reaffirmed 

on both March 15, 2013 and April 12, 2013. On April 30, 2013, the trial court ordered 

jurors to be summoned for trial. It was not until May 1, 2013, less than two weeks before 

trial, that defense counsel filed the motion to withdraw.

At a hearing on the motion the next day, the trial court acknowledged the

conflicting testimony between Wilkerson and defense counsel at a hearing in a separate 

cause number just the week before but noted the subject of that hearing had been at issue 

since before Wilkerson had filed his speedy trial motion in this case. Tr. pp. 3-4. The 

court also noted that the May 14, 2013 trial date had been set for some time and that 

Wilkerson and defense counsel’s disagreement in the separate cause did not rise to the 

level of the kind of conflict that would require last-minute scheduling changes in this 

case. Id. at 4, 6.

Under the circumstances here, the trial court was within its discretion in 

determining that defense counsel’s withdrawal would delay the administration of justice. 

More significantly, Wilkerson fails to demonstrate that he was prejudiced by defense 

counsel’s continued representation. Although the motion to withdraw stated Wilkerson 

did not believe he could rely on counsel’s advice, he fails to point to anything counsel did 

or did not do while representing him in this case that resulted in prejudice.
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We thus conclude the trial court did not abuse its discretion by denying defense 

counsel’s motion to withdraw his appearance. See Moore, 557 N.E.2d at 668 (denial of 

motion to withdraw not abuse of discretion where motion arose within three weeks of 

trial and appellant did not demonstrate that continued representation prejudiced him); 

Bronaugh, 942 N.E.2d at 830 (denial of motion to withdraw not abuse of discretion 

where hearing on motion was one month before trial and appellant did not demonstrate 

that continued representation prejudiced him).

II. INAPPROPRIATE SENTENCE

Wilkerson next contends his sentence is inappropriate. Although a trial court may 

have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 

of the Indiana Constitution authorize independent appellate review and revision of a 

sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a 

sentence authorized by statute if, after due consideration of the trial court’s decision, the 

Court finds that the sentence is inappropriate in light of the nature of the offense and the 

character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing 

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 

(2007)). The defendant has the burden of persuading us that his sentence is 

inappropriate. Id.

We first look to the statutory range established for the class of the offense. 

Wilkerson was convicted of a Class C felony. The statutory range for a Class C felony is 

between two and eight years, with the advisory sentence being four years. Ind. Code § 

35-50-2-6(a) (2005). Wilkerson received the maximum sentence of eight years.
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We next look to the nature of the offense and Wilkerson’s character. As to the 

nature of the offense, Wilkerson attacked Miller while they were detained in the 

Tippecanoe County Jail. As the trial court noted, “An assault in the jail on a fellow 

detainee or fellow prisoner, as the case may be, is about as serious of an assault as you 

can think of because both parties are under --- both parties have limited ability to walk 

away from a fight . . . .” Tr. p. 220. Without warning, Wilkerson punched Miller in the 

dayroom, knocking out a tooth. He then followed Miller into his cell, where he struck 

him repeatedly in the face. Miller’s injuries required him to be transported to an 

Indianapolis hospital, where a titanium plate was placed in his face.

As to his character, Wilkerson was twenty years old at the time of this offense, yet 

at that young age he already had a substantial record. As a juvenile, he was adjudicated a 

delinquent child for what would be petty theft/grand theft, trespass, and receiving stolen 

property if committed by an adult. As an adult, he has misdemeanor convictions for

Class A false informing, Class B public intoxication, Class C illegal consumption of an 

alcoholic beverage, and Class C operating without ever receiving a license. He has 

felony convictions for Class A dealing in a narcotic drug and Class C burglary. Although 

his previous crimes have not involved violence, the current Class C felony battery 

resulting in serious bodily injury conviction shows an escalation in his criminal behavior.

Moreover, this crime was committed while Wilkerson was detained awaiting 

disposition of his Class A dealing case. That he would attack a fellow inmate while in 

jail awaiting the disposition of a major felony case demonstrates his poor character and 

his lack of respect for others and for the law.
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In short, Wilkerson has failed to persuade us that his sentence is inappropriate.

CONCLUSION

We therefore affirm his conviction and sentence.

RILEY, J., and MAY, J., concur.