      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Jun 18 2018, 10:35 am

      court except for the purpose of establishing                              CLERK
                                                                            Indiana Supreme Court
      the defense of res judicata, collateral                                  Court of Appeals
                                                                                 and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General of Indiana
      Victoria Christ                                          Ian McLean
      Deputy Public Defender                                   Supervising Deputy Attorney
      Indianapolis, Indiana                                    General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Mark A. Petry,                                           June 18, 2018
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               18A-PC-18
              v.                                               Appeal from the
                                                               Pike Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     Jeffrey L. Biesterveld, Judge
                                                               Trial Court Cause No.
                                                               63C01-1409-PC-216



      Kirsch, Judge.


[1]   Following a jury trial, Mark A. Petry (“Petry”) was convicted of Class B felony

      criminal deviate conduct, Class D felony sexual battery, and Class D felony

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018                   Page 1 of 15
      criminal confinement. Petry admitted to being an habitual offender, and the

      trial court sentenced him. After this court affirmed Petry’s convictions on direct

      appeal, Petry filed a petition for post-conviction relief, asserting that his plea of

      guilty to the habitual offender allegation was not knowing, intelligent, and

      voluntary. The post-conviction court denied his petition, and he now appeals,

      raising the following restated issue: whether the post-conviction court erred

      when it determined that Petry failed to show, by a preponderance of the

      evidence, that he did not know he was waiving his Boykin rights when he

      pleaded guilty to the habitual offender enhancement.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts supporting Petry’s convictions, as set forth more fully by this court on

      direct appeal, are that Petry sexually molested his teenage daughter more than

      twenty times over the course of two years. Petry v. State, No. 63A01-1306-CR-

      279, 2014 WL 729901, slip. op. at *1 (Ind. Ct. App. Feb. 25, 2014), trans. denied.

      Among other things, he touched his penis to her vagina, used bungee cords to

      tie her to the bed, duct-taped her hands behind her back, put his tongue on her

      vagina, and forced her to perform oral sex. A bifurcated jury trial was held, and

      at the end of the first phase, Petry was found guilty of Class B felony criminal

      deviate conduct, Class D felony sexual battery, and Class D felony criminal

      confinement. Id. at *3.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 2 of 15
[4]   The trial court recessed the jury, entered judgment of conviction, and moved to

      the habitual offender phase of the trial. Petry’s counsel told the trial court that

      Petry “intends to waive jury trial on that issue and will admit to the habitual

      charge.” Appellant’s App. Vol. II at 64; Trial Tr. Vol. III at 531. Petry, still under

      oath, presented testimony to the trial court, regarding his decision to waive his

      right to a jury trial to determine habitual offender status:


              Q: Mr. Petry, you understand that you’ve been charged as an
              habitual offender?


              A: Yes. I have.


              Q: And that there are, because of prior felony convictions that
              you have received. You understand that?


              A: Yes.


              Q: And that the uh, you have the right to have this jury sit in
              judgment on whether or not you did, in fact, commit those
              offenses.


              A: Yes.


              Q: You understand that?


              A: Yes.


              Q: And you understand the seriousness of, of the habitual status,
              as far as the enhancement and the penalties?



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 3 of 15
        A: Yes.


        Q: Alright. And knowing all that, do you wish to waive your
        right to have a jury determine those, the issue of your habitual
        status?


        A: Yes.


        Q: Alright. And you, you feel like you fully understand what
        you are doing here, in admitting to this?


        A: Yes.


        Q: Alright. You understand that that does not affect your right
        to appeal the verdict on the other...


        A: Yes.


        Q: . . . counts? You understand that? Okay. You, is that, is this
        decision your free will?


        A: Yes.


        Q: Anybody threaten you or force you to do this?


        A: No.


        Q: Okay.


Appellant’s App. Vol. II at 65-66. Next, the trial court asked Petry questions,

confirming that Petry knew and understood the enhancement penalties that he

Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 4 of 15
      faced and that he had received adequate time to discuss it with his attorney.

      The prosecutor then established the factual basis for Petry’s guilty plea, asking

      Petry if he had the following convictions: (1) 2005 Class C felony burglary in

      Daviess County; (2) 2000 Class C felony burglary in Dubois County; and (3)

      1996 Class B felony arson in Knox County. Petry admitted to having the

      convictions, and the exhibits establishing these convictions were admitted into

      evidence. Appellant’s App. Vol. II at 69-71; State’s Trial Exs. 6, 7, 8. Petry had

      pleaded guilty to each. State’s Trial Exs. 6, 7, 8.


[5]   The trial court then asked Petry’s counsel if he had “a motion in regard to your

      client’s former denial, not guilty plea as to the habitual offender count,” and

      Petry’s counsel withdrew the not guilty plea. Appellant’s App. Vol. II at 72. The

      trial court asked Petry “how do you plead to the habitual offender charge” and

      Petry replied, “guilty.” Id. The Court found, “[T]he defendant understands the

      nature of the charge to which he’s pleading guilty, that he understands the

      possible penalty for the offense, that his plea was freely and voluntarily made,

      and that a factual basis exists for the plea.” Id. The trial court concluded by

      stating, “[T]he Court will find that the defendant is an habitual offender

      pursuant to his plea,” and it dismissed the jury, ordered a presentence report,

      and scheduled a sentencing hearing. Id.


[6]   The trial court later sentenced Petry to twenty years for criminal deviate

      conduct, three years for sexual battery, and three years for criminal

      confinement, all to run concurrently. The sentence was then enhanced twenty-



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 5 of 15
      five years for the habitual offender status, for an aggregate sentence of forty-five

      years.1


[7]   Petry filed a direct appeal, claiming that the trial court should not have

      admitted certain evidence and that the State presented insufficient evidence to

      convict him, and this court affirmed Petry’s convictions. Petry, at *6. In

      September 2014, Petry filed a pro se petition for post-conviction relief, later

      amended in July 2017, when Petry was represented by a public defender,

      alleging that his decision to admit to the habitual offender enhancement was

      not knowing, intelligent, and voluntary because the trial court failed to advise

      him of two constitutional rights: the privilege against self-incrimination and the

      right to confront and cross-examine witnesses. Appellant’s App. Vol. II at 26-27.


[8]   At the September 29, 2017 evidentiary hearing, Petry did not testify, but he

      submitted the record, which consisted of the trial transcript, trial exhibits,

      appellate briefs and appendices. Pet’r’s Ex. 1. The State did not present

      evidence, but, in argument, conceded that the trial court did not advise Petry of

      the two specific rights at the habitual phase, arguing that those advisements




      1
        We note that an habitual offender enhancement must be attached to a single conviction. State v. Arnold, 27
      N.E.3d 315, 321 (Ind. Ct. App. 2015) (citing Ind. Code § 35-50-2-8), trans. denied. Here, we note that the
      Sentencing Order reflects that the habitual offender enhancement “be served consecutive to Counts I, II, and
      III.” Appellant’s App. Vol. 2 Prior Appeal at 54 (also marked as p. 296). To the extent that Petry’s enhancement
      was attached to more than one conviction, that was improper. Arnold, 27 N.E.3d at 317 n.1 (noting that
      “[a]ttaching habitual offender enhancement to all three convictions was improper”).

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018                        Page 6 of 15
       were given to Petry at his initial hearing, and he was represented by counsel

       throughout the proceedings. PCR Tr. at 6.


[9]    After the parties submitted proposed findings, the post-conviction court issued

       findings of fact and conclusions of law (“Order”). In denying Petry’s request

       for relief, the post-conviction court determined that “there is no evidence that

       Petry was unaware of his Boykin rights.” Appellant’s App. Vol. II at 56. In

       reaching its decision, the post-conviction court acknowledged that although

       Petry “was not formally advised prior to his plea of guilty to the Habitual

       Offender enhancement” of his rights against self-incrimination and the right to

       confront and cross examine witnesses, he “was advised by the Court” of those

       rights at his initial hearing on January 24, 2012, he was represented by counsel,

       and he “was present during the entire three day jury trial while his Boykin rights

       were on full display.” Id. at 55-56.


[10]   Petry now appeals, asking us to reverse the post-conviction court and vacate his

       habitual offender enhancement.


                                        Discussion and Decision
[11]   Petry argues that his habitual offender guilty plea2 was not knowing, voluntary

       and intelligent because, prior to his plea, he was not advised that he was




       2
         We note that our Supreme Court has determined that pleading guilty to the habitual offender adjudication
       is distinguishable from stipulating to the enhancement. See Hopkins v. State, 889 N.E.2d 314, 316-17 (Ind.
       2008) (holding that record indicated that defendant stipulated to being an habitual offender, but did not plead
       guilty, and the stipulation was not subject to attack as being involuntary for lack of Boykin rights). Pleading
       guilty to an habitual offender enhancement is also distinguishable from admitting only to the factual basis

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018                        Page 7 of 15
       waiving (1) his right to confront and cross-examine the witnesses and (2) the

       privilege against self-incrimination. He maintains that the post-conviction

       court’s conclusion that, when he pleaded guilty, he was aware of these rights

       and understood he was waiving them was not supported by the evidence.


[12]   “A post-conviction petitioner bears the burden of establishing his claims by a

       preponderance of the evidence.” Donnegan v. State, 889 N.E.2d 886, 891 (Ind.

       Ct. App. 2008) (citing Ind. Post-Conviction Rule 1(5)), trans. denied. When a

       petitioner appeals a denial of post-conviction relief, he appeals a negative

       judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans.

       denied. The petitioner must establish that the evidence as a whole unmistakably

       and unerringly leads to a conclusion contrary to that of the post-conviction

       court. Id. We will disturb a post-conviction court’s decision as being contrary

       to law only where the evidence is without conflict and leads to but one

       conclusion, and the post-conviction court has reached the opposite conclusion.

       Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied.




       underlying felonies. See Garrett v. State, 737 N.E.2d 388, 392 (Ind. 2000) (holding that it was not a guilty plea
       where defendant stipulated to the existence of prior offenses but the habitual allegation was still sent to the
       jury, and the stipulation did not require trial court to advise defendant of rights he would waive by pleading
       guilty). However, if the defendant, personally or through his attorney, goes beyond merely stipulating to the
       underlying convictions and also expressly admits to the habitual offender enhancement, such an admission is
       considered a guilty plea. See Vanzandt v. State, 730 N.E.2d 721, 726 (Ind. Ct. App. 2000). A defendant may
       challenge a guilty plea only in a petition for post-conviction relief. Id.; see also Saylor v. State, 55 N.E.3d 354,
       365 n.10 (Ind. Ct. App. 2016), trans. denied. Here, where Petry stated that he was pleading “guilty” to the
       habitual allegation, and the parties’ appellate arguments are based on the premise that Petry pleaded guilty,
       we proceed to address Petry’s claim on that basis that he did, in fact, plead guilty to the enhancement.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018                            Page 8 of 15
[13]   Where, as here, the post-conviction court makes findings of fact and

       conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

       cannot affirm the judgment on any legal basis, but rather, must determine if the

       court’s findings are sufficient to support its judgment. Manzano v. State, 12

       N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 2376

       (2015). Although we do not defer to the post-conviction court’s legal

       conclusions, we review the post-conviction court’s factual findings under a

       clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence

       or judge the credibility of witnesses, and we will consider only the probative

       evidence and reasonable inferences flowing therefrom that support the post-

       conviction court’s decision. Id.


[14]   In Boykin v. Alabama, 395 U.S. 238, 242(1969), the United States Supreme

       Court held that it was reversible error for the trial court to accept a guilty plea

       without an affirmative showing that it was intelligent and voluntary. “More

       particularly, Boykin requires that the record must show, or there must be an

       allegation and evidence which show, that the defendant was informed of, and

       waived, three specific federal constitutional rights: the privilege against

       compulsory self-incrimination, right to trial by jury, and the right to confront

       one’s accusers.” Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006); see also Ind.

       Code § 35-35-1-2 (noting that the trial court shall not accept a plea of guilty

       without first determining that the defendant has been informed that he is

       waiving certain rights).




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 9 of 15
[15]   In this case, Petry argues that his habitual offender enhancement must be

       vacated because “[d]uring the guilty plea colloquy, the judge didn’t mention the

       right to confront and cross-examine and the privilege against self-incrimination

       Petry would waive by pleading guilty.” Appellant’s Br. at 13. In support of his

       position, Petry relies on Ponce v. State, 9 N.E.3d 1265 (Ind. 2014), where the

       defendant, who was a non-native English speaker, pleaded guilty to one count

       of Class A felony delivery of cocaine. At his guilty plea hearing, he requested

       and received an interpreter. The trial court, through the interpreter, advised

       Ponce of his Boykin rights, and Ponce thereafter pleaded guilty. Ten years later,

       Ponce filed a pro se petition for post-conviction relief, later amended by

       counsel, alleging that Ponce’s plea was not entered knowingly, intelligently, and

       voluntarily because the court-appointed interpreter failed to translate accurately

       Ponce’s Boykin rights. Our Supreme Court agreed and reversed the post-

       conviction court’s denial of Ponce’s petition. Id. at 1274.


[16]   In its decision, the Ponce court determined that the trial court’s advisements

       were properly given in English, but that the advisements were not accurately

       communicated to Ponce in Spanish during the guilty plea hearing and that

       “[w]e simply cannot infer . . . that Ponce understood an explanation given in a

       foreign language of his legal rights especially where the Spanish interpretation

       of the advisements was wholly inadequate.” Id. at 1272. Our Supreme Court

       continued:


               That is not to say, however, that Ponce is automatically entitled
               to post-conviction relief. [O]nce a state prisoner has

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 10 of 15
               demonstrated that the plea taking was not conducted in
               accordance with Boykin, the [S]tate may, if it affirmatively proves
               in a post-conviction hearing that the plea was voluntary and
               intelligent, obviate the necessity of vacating the plea. Stated
               somewhat differently, once the defendant demonstrates that the
               trial court did not advise him that he was waiving his Boykin
               rights by pleading guilty, the burden shifts to the State to prove
               that the petitioner nonetheless knew that he was waiving such
               rights. And where the record of the guilty plea hearing itself does
               not establish that a defendant was properly advised of and
               waived his rights, evidence outside of that record may be used to
               establish a defendant’s understanding.


       Id. at 1272-73 (internal citations and quotation marks omitted). Ponce’s trial

       counsel testified at the post-conviction hearing that he, with the aid of the

       translator, discussed the Boykin rights with Ponce, and counsel believed that

       Ponce understood based on Ponce’s “level of contentedness” and because

       Ponce did not ask additional questions. Id. at 1273. The translator did not

       testify at the post-conviction hearing. The Ponce Court determined that Ponce

       “carried his initial burden of demonstrating that at the guilty plea hearing he

       was not properly advised of the constitutional rights he was waiving[,]” but that

       “the State failed to show that the record as a whole nonetheless demonstrated

       that Ponce understood his constitutional rights and waived them.” Id. at 1274.


[17]   Here, Petry argues on appeal that he met his threshold burden under Ponce, and

       that the burden then shifted to the State to prove that Petry understood the

       Boykin rights that he waived by pleading guilty. Appellant’s Br. at 13. He

       maintains that the State did not present any evidence and failed to affirmatively


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 11 of 15
       prove Petry was aware he was waiving the two Boykin rights by his guilty plea,

       and, therefore, his habitual offender plea must be vacated.


[18]   We agree with Petry that, before accepting Petry’s plea of guilty, the trial court

       did not advise him that he was waiving his right to confront and cross-examine

       witnesses and his right against self-incrimination. Indeed, the post-conviction

       court recognized that Petry “was not formally advised” of those rights.

       Appellant’s App. Vol. II at 55. However, subsequent to the Ponce decision, this

       court held, “Boykin does not require that the record of the guilty-plea

       proceeding show that the accused was formally advised that entry of his guilty

       plea waives certain constitutional rights, nor does Boykin require that the record

       contain a formal waiver of these rights by the accused.” Winkleman v. State, 22

       N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Dewitt v. State, 755 N.E.2d 167,

       171 (Ind. 2001)), trans. denied. “Rather, Boykin only requires a conviction to be

       vacated if the defendant did not know or was not advised at the time of his plea that

       he was waiving his Boykin rights.” Id. (emphasis added). Here, the post-

       conviction court determined that Petry did not establish by a preponderance of

       the evidence that he did not know that he was waiving the two rights, and we

       agree.


[19]   In denying Petry’s petition for post-conviction relief, the post-conviction court

       relied, in part, on Winkleman. In that case, during the first phase of his jury

       trial, but before the jury convicted him, Winkleman pleaded guilty to an

       habitual offender enhancement. On appeal, Winkleman argued that the trial

       court failed to advise him of his Boykin rights before he pleaded guilty to the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 12 of 15
       habitual offender enhancement, and this failure required that his plea be

       vacated. The Winkleman court rejected the defendant’s claim. In so doing, the

       court initially observed that Winkleman stated to the trial court that it was “not

       necessary” for the trial court to advise him of his rights. Id. at 851.

       Additionally, the Winkleman court relied on the fact that Winkleman admitted

       to the habitual offender enhancement “‘in the midst of a trial, where the Boykin

       rights are on display for all to see.’” Id. at 852 (quoting Hopkins v. State, 889

       N.E.2d 314, 317 (Ind. 2008)). The Winkleman court concluded that

       “Winkleman failed to establish on this record that he did not know he was

       waiving his Boykin rights.” Id.


[20]   Similar to Winkleman, where the defendant pleaded guilty to being an habitual

       offender in the “midst of trial,” Petry pleaded guilty to the habitual offender

       enhancement just after the completion of the first phase of his jury trial. Id.

       Petry did not testify at his post-conviction hearing that he was unaware of his

       Boykin rights, and, we note that Petry had pleaded guilty to charges at least

       several times before his admission to the habitual offender enhancement. State’s

       Trial Exs. 6, 7, 8. Based on this record, and on Winkleman, the post-conviction

       court determined that Petry failed to show that he did not know he was waiving

       his Boykin rights when he pleaded guilty to the habitual offender enhancement.

       We cannot say that the post-conviction court’s decision was contrary to law.


[21]   Petry suggests that we should not follow Winkleman because it “implicitly

       shifted” the State’s burden under Ponce “to prove that the petitioner nonetheless

       knew that he was waiving such rights” onto him, and it thereby “contravened
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 13 of 15
       [our] Supreme Court’s precedent” in Ponce. Appellant’s Br. at 16. We reject this

       argument for two reasons. First, we find that Ponce is distinguishable and does

       not control our decision today. Ponce involved review of a Class A felony drug

       dealing conviction based upon an uninformed guilty plea and, thus, was not in

       the context of a defendant admitting to an habitual offender sentencing

       enhancement immediately following a jury trial. An habitual offender

       adjudication is not the equivalent of a conviction of a crime. See Harris v. State,

       964 N.E.2d 920, 927 (Ind. Ct. App. 2012) (“It is well settled that a habitual

       offender finding does not constitute a separate crime, nor does it result in a

       separate sentence. . . . Rather, a habitual offender finding results in a sentence

       enhancement imposed upon the conviction of a subsequent felony.”), trans.

       denied.


[22]   Second, to the extent that Petry’s claim is that Winkleman is not good law

       because it “contravenes” our Supreme Court’s precedent, Appellant’s Br. at 16,

       we note that our Supreme Court denied the defendant’s request for transfer in

       Winkleman. “We are aware that when the [S]upreme [C]ourt denies a petition

       for transfer, it is not necessarily approving either the result or the reasoning in

       that case, because the petition may not place the issue in question squarely

       before the [S]upreme [C]ourt.” Roberts v. State, 725 N.E.2d 441, 446 (Ind. Ct.

       App. 2000), trans. denied. “Nevertheless, we may ascribe some meaning to the

       denial of transfer.” Id. In Winkleman, our colleagues stated that a defendant

       seeking to set aside an habitual offender guilty plea need do more than show

       only that he was not advised of his Boykin rights at the habitual phase of trial;

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 14 of 15
       he must show that he “did not know or was not advised” of the Boykin rights at

       the time of his habitual offender guilty plea, 22 N.E.3d at 851, and, in that case,

       Winkleman failed to do so. Our Supreme Court chose not to address that

       determination.


[23]   Similarly, in the present case, the post-conviction court determined that Petry

       had not shown by a preponderance of the evidence that he did not know he was

       waiving his Boykin rights when he admitted to being an habitual offender. On

       appeal, Petry has not established that the evidence as a whole unmistakably and

       unerringly leads to a conclusion contrary to that of the post-conviction court,

       and, therefore, we affirm. See Dewitt, 755 N.E.2d at 170-71 (applying

       “rigorous” post-conviction standard of review, Supreme Court affirmed the

       post-conviction court’s decision that defendant knew he was waiving Boykin

       rights when he pleaded guilty to burglary charge and held that “we cannot

       conclude that the evidence as a whole leads unerringly and unmistakably to a

       decision opposite that reached by the post-conviction court”).


[24]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018   Page 15 of 15
