Andrew Scott Luther, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Andrew Scott Luther appeals his three convictions of Level 6 felony public indecency ¹ and his resulting sentence. He presents two issues for our review, which we restate as:

1. Whether the trial court abused its discretion when it denied Luther's motion to withdraw his guilty pleas; and

2. Whether Luther's six-year aggregate sentence is inappropriate based on his character.

We affirm

Facts and Procedural History

[2] On February 11, 2025, the State charged Luther with three counts of Level 6 felony public indecency based on Luther exposing himself while masturbating in public in August 2024, October 2024, and January 2025. On February 13, 2025, the trial court held its initial hearing. At the beginning of the hearing, the trial court advised Luther of his rights, including that he had a right to an attorney. Luther told the trial court “I just want to plead guilty right now.” (Tr. Vol. 2 at 5.) The trial court reminded Luther that he had a right to an attorney and Luther responded, “it's likely the outcome will still be the same.” (Id.) The trial court advised Luther that “attorneys have certain legal skills and expertise that you don't necessarily have” and “that they know how to negotiate favorable plea agreements with the State of Indiana[.]” (Id. at 6-7.) The trial court also told Luther that “representing yourself is almost always unwise[.]” (Id. at 7.) Luther indicated he understood the trial court's statements about proceeding pro se and that he wanted to represent himself. He told the trial court, “I'm just going to plead guilty right now.” (Id.) Luther spoke with the prosecutor, who told him that the State would not be making a plea offer. Luther dialogued with the State regarding his pleas and told the trial court “that's what I want to do” when the State explained that Luther would be “pleading open and letting the Judge decide essentially what happens.” (Id. at 8.)

[3] The trial court told Luther that, before accepting his guilty pleas, it had to make sure he “fully underst[oo]d [his] constitutional rights, that [his] plea [was] made freely and voluntarily, and that [he] did, in fact, commit these crimes.” (Id.) The trial court then asked Luther several questions regarding mental illness and substance use. Luther indicated he was not under the influence of alcohol or drugs. He told the trial court that he had been treated for “[h]igh-functioning autism” but did not take medication for that condition. (Id.)

[4] The trial court reminded Luther that he had a right to an attorney, a right to trial, and a right to remain silent. The trial court read the charges against Luther and the penalties for those crimes. The trial court told Luther that by pleading guilty he would forfeit his right to appeal his conviction. The trial court reminded Luther of its earlier warnings regarding self-representation. Luther stated he understood the trial court's statements and he was not under duress or influence when making his guilty pleas. He told the trial court that his “conscience” prompted him to plead guilty and responded in the affirmative when the trial court asked him if his guilty pleas were his “own free and voluntary decision[.]” (Id. at 14.) The State set forth a factual basis for Luther's crimes and Luther indicated he was guilty as charged. The trial court entered a judgment of conviction for all three counts and scheduled a sentencing hearing.

[5] On February 28, 2025, counsel entered an appearance for Luther, and on March 18, 2025, Luther filed a motion to withdraw his guilty pleas. Luther asserted he “has been diagnosed as mildly mentally handicapped, has been determined to suffer from Attention Deficit Disorder, Borderline Personality Disorder, Borderline Intellectual Functioning, and has been diagnosed with Asbergers [sic].” (App. Vol. 2 at 27.) He argued in part that his medical conditions “contributed to the confusion and poor judgment” at the time he pled guilty to the offenses. (Id. at 28.) He asked the trial court to allow him to withdraw his guilty pleas “to correct a manifest injustice.” (Id.) On May 21, 2025, Luther filed a motion for a psychiatric evaluation and asked the trial court

to appoint two (2) or three (3) competent, disinterested psychiatrists, psychologists endorsed by the Indiana State Board of Examiners, or physicians to examine the Defendant, and testify at a hearing on his competence to stand trial, and on his ability to appreciate the wrongfulness of his conduct at the time of the commission of the offense(s) charged in the above-captioned case.

(App. Vol. 2 at 54.)

[6] On May 22, 2025, the trial court held a hearing on Luther's motion to withdraw his guilty pleas and his motion for a psychiatric evaluation. He argued that because he had been found incompetent to stand trial twice in the past – in 2011 and 2012 – his competency to stand trial regarding the current charges was in question and “he's ․ a very good example of a person who might be appropriate for a guilty but mentally ill plea[.]” (Tr. Vol. 2 at 30.) Luther entered into evidence a list of his prior convictions, which dated back almost twenty years. He provided the trial court with two orders from prior cases in which he was temporarily found incompetent to stand trial. He submitted a 2011 competency evaluation that concluded Luther was competent to stand trial, in which Dr. Don A. Olive noted Luther's 2006 diagnoses of “Exhibitionism; Frotteurism;[² ] Depressive Disorder; ․ Borderline Intellectual Functioning; and Borderline Personality Disorder.” (Ex. Vol. 3 at 17) (footnote added). Luther also presented evidence that he had an IQ of eighty-four.

[7] In addition, Luther entered his pre-sentence investigation report (the “PSI”) for the current cases into evidence. The PSI noted Dr. Olive's report and additional information regarding Luther's diagnoses and treatments. In the PSI, when asked to give his version of events in the current cases, Luther said:

I have made victims in the past and do not want any other victims in the future. I have learned empathy now. There is no excuse for what I did. I would like to start therapy and finish it. I know therapy will help me because I have been in [Narcotics Anonymous] in the past. I need treatment for sex addictions specifically. I will absolutely go to therapy no matter what. I have to go whether it is ordered or not.

(Id. at 29.) Additionally, the PSI noted:

When asked how he feels about this case, the defendant stated that he has changed the way he thinks and does not want this type of behavior to happen in the future. He stated that he understands it emotionally affects the people that he exposes himself to. He reported that he did not know any of the people he exposed himself to in these matters, but stated that they must have felt embarrassed and scared.

* * * * *

When asked why he committed the current offenses, the defendant stated that they were “moments of weakness”. He reported that he has also been “stressed out” due to having to leave his grandmother's home. He admitted to masturbating in public [as charged].

(Id. at 32.)

[8] Luther also presented testimony from his mother, Vicki Robertson Risch. She stated Luther had been in special education classes since junior high school and did not obtain a high school diploma. Risch told the trial court that Luther had been hospitalized for mental illness multiple times and had lived in residential treatment facilities at various times since he was five years old. She also testified that because of Luther's Asperger's diagnosis, he had trouble communicating. She told the trial court that she “could not understand” why Luther would plead guilty to the current charges. (Tr. Vol. 2 at 45.)

[9] On June 20, 2025, the trial court issued is order denying Luther's motion to withdraw his guilty plea. It found in relevant part:

16. Defendant's arguments rested primarily on his mother's testimony that he receives SSI payments and that he was previously found incompetent to stand trial [in charges from 2010 and 2012].

17. Defendant ultimately pleaded guilty to Public Indecency – Indecent Exposure under [the 2012 charge].

18. He has also pleaded guilty to: Public Indecency under [case numbers filed in 2007, 2010, 2013, and 2018]; Voyeurism under [a case number filed in 2015]; Theft under [cases filed in 2016, 2017, and 2019]; and Public Nudity under [a case filed in 2023].

19. The fact that Defendant was found to lack the capacity to stand trial over a decade ago and receives SSI does not give this Court reasonable grounds to believe that Defendant lacks the ability to understand the current proceedings and assist in the preparation of his defense.

20. Defendant has navigated the judicial system multiple times since that prior finding.

21. Defendant clearly understands the difference between right and wrong as evidenced by his statements during his guilty plea hearing.

* * * * *

23. No manifest injustice will occur if Defendant's plea is not withdrawn, and the Court declines to allow it to be.

(App. Vol. 2 at 57.) The trial court subsequently held a sentencing hearing and sentenced Luther to two years for each offense, to be served consecutively, for an aggregate sentence of six years incarcerated.

Discussion and Decision

1. Denial of Motion to Withdraw Guilty Pleas

[10] Luther contends the trial court abused its discretion when it denied his motion to withdraw his guilty pleas because he was not mentally competent during the initial hearing in which he waived his right to counsel and entered guilty pleas to three counts of Level 6 felony public indecency. “Rulings on motions to withdraw guilty pleas are presumptively valid, and parties appealing an adverse decision must prove the court has abused its discretion.” Asher v. State, 128 N.E.3d 526, 530 (Ind. Ct. App. 2019). In analyzing the defendant's arguments on appeal, “ ‘we will not disturb the ruling where it was based on conflicting evidence.’ ” Id. (quoting Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998)).

[11] Indiana Code section 35-35-1-4 governs the withdrawal of a guilty plea. The statute provides that the trial court “may allow” the defendant to withdraw his guilty plea “for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea.” Ind. Code § 35-35-1-4(b). The trial court “shall allow the defendant to withdraw his plea of guilty, or guilty but mentally ill at the time of the crime, whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.” Id. Luther claims the trial court's failure to grant his motion to withdraw his guilty pleas resulted in a manifest injustice. A manifest injustice exists when “the convicted person was denied the effective assistance of counsel ․ [or] the plea was not knowingly and voluntarily made.” Ind. Code § 35-35-1-4(c).

[12] At the beginning of the initial hearing, the trial court advised Luther that he had, among other things, a right to an attorney and a right to trial. The trial court also told Luther that, by pleading guilty, he would be waiving those rights and would not be able to appeal his convictions. Luther indicated multiple times that he understood those advisements and indicated his desire to plead guilty despite the trial court's warnings. The State told Luther the elements it would be required to prove at trial, and Luther indicated he still wanted to plead guilty. The trial court also confirmed Luther did not have a mental illness that would render him unable to knowingly and voluntarily enter guilty pleas. At the end of the hearing, the trial court accepted Luther's guilty pleas and scheduled a sentencing hearing.

[13] At the hearing regarding his motion to withdraw his guilty pleas, Luther argued he was not mentally competent to plead guilty to the charges against him during the initial hearing. Luther entered into evidence Dr. Olive's 2011 report and the PSI in the current case, among other things. Luther's mother, Risch, testified regarding Luther's mental health history and her observations regarding his current mental competency.

[14] The diagnoses and mental health evaluation upon which Luther bases most of his argument was almost fifteen years old at the time of the hearing on his motion to withdraw his guilty pleas. Thus, the only evidence regarding Luther's current mental health diagnoses and his treatment was his mother's anecdotal testimony. Based thereon, we conclude his argument is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See, e.g., Weatherford, 697 N.E.2d at 36 n.9 (when there is conflicting evidence regarding a motion to withdraw a guilty plea, the appellate court cannot reweigh evidence or judge the credibility of witnesses). Further, our review of the transcript of the initial hearing and the evidence regarding Luther's criminal history supports the trial court's findings that Luther did not seem to have trouble understanding the proceedings, had extensive exposure to the criminal justice system, and had pled guilty multiple times in the past, which suggests he knew the consequences of doing so. Thus, he did not suffer a manifest injustice, and the trial court did not abuse its discretion when it denied his motion to withdraw his guilty pleas. See, e.g., Milian v. State, 994 N.E.2d 342, 350 (Ind. Ct. App. 2013) (manifest injustice did not exist when Milian received “multiple advisements and admonishments from the trial court regarding his rights, and in particular, his right to representation by counsel” and thus the trial court did not abuse its discretion when it denied his motion to withdraw his guilty pleas), trans. denied.

2. Inappropriate Sentence

[15] Luther asserts ³ his sentence is inappropriate based on his character. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, [this] Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Because sentencing is a function of the trial court, its judgment should receive “ ‘considerable deference.’ ” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). This deference can only be “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven the outliers ․ but not to achieve the perceived ‘correct’ result in each case.” Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell, 895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[16] Our review is “holistic” and takes into consideration “the whole picture before us.” Lane, 232 N.E.3d at 127. Appellants need not prove their sentence is inappropriate for both their character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. “Our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record.” George v. State, 141 N.E.3d 68, 73 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied.

[17] The trial court sentenced Luther to two years incarcerated for each of his convictions of Level 6 felony public indecency. The sentence for a Level 6 felony is between six months and two and one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court ordered Luther's sentences to be served consecutively, for an aggregate sentence of six years incarcerated. Luther contends his sentence is inappropriate based on his character because he “has a lower IQ and multiple mental health diagnoses” and had been found incompetent to stand trial in the past. (Br. of Appellant at 15.) He also noted one of his victims testified he “needs some help for this” and that his probation officer recommended mental health treatment in a secure facility. (Tr. Vol. 2 at 55.)

[18] When analyzing a defendant's character as related to the inappropriateness of his sentence, we consider the defendant's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). “The significance of criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense.” Id. A defendant's pattern of “continuing to engage in criminal sexual behavior, even after contacts with the justice system, reflects poorly on his character.” McHenry v. State, 152 N.E.3d 41, 47 (Ind. Ct. App. 2020). Luther's PSI indicated he had “five (5) previous felony convictions and six (6) previous misdemeanor convictions” most of which were public indecency. (App. Vol. 2 at 37.) In addition, Luther's probation was revoked four of the five times after he was given those opportunities. Even if we assume he still had the mental illnesses he was diagnosed with fifteen years ago, he has had multiple opportunities to seek and complete effective treatment. Therefore, Luther's extensive criminal history leads us to conclude his sentence is not inappropriate based on his character. See, e.g., Lisk v. State, 145 N.E.3d 838, 841 (Ind. Ct. App. 2020) (sentence not inappropriate based on Lisk's extensive criminal history and failure to successfully complete probation for several offenses).

Conclusion

[19] The trial court did not abuse its discretion when it denied Luther's motion to withdraw his guilty pleas. In addition, Luther's sentence is not inappropriate based on his character. Accordingly, we affirm Luther's convictions and sentence.

[20] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-4-1(c).

2.   Frotteurism is “the paraphiliac practice of achieving sexual stimulation or orgasm by touching or rubbing against a person without the person's consent and usually in a public place.” Frotteurism, https://www.merriam-webster.com/medical/frotteurism (last accessed February 27, 2026).

3.   Initially, Luther contends his aggregate six-year sentence is inappropriate because the trial court did not perform a competency or psychiatric examination as requested in his May 21, 2025, motion for psychiatric examination. However, in that motion, Luther asked the trial court toappoint two (2) or three (3) competent, disinterested psychiatrists, [or] psychologists endorsed by the Indiana State Board of Examiners, or physicians to examine the Defendant, and testify at a hearing on his competence to stand trial, and on his ability to appreciate the wrongfulness of his conduct at the time of the commission of the offense(s) charged in the above-captioned case.(App. Vol. 2 at 54) (emphases added). Luther's motion for a psychiatric examination was discussed during the hearing on his motion to withdraw his guilty pleas. He did not file an additional motion for a psychiatric examination prior to the sentencing hearing, nor did he request a psychiatric examination during the sentencing hearing. Thus, his argument that a psychiatric examination was required for sentencing is waived for failure to first present it to the trial court. See, e.g., Shorter v. State, 144 N.E.3d 829, 841 (Ind. Ct. App. 2020) (argument waived because “a trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider”) (quoting Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)), trans. denied. Additionally, Luther's brief does not raise as a separate issue that the trial court abused its discretion by not ordering the psychiatric examination, nor does Luther's inappropriate sentencing argument contain a cogent analysis of why the trial court was required to order that examination to properly sentence him. As a result, any such argument is waived. See Indiana Appellate Rule 46(a)(8) (issues on appeal must be supported by cogent argument including citation to relevant authority). Accordingly, we examine whether Luther's sentence is inappropriate based on the information in the record regarding his character.

May, Judge.

Mathias, J., and Felix, J., concur.