PUSKAR v. STATE (2022)

MEMORANDUM DECISION

Case Summary

[1] Jeff Puskar (“Puskar”) pled guilty to Carrying a Handgun without a License, a Class A misdemeanor.¹ He frames his issue for appeal as “whether the trial court abused its discretion in accepting Puskar's plea of guilty,” and argues that his plea was not “freely and voluntarily given.”² Appellant's Brief at 4, 6. To the extent that Puskar seeks to challenge the voluntariness of his guilty plea, the proper procedure is through a petition for post-conviction relief. Jones v. State, 675 N.E.2d 1084, 1090 (Ind. 1996). Thus, we do not address this issue. However, Puskar also asserts that the trial court abused its discretion by denying Puskar's oral motion to withdraw his guilty plea. We address the sole issue of whether the trial court abused its discretion in this regard.

[2] We affirm.

Facts and Procedural History

[3] On April 9, 2021, a Mishawaka police officer observed Puskar in possession of a plastic bag of nine-millimeter ammunition. When questioned, Puskar admitted that he had a handgun lying on the ground nearby. Puskar did not have a permit for the handgun at that time.

[4] On April 30, 2021, Puskar was charged with Carrying a Handgun without a License. On September 28, 2021, Puskar received advisement of his rights, provided a factual basis for the charge against him, and offered a plea of guilty. The trial court accepted Puskar's guilty plea and stated, “now we go into the sentencing phase.” (Tr. Vol. II, pg. 9.) The State argued for the imposition of a ninety-day sentence and destruction of the handgun. Puskar testified that he had no criminal record and had, after the seizure of his handgun, obtained a five-year handgun license. He requested that the trial court impose only a fine and court costs.

[5] When the trial court stated that Puskar would not be incarcerated, but would be placed on probation, Puskar responded: “I'd rather plead not guilty and go to trial then ․ cause I've never been in trouble.” (Id. at 13.) Puskar's trial counsel interjected: “No.” (Id.) The trial court, after reminding Puskar that he had been given three opportunities to consult with his counsel, explained that, if Puskar was “dissatisfied with the sentence,” Puskar would need to file a motion or confer with his counsel. (Id.) The trial court imposed a sentence of ninety days, all suspended. Puskar was ordered to serve a probationary period of 180 days.

[6] Puskar filed a Motion to Reconsider and a Motion to Submit New Evidence. On October 26, 2021, a public defender was appointed to represent Puskar and this appeal ensued.

Discussion and Decision

[7] According to Puskar, the trial court abused its discretion when it “did not allow him to withdraw his plea when he expressed that he wanted to prior to sentencing.” Appellant's Brief at 6.

[8] Indiana Code section 35-35-1-4 governs a motion to withdraw a guilty plea. Puskar sought to withdraw his plea of guilty before the completion of the sentencing hearing; thus, his action is governed by subsection (b):

After entry of a plea of guilty, or guilty but mentally ill at the time of the crime, but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea of guilty, or guilty but mentally ill at the time of the crime, for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea. The motion to withdraw the plea of guilty or guilty but mentally ill at the time of the crime made under this subsection shall be in writing and verified. The motion shall state facts in support of the relief demanded, and the state may file counter-affidavits in opposition to 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, 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.

[9] We review the denial of a motion to withdraw a guilty plea for an abuse of discretion. 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.” Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). We will reverse the trial court only for an abuse of discretion. Id.

[10] Here, however, Puskar filed no written and verified motion, stating “facts in support of the relief demanded,” and affording the State an opportunity to oppose the motion, as required by Indiana Code Section 35-35-1-4(b). The trial court had before it no written motion and did not explicitly deny the improper oral motion; rather, the trial court proceeded with sentencing after advising Puskar that he could consult with his counsel regarding any subsequent motion. The trial court was not obligated to act upon Puskar's oral statement as to his wishes. See Primmer v. State, 857 N.E.2d 11, 15 (Ind. Ct. App. 2006) (holding that, in the absence of a written, verified motion to withdraw his guilty plea, the trial court did not abuse its discretion in not withdrawing the accused's guilty plea before sentencing), trans. denied. In these circumstances, Puskar has shown no abuse of discretion.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-2-1.

2.   The record of the plea hearing reveals the following events. The trial court informed Puskar of his Constitutional rights under Boykin v. State, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). Puskar stated that he had read and signed a waiver of rights form and that he had no questions about his rights. He thrice declined the opportunity to stop the hearing for consultation with his attorney. Puskar provided a factual basis for his guilty plea, testifying that, at the time that he came into contact with law enforcement, he had the ability to grab a handgun lying in close proximity to him. He admitted that it was his gun and that he obtained his handgun license after the incident. Puskar, who had been accused of waving his handgun around in public, claimed that he had been taking it to the police to surrender it. Puskar also testified that he was not under the influence of drugs or alcohol.

Bailey, Judge.

Najam, J., and Bradford, C.J., concur.