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A man’s displeasure with his appointed counsel in a manslaughter case did not require a trial court to replace the public defender the morning of a sentencing hearing, the Court of Appeals of Indiana affirmed Wednesday.
According to court records, on Feb. 25, 2022, Jeremy Kelly’s father, Gary, was killed in his home.
The state charged Kelly with murder and Level 2 felony robbery resulting in serious bodily injury and also filed notice of its intent to seek a habitual offender sentence enhancement.
During Kelly’s initial hearing, the Jay Circuit Court appointed a public defender to represent him.
Attorney Aaron Henderson appeared to represent Kelly.
The trial court scheduled Kelly’s trial to begin on June 5, 2023.
On the morning of trial, Kelly and the state reached a plea deal in which Kelly agreed to plead guilty to an amended charge of Level 2 felony voluntary manslaughter in exchange for the state’s dismissal of the original charges and the habitual offender allegation.
The trial court accepted Kelly’s plea and, on the state’s motion, dismissed the original charges. Sentencing was set for July 14.
On July 13, Kelly, who was still represented by Henderson, filed a pro se motion to withdraw his guilty plea. In that motion, he asserted the plea should be withdrawn because he received ineffective assistance of counsel and because the “Plea was entered under duress[.]”
Then at a video hearing on the morning of sentencing, Henderson indicated he was unable to present evidence on behalf of Kelly because Kelly would not speak with him.
The court ultimately determined the motion to withdraw the plea was not in proper form, and the judge told Kelly he could either proceed pro se or with Henderson’s representation. Kelly declined both options, so the judge denied Henderson’s motion to withdraw.
Henderson then argued for a sentence shorter than the 30 years recommended by the state, and for a sentence that would provide an “opportunity for rehabilitative treatment through an alternative means.”
But the trial court cited Kelly’s criminal history, his juvenile adjudications, his high risk of reoffending and “the heinous nature” of his crime against his father as support for imposing the maximum 30-year sentence.
Kelly appealed and alleged the trial court abused its discretion when it failed to remove Henderson and assign a new public defender.
The Court of Appeals affirmed Kelly’s conviction and sentence, finding the trial court did not abuse its discretion and noting that Kelly had raised no other allegation of error on appeal.
Judge Melissa May wrote the opinion for the appellate court.
May first addressed the state’s cross-appeal argument that the appellate court should dismiss Kelly’s appeal because “Kelly improperly seeks reversal of his conviction[,]” which the state asserted was relief that cannot be sought on direct appeal after a guilty plea.
The appellate judge noted Kelly has not asked to overturn his plea agreement, nor did the trial court take evidence regarding Kelly’s motion to withdraw his plea or address that motion on its merits.
“Instead, Kelly asks us to void his sentencing and remand for assignment of new counsel to assist him with filing a proper motion to withdraw his guilty plea,” May wrote. “Accordingly, we reject the State’s invitation to dismiss Kelly’s appeal of the procedural decision the trial court made on the morning of sentencing.”
According to May, Kelly challenged only the trial court’s refusal to replace Henderson on the morning of his sentencing.
Although Henderson asked to be removed as Kelly’s counsel, the trial court was not required to grant that motion on the morning of sentencing or to remove Henderson based on Kelly’s last-minute expression of displeasure with the attorney and his guilty plea, May wrote.
“Trial courts have an obligation to move cases forward, and six weeks had passed between Kelly’s change of plea hearing and his sentencing,” she wrote. “Nevertheless, Kelly waited until the morning of the sentencing hearing to express his displeasure with his appointed counsel.”
May added that if Kelly wishes to challenge the validity of his plea agreement, he may do so via a post-conviction petition.
Judges L. Mark Bailey and Paul Felix concurred.
The case is Jeremy W. Kelly v. State of Indiana, 23A-CR-1805.
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