MEMORANDUM DECISION
                                                                    Apr 28 2015, 9:12 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana
Cory Lightner                                             Ellen H. Meilaender
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Chad Byrd,                                                April 28, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          54A05-1409-PC-448
        v.                                                Appeal from the Montgomery
                                                          Circuit Court.
                                                          The Honorable David A. Ault,
State of Indiana,                                         Special Judge.
Appellee-Respondent                                       Cause No. 54C01-1107-PC-2404




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015       Page 1 of 8
[1]   Chad Byrd appeals the denial of his petition post-conviction relief. Byrd argues

      that the trial court committed reversible error when it accepted his guilty plea.

      Specifically, Byrd claims that he plead guilty while simultaneously maintaining

      his innocence. Byrd also argues that his guilty plea was not supported by a

      sufficient factual basis. Finding that the evidence supports the decision of the

      post-conviction court, we affirm.


                                                     Facts
[2]   The facts underlying this case are as follows: In November 2009, Byrd, who

      was then twenty-four years old, was at his parents’ house for a meal. Byrd’s

      brother was also present. At some point during the family gathering, Byrd

      retrieved his twenty-gauge shotgun and entered his parents’ living room. From

      approximately ten feet away, Byrd pointed the shotgun at his brother and pulled

      the trigger. Byrd’s brother was killed from a shot to the head. Byrd later

      alleged that his brother had molested him during childhood and that he was

      thinking about the molestation around the time he pulled the trigger.


[3]   On November 12, 2009, Byrd was charged with murder. On December 2,

      2010, Byrd pleaded guilty but mentally ill to murder in exchange for a cap of

      fifty-five years on the executed portion of his sentence. The trial court twice

      asked Byrd if he realized that by pleading guilty to the charge he would be

      admitting that he “knowingly or intentionally killed another human being, to

      wit, [his brother].” Tr. p. 33, 35. Byrd affirmed that he understood. The trial




      Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 2 of 8
      court informed Byrd of the rights he was waiving by this admission, and Byrd

      stated that he understood.


[4]   During the factual basis examination, Byrd again confessed to knowingly or

      intentionally killing his brother. After this admission, the following exchange

      occurred between Byrd and the State:

              State: Whose gun did you use to shoot [your brother]?
              Byrd: Mine.
              State: Did you know it was loaded?
              Byrd: No.
              State: Well, you told Doctor Crane1 you used the loaded gun right?
              Byrd: No.
              State: Well, in fact, the gun was loaded wasn’t it?
              Byrd: Yeah.
              State: And it was your intention to shoot your brother?
              Byrd: No.
              State: You in fact shot your brother didn’t you?
              Byrd: Yeah.
      Tr. p. 41-42 (emphases added). In addition, Byrd stated that he came from a

      hunting family and was aware of what happened when one shot something

      with a shotgun. Further, Dr. Crane reported that, in reference to the shooting,

      Byrd said, “‘I was angry. I went to my sister’s room and got a gun from the rack

      . . . there were two . . . one was loaded . . . a 20-gauge shotgun.’” Appellant’s




      1
       Dr. Crane is a psychiatrist who conducted a two-hour psychiatric evaluation of Byrd after the shooting.
      Appellant’s App. p. 73-80.

      Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015             Page 3 of 8
      App. p. 74. Byrd testified that he was truthful when he spoke to Dr. Crane. At

      the close of the guilty plea hearing, the trial court found a sufficient factual basis

      and accepted Byrd’s plea of guilty but mentally ill. On December 22, 2010, the

      trial court imposed a sixty-year sentence, with five years suspended. This Court

      affirmed Byrd’s sentence on direct appeal.2


[5]   On July 26, 2011, Byrd filed a petition for post-conviction relief and the post-

      conviction court held a hearing on September 5, 2013. On September 2, 2014,

      the post-conviction court issued its findings of fact and conclusions of law,

      denying relief. Byrd now appeals.


                                      Discussion and Decision
[6]   In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the post-conviction court’s

      judgment. McWhorter v. State, 945 N.E.2d 1271, 1272 (Ind. Ct. App. 2011).

      The findings of fact by the post-conviction court are “accepted unless ‘clearly

      erroneous.’” Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002) (quoting Ind.

      Trial Rule 52(A)). “To prevail on appeal from the denial of post-conviction

      relief, the petitioner must show that the evidence as a whole leads unerringly

      and unmistakably to a conclusion opposite to that reached by the post-

      conviction court.” McWhorter, 945 N.E.2d at 1272.




      2
          Byrd v. State, Cause No. 54A01-1101-CR-4, 2011 WL 2277474 (Ind. Ct. App. 2011).


      Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 4 of 8
                                 I. Protestation of Innocence
[7]    Byrd alleges, based on his testimony at the guilty plea hearing, that he did not

       know the gun was loaded and did not intend to kill his brother. He contends

       that this testimony negated a material element of the crime of murder and

       establishes that he was pleading guilty while simultaneously protesting his

       innocence.


[8]    Under Indiana law, “[a] trial court may not accept a plea of guilty from one

       who in the same breath professes innocence.” Atchley v. State, 622 N.E.2d 502,

       503 (Ind. 1993). Indeed, to accept such a plea constitutes reversible error. Ross

       v. State, 456 N.E.2d 420, 423 (Ind. 1983).


[9]    However, Byrd acknowledged that he understood the nature of the offense

       charged and that his plea was an admission of that charge. The trial court twice

       asked Byrd if he understood that he was pleading guilty to the charge that he

       “knowingly or intentionally killed another human being, to wit, [his brother].” Tr.

       p. 33, 35 (emphasis added). Twice, Byrd confirmed that he understood.


[10]    During the factual basis inquiry, the State also asked Byrd if he did “knowingly

       or intentionally kill another human being, particularity did you kill your brother .

       . . .” Tr. p. 37 (emphasis added). In response, Byrd confirmed that he

       knowingly or intentionally killed his brother. Id. At no point in the record did

       Byrd say he was innocent or make an effort to contest his guilty plea. Such

       admissions contradict the argument that Byrd was simultaneously protesting his

       innocence.

       Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 5 of 8
[11]   Additionally, Byrd’s testimony does not negate the necessary elements for the

       crime of murder. The crime of murder requires that the defendant “knowingly

       or intentionally” killed another human being. Ind. Code § 35-42-1-1 (emphasis

       added). The mens rea element of the crime of murder is disjunctive and requires

       the State to show either intent or knowledge. Thus, even if Byrd did not intend

       to kill his brother, a finding that he did so knowingly would support the

       conviction for the crime of murder. “A person engages in conduct ‘knowingly’

       if, when he engages in the conduct, he is aware of a high probability that he is

       doing so.” Ind. Code § 35-41-2-2(b) (emphasis added). Even if Byrd did not

       intend to shoot his brother, he pulled the trigger while aware of a high

       probability that such an act could kill his brother.


[12]   Also, even if Byrd did not know the gun was loaded, he did not testify that he

       believed it was unloaded. It is reasonable for the trial court to infer that Byrd, a

       hunter, using his own gun, was aware of the high probability that aiming and

       firing an unchecked shotgun at his brother’s head could cause death. In

       reviewing the evidence, it was not unreasonable for the post-conviction court to

       conclude that Byrd knowingly committed the crime of murder.


                                  II. Sufficient Factual Basis
[13]   Next, Byrd claims that the factual basis used to support the crime of murder

       was insufficient to maintain his plea of guilty. In Indiana, “[a] factual basis

       exists when there is evidence about the elements of the crime from which a

       court could reasonably conclude that the defendant is guilty.” Oliver v. State,


       Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 6 of 8
       843 N.E.2d 581, 588 (Ind. Ct. App. 2006). A factual basis may be established

       in a variety of ways: “(1) by the State’s presentation of evidence on the elements

       of the charged offenses; (2) by the defendant’s sworn testimony regarding the

       events underlying the charges; (3) by the defendant’s admission of the truth of

       the allegations in the information read in court; or (4) by the defendant’s

       acknowledgment that he understands the nature of the offenses charged and

       that his plea is an admission of the charges.” Oliver, 843 N.E.2d at 588.


[14]   Here, Byrd’s own testimony establishes the following facts: that he was part of a

       hunting family; that he understood what happened when one shot something

       with a shotgun; that he aimed the shotgun at his brother’s head; that he pulled

       the trigger; that he used his own shotgun; that he was angry at his brother when

       he pulled the trigger; and, that he killed his brother. Furthermore, Dr. Crane’s

       psychiatric evaluation states that Byrd said he chose a loaded gun from the gun

       rack to shoot his brother. Byrd testified that he was truthful with Dr. Crane.

       These facts support the factual basis for the plea.


[15]   Additionally, on multiple occasions, Byrd acknowledged that he understood the

       nature of the offense charged and that his plea was an admission of the crime of

       murder. Tr. p. 33, 35, 37. Such acknowledgements support the factual basis for

       the crime of murder. See Oliver, 843 N.E.2d at 588 (holding that a “factual basis

       may be established . . . by the defendant’s acknowledgment that he understands

       the nature of the offenses charged and that his plea is an admission of the

       charges.”).



       Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 7 of 8
[16]   We cannot hold that the evidence as a whole leads “unerringly and

       unmistakably to a conclusion opposite to that reached by the post-conviction

       court.” McWhorter, 945 N.E.2d at 1272. Accordingly, we affirm the decision of

       the post-conviction court.


[17]   The judgment of the post-conviction court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A05-1409-PC-448 | April 28, 2015   Page 8 of 8
