Court of Appeals of Indiana | Memorandum Decision 36A05-1701-CR-107 | May 31, 2017 Page 1 of 6

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.

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Justin Scott Colvin,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 31, 2017

Court of Appeals Case No.

36A05-1701-CR-107

Appeal from the Jackson Circuit 

Court

The Honorable William E. Vance, 

Senior Judge

Trial Court Cause No.

36C01-1412-F1-1

Pyle, Judge.
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Statement of the Case

[1] Justin Scott Colvin (“Colvin”) appeals the trial court’s denial of his request to 

withdraw his guilty plea to Level 2 felony robbery resulting in serious bodily 

injury1 and his admission that he was an habitual offender.2 He argues that the 

trial court should have granted his request to withdraw his guilty plea because 

he did not have sufficient time to consider the effect the plea would have on his 

life. Because Colvin did not submit a written and verified motion to withdraw 

his plea, we conclude that he has waived his argument. Waiver 

notwithstanding, we also conclude that Colvin failed to adequately support his 

motion. 

[2] We affirm. 

Issue

Whether the trial court abused its discretion when it denied 

Colvin’s oral motion to withdraw his guilty plea.

Facts

[3] On December 23, 2014, the State charged Colvin with Level 1 felony burglary,3

Level 2 felony robbery resulting in serious bodily injury, Level 3 felony 

 

1

IND. CODE § 35-42-5-1(2).

2

I.C. § 35-50-2-8.

3

I.C. § 35-43-2-1.
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aggravated battery,

4 and Level 3 felony criminal confinement. Subsequently, 

the State amended Colvin’s charges to add a charge of Level 1 felony attempted 

murder and an allegation that Colvin was an habitual offender.

[4] Almost two years later, on October 27, 2016, Colvin pled guilty pursuant to a 

written plea agreement with the State to Level 2 felony robbery resulting in 

serious bodily injury and admitted to being an habitual offender. He and the 

State agreed that he would serve an aggregate sentence of forty (40) years—

thirty (30) years for the Level 2 felony and an enhancement of ten (10) years for 

the habitual offender adjudication—and that, in exchange for his guilty plea, 

the State would dismiss the remaining four charges against him. Colvin also 

signed an advisement of rights form. 

[5] That same day, the trial court held a hearing on the guilty plea agreement and 

confirmed that Colvin had signed both the negotiated plea agreement and the 

advisement of rights form. The trial court also reviewed the sentencing ranges 

for the two offenses to which Colvin was pleading guilty and asked if he still 

wished to proceed with the guilty plea hearing. Colvin said he did, then 

reviewed the guilty plea agreement and acknowledged that he had agreed to the 

terms of the agreement. He then established the factual basis for his guilty plea 

and pled guilty. 

 

4

I.C. § 35-42-2-1.5(2).
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[6] On November 30, 2016, the trial court held a sentencing hearing. There, 

Colvin made an oral motion to withdraw his guilty plea. The State argued that 

the motion was not validly before the court because a motion to withdraw a 

guilty plea must be in writing and verified. The State also noted that the guilty 

plea had been free and voluntary and that the only portion of the agreement 

that the trial court had taken under advisement was acceptance of the 

sentencing portion of the agreement. The trial court agreed that it “had nothing 

before it to consider” and denied the motion to withdraw. (Tr. 17). Thereafter, 

the trial court sentenced Colvin according to the terms of the plea agreement. 

Colvin now appeals.

Decision

[7] On appeal, Colvin argues that the trial court abused its discretion when it 

denied his motion to withdraw his guilty plea. He acknowledges that he signed 

the plea agreement and pled guilty at the guilty plea hearing. However, he 

asserts that the trial court should have granted the motion because he had not 

had time to adequately consider the effect the plea would have on his life when 

he entered into the plea agreement with the State.

[8] INDIANA CODE § 35-35-1-4(b) governs the withdrawal of a guilty plea prior to 

sentencing. It provides:

[T]he court may allow the defendant by motion to withdraw his 

plea of guilty . . . for any fair and just reason unless the [S]tate 

has been substantially prejudiced by reliance upon the 

defendant’s plea. The motion to withdraw the plea of guilty . . . made 

under this subsection shall be in writing and verified. The motion shall 
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state facts in support of the relief demanded, and the [S]tate may file 

counter-affidavits in opposition of the motion. The ruling of the 

court on the motion shall be reviewable on appeal only for an 

abuse of discretion. However, the 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.

I.C. § 35-35-1-4(b) (emphasis added). 

[9] Based on this provision, Indiana courts have noted that “‘[a] defendant’s failure 

to submit a verified, written motion to withdraw a guilty plea generally results 

in waiver of the issue of wrongful denial of the request.’” Peel v. State, 951 

N.E.2d 269 (Ind. Ct. App. 2011) (quoting Carter v. State, 739 N.E.2d 126, 128 

n.3 (Ind. 2000)) (finding waiver because Peel made an oral motion to withdraw 

his guilty plea rather than a verified and written motion). Accordingly, because 

Colvin did not submit a verified, written motion to withdraw his guilty plea, we 

conclude that he has waived the issue of the trial court’s denial of the request. 

See id. 

[10] Waiver notwithstanding, we also conclude that the trial court did not abuse its 

discretion when it denied Colvin’s motion to withdraw the plea agreement 

because Colvin did not provide any “facts in support of the relief [he] 

demanded,” as required by statute, and, therefore, did not present any facts 

showing that withdrawal of the plea was necessary to correct a manifest 

injustice. I.C. § 35-35-1-4(b). 

[11] Affirmed.
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May, J., and Brown, J., concur.