      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Jul 31 2015, 9:21 am
      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.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Eric L. Davis, Sr.                                        Gregory F. Zoeller
      Westville, Indiana                                        Attorney General of Indiana
                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Eric L. Davis, Sr.,                                       July 31, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                71A03-1403-PC-82
              v.                                                Appeal from the St. Joseph Superior
                                                                Court.
                                                                The Honorable Jerome Frese, Judge.
      State of Indiana,                                         Cause No. 71D03-1109-PC-45
      Appellee-Respondent.




      Shepard, Senior Judge

[1]   Eric L. Davis, Sr., appeals from the denial of his petition for post-conviction

      relief. He asserts that his trial counsel engineered a plea agreement that was at

      least partly illusory. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015       Page 1 of 6
                                                        Issue
[2]   Davis raises several issues, only one of which was appropriately raised in this

      post-conviction proceeding: whether Davis received ineffective assistance of
                                                                      1
      trial counsel in negotiating the plea agreement.


                                 Facts and Procedural History
[3]   The State charged Davis with being a felon in possession of a handgun, a Class

      C felony; possession of a handgun without a license, a Class A misdemeanor;

      and being a habitual offender. The State and Davis entered into a plea

      agreement, and Davis agreed to plead guilty to the C felony charge. In

      exchange, the State agreed to dismiss the other charges and to cap the executed

      portion of Davis’s sentence at two years, the mandatory minimum.


[4]   The trial court accepted the plea agreement and sentenced Davis to eight years.

      The court allowed Davis to serve the two-year executed term on day reporting

      with electronic monitoring, and it suspended the remaining six years. Davis did

      not appeal.




      1
       Davis also appears to claim prosecutorial misconduct and trial court error in permitting the State to file a
      habitual offender enhancement, but those claims are unavailable on post-conviction review. See Lambert v.
      State, 743 N.E.2d 719, 726 (Ind. 2001) (“post-conviction procedures do not provide a petitioner with a ‘super-
      appeal’ or opportunity to consider freestanding claims that the original trial court committed error”).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015                 Page 2 of 6
[5]   Later, the State petitioned to revoke Davis’s probation, and Davis admitted to

      the violation. The trial court sentenced Davis to serve his full eight-year

      sentence at the Department of Correction.


[6]   Davis filed a petition for post-conviction relief, and the court held an

      evidentiary hearing. The State later submitted a memorandum conceding that

      it “mistakenly and inappropriately applied the Habitual Offender
                                                                                                      2
      enhancement” to the case. Appellant’s April 8, 2015 Appendix, p. 45. The

      post-conviction court denied Davis’s petition, and this appeal followed.


                                     Discussion and Decision
[7]   Davis argues that he established that his trial counsel rendered ineffective

      assistance because she negotiated a plea agreement for which one of its

      benefits—dismissal of the habitual offender enhancement—was illusory. He

      says the State should not have been allowed to file the enhancement charge at

      all because it was an impermissible double enhancement.


[8]   As a preliminary matter, the State claims that Davis has waived this issue by

      failing to provide a complete record on appeal. Specifically, Davis has not

      provided us with a transcript of his guilty plea hearing. We reject the State’s




      2
       Davis filed several versions of his Appellant’s Appendix while the case was pending, and they do not all
      contain the same documents. For clarity’s sake, we will cite to an Appendix by the filing date.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015                  Page 3 of 6
       claim because an appellant’s failure to include an item in the appendix “shall

       not waive any issue or argument.” Ind. Appellate Rule 49(B).


[9]    When appealing 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. Campbell v. State, 19 N.E.3d

       271, 274 (Ind. 2014). The post-conviction court made findings of fact and

       conclusions thereon. Thus, we will reverse only upon a showing of clear

       error—that which leaves us with a definite and firm conviction that a mistake

       has been made. Id.


[10]   To establish ineffective assistance, a petitioner must demonstrate: (1) counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms; and (2) there is a reasonable probability that, but

       for counsel’s unprofessional error, the result of the proceeding would have been

       different. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). A petitioner must

       overcome a strong presumption that counsel rendered adequate assistance and

       made all significant decisions in the exercise of reasonable professional

       judgment. Id. at 419. Isolated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.

       Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002).


[11]   Furthermore, when counsel is alleged to have given incorrect advice as to penal

       consequences, a petitioner must establish by objective facts that counsel’s error

       was material to petitioner’s decision to plead guilty. Willoughby v. State, 792


       Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015   Page 4 of 6
       N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied. Merely alleging that the

       petitioner would not have pled had correct advice been given is insufficient. Id.

       Specific facts must establish an objective reasonable probability that competent

       representation would have caused the petitioner not to enter a plea. Id.


[12]   Here, the post-conviction court did not make a definitive finding about

       ineffective assistance. Instead, the court acknowledged that the habitual

       offender enhancement was inappropriate but explained that the plea agreement

       contained multiple, substantial benefits for Davis.


[13]   The evidence supports the post-conviction court’s conclusion. Davis received

       the minimum possible executed sentence of two years, well short of the

       maximum sentence of eight. And, doubtless due to the amount of executed

       time, the trial court allowed Davis to serve that portion of his sentence on day

       reporting rather than in the Department of Correction. These are significant

       benefits. Davis’s trial counsel stated in post-conviction discovery responses that

       she believed the cap on the executed portion of the sentence “contributed to

       deciding to forego the suppression hearing and trial in the underlying criminal

       case.” Appellant’s April 8, 2015 App. p. 28.


[14]   Based on this evidence, we cannot conclude that Davis established an objective

       reasonable probability that correct advice on the habitual offender enhancement

       would have caused him to reject the plea bargain. The plea bargain was so

       beneficial to Davis that counsel’s performance fell within the range of




       Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015   Page 5 of 6
       professional norms despite her failure to note that the habitual charge was

       unavailable. Davis has failed to establish clear error.


[15]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[16]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015   Page 6 of 6
