MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Sep 29 2015, 8:46 am
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

Jonathan O. Chenoweth                                    Jesse R. Drum
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elsor Matthews,                                          September 29, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         27A05-1503-PC-116
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-1412-PC-21



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 1 of 8
                                               Case Summary
[1]   Elsor Matthews appeals the denial of his petition for postconviction relief. He

      challenges the adequacy of the factual basis underlying his guilty plea to class D

      felony intimidation. Concluding that Matthews has not met his burden to

      establish that the evidence, as a whole, unmistakably and unerringly points to a

      conclusion contrary to the postconviction court’s decision, we affirm.


                                   Facts and Procedural History
[2]   On November 20, 2003, the State charged Matthews with class D felony

      intimidation. 1 Specifically, the State alleged:


              [O]n or about November 18, 2003 in Grant County, State of
              Indiana, Elsor Matthews Jr. did communicate a threat to commit
              a forcible felony to Rhonda Smith, with the intent that Rhonda
              Smith be placed in fear of retaliation for a prior lawful act, to-wit:
              calling the police; contrary to the form of the statutes in such
              cases made and provided by I.C. 35-45-2-1(a)(2) and against the
              peace and dignity of the State of Indiana.


      Petitioner’s Ex. E. The probable cause affidavit filed contemporaneously

      provided in relevant part:

              3. That victim – Rhonda Smith said her ex-boyfriend Elsor
              Matthews came to the residence yelling at her and asking her
              who she had been sleeping with. She told him she had not been
              sleeping with anyone. She said he punched her in the face and



      1
       The State charged Matthews with three additional crimes to which, as noted later, he also pled guilty;
      however, Matthews does not challenge those convictions or the factual bases underlying those guilty pleas.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015         Page 2 of 8
              she grabbed the phone and ran down the street. She said Mr.
              Matthews told her if she called the police he would kill her.


      Petitioner’s Ex. D.


[3]   Matthews agreed to plead guilty to this crime as well as three additional crimes

      that are not at issue here. During the guilty plea hearing, the following

      colloquy occurred:

              BY THE COURT: Alright. Tell me what you did on November
              18th, a little less than two months ago that makes you guilty of
              these four crimes?
              BY THE DEFENDANT: Well, me and Rhonda Smith got into
              it and I hit her.
              BY THE COURT: Okay. On that date, were you and Rhonda
              Smith in Grant County, Indiana?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: Did you threaten her in some way?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: How did you threaten her? What did you tell
              her?
              BY THE DEFENDANT: I told her … I don’t know. I said so
              much. I told her that I would … I told her that I would kill her if
              she called the police.
              BY THE COURT: Okay. Why was she going to call the police?
              BY THE DEFENDANT: I don’t know cause she said she would
              cause we was in a fight, arguing.
              BY THE COURT: Okay. So on that same day, is it a fact that
              you touched her or hit her in a rude, insolent or angry manner?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: And that caused some injury to the left side of
              her face?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: A red mark around her eye. Is that true?
              BY THE DEFENDANT: Yes, sir.
      Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 3 of 8
              BY THE COURT: Okay and then she indicated to you that she
              was going to call the police?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: And you told her you would kill her if she
              called the police to report the fact that you would hit her. Is that
              true?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: Okay. Now on that same day, is it also true
              that you were under a protective order issued by Grant Superior
              Court number three in 27D03-0310-PO-347?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: And is it true that that protective order
              prevented you or restricted you from bothering Rhonda Smith?
              BY THE DEFENDANT: Yes, sir.
              BY THE COURT: And you knew that you were violating that
              order at the time that you were with her. Is that true?
              BY THE DEFENDANT: Yes, sir.


      Petitioner’s Ex. A at 10-11.


[4]   The trial court accepted Matthews’s guilty plea and sentenced him to three

      years, with one year executed and two years suspended to probation. Matthews

      subsequently violated his probation by committing new offenses of aggravated

      battery, intimidation, and invasion of privacy against Rhonda Smith. Thus, his

      suspended sentence was ordered executed.


[5]   On October 19, 2012, Matthews filed a pro se petition for postconviction relief.

      Counsel entered an appearance on his behalf and filed an amended petition on

      July 31, 2014. Following an evidentiary hearing, the postconviction court

      entered its findings of fact and conclusions of law denying Matthews’s petition

      for relief. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 4 of 8
                                     Discussion and Decision
[6]   Our standard of review for postconviction proceedings is well settled.

      Postconviction proceedings are civil in nature and the petitioner must prove his

      grounds for relief by a preponderance of the evidence. Davidson v. State, 763

      N.E.2d 441, 443 (Ind. 2002). Because a defendant appealing from the denial of

      postconviction relief is appealing from a negative judgment, he bears the burden

      of proof and must establish that the evidence, as a whole, unmistakably and

      unerringly points to a conclusion contrary to the postconviction court’s

      decision. Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). “In other words,

      the defendant must convince this Court that there is no way within the law that

      the court below could have reached the conclusion it did.” Id. (citation

      omitted). We will reverse a postconviction court’s findings and judgment only

      upon a showing of clear error—that which leaves us with a definite and firm

      conviction that a mistake has been made. Campbell v. State, 19 N.E.3d 271, 274

      (Ind. 2014).


[7]   Matthews’s sole contention on appeal is that there is an inadequate factual basis

      to support his guilty plea to class D felony intimidation. It is well established

      that a court may not accept a guilty plea unless the court determines that a

      sufficient factual basis exists to support the plea. Graham v. State, 941 N.E.2d

      1091, 1098 (Ind. Ct. App. 2011); see Ind. Code § 35-35-1-3. “A factual basis

      may be established by relatively minimal evidence about the elements of the

      crime from which the court could reasonably conclude that the defendant is

      guilty.” Graham, 941 N.E.2d at 1098. A trial court's determination of a

      Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 5 of 8
       sufficient factual basis is presumptively correct. Id. Additionally, the standard

       for an adequate factual basis to support a guilty plea is less rigorous than that

       required to support a conviction. Id. “‘Reasonably concluding’ that a defendant

       is guilty for purposes of a factual basis is not the same as concluding guilt

       beyond a reasonable doubt.” Id. (quoting Rhoades v. State, 675 N.E.2d 698, 702

       (Ind. 1996)).


[8]    Indiana Code Section 35-45-2-1(a) provides in relevant part that “[a] person

       who communicates a threat to another person, with the intent: (1) that the other

       person engage in conduct against the other person’s will” or “(2) that the other

       person be placed in fear of retaliation for a prior lawful act[,]” commits class A

       misdemeanor intimidation. The offense is a class D felony if the threat is to

       commit a forcible felony. Ind. Code § 35-45-2-1(b)(1)(A).


[9]    Here, Matthews claims that his testimony at the guilty plea hearing does not

       establish that the threat he communicated to Smith was intended to place her in

       fear of retaliation of a “prior” lawful act as provided by Indiana Code Section

       35-45-2-1(a)(2), and as charged by the State. Instead, he argues, his threat was

       made to prevent her from calling the police, an act which would have been

       subsequent to the threat. The postconviction court agreed, as do we, with this

       assertion.


[10]   However, the postconviction court found that Matthews’s testimony at the

       guilty plea hearing clearly established that he committed the offense of

       intimidation as provided in subsection (a)(2) of the intimidation statute, which


       Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 6 of 8
       requires that the threat be made with the intent that the other person engage in

       conduct against her will. Ind. Code § 35-45-2-1(a)(2). As noted by the

       postconviction court, this Court has held that the offense of intimidation

       encompasses a threat made with the intent that someone remain silent and

       refrain from acting, which includes refraining from alerting the police by

       remaining silent. Johnson v. State, 717 N.E.2d 887, 890 (Ind. Ct. App. 1999).

       The postconviction court went on to conclude that any variance between the

       subsection of the intimidation statute under which Matthews was charged, and

       his testimony providing a factual basis for his guilty plea, was immaterial under

       the circumstances.


[11]   As a general matter, a “variance” is a difference between the pleading and proof

       at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). Not all variances are

       material and thus not all variances require reversal. Id. “Relief is required only

       if the variance (1) misled the defendant in preparing a defense, resulting in

       prejudice, or (2) leaves the defendant vulnerable to future prosecution under the

       same evidence.” Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). It is significant

       here that a trial did not occur and that Matthews was confronted with neither of

       the abovementioned concerns regarding defense preparation or future

       prosecution. In considering Matthews’s claims regarding the variance, the

       postconviction court reasoned that he had presented no evidence that he was

       prejudiced by the fact that he was charged under subsection (a)(2) of the

       intimidation statute rather than subsection (a)(1), that the offense constituted a

       class D felony regardless due to his threat to commit a forcible felony, and that


       Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015   Page 7 of 8
       “it would be unreasonable to assume that this immaterial variance would have

       affected his decision to plead guilty in any way.” Appellant’s App. at 86.


[12]   We find the postconviction court’s reasoning well taken. 2 Our supreme court

       has held that prejudice must be established before postconviction relief can be

       granted on grounds of failure to establish a factual basis for a guilty plea. State

       v. Eiland, 723 N.E.2d 863, 864 (Ind. 2000). We agree with the postconviction

       court that the factual basis provided by Matthews’s testimony at the guilty plea

       hearing is adequate to support his guilty plea to class D felony intimidation, and

       even assuming inadequacy, Matthews has not shown that he suffered prejudice.

       Under the circumstances, we cannot say that Matthews has met his burden to

       establish that the evidence, as a whole, unmistakably and unerringly points to a

       conclusion contrary to the postconviction court’s decision. The judgment of the

       postconviction court is affirmed.


[13]   Affirmed.


       May, J., and Bradford, J., concur.




       2
         In his reply brief, Matthews directs us to Blackmon v. State, 32 N.E.3d 1178, 1183 (Ind. Ct. App. 2015), to
       support his argument that the variance between the allegation in the charging information and his factual
       basis testimony at the guilty plea hearing was material and fatal to his plea. While we need not recite the
       complicated factual background of Blackmon, we note that Blackmon involved a full trial and conviction
       beyond a reasonable doubt, as opposed to a guilty plea, and that there was some indication in the record that
       the defendant may have been misled in the preparation of his defense. Such is not the case here, and
       therefore the Blackmon majority’s reasoning is inapposite.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1503-PC-116 | September 29, 2015          Page 8 of 8
