MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Jul 26 2017, 10:34 am

this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court
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                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Anne C. Kaiser                                           Larry D. Allen
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin Merida,                                           July 26, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         69A05-1703-PC-637
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Ryan J. King,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         69C01-1401-PC-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017                   Page 1 of 9
                                            Case Summary
[1]   In an open plea, Calvin Merida (“Merida”) pled guilty to two counts of Child

      Molesting, as Class A felonies,1 and was sentenced to sixty years imprisonment.

      His sentence was affirmed upon appeal. He subsequently brought a petition for

      post-conviction relief, claiming ineffectiveness of trial counsel related to advice

      regarding guilty pleas, credit-restricted felon status, and sentencing issues. The

      post-conviction court denied the petition, and Merida now appeals.


[2]   We affirm.



                                                      Issues
[3]   Merida presents a single issue for our review, which we restate as whether the

      post-conviction court erred when it denied his petition for post-conviction relief

      by concluding that Merida would not have agreed to any of the State’s proffered

      plea agreements.



                             Facts and Procedural History
[4]   We take a portion of our facts and procedural history from this Court’s review

      of Merida’s direct appeal:




      1
        Ind. Code § 35-42-4-3(a). Merida was tried and convicted before a substantial revision to Indiana’s criminal
      statutes. We refer throughout to the statutes applicable at the time of Merida’s offenses.

      Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017                Page 2 of 9
        Merida married his wife, J.M., who at the time of their marriage
        had a daughter, R.M., from a prior relationship. Merida adopted
        R.M. as his daughter. On at least two occasions during the
        period from 2001 to 2007, Merida performed or submitted
        to sexual intercourse or deviate sexual conduct with R.M. while
        he was at least twenty-one years of age and R.M. was less than
        fourteen years of age.


        On December 20, 2010, the State filed charges against Merida for
        eight counts of Child Molesting, as Class A felonies, with each
        separate count pertaining to one year from 2000 to 2007. On
        December 21, 2010, the State moved to amend its charging
        information to add counts Nine and Ten. Count Nine alleged
        that Merida had committed Child Molesting, as a Class A felony,
        during the period from January 1, 2001 to November 1, 2001.
        Count Ten alleged that Merida had committed Child Molesting,
        as a Class A felony, during the period from December 1, 2001 to
        December 31, 2007.


        On November 28, 2011, the State moved to dismiss the eight
        original counts, and a jury trial as to Counts Nine and Ten was
        scheduled for November 30, 2011. After a jury was [empaneled]
        but before evidence was offered, Merida pled guilty to Counts
        Nine and Ten.


        On January 30, 2012, a sentencing hearing was conducted. At its
        conclusion, the trial court entered judgments of conviction
        against Merida and sentenced him to thirty years imprisonment
        for each of the two counts, with the sentences run consecutively
        for an aggregate term of imprisonment of sixty years.


Merida v. State, No. 69A01-1203-CR-110, Slip op. at 2-3 (Ind. Ct. App. Oct. 13,

2012), vacated, 987 N.E.2d 1091 (Ind. 2013) [hereinafter Merida II].



Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 3 of 9
[5]   Merida appealed, challenging his sentence as inappropriate. This Court revised

      his sentence downward. Merida, No. 69A01-1203-CR-110, Slip op. at 5. The

      Indiana Supreme Court granted transfer and affirmed the trial court’s original

      aggregate sentence of sixty years. Merida II, 987 N.E.2d at 1092.


[6]   On January 13, 2014, Merida filed a petition for post-conviction relief.

      Appointed counsel from the State Public Defender entered an appearance on

      February 12, 2014.


[7]   On September 30, 2016, Merida filed an amended petition for post-conviction

      relief. In the petition, Merida alleged that he had been denied the effective

      assistance of trial counsel, contending specifically that his trial counsel had

      given him legally erroneous advice as to whether a conviction would result in

      Merida having status as a credit-restricted felon. Had he been correctly advised,

      Merida alleged, he would have accepted a plea agreement offered by the State,

      would not have opted to proceed to trial, and would not have entered an open

      plea after the jury was empaneled but before the opening of evidence.


[8]   On February 6, 2017, the post-conviction court conducted a hearing on

      Merida’s petition. The parties submitted proposed findings of fact and

      conclusions thereon. On March 20, 2017, the post-conviction court entered its

      order denying Merida’s petition for relief. The court found that Merida would

      not have accepted any of the State’s offered plea agreements, regardless of

      advice of counsel as to credit-restricted status.


[9]   This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 4 of 9
                                  Discussion and Decision
[10]   Merida challenges the post-conviction court’s denial of his petition for relief. A

       petitioner in a post-conviction proceeding must bear the burden of establishing

       grounds for relief by a preponderance of the evidence. Humphrey v. State, 73

       N.E.3d 677, 681 (Ind. 2017). Upon appeal, the petitioner stands in the position

       of one appealing a negative judgment. Id. “In order to prevail on an appeal

       from the denial of post-conviction relief, a petitioner must show that the

       evidence leads unerringly and unmistakably to a conclusion opposite that

       reached by the post-conviction court.” Id. Upon entering findings and

       conclusions upon a petition for post-conviction relief, though we will not defer

       to the court’s legal conclusions, the findings and judgment will be reversed

       “‘only upon a showing of clear error—that which leaves us with a definite and

       firm conviction that a mistake has been made.’” Id. at 682 (quoting Ben-Yisrayl

       v. State, 729 N.E.2d 102, 106 (Ind. 2000)).


[11]   The Sixth Amendment to the United States Constitution and Article I, section

       13 of the Indiana Constitution afford to an accused the right to the assistance of

       counsel. This right requires the “effective” assistance of counsel. Powell v.

       Alabama, 287 U.S. 45, 72 (1932). Defendants are entitled to the effective

       assistance of counsel during plea negotiations as well as at trial. Lafler v. Cooper,

       566 U.S. 156, 162 (2012). The United States Supreme Court has held that the

       two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), applies to

       challenges to guilty pleas relying on claims of ineffective assistance of counsel.



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       Lafler, 566 U.S. at 162-63 (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). The

       Strickland test’s two components are:


                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so
                serious that counsel was not functioning as the “counsel”
                guaranteed the defendant by the Sixth Amendment. Second, the
                defendant must show that the deficient performance prejudiced
                the defense. This requires showing that counsel’s errors were so
                serious as to deprive the defendant of a fair trial, a trial whose
                result is reliable.


       Strickland, 466 U.S. at 687. Failure to establish either part of the Strickland test

       will cause a claim of ineffective counsel to fail. State v. Greene, 16 N.E.3d 416,

       419 (Ind. 2014).


[12]   Here, Merida argues that, when consulting with him on the terms of the State’s

       plea offers, his trial counsel incorrectly advised him as to whether the offenses

       with which he was charged would, in the event of conviction, result in Merida

       having the status of a credit-restricted felon. He argues that credit-restricted

       felon status would have resulted in his having to serve at least 85% of a prison

       term, rather than the ordinary credit-time scheme of 50% of the imposed prison

       term. See I.C. 35-50-6-3(e) (providing that “[a] person assigned to Class IV

       earns one (1) day of good time credit for every six (6) days the person is

       imprisoned for a crime or confined awaiting trial or sentencing”); App’x Vol. II

       at 73.




       Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 6 of 9
[13]   Merida argues that counsel incorrectly advised him that he would have had

       credit-restricted felon status as a result of a guilty plea to the charged offenses.

       Had counsel correctly advised him that this was not the case, Merida argues

       that he would have accepted one of the State’s proffered plea agreements. One

       of these agreements provided for a thirty-year term of imprisonment, with ten

       years suspended to probation. Had he entered into this agreement, and had the

       trial court accepted the agreement, Merida argues that he would have faced an

       actual time-served period of ten years of imprisonment as a non-credit-restricted

       felon—a term of imprisonment Merida insists he would have accepted.

       Instead, Merida proceeded to trial without having accepted any plea agreement

       and, just prior to the opening of evidence, entered an open plea of guilty to two

       counts of Child Molesting, resulting in an aggregate prison term of sixty years

       and an actual-time-served period of thirty years.


[14]   Reviewing Merida’s claim, the post-conviction court found that while it was

       likely Merida’s counsel had at least reviewed whether Merida would have been

       a credit-restricted felon upon acceptance of a guilty plea, there was apparent

       confusion over whether counsel had advised Merida correctly. However, the

       post-conviction court found that whatever Merida’s likely status, he would not

       have accepted any of the plea agreements offered by the State. In doing so, the

       court relied on the following testimony from Merida’s trial counsel:


               Well, we talked about this… And here’s what my memory is.
               My memory was that, when this was brought up to me, that
               somehow Calvin was trying to get to ten (10) do five (5). O.k.? I
               can’t point to a particular conversation or why but that was my

       Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 7 of 9
               memory. [The State] over here was consistently at, well, thirty
               (30) with five (5) suspended and after that he wouldn’t move
               from thirty (30) with ten (10) and I do think I talked to Calvin
               about all three (3) of those plea agreements, thirty (30) with five
               and the thirty (30) with ten (10) suspended. I understand he’s
               disputing the credit issue, but I have a memory that somehow at
               one point I was trying to get to ten (10) do five (5), maybe using a
               lesser.


       (Tr. Vol. II at 12.)


[15]   Based upon this testimony, the post-conviction court found that counsel

       “recalled that it was his memory that [Merida] was seeking an offer for an

       executed five (5) actual years in prison.” (App’x Vol. 2 at 72.) Looking to the

       confusion over which counts the credit-restricted status might apply to, and to

       Merida’s refusal to accept other pleas, the court found that “Merida’s rejection

       of three (3) written plea offers was because, as [counsel] testified, Mr. Merida

       wanted a plea offer to an executed five (5) years in prison.” (App’x Vol. 2 at

       76.) The post-conviction court then concluded, “However, even the last written

       plea offer for a clearly non-credit restricted thirty 30 years with 10 (20 do 10

       years) suspended did not comport with Mr. Merida’s desired ten (10) do five (5)

       years executed, and was therefore rejected.” (App’x Vol. 2 at 77-78.)


[16]   We find no error in the post-conviction court’s findings and conclusions in this

       respect. While trial counsel’s testimony is perhaps not a model of clarity, the

       post-conviction court was entitled to credit counsel’s testimony over Merida’s

       testimony that he was willing to accept a sentence requiring more than five

       years of actual time served. Trial counsel’s only testimony as to Merida’s

       Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 8 of 9
       expressed wishes was that Merida would not accept a plea that would have

       required him to serve more than five actual years of imprisonment. The lowest

       plea agreement offer the State extended to Merida would have required an

       executed term of twenty years, resulting in ten years of actual time served—at

       least five more years of actual time served than trial counsel remembered

       Merida was willing to serve. Assuming arguendo that trial counsel provided

       erroneous advice as to the credit-restricted felon statute, Merida failed to

       establish that he was prejudiced by the erroneous advice because he did not rely

       on it in any event.


[17]   To the extent Merida argues for the credibility of his testimony concerning the

       contents of counsel’s advice and the terms he would have found acceptable, his

       argument calls upon us to reassess the post-conviction court’s weighing of the

       testimony of trial counsel. We are foreclosed from doing so by our standard of

       review. The post-conviction court was entitled to credit counsel’s testimony,

       and the court’s conclusions flow logically from its findings. We find no clear

       error in the trial court’s conclusion that Merida was not prejudiced and thus

       was not entitled to post-conviction relief.



                                               Conclusion
[18]   The post-conviction court did not err when it denied Merida’s petition for relief.


[19]   Affirmed.


       Baker, J., and Altice, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017   Page 9 of 9
