Ajay Kumar, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Bradford, Judge.

Case Summary

[1] In May of 2021, Ajay Kumar fondled the buttocks of a thirteen-year-old girl and the crotch of a fourteen-year-old girl. The State charged Kumar with Level 4 felony child molesting, Level 6 felony battery on a person under fourteen years old, Level 5 felony sexual misconduct with a minor, Level 6 felony sexual battery, and Class B misdemeanor battery, and Kumar eventually pled guilty to two counts of Level 6 felony sexual battery. The trial court sentenced Kumar to 545 days for each conviction, to be served consecutively, with ten days of each sentence to be executed followed by 535 days on probation. The terms of Kumar's probation include that he may not travel out-of-state without authorization and is required to avoid contact with persons under the age of sixteen, which means that he must avoid contact with his wife's fourteen-year-old daughter.

[2] In October of 2022, Kumar moved to withdraw his guilty plea, which motion the trial court denied. The next month, Kumar moved to alter the terms of his probation to allow him to travel out-of-state without authorization and have contact with his wife's daughter. The trial court denied Kumar's requests. Kumar contends that the trial court abused its discretion in denying his motions to withdraw his guilty plea and alter the terms of his probation. Because we disagree, we affirm.

Facts and Procedural History

[3] On May 1, 2021, Kumar walked up to a group of young girls who had come to Indianapolis for a volleyball tournament. Kumar fondled the buttocks of a thirteen-year-old girl and the crotch of a fourteen-year-old girl. Kumar (whose first language is Hindi) told police through an interpreter that he had been in a room of a nearby hotel with an unnamed woman and that there had been a large cloud of narcotic smoke, after which he could not remember what he had done.

[4] On May 4, 2021, the State charged Kumar with Level 4 felony child molesting, Level 6 felony battery on a person under fourteen years old, Level 5 felony sexual misconduct with a minor, Level 6 felony sexual battery, and Class B misdemeanor battery. On August 3, 2022, Kumar and the State entered into a plea agreement under the terms of which Kumar would plead guilty to two charges of Level 6 felony sexual battery. Sentencing was left to the trial court's discretion, with the only exceptions being a requirement for consecutive sentences and a ban on Kumar receiving alternative misdemeanor sentencing.

[5] At Kumar's guilty-plea and sentencing hearing on September 23, 2022, the trial court verified that Kumar could understand the proceedings with the assistance of an interpreter. Kumar indicated that he had reviewed the written plea agreement with his attorney, using a Hindi interpreter, before signing and initialing the agreement; his attorney had answered all of Kumar's questions regarding the agreement; he understood the court's explanation of the sentencing range available to the trial court; and he also understood that his sentence would be determined entirely by the trial court, including whether Kumar would receive probation. If Kumar received any probation, the trial court explained, he would be required to comply with any special conditions ordered for sex offenders by the trial court.

[6] When the trial court had completed reviewing the terms of the plea agreement, it asked Kumar if “that [was] the plea agreement you thought you'd entered into?” Tr. Vol. II p. 12. Kumar said that it was the same agreement. The trial court asked Kumar if he had heard “anything different than what you discussed with your lawyer [․] and the Hindi interpreter[.]” Tr. Vol. II p. 12. Kumar said that he had not. Kumar also indicated that he was satisfied with his attorney's representation and understood that his guilty pleas would have negative immigration consequences. After further ensuring that Kumar understood the rights that he was waiving by pleading guilty and hearing a factual basis for the guilty plea, the trial court accepted Kumar's guilty plea to the two charges of sexual battery.

[7] The trial court then moved to sentencing. The State argued that the random and public nature of these offenses indicated that Kumar should receive an aggregate sentence of sixty days of incarceration followed by four years of probation. Kumar's counsel noted that he had no prior criminal record, his IRAS score indicated he was a low risk to reoffend, he had married while this case had been pending, and his new wife expected to deliver a child in April of 2023. Kumar's counsel asked the trial court to consider Kumar's satisfactory performance of the conditions of pretrial release, including GPS monitoring, and the significant consequences of a felony sex-crime record to Kumar's future, including the fact that “it's not going to be good for his immigration” status. Tr. Vol. II p. 21.

[8] In response to the trial court's questioning about the circumstances of the offense, Kumar's counsel explained that Kumar had gone to the hotel room to meet a prostitute. Kumar's counsel said that he had investigated a defense of involuntary intoxication, but that Kumar appeared to have been somewhat intoxicated when he had gone to the hotel and that Kumar had said he did not recall what had happened in the hotel room. The trial court, after considering the evidence, imposed consecutive sentences of 545 days, with ten days of each sentence to be executed followed by 535 days of probation subject to terms and conditions for sex-offenders.

[9] Kumar obtained new counsel, who appeared for him on October 19, 2022, and moved to withdraw his guilty plea. Counsel's motion alleged an alternative version of the facts and alleged that Kumar's previous counsel had neither discussed immigration consequences with Kumar nor conducted any investigation into whether to defend him by claiming that he had lacked the requisite mental state to commit sexual battery. The trial court denied Kumar's motion on November 21, 2022.

[10] A few weeks later, on December 1, 2021, Kumar filed a motion to modify three of his probation conditions: Standard Condition 4, which barred him from traveling outside Indiana without permission from his probation officer; Sex-Offender Condition 24, which barred him from “contact with any person under the age of 16 unless you receive Court approval or successfully complete a court-approved sex offender treatment program”; and Sex-Offender Condition 29, which barred him from engaging in a “sexual relationship with any person who has children under the age of 16 years unless given permission by the Court and your treatment provider.” Appellant's App. Vol. II p. 100. The trial court held a hearing on December 29, 2022, to address Kumar's motion as well as concerns raised by the Probation Department regarding Kumar's current residence, which was within 1000 feet of a school.

[11] Kumar presented testimony from his wife, Abbegail, that they had met after he was charged. Kumar and Abbegail were married in July of 2022, and she was expecting to deliver their child in April of 2023. Abbegail testified that, although she was working in a restaurant, she had lost other employment due to the complications of her pregnancy and Kumar's income was needed to make ends meet and support her and her two children. Abbegail indicated that she already had an eighteen-year-old son and a fourteen-year-old daughter, A.C., who lived with her; that Kumar was a kind, supportive, and loving father to A.C.; and that she had no concerns about him living with her and A.C. A.C. testified that she had known Kumar “since summertime, like towards the end of July” and that she had been alone with him without any problems. Supp. Tr. Vol. II p. 23. She agreed that Kumar was “one of the best people I feel like my mom has ever been with” and that he “always makes sure we have what we want” and did his best to make them happy. Supp. Tr. Vol. II p. 23. A.C. said she had no problem with the trial court allowing Kumar back into the home.

[12] Abbegail also testified about Kumar's problems finding work as a long-haul truck driver, saying that Kumar had diligently tried to find such work but had not been able to gain employment because the jobs he had been offered required him travel outside of Indiana. Kumar placed Exhibit A, a letter from a prospective employer, into evidence. The letter explained that Kumar needed to be out of Indiana for a week in order to drive to and from California, not accounting for any additional time that might be required due to equipment problems. Kumar's counsel asked him if he would be able to attend counseling required by his probation and Kumar replied: “I will follow all the rules, but sometimes my truck trips are longer than seven days.” Supp. Tr. Vol. II p. 26. Counsel again asked Kumar if he understood that he would have to follow the rules about attendance at counseling sessions, as follows:

Q: Okay and so if you had to meet with a counselor on this specific day, it doesn't matter about your work. You understand you'd have to go to that meeting?

A: (Through The Interpreter): Yes, I will.

Q: Okay and if you fail to make that meeting, you understand this Judge can - can then change it so that you can't travel out of state?

THE INTERPRETER: So, he's asking if he goes out of state, that he needs at least seven days for his trip and then he can go to a class.

Q: But Mr. Kumar, you understand this Court - you understand that if this Court tells you to be at a meeting, you have to go to that meeting no matter what? Do you agree to that?

A: (Through The Interpreter): Okay.

Supp. Tr. Vol. II p. 27. During his testimony, Kumar also noted that he had yet to attend any counseling.

[13] The trial court denied Kumar's request to modify the terms that Kumar have permission before any out-of-state travel and avoid contact with persons under the age of sixteen. The trial court granted Kumar's request to modify his residence requirements to permit him to live with his family, even though that address was within 1000 feet of a school. The trial court also granted Kumar's request to modify his probation terms to allow him to have an intimate relationship with his wife.

Discussion and Decision

I. Withdrawal of Guilty Plea

[14] Kumar's motion to withdraw his guilty plea was filed after he was sentenced. The State contends, and we agree, that because Kumar's motion was not signed by him, any challenge he may have had to his guilty plea is waived. Indiana Code section 35-35-1-4(c) provides, in relevant part, as follows:

After being sentenced following a plea of guilty [․], the convicted person may not as a matter of right withdraw the plea. However, upon motion of the convicted person, the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made under this subsection shall be treated by the court as a petition for postconviction relief [(“PCR”)] under the Indiana Rules of Procedure for Postconviction Remedies.

The trial court was therefore required to address Kumar's motion as a PCR petition. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013).

[15] Although Kumar notes that the text of section 35-35-1-4(c) does not require a motion after sentencing to be verified, it does specify that such a motion shall be treated as a PCR petition, and one requirement of a PCR petition is that it must be verified by the convicted person, Ind. Post-Conviction Rule 1(2), and an attorney's signature cannot serve as a substitute. Corcoran v. State, 845 N.E.2d 1019, 1022 (Ind. 2006). Because Kumar failed to observe the statute's requirements for a verified request, he cannot now complain about denial of his motion on appeal. See Carter v. State, 739 N.E.2d 126,128 (Ind. 2000) (holding that “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”); Flowers v. State, 528 N.E.2d 57, 59 (Ind. 1988) (“Because appellant's motion to withdraw his guilty plea was neither in writing nor verified, he has waived the issue.”). The trial court did not err in denying Kumar's motion.

II. Conditions of Probation

[16] The trial court's ruling on Kumar's motion to modify the terms of his probation is reviewed for an abuse of discretion. Howe v. State, 25 N.E.3d 210, 211 (Ind. Ct. App. 2015). We will not second-guess a trial court's estimation of the facts and circumstances because the trial court “is in a better position to weigh evidence, assess the credibility of witnesses, and draw inferences.” Moshenek v. State, 868 N.E.2d 419, 424 (Ind. 2007). Consequently “great deference” is given to the trial court's ruling. Treadway v. State, 924 N.E.2d 621, 628 (Ind. 2010).

A. Out-of-State Travel

[17] Kumar moved to change his probation terms approximately two months after he was sentenced and only two days after he had approved them, which, inter alia, barred unapproved out-of-state travel. As an initial matter, Kumar's own wrongdoing had put him in the position of being on probation, and he had already benefitted from a plea bargain that resulted in the dismissal of Level 4 felony, Level 5 felony, and Class B misdemeanor charges. With probation barely begun, Kumar requested permission to leave Indiana for a week or more at a time without official approval. It seems almost certain, however, that Kumar's proposed absences of a week or more would interfere with his other probation obligations, such as counseling, which, again, he has not yet begun. As the State pointed out below, Kumar's proposed absences from Indiana would effectively prevent his probation from being supervised. Under the circumstances, we cannot say that the trial court abused its discretion in refusing Kumar's request to be allowed to have unapproved trips out of the state.

B. Contact with Minors

[18] The trial court modified Kumar's probation terms to allow an intimate relationship with his wife. Kumar objects, however, to conditions barring him from contact with children under sixteen years old, calling the requirement “senseless” and a violation of his constitutional rights. Defendant's Br. p. 24. Kumar's constitutional argument, however, was not presented to the trial court and is therefore waived for appellate review. See Washington v. State, 840 N.E.2d 873, 880 (Ind. Ct. App. 2006) (“[A] party may not present an argument or issue to an appellate court unless the party raised the same argument or issue before the trial court.”), trans. denied.

[19] Indiana Code section 35-38-2-2.4 provides, in part, as follows:

As a condition of probation, the court may require a sex offender (as defined in IC 11-8-8-4.5) to:

(1) participate in a treatment program for sex offenders approved by the court; and

(2) avoid contact with any person who is less than sixteen (16) years of age unless the probationer:

(A) receives the court's approval; or

(B) successfully completes the treatment program referred to in subdivision (1).

[20] “ ‘Convicted individuals do not enjoy the same constitutional protections as law-abiding-citizens[,]’ and ‘probation conditions that intrude upon constitutionally protected rights are not necessarily invalid.’ ” Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013) (quoting Taylor v. State, 820 N.E.2d 756, 761 (Ind. Ct. App. 2005), trans. denied), trans. denied. We have recognized that “child molesters molest children to whom they have access,” and “probation conditions that reduce the potential for access to children are reasonable.” Bratcher, 999 N.E.2d at 874.

[21] We conclude that the prohibition here is reasonable, given Kumar's sexual attack on two girls who were approximately the same age as A.C. Kumar claims otherwise, pointing out that “[s]exual predators do not normally act in the open amongst witnesses.” Defendant's Br. p. 24. Perhaps not, and it may be that Kumar is only a threat when using controlled substances. Be that as it may, it seems to us that this would be an issue best addressed in Kumar's treatment program, which, as mentioned, he has not yet started. The fact that Kumar may not be a “typical” sexual predator does not support his argument that he should be allowed to have contact with A.C.

[22] We affirm the judgment of the trial court.

Riley, J., and Weissmann, J., concur.

Memorandum Decision by Judge Bradford

Judges Riley and Weissmann, concur.