ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
N. Sean Harshey Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
RAINIER L. JOHNSON, )
Appellant (Defendant Below ), )
v. ) Cause No. 49S00-9910-CR-613
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9711-CF-168333
August 29, 2000
SHEPARD, Chief Justice.
Appellant Rainier Johnson pled guilty while he was on trial for murder.
He changed lawyers before sentencing and asked to withdraw his plea. The
trial court refused to let him do so and proceeded to impose sentence.
Besides challenging these decisions, Johnson also seeks to claim that his first lawyer
provided ineffective representation, notwithstanding the rule that one who pleads guilty cannot seek
to set aside the plea on direct appeal. As with other kinds
of contentions concerning pleas, we hold Johnsons claim should be heard through post-conviction
relief. In the end, we affirm.
Johnson confessed to police that on September 25, 1997, he went to the
home of his boyfriend, Fred Raymundo. Raymundo offered Johnson fellatio, but Johnson
said he just wasnt in the mood. (R. at 338.) Raymundo
mocked Johnson until Johnson just couldnt help [him]self and . . . hit
Fred. (Id.) After Johnson knocked Raymundo to the ground, he choked
him for about [five] minutes. (Id.) Raymundo did not get up,
so Johnson moved him to the garage and went home to watch television.
The next morning, Johnson went back to the garage, collected
Raymundo, and buried him in a cornfield. Then he went back home
and relaxed for a while. (R. at 338.)
Johnson took Raymundos car and drove to Raymundos apartment in Denver, Colorado.
There, he took some of Raymundos possessions, including a television. Using credit
cards either owned solely by or jointly with Raymundo, Johnson charged expensive purchases
including furniture for Johnsons girlfriend/fiancées apartment. When Raymundos mother returned from a
trip, Johnson lied to her about Raymundos whereabouts.
On November 11th, Johnson confessed to the killing and took police to the
cornfield where he buried Raymundo. The following day, the State charged Johnson
with murder. The prosecutor eventually added five more counts, including criminal deviate
conduct, confinement, and child molesting.
The police later questioned Mike Myers, who was present during the killing and
helped Johnson move and bury the body. The record indicates
Myers would have testified that Johnson choked Raymundo, put a plastic bag over
his head and pushed his head under water in a bathtub to be
sure he was dead.
Myers pled guilty to conspiracy to commit murder.
By contrast, Johnson proceeded to trial on the murder charge. On the
first day, Johnson decided to plead guilty to murder in return for the
States agreement to dismiss all other counts.
By the time of his sentencing hearing, Johnson had obtained his present lawyer.
He sought to withdraw his plea of guilty. At that hearing
Johnson again largely admitted the above actions, but he denied choking Raymundo, saying,
I did not squeeze Freds neck at all. . . . It was
sort of a grip I had just to hold him down. (R.
at 326.) He also refused to admit to sexually molesting Myers. Johnson
said that the only reason he pled guilty was that he felt his
former counsel pressured him. The Court denied Johnsons motion to withdraw his
plea, and sentenced him to sixty-five years.
I. Withdrawal of Guilty Plea
Johnson claims that manifest injustice resulted from the trial courts failure to permit
him to withdraw his guilty plea. Beyond claiming his counsel pressured
him, he says the court did not accurately ascertain whether there was an
adequate factual basis for the plea, and that the physical evidence does not
contradict Johnsons version of the events of the killing.
A. Standard of Review. The Code provides a standard to apply
when a defendant pleads guilty pursuant to an agreement with the State, and
then requests to withdraw the plea:
After entry of a plea of guilty . . . , but before
imposition of sentence, the court may allow the defendant by motion to withdraw
his plea . . . for any fair and just reason unless the
state has been substantially prejudiced by reliance upon the defendants plea. . .
. 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 . . . whenever the defendant proves
that withdrawal of the plea is necessary to correct a manifest injustice.
Ind. Code Ann. § 35-35-1-4(b) (West 1986 & Supp. 1997).
A trial court abuses its discretion as to plea agreements only when the
failure of the trial court to grant the motion would result in either
a manifest injustice to the defendant or in substantial prejudice to the State.
Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998). The trial
courts ruling on a motion to withdraw a guilty plea arrives in our
Court with a presumption in favor of the ruling. Coomer v. State,
652 N.E.2d 60, 62 (Ind. 1995). One who appeals an adverse decision
on a motion to withdraw must therefore prove the trial court abused its
discretion by a preponderance of the evidence. Weatherford, 697 N.E.2d at 34.
We will not disturb the courts ruling where it was based on
conflicting evidence. Id.
B. Pressure to Plead Guilty and Inquiry About the Plea. Johnson
says his lawyer pressured him to plead guilty over the lunch hour on
the first day of trial, because that morning the court ruled to admit
extremely damaging evidence about Johnsons character. Johnson also claims that once the
plea agreement was submitted, the judge did not attempt to ascertain accurately whether
there was a substantial basis.
Judge Magnus-Stinson questioned Johnson extensively about the plea. After swearing Johnson in,
the judge double checked Johnsons signature and asked whether Johnson had read the
entire agreement and discussed it with his attorney before signing. She asked
whether Johnson could read and write English well enough to understand the agreement.
She asked him whether he understood that he did not have to
plead guilty and that in Indiana a defendant cannot plead guilty and at
the same time deny committing the crime. To each of these questions,
Johnson answered yes.
The judge also asked him whether anyone forced him to enter the plea.
She asked whether anyone made any threats or promises to induce him
to plead guilty. She asked whether Johnson was under the influence of
drugs or alcohol. To these questions, he answered no. She informed
him that the sentencing range for the crime was forty-five to sixty-five years.
He indicated that he understood the potential punishment. Finally, Judge Magnus-Stinson
asked why he was entering into the plea agreement, and Johnson replied, I
think its in my best interest. (R. at 203.)
The answers Johnson gave while pleading guilty belie his later assertion that the
only reason he entered a guilty plea is because his counsel pressured him.
Coomer, 652 N.E.2d at 63. Johnson acknowledged in open court that
he read and understood the plea agreement. His responses were more than
sufficient to indicate that his plea was voluntarily entered as in his best
interest. The record does not demonstrate that permitting withdrawal of the agreement
was necessary to prevent a manifest injustice.
C. Physical Evidence. Johnson claims that the physical evidence does not
contradict his version of the events on the night of the killing.
The prosecutor countered that much of the forensic evidence that would have proved
or disproved Johnsons story was obliterated when Johnson buried the victims body.
Faced with conflicting versions of the killing and limited physical evidence
to back up either story, we cannot find that the trial court abused
its discretion in accepting the States account. Weatherford, 697 N.E.2d at 34
(reviewing court will not disturb trial courts ruling on withdrawal of guilty plea
if based on conflicting evidence).
D. Simultaneous Guilty Plea and Claim of Innocence. It is true
that a trial court cannot accept a guilty plea from a defendant who
pleads guilty and maintains his innocence at the same time. Ross v.
State, 456 N.E.2d 420, 423 (Ind. 1983). A trial court may, however,
accept a guilty plea from a defendant who pleads guilty in open court,
but later protests his innocence. Moredock v. State, 540 N.E.2d 1230, 1231
(Ind. 1989). In this case, Johnson did not claim his innocence until
nearly six weeks after he pled guilty.
Johnson has not overcome the presumption of validity accorded the trial courts denial
of his motion to withdraw his guilty plea. The courts refusal in
this case is well within its discretion, and we cannot say that it
constituted manifest injustice.
Johnson claims that his sentence is manifestly unreasonable. This contention requires that
we consider all valid aggravating and mitigating factors to consider whether the sentence
imposed was manifestly unreasonable in light of the nature of the offense and
the character of the offender. Allen v. State, 720 N.E.2d 707, 715
(Ind. 1999); Ind. Appellate Rule 17(B).
We review sentences with the knowledge that reasonable minds may differ about what
sentence is appropriate in any given case. Allen, 720 N.E.2d at 715.
We generally defer to a trial courts sentencing determination.
A. Aggravators. Johnson complains that in sentencing him, the trial court
found non-statutory aggravating circumstances. In a non-capital case, however, a trial
court [i]s well within the law to consider . . . non-statutory aggravator[s].
Sauerheber v. State, 698 N.E.2d 796, 807 (Ind. 1998). The aggravating
criteria listed in Ind. Code § 35-38-1-7.1(b) are not exclusive; that is, the
statute does not limit the matters a court may consider in determining a
sentence. Ajabu v. State, 722 N.E.2d 339, 344 n.8 (Ind. 2000).
The trial court found that Johnson was at high risk of committing another
crime, and that he was completely lacking in remorse. It cited Johnsons
appropriation of Raymundos property after the killing as evidence of Johnsons risk of
recidivism and his callousness. The court also discussed the nature and circumstances
of the crime: Johnson hit the victim, probably choked him, and buried
him, greatly compromising the ability to determine the cause of death. Finally,
it relied on Johnsons failure to seek first aid for [Raymundo] when [he]
knew something was wrong. (R. at 401.)
We consider these statements
well within the appropriate consideration of the trial court.
B. Mitigators. While the court found no mitigating factors, a trial
court is not obliged to accept as mitigating each of the circumstances a
defendant offers up. "Only when the trial court fails to find a
significant mitigator that is clearly supported by the record is there a reasonable
belief that it was improperly overlooked." Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997) (citing Jones v. State, 467 N.E.2d 681, 683 (Ind. 1984)).
Johnson urged three mitigating circumstances at sentencing: (1) lack of significant criminal history,
(2) good character and low propensity to future crime, and (3) financial support
of his children. Judge Magnus-Stinson rejected all three.
As to criminal history, Johnson does not argue that he has no criminal
background, but rather that his criminal record is not significant. We agree
with the trial court that this factor neither cuts in favor of Johnson
nor against him. (R. at 400 (Your prior criminal history is not
a factor in my mind.).)
See footnote We cannot say that the trial court
abused its discretion in declining to find the defendants prior criminal behavior a
See, e.g., Warlick v. State, 722 N.E.2d 809, 813 (Ind.
2000); Bacher v. State, 722 N.E.2d 799, 804 (Ind. 2000) (both finding under
facts analogous to present case that record did not compel lack of criminal
The trial judge also considered Johnsons propensity for future criminal behavior and determined
that, if anything, it was aggravation evidence. (R. at 399 (I do
think that the potential if you dont get your way on another occasion
for you to [resort] to a criminal act . . . [,]
its a high likelihood.).) Judge Magnus-Stinson did not abuse her discretion in
determining that Johnsons claimed antipathy to future crime did not amount to valid
The trial court found the defense did not present evidence that Johnson did
anything financial to support [his] dependents. (R. at 400.) Upon review
of the record, we agree. In the absence of such evidence, this
circumstance is not a significant mitigator. See, e.g., Wilkins v. State, 500
N.E.2d 747, 749 (Ind. 1986) (no financial support mitigator compelled by record when
there is no evidence of defendants pattern of prior support to his dependents
nor a showing that they would suffer undue hardship as a result of
On appeal, Johnson presents four additional potential mitigators: his cooperation with authorities,
willingness to testify about the last hours of the victims life, apologies and
remorse, and the circumstances surrounding the killing.
See footnote (Appellants Br. at 22-25.)
He did not urge any of these upon the trial judge, and the
record suggests that none of them were compelled.See footnote
Whatever weight they might have is not dispositive. It is often the
case that while a mitigator may have been entitled to some weight, it
does not command a change in the sentence.
Page v. State, 689
N.E.2d 707, 712 (Ind. 1997).
C. Aggravators v. Mitigators. A single aggravating circumstance may be sufficient
to support the enhancement of a presumptive sentence. Price v. State, 725
N.E.2d 82 (Ind. 2000). As there are no mitigating factors, the significant
aggravators adequately support the trial courts sentence enhancement.
III. Ineffective Assistance of Counsel
Johnson claims that his former counsel was ineffective because counsel opened the door
to otherwise inadmissible character evidence, admitted that Johnson caused the victims death, and
pressured Johnson to plead guilty. We recently reiterated the rule that when
a defendant pleads guilty, he may challenge only sentencing errors on direct appeal,
not alleged errors involving his guilty plea or conviction. Prowell v. State,
687 N.E.2d 563, 564 n.1 (Ind. 1997), cert. denied, 525 U.S. 841 (1998)
Creating an exception to this rule by permitting defendants to challenge the plea
through IAC claims on direct appeal would be a particularly bad idea for
most defendants. Such a claim litigated at this stage would necessarily rise
or fall based only on the record generated in open court during the
guilty plea. A claimant would thus not have the type and extent
of evidentiary hearing afforded at a post-conviction proceeding . . . designed to
allow [an] appellant an opportunity to establish the factual assertions he makes concerning
his guilty plea. Crain v. State, 261 Ind. 272, 273, 301 N.E.2d
751, 751-52 (1973). This significant handicap is among the reasons we observed
that post-conviction is generally the preferred forum for adjudicating an ineffectiveness claim.
Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998), cert. denied, 120 S.Ct.
Moreover, a prisoner who litigates a trial counsel ineffectiveness claim under this handicap
will find that res judicata bars him from raising it more comprehensively in
a collateral proceeding. Sawyer v. State, 679 N.E.2d 1328, 1329 (Ind. 1997)
(The defendant, having once litigated his Sixth Amendment claim concerning ineffective assistance of
counsel, is not entitled to litigate it again, by alleging different grounds.).
The present case demonstrates the wisdom of this approach. Counsel for Johnson
effectively acknowledges that he cannot prove a Sixth Amendment violation under the standard
of Strickland v. Washington, 466 U.S. 668 (1984); he is reduced to arguing
for a new hybrid standard that acknowledges the vast area that exists between
flawless representation and the current standards required to demonstrate ineffective assistance of counsel.
(Appellants Br. at 27.)
The instant claim is not available on direct appeal.
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Myers also said that Johnson sexually molested him and forced him to
have sex with other men when he was twelve to fourteen years old.
Footnote: Johnson also claims that the states strategic timing in filing felony charges
based on nothing more than self-serving accusations by a prisoner seeking leniency on
his own case, must give rise to a genuine question of the propriety
of Mr. Johnsons guilty plea. (Appellants Br. at 13.) He provides
no further explanation of why this strategic filing amounted to a manifest injustice
necessitating the approval of his request to withdraw his plea. We need
not address such a claim without argument. Ind. Appellate Rule 8.3(A)(7).
Johnson seeks refuge in Patton v. State, 517 N.E.2d 374, 376 (Ind.
1987) (court should not sentence on plea from capital defendant when defendant denies
intent to kill). Patton illustrates the great care required in capital cases.
We have not held that a subsequent protestation of innocence in a
non-capital case requires that a trial court automatically permit a defendant to withdraw
his guilty plea. We decline to do so today. Instead, we
continue to hold that in non-capital cases, only a plea of guilty tendered
by one who in the same breath protests his innocence . . .
is no plea at all. Harshman v. State, 232 Ind. 618, 621,
115 N.E.2d 501, 502 (1953). (emphasis added).
Johnson also argues that the trial court improperly considered that his fiancée
was underage when their first child was conceived. (Appellants Br. at 20;
R. at 397.) The court did not find this circumstance to be
an aggravating factor, and did not appear to place any undue weight upon
Footnote: Johnson had previously been convicted of theft and criminal conversion. (Supp. R.
Footnote: Johnson also offers a fifth circumstance, lack of extensive violent criminal history,
but we addressed it earlier in this subsection.
Footnote: It is true, for example, that Johnson initially cooperated with authorities by
offering a confession, but he later retracted certain key statements to which he
had sworn in his confession.