      MEMORANDUM DECISION
                                                                            Apr 22 2015, 6:39 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.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Doug A. Bernacchi                                         Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana

                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mark Lax,                                                 April 22, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                71A04-1409-PC-417
              v.                                                Appeal from the St. Joseph Superior
                                                                Court
      State of Indiana,
                                                                The Honorable John M. Marnocha,
      Appellee-Respondent.                                      Judge

                                                                Cause No. 71D02-1009-PC-41




      Najam, Judge.


                                         Statement of the Case
[1]   Mark Lax appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Lax raises two issues for our review:

      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015         Page 1 of 12
              1.       Whether his guilty plea was supported by an adequate
                       factual basis.

              2.       Whether he received ineffective assistance from his trial
                       counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On July 28, 2008, Lax went to a gathering at a home in South Bend. An

      argument between Lax and the homeowner and some guests ensued, and Lax

      was asked to leave. Lax left but returned later with a handgun and again got

      into an argument with several people. Herman Troop1 was present and, when

      Lax began waving the handgun around, Troop confronted Lax. The two

      struggled for possession of the handgun, the handgun went off, and Troop was

      struck by the bullet. Lax fled, and Troop died from his wound. Several

      witnesses identified Lax as the shooter to police, and Lax turned himself in later

      that day.


[4]   On July 30, the State charged Lax with murder, a felony. On August 3, 2009,

      after voir dire but before the start of his trial, Lax accepted a plea agreement

      from the State. Pursuant to that agreement, Lax pleaded guilty to voluntary

      manslaughter, as a Class A felony, the State agreed to dismiss the murder

      charge, and the parties agreed that Lax would be free to argue his sentence but



      1
        There is clear confusion on how to spell Troop’s last name. We employ the spelling used by the court
      reporter during Lax’s guilty plea hearing.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015           Page 2 of 12
      that he would not serve an executed term greater than forty years. At the same

      time he accepted this agreement, Lax rejected an alternative plea agreement

      that would have required an executed sentence of thirty years.


[5]   Thereafter, Lax’s counsel established the following factual basis for Lax’s guilty

      plea:


              MR. WRUBLE: Mr. Lax, let me draw your attention back to
              July 28th, 2008, about a year ago.

              You were at a barbeque that evening; is that correct?

              THE DEFENDANT [under oath]: Yes.

                                                      ***

              MR. WRUBLE: And at some point you got into an argument
              with some of the folks there; is that right?

              THE DEFENDANT: Yes, sir.

                                                      ***

              MR. WRUBLE: And you had a gun in your possession at the
              time; is that right?

              THE DEFENDANT: Yes, sir.

              MR. WRUBLE: Now you at some point during this argument
              you were waving the gun around; is that correct?

              THE DEFENDANT: Yes, sir.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 3 of 12
        MR. WRUBLE: And you came across a gentleman by the name
        of . . . you didn’t know his name, but you later found out his
        name was Herman Chris Troop; is that right?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And you and Mr. Troop engaged in some
        fighting; is that right?

        THE DEFENDANT: (indicates affirmative)

        MR. WRUBLE: You head-butted him?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And he hit you?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And you hit him with a chair?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And you had your gun in your hand at the
        time; is that right?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And at the time that you were engaging in this
        conduct with a loaded gun, you were aware that there [wa]s a
        high probability somebody could get shot doing that?

        THE DEFENDANT: Yes.

        MR. WRUBLE: At some point you and Mr. Troop tussled over
        the gun; is that correct?


Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 4 of 12
        THE DEFENDANT: Yes.

        MR. WRUBLE: At some point before then, when Mr. Troop
        had struck you, that caused you to lose your cool, so-to-speak?

        THE DEFENDANT: Yes.

        MR. WRUBLE: In fact, you weren’t thinking under a normal
        deliberate . . . you weren’t rational?

        THE DEFENDANT: Yeah.

        MR. WRUBLE: And that cause[d] you some . . . I think you
        told me a combination of anger, fear and some terror; is that fair
        to say?

        THE DEFENDANT: Yes.

        MR. WRUBLE: And when you and Mr. Troop were tussling
        over the gun, the gun went off and Mr. Troop was shot; is that
        right?

        THE DEFENDANT: Yes.

        THE COURT: Well, a couple of things I just want to clear up a
        little bit, Mr. Lax.

        The gun was in your possession; is that correct?

        THE DEFENDANT: Yes.

        THE COURT: And in order for a gun to go off, someone has to
        pull the trigger; is that correct?

        THE DEFENDANT: Yes, sir.



Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 5 of 12
              THE COURT: And so in the midst of all of this, you pulled the
              trigger, that caused Mr. Troop to die; is that correct?

              THE DEFENDANT: (indicates affirmative)

                                                      ***

              THE COURT: Okay. So essentially what you’re telling me
              today[] is that you did act knowingly and you were not acting in
              self-defense . . . or at least legal self-defense; do you understand
              that?

                                                      ***

              THE DEFENDANT: Yes.


      Appellant’s Supp. App. at 66-70. The court accepted Lax’s guilty plea and

      sentenced him to forty years executed.


[6]   On July 21, 2011, Lax filed an amended petition for post-conviction relief. In

      relevant part, Lax asserted that his guilty plea was not established by an

      adequate factual basis and that Wruble, his trial counsel, had rendered

      ineffective assistance. On his ineffective assistance of counsel claim, Lax

      argued that Wruble had not presented him with the thirty-year plea agreement

      and that Wruble was not properly prepared for trial because Wruble did not

      understand the law on reckless homicide. In light of Wruble’s

      misunderstandings of reckless homicide, Lax continued, Wruble improperly

      advised Lax to plead guilty to voluntary manslaughter.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 6 of 12
[7]   After an evidentiary hearing, the post-conviction court rejected Lax’s claims. In

      particular, the court found and concluded that: “Lax was presented with three

      separate plea proposals”; “Wruble discussed all three proposals with Mr. Lax

      and recommended that he accept the binding thirty (30) year agreement”; “Lax,

      under oath at the plea hearing, provided an adequate factual basis supporting

      his admission of guilt”; and, “[h]ad the case not been resolved by way of a plea

      agreement, Mr. Wruble was adequately prepared for trial.” Appellant’s App. at

      27. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[8]   Lax appeals the post-conviction court’s denial of his petition for post-conviction

      relief. Our standard of review in such appeals is clear:


              [The petitioner] bore the burden of establishing the grounds for
              post[-]conviction relief by a preponderance of the evidence. See
              Ind. Post–Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 7 of 12
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. On

      appeal, Lax asserts that the trial court lacked an adequate factual basis to accept

      his guilty plea and that Lax received ineffective assistance from his trial

      counsel. We address each issue in turn.


                               Issue One: Factual Basis for Guilty Plea

[9]   We first address Lax’s claim that his guilty plea was not established by an

      adequate factual basis. As we have explained:


              Ind[iana] Code [Section] 35-35-1-3(b) provides in relevant part
              that “the court shall not enter judgment upon a plea of guilty
              unless it is satisfied from its examination of the defendant or the
              evidence presented that there is a factual basis for the plea.” The
              factual basis requirement primarily ensures that when a plea is
              accepted there is sufficient evidence that a court can conclude
              that the defendant could have been convicted had he stood trial.
              Butler v. State, 658 N.E.2d 72, 76 (Ind. 1995). A finding of factual
              basis is a subjective determination that permits a court wide
              discretion which is essential due to the varying degrees and kinds
              of inquiries required by different circumstances. Id. at 76-77. 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. Id. at 77. Trial court determinations of
              adequate factual basis, like other parts of the plea process, arrive
      Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 8 of 12
               here on appeal with a presumption of correctness. Id. We
               typically review claims of error about pleas under an abuse of
               discretion standard. Id. This standard is also appropriate where,
               as here, the Petitioner asks that his plea be set aside through a
               motion for post-conviction relief on grounds that the factual basis
               was inadequate. See id.

               An adequate factual basis for the acceptance of a guilty plea may
               be established in several 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. Madden v. State, 697 N.E.2d 964, 967 (Ind. Ct. App.
               1998).


       Oliver v. State, 843 N.E.2d 581, 588 (Ind. Ct. App. 2006), trans. denied.


[10]   Here, there is no question that the post-conviction court did not err when it

       concluded that an adequate factual basis existed for Lax’s guilty plea. As

       quoted extensively above, while under oath, Lax testified to the events

       underlying the charge of voluntary manslaughter, and his testimony easily

       demonstrated the elements of that offense. See Ind. Code § 35-42-1-3. We

       reject Lax’s arguments to the contrary on appeal.


                                     Issue Two: Assistance of Counsel

[11]   We next consider Lax’s claim that he received ineffective assistance from his

       trial counsel. Specifically, he argues that Wruble did not adequately advise him

       before Lax entered into his guilty plea. A claim of ineffective assistance of

       Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 9 of 12
       counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668

       (1984). First, the defendant must show deficient performance: representation

       that fell below an objective standard of reasonableness, committing errors so

       serious that the defendant did not have the “counsel” guaranteed by the Sixth

       Amendment. Id. at 687-88. Second, the defendant must show prejudice: a

       reasonable probability (i.e., a probability sufficient to undermine confidence in

       the outcome) that, but for counsel’s errors, the result of the proceeding would

       have been different. Id. at 694.


[12]   Lax first asserts that Wruble never presented him with the plea agreement offer

       that would have required a thirty-year sentence. But Wruble testified before the

       post-conviction court that he had presented that plea agreement to Lax and

       Lax, against Wruble’s recommendation, had rejected the offer. And the post-

       conviction court expressly relied on Wruble’s testimony in its findings of fact

       and conclusions of law. Thus, Lax’s argument on this point is without merit.


[13]   Lax also asserts that Wruble misadvised him on the law of reckless homicide,

       which caused Lax to plead guilty to voluntary manslaughter. The premise

       underlying this issue is Lax’s assertion that, had he gone to trial, he would have

       been entitled to a jury instruction on reckless homicide as a lesser-included

       offense to murder on the theory that the State would not have been able to

       show that Lax knowingly or intentionally, rather than recklessly, fired the

       handgun. See I.C. § 35-42-1-5. Thus, Lax continues, Wruble rendered

       ineffective assistance when Wruble supposedly advised Lax that “the law



       Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 10 of 12
       would have prevented a jury instruction on [r]eckless homicide.” Appellant’s

       Br. at 14.


[14]   But our supreme court has recognized that it is “a reasonable strategic decision

       for defense counsel” to avoid a jury instruction that “would have been

       inconsistent with Defendant’s testimony.” Morgan v. State, 755 N.E.2d 1070,

       1076 (Ind. 2001). Morgan applies here. Wruble testified before the post-

       conviction court as follows:


               Q. [by Lax’s counsel]: Did you explain if you went to trial, the
               jury would possibly be instructed to find for a lesser included
               charge of reckless homicide?

               A. Actually, I advised Mr. Lax by letter that there was a real
               serious danger that the Court would not provide a reckless
               homicide instruction, because Mr. Lax, contrary to my advice,
               spoke to Detective James Taylor without counsel present, and
               made a claim of self-defense.

               It’s quite hard to argue on the one hand that it’s self-defense, then
               on the other hand it’s reckless behavior.

               And there is case law . . . that if you claim self-defense, you may
               not be entitled to a reckless homicide instruction. [See, e.g., Brown
               v. State, 703 N.E.2d 1010, 1021 (Ind. 1998).]

               I explained all of that to Mr. Lax.


[15]   Tr. at 14-15. In light of Wruble’s testimony, Lax’s assertion that Wruble either

       misunderstood the law on this issue or misadvised Lax is not well taken.

       Rather, it is clear that Wruble faced a reasonable, strategic choice on how to


       Court of Appeals of Indiana | Memorandum Decision 71A04-1409-PC-417 | April 22, 2015   Page 11 of 12
       proceed at trial in the event that Lax did not plead guilty, and it was uncertain

       whether Lax would have been entitled to a reckless homicide instruction. As

       such, Lax cannot demonstrate that Wruble rendered deficient performance, and

       the post-conviction court’s denial of Lax’s petition on this issue is not clearly

       erroneous.


[16]   In sum, we affirm the post-conviction court’s denial of Lax’s petition for post-

       conviction relief.


[17]   Affirmed.


       Baker, J., and Friedlander, J., concur.




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