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Asher v. State

Court of Appeals of Indiana

June 28, 2019

Joshua E. Asher, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Brown Circuit Court The Honorable Judith A. Stewart, Judge Trial Court Cause No. 07C01-1608-F1-353

          ATTORNEY FOR APPELLANT Kurt A. Young Nashville, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1]Joshua E. Asher pled guilty to two counts of Level 1 felony attempted murder.[1]Before the imposition of his sentence, Asher filed a motion to withdraw his guilty pleas, and the trial court denied his motion. Asher argues the denial was an abuse of discretion because his pleas were not entered knowingly and voluntarily. Finding no abuse of discretion, we affirm.

         Facts and Procedural History

         [¶2] On August 24, 2016, Asher was charged with two counts of Level 1 felony attempted murder. On April 20, 2018, Asher entered pleas of guilty. On May 31, 2018, a pre-sentence investigation report was filed with the court. The report indicated Asher wanted to withdraw his guilty pleas. On June 15, 2018, Asher filed his amended motion to set aside the plea agreement and set the case for a jury trial. The only rationale stated for his motion was that Asher did not believe "he had the specific intent necessary to be guilty of attempted murder." (Appellant's App. Vol. II at 145.)

         [¶3] On July 6, 2018, the State filed its response, which asserted granting the withdrawal would substantially prejudice the State because the State was prepared to take this matter to jury trial on April 30, 2018. Attached to the State's response were three witness counter-affidavits asserting facts in opposition to Asher's motion to set aside his guilty pleas.

         [¶4] On July 13, 2018, the court conducted a hearing on Asher's motion. On July 19, 2018, the trial court denied Asher's motion because "[he] failed to prove the existence of a fair and just reason for withdrawal of [his] guilty plea." (Id. at 163.) In so determining, the trial court found:

The court does not take lightly a denial of a request to withdraw a guilty plea, particularly to crimes of this magnitude. Even aside from the specific language of I.C. 35-35-1-4(c), it is fundamental that a guilty plea must be knowingly and voluntarily entered. The court found and continues to find that Mr. Asher's guilty pleas were in fact knowingly and voluntarily made.
On April 23, 2018, the defendant pled guilty to two counts of attempted murder. The defendant was represented by Mr. Moore. The court accepted the plea and found the defendant guilty of Count 1, attempted murder a Level 1 felony and Count 2, attempted murder a Level 1 felony. The plea agreement called for the dismissal of the remaining counts, but left sentencing to the court's discretion with the State agreeing not to take a position with respect to whether the sentences on the two counts would run concurrently or consecutively. The court took sentencing under advisement, ordered a presentence investigation report and set the case for sentencing on June 7, 2018.
* * * * *
In his amended verified motion to withdraw his plea of guilty, Mr. Asher raised one reason for withdrawing his guilty plea, "[t]hat after the guilty plea hearing, based upon his recollection of the alleged events and upon his understanding of the concept of specific intent, Mr. Asher does not believe he had the specific intent necessary to be guilty of attempted murder." No additional affidavits or hearing testimony was offered to amplify or further explain this assertion.
At the guilty plea hearing, the court read the charges to the defendant, including the portion of each count that charged the defendant with attempting to commit the crime of murder by engaging in conduct, that is "knowingly or intentionally shoot with intent to kill," each victim. For each count, the defendant stated he understood that by pleading guilty he was admitting those facts. For each count, the court asked if the defendant understood that he could not be convicted unless the State proved those elements, "including the specific intent to kill," and the defendant responded "yes." When ...

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