MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Mar 02 2018, 10:26 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      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
Jonathan O. Chenoweth                                    Tyler G. Banks
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Phillip Gonzalez,                                        March 2, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1711-PC-2659
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Respondent                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D05-1509-PC-102



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018            Page 1 of 13
[1]   Phillip Gonzalez appeals from the denial of his petition for post-conviction

      relief, arguing that the post-conviction court erroneously determined that (1) he

      did not simultaneously plead guilty and maintain his innocence; and (2) there is

      a sufficient factual basis underlying the guilty plea. Finding no error, we affirm.


                                                          Facts
[2]   On May 10, 2012, Gonzalez pleaded guilty to Class B felony robbery in cause

      number 02D06-1202-FB-31 (“FB-31”)1 and to Class B felony attempted robbery

      in cause number 02D06-1203-FB-45 (“FB-45”) pursuant to a plea agreement.

      At the May 10, 2012, guilty plea hearing, the trial court explained the charge to

      which Gonzalez was pleading guilty:


                 Court:            In the FB-45 cause you’re pleading guilty to
                                   Attempt[ed] Robbery, a class B felony. That reads:
                                   On or about January 15, 2012, in Allen County,
                                   Indiana, said defendant did, while armed with a
                                   deadly weapon, to wit: a firearm, attempt to
                                   commit the crime of robbery, to wit: with intent to
                                   take property from the person or presence of
                                   another person, to wit: John Frontz, by using or
                                   threatening the use of force or by putting said John
                                   Frontz in fear, said defendant engaged in conduct
                                   constituting a substantial step toward the
                                   commission of the crime of robbery, to wit: by
                                   pointing said firearm at John Frontz while
                                   demanding that said John Frontz give the defendant




      1
          Gonzalez did not challenge his guilty plea in FB-31 in the post-conviction proceedings.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018          Page 2 of 13
                           United States currency. Do you understand the
                           charge to which you’re pleading in that cause?


         Gonzalez:         Yes sir.


Appellant’s App. Vol. II p. 54.2 The following colloquy then occurred between

Gonzalez and his attorney:


         Q:       Mr. Gonzalez, let me give you help. In both cases you
                  robbed, or attempted to rob, people, correct?

         A:       Yes sir.

         Q:       And both of those robberies took place in Allen County,
                  Indiana?

         A:       Yes sir.

         Q:       And both of them involved either you or someone you
                  were with having a handgun, using that handgun so as to
                  threat[en] and frighten the victim, correct?

         A:       Yes sir.

                                                    ***

         Q:       In [FB-]45, we have the same thing, robbery, in Allen
                  County, with a gun. You went to Broadway Joes on
                  Broadway Street, correct?

         A:       Yes sir.




2
  Gonzalez has not provided the transcripts or other materials from the underlying criminal proceedings as
separate documents in the appellate record; instead, portions of the transcript and records are included in his
appendix.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018               Page 3 of 13
        Q:      You were with some other guys, right?

        A:      Yes sir.

        Q:      And were you armed or was one of the other fellows
                armed?

        A:      I was not armed.

        Q:      You were unarmed?

        A:      Yes sir.

        Q:      Somebody else was armed, though, correct?

        A:      Yes sir.

        Q:      And there was a confrontation involving you and Mr.
                Frontz, is that correct, John Frontz?

        A:      Yes sir.

        Q:      He was the bartender?

        A:      Yes sir.

        Q:      Is that correct?

        A:      Yes sir.

        Q:      And there was an attempt to rob him of property, correct?

        A:      Yes sir.

        Q:      And did you participate in that robbery?

        A:      Yes sir.

        Q:      And did you take the property or did you—you say you
                did not have the weapon, correct?

        A:      Yes sir.


Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 4 of 13
              Q:      But you assisted in taking the property or doing something
                      to make the robbery go down?

              A:      Yes sir.

              Q:      What did you do?

              A:      I didn’t do nothing.

              Q:      You were there, right?

              A:      Yeah, I was there.

              Q:      And you were with your friend who had a gun?

              A:      Yes sir.

              Q:      You left the place with your friend . . . . ?

              A:      Yes sir.

              Q:      You participated in an attempt to rob Mr. Frontz of
                      property, correct?

              A:      Yes sir.

      Id. at 58-61. The trial court accepted Gonzalez’s guilty plea and later imposed a

      total sentence of sixteen years, with four years suspended to probation.


[3]   On September 23, 2015, Gonzalez filed a petition for post-conviction relief,

      arguing that there was an improper factual basis underlying his guilty plea in

      FB-45 and that the guilty plea in that cause is invalid because he simultaneously

      admitted guilt and protested his innocence. Gonzalez and the State eventually

      filed competing motions for summary judgment on his petition. On October

      23, 2017, the post-conviction court granted the State’s motion, finding, in

      pertinent part, as follows:

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 5 of 13
        7.      Even on the supposition that Mr. Gonzalez’s single
                statement that he “didn’t do nothing” amounted to an
                unambiguous denial of guilt, . . . he would not be entitled
                to post-conviction relief . . . because he repeatedly and
                specifically contradicted that supposed denial of guilt . . . .
                Both before and after his alleged denial of participation,
                Mr. Gonzalez specifically admitted that he did participate
                in the attempted robbery. Even if his claimed denial of
                guilt was unambiguous, it was not also consistent, as needed
                to obtain relief . . . .


        8.      Furthermore, it does not appear that Mr. Gonzalez did
                unambiguously deny participation in the attempted
                robbery as an accomplice. In this regard, it should be
                noted that a person who does not actively do anything to
                carry out a crime, such as a lookout, may nevertheless be
                convicted of the crime as an accomplice. Mr. Gonzalez
                acknowledged that he went to Broadway Joe’s with the
                armed person or persons who actually attempted to carry
                out the crime, he participated (somehow) in the attempt,
                and he left together with the same persons he came with.
                These admissions are consistent with the theory that he
                accompanied the co-perpetrators in order to provide
                assistance in case of need (just as a lookout might do) even
                though he “didn’t do nothing” because it turned out that
                there was no occasion for him to provide active assistance.
                His assertion that he “didn’t do nothing” is, at most,
                ambiguous as to whether he participated in the attempted
                robbery as an accomplice . . . .


                                                ***


        10.     . . . Mr. Gonzalez did admit that he understood the nature
                of the crime and understood that his guilty plea was an
                admission that he committed the crime. . . . [T]he court
                did not abuse its discretion in finding that an adequate
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 6 of 13
                factual basis had been established, even without regard to
                any further admissions from Mr. Gonzalez.


        11.     . . . Mr. Gonzalez’s [further] admissions, however,
                amounted at the very least to the relatively minimal
                evidence needed for a factual basis establishing that he was
                a participant in the crime and not a mere bystander. Mr.
                Gonzalez admitted that, in both cases, he robbed or
                attempted to rob people; both cases involved a handgun
                wielded by himself or a co-perpetrator to threaten or
                frighten people; in FB-45, he went to Broadway Joe’s with
                some other people, at least one of whom was armed; he
                participated in the attempted robbery by “assist[ing] in
                taking the property or doing something to make the
                robbery go down”; and he left with his co-perpetrators
                after “participat[ing] in an attempt to rob Mr. Frontz of
                property.” . . . No authority suggests that the Court abused
                its discretion in finding a factual basis despite Mr.
                Gonzalez’s ambiguous statement that he “didn’t do
                nothing.”


        12.     . . . Mr. Gonzalez acknowledged his understanding that he
                was admitting that he had acted “with intent to take
                property from the person or presence of another person, to
                wit: John Frontz, by using or threatening the use of force
                or by putting said John Frontz in fear.”


Appealed Order p. 10-13 (internal citations omitted) (emphases original).

Gonzalez now appeals.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 7 of 13
                                   Discussion and Decision
                                     I. Standard of Review
[4]   Gonzalez argues that the post-conviction court should not have granted

      summary judgment in favor of the State on his petition for post-conviction

      relief. The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[5]   Here, the post-conviction court granted summary judgment under the

      procedure outlined in Section 1(4)(g) of the post-conviction rules. Under this

      provision, the post-conviction court may grant a motion for summary

      disposition of a petition when no genuine issue of material fact appears in the

      record and a party is entitled to judgment as a matter of law. Ind. Post-

      Conviction Rule 1(4)(g). Where, as here, there are no genuine issues of

      material fact, we are considering pure issues of law on appeal to which we



      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 8 of 13
      apply a de novo standard of review. Hughley v. State, 15 N.E.3d 1000, 1003

      (Ind. 2014).


                               II. Protestation of Innocence
[6]   Gonzalez argues that the plea was invalid because he simultaneously pleaded

      guilty and maintained his innocence. It is well established that accepting a

      guilty plea when a defendant both pleads guilty and maintains his innocence at

      the same time is reversible error. E.g., Ellis v. State, 67 N.E.3d 643, 646 (Ind.

      2017). This rule is designed to heighten the reliability of the guilty plea.

      Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992). For this rule to apply, the

      defendant’s protestation of innocence must have been both consistent and

      unequivocal. Carter v. State, 739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v.

      State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (defendant was entitled to relief

      because he consistently maintained innocence at the guilty plea hearing and

      clearly denied committing the crime charged).


[7]   Gonzalez focuses on the point in his testimony at which he was asked “What

      did you do?” and replied, “I didn’t do nothing.” Appellant’s App. Vol. II p. 61.

      We disagree that this response amounts to a protestation of innocence. This

      exchange occurred in the context of the establishment of a factual basis for

      Gonzalez’s guilt as an accomplice to attempted robbery. It is apparent that

      when Gonzalez said, “I didn’t do nothing,” he was simply explaining that he

      did not take an active part in the attempted robbery—which he was not

      required to admit to plead guilty as an accomplice. See Pugh v. State, 52 N.E.3d


      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 9 of 13
      955, 967 (Ind. Ct. App. 2016) (four factors determine sufficiency of evidence for

      accomplice liability: (1) presence at scene of crime; (2) companionship with

      another at scene of crime; (3) failure to oppose commission of crime; and

      (4) course of conduct before, during, and after commission of crime), trans.

      denied. And even as he made that explanation, he also repeatedly admitted that

      he participated in the robbery and came and left the scene with the individual(s)

      who actively committed the robbery. Appellant’s App. Vol. II p. 58-61. Under

      these circumstances, we do not find that Gonzalez’s statement that “I didn’t do

      nothing” amounts to a consistent and unequivocal protestation of innocence.

      Therefore, the post-conviction court did not err by granting judgment in favor

      of the State on this issue.


                                         III. Factual Basis
[8]   Gonzalez also argues that the guilty plea cannot stand because an adequate

      factual basis for the plea was not established. A trial court cannot accept a

      defendant’s guilty plea unless there is an adequate factual basis for the plea.

      State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010). As explained by our Supreme

      Court, “[t]he purpose of the factual basis requirement is to ensure that a person

      who pleads guilty is truly guilty.” Id. Moreover, “a finding of factual basis is a

      subjective determination that permits a court wide discretion—discretion that is

      essential due to the varying degrees and kinds of inquiries required by different

      circumstances.” Butler v. State, 658 N.E.2d 72, 76-77 (Ind. 1995). 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. Relatively

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 10 of 13
       minimal evidence has sometimes been held adequate.” Id. at 77 (internal

       footnote omitted).


[9]    Claims about omissions in the factual basis “have been unavailing when the

       omissions do not seem to demonstrate doubt about actual guilt.” Cooper, 935

       N.E.2d at 150. Even if a defendant fails to admit the existence of an element,

       “other evidence produced at the plea hearing and/or the defendant’s advised

       acknowledgement that by pleading guilty he understands that he is admitting all

       the elements of the charged offense may supply an adequate factual basis.”

       Wingham v. State, 780 N.E.2d 1164, 1165 (Ind. Ct. App. 2002).


[10]   In this case, Gonzalez argues that there is no evidence in the factual basis that

       he acted with the requisite mens rea for accomplice liability—that is, that he

       knowingly or intentionally aided the principal actor. Ind. Code § 35-41-2-4. He

       emphasizes the well-accepted principle that for accomplice liability, “mere

       presence, coupled with knowledge that a crime is being committed is not

       sufficient to establish guilt.” Green v. State, 937 N.E.2d 923, 930 (Ind. Ct. App.

       2010).


[11]   Gonzalez explicitly admitted to the following:


           • He “robbed, or attempted to rob, people[.]” Appellant’s App. Vol. II p.
             58.
           • Gonzalez went with a group of people to Broadway Joe’s. At least one
             of the other people was armed with a handgun to threaten and frighten
             the victim. Id. at 59, 60.
           • There was a confrontation between Gonzalez and the victim. Id. at 60.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 11 of 13
           • There was an attempt to rob the bartender of property. Gonzalez
             “participate[d] in that robbery,” “assisted in taking the property or doing
             something to make the robbery go down” and “participated in an
             attempt to rob [the victim] or property[.]” Id. at 61.
           • Afterwards, Gonzalez left the bar with the same group of people. Id.

       Additionally, Gonzalez acknowledged that by pleading guilty, he was admitting

       that he acted “with intent to take property from the person or presence of

       another person[.]” Id. at 54.


[12]   It does appear to be true that the element of Gonzalez’s mens rea was omitted

       from the factual basis. But as noted above, a defendant’s advised

       acknowledgement that by pleading guilty he is admitting to all the elements of

       the charged offense may supply an adequate factual basis as to an element that

       is omitted during his testimony. Wingham, 780 N.E.2d at 1165. Here, not only

       did Gonzalez make such an acknowledgement about all the elements—

       including mens rea—he went on to admit specifically that he participated with

       and assisted in the attempted robbery. We note that the Wingham Court

       distinguished between a scenario in which (as here) an element is omitted and a

       scenario in which the defendant actually denies guilt as to some necessary

       element of the offense. Id. Here, as we have already found above, Gonzalez

       did not deny his guilt as to a necessary element of the offense. As such, the trial

       court’s advisement and Gonzalez’s acknowledgement thereof supplement his

       testimony to provide sufficient evidence regarding his mens rea.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 12 of 13
[13]   We find that this evidence suffices to establish a factual basis. Consequently,

       the post-conviction court did not err by granting judgment in the State’s favor

       on this issue.


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


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018   Page 13 of 13
