Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any court e xcept for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : ZACHARY A. WITTE GREGORY F. ZOELLER Locke & Witte Attorney General of Indiana Fort Wayne, Indiana J. T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF IN DIANA

OLYMPIA SHELLMAN, ) ) Appellant

- Defendant, ) ) vs. ) No. 02A04

- 1201

- CR

- 34 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06

- 1107

- FD

- 921
September 4, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION DARDEN, Senior Judge2 STATEMENT OF THE CASE Olympia Shellman appeals the trial court’s denial of her motion to withdraw her guilty plea. We affirm.
ISSUE Whether the trial court abused its discretion in denying Shellman’s motion to withdraw her guilty plea.
FACTS On June 30, 2011, Shellman was arrested for taking merchandise from a Meijer
store without paying for it. On July 7, 2011, she was charged with theft, a class D felony. She llman initially entered a n ot guilty plea, but on the day set for trial, November 17,
2011 , Shellman by counsel offered to change her plea to guilty. The change in plea was precipitated by defense counsel’s review of a tape from Meijer’ s security camera and by counsel’s subsequent discussion with Shellman about the evidentiary weight of the tape

. The trial court asked Shellman whether she wished to change her plea, and she responded, “Yeah, that’s correct.” (Guilty Plea Tr. 3). Shellman then complained about treatment by Meijer e mployees and described a conversation with a friend who was with her at the time the theft occurred . In this conversation, Shellman told the friend that “I’m not stealing nothing so I don’t care [ about Meijer’ s security ] , you know, so basically what
you c ausing a scene for? And I’m not doing nothing.” (Guilty Plea Tr

. 5). The trial court informed Shellman that she had the right to a jury trial and that she had the right to3

counsel and the right to “stay silent.” (Guilty Plea Tr. 7). The trial court al so informed Shellman that “[y]ou make your decision on whether or not you’re guilty or not guilty of this crime” and that “[n]obody should talk you into [entering a guilty plea] . Nobody should force you into this.” (Guilty Plea Tr. 8

- 9) . Further, the tr ial court advised Shellman that she could select a jury from a waiting jury panel, tell her story to the jury, and let the jury decide her fate. The trial court then asked Shellman whether she was guilty of the acts described in the charging information. When Shellman did not immediately answer, the trial court stated that the jury pool should be called in. Shellman then expressed her desire to plead guilty and the trial court swore her in. Shellman told the court that she was medicated but that none o f her medications affected her understanding of the proceedings or her ability to answer the questions asked by the trial court. The trial court informed Shellman of her rights and received affirmative answers to questions about whether Shellman understoo d those rights. Shellman assured the trial court that she was satisfied with defense counsel’s representation. Defense counsel then established a factual basis, obtaining Shellman’s affirmation that she took property from the Meijer store. The trial c ourt then took the plea under advisement and scheduled a sentencing date. On January 6, 2012, the trial court held a sentencing hearing. At the hearing, Shellman stated that she want ed to withdraw her guilty plea “on account of the fact that I4

was not ca ught on tape stealing nothing.” (Sentencing Tr. 6). The trial court asked Shellman if she had watched the tape, and she answered “No, I did not.” Id . The trial court then denied Shellman’s motion to withdraw her guilty plea and sentenced Shellman

to a one - year sentence that was suspended to probation.
DECISION Shellman contends that the trial court abused its discretion in denying her motion to withdraw her guilty plea. Shellman argues that the trial court should have granted her motion because she pr oclaimed her innocence at both the guilty plea and sentencing hearings . Shellman also argues that she was “not in the right state of mind” when s he pled guilty. Indiana Code section 35

- 35

- 1

- 4(b) governs motions to withdraw guilty pleas. In general, “a fter a defendant pleads guilty but before a sentence is imposed, a defendant may move to withdraw a plea of guilty.” Jeffries v. State , 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), (citing Ind. Code § 35

- 35

- 1

- 4(b)), trans. denied . The trial court must permi t a defendant to withdraw a plea “ if it is necessary to correct a manifest injustice. ” Id

. On the other hand, “the motion to withdraw the plea should be denied if the plea’s withdrawal would substantially prejudice the State.” Id . In all other cases, t he court may grant the defendant’s motion to withdraw a guilty plea “for any fair and just reason.” Id

. A trial court’s ruling on a motion to withdraw a guilty plea arrives in this court with a presumption in favor of the ruling. Id . We will reverse on ly for an abuse of5

discretion. Id . In determining whether a trial court abused its discretion in denying a motion to withdraw a guilty plea, “we examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offere d ‘freely and knowingly.’”
Id . (quoting Brightman v. State , 758 N.E.2d 41, 44 (Ind. 2001)). Here, Shellman initially indicated at the plea hearing that she had a conversation with a friend where she said, “I’m not stealing nothing . . . .” (Guilty Plea Tr . 5). After being advised that she had the right to a jury trial and to certain other rights, however, Shellman insisted that she committed theft. Shellman’s conversation with her friend was not a claim of innocence; it was part of a rambling account a bout alleged mistreatment by Meijer loss control employees. Her admission o f guilt, on the other hand, was unequivocal and followed the trial court’s recitation of the full panoply of rights she would forfeit if she pled guilty

. With reference to Shell man’s sentencing

- hearing statement about the security tape, we observe that she claims that she had not been “‘caught’ on tape stealing nothing.” (Sentencing Tr. 6). We interpret her statement as a lament about pleading guilty when the evidence against h er was allegedly weaker than she previously understood, not a claim of innocence. Our interpretation is bolstered by Shellman’s admission that she had not viewed the tape

. Accordingly, we conclude that the trial court did not abuse its
discretion in deny ing Shellman’s claim that she was claiming innocence while pleading guilty.6

Shellman informed the trial court at the guilty plea hearing that she was on prescribed medication. Upon specific questioning from the trial court, Shellman stated that the medi cation did not affect her understanding of the guilty plea proceedings or of the questions asked and the advisements given by the trial court. Under these circumstances, we cannot say that the trial court abused its discretion in determining that Shellman ’s use of prescribed medicine warranted the withdrawal of her guilty plea.
Affirmed. FRIEDLANDER, J., and BROWN, J., concur.