FOR PUBLICATION
                                                          FILED
                                                       Jan 24 2012, 9:11 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                               GREGORY F. ZOELLER
Public Defender of Indiana                     Attorney General of Indiana

JAY M. LEE                                     NICOLE M. SCHUSTER
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES R. JOHNSON,                              )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 44A04-1105-PC-264
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE LAGRANGE CIRCUIT COURT
                        The Honorable J. Scott VanDerbeck, Judge
                            Cause No. 44C01-0703-PC-00001


                                    January 24, 2012

                              OPINION - FOR PUBLICATION

VAIDIK, Judge
                                          Case Summary

       James R. Johnson appeals the post-conviction court’s denial of his petition for

post-conviction relief. Because the record shows that Johnson pled guilty to Class A

felony child molesting at the same time he maintained his innocence, the trial court erred

in accepting Johnson’s guilty plea to the Class A felony.                   Accordingly, the post-

conviction court erred in denying Johnson’s petition for post-conviction relief. We

therefore reverse and remand for further proceedings.

                                 Facts and Procedural History

       According to the probable cause affidavit in this case, on July 27, 1999, Johnson

touched a ten-year-old girl’s vagina with his tongue after enticing her into his trailer with

promises of money and stuffed animals. See Johnson v. State, 845 N.E.2d 147, 149 (Ind.

Ct. App. 2006), reh’g denied, trans. denied. The State charged Johnson with Class A

felony child molesting. The charging information provides that Johnson, who was at

least twenty-one years old, performed or submitted to deviate sexual conduct with a child

under fourteen years of age by touching the child’s vagina with his mouth/tongue.

Appellant’s App. p. 151; Ind. Code § 35-42-4-3(a)(1).                 The State also alleged that

Johnson was a habitual offender.

       At some point Johnson decided to plead guilty to child molesting and admit to

being a habitual offender. At Johnson’s March 6, 2000, guilty plea hearing, Johnson said

he was going to “plead straight up.” Appellant’s P-C App. p. 168. The trial court




       1
          We refer to the trial transcript as “Tr.,” the trial appendix as “Appellant’s App.,” the post-
conviction transcript as “P-C Tr.,” and the post-conviction appendix as “Appellant’s P-C App.”
                                                   2
acknowledged that there was no written plea agreement. The following colloquy then

occurred between the State and Johnson:

      Q:      Mr. Johnson were you in LaGrange County on September 26, 1999?
      A:      Yes.
      Q:      And on that occasion were you in the company of a child under the
      age of fourteen?
      A:      Yes.
      Q:      Ah, that is the child at [that] time was age ten with a date of birth of
      July 27, 1989.
      A:      I think.
      Q:      And how old were you on that date?
      A:      Ah, forty.
      Q:      Ah, while in the company of that child did you; are you now
      admitting that you performed a deviate, an act of deviate sexual conduct,
      that is ah, an act that involved the child’s vagina and your ah, mouth or
      tongue?
      A:      Ah, no I don’t plead guilty to that, no. I touched her with my hand.
      Q:      Mr. Johnson ah, have ah, you were served with a copy of the charges
      in this case, is that correct?
      A:      Yes.
      Q:      And ah, did you read those charges?
      A:      Yes.
      Q:      The information and the probable cause affidavit?
      A:      I think so.
      Q:      O.K. And ah, you’ve had an opportunity to discuss those with
      [defense counsel]?
      A:      Yes.
      Q:      Ah, do you feel that you understand the allegations contained in
      those documents?
      A:      Now, yes.
      Q:      You understand that by pleading guilty you are admitting that the
      factual allegations contained in those documents are in fact true? That is
      that the child said that ah, ah, you, your tongue contacted her vagina.
      A:      Yes, but I didn’t do that, no.
      Q:      You, you understand that that’s what the child says?
      A:      Yes I understand what that is.
      Q:      You understand that by pleading guilty you’re admitting that if
      called to testify that child would testify in that fashion?
      A:      Yes.




                                             3
Tr. p. 12-14 (emphases added). Johnson also admitted to the two felonies underlying his

habitual offender charge. Id. at 14. The State then moved to admit the probable cause

affidavit and charging information to support the guilty plea. Id. at 15-16. Defense

counsel did not object. Id. at 16. The trial court found that Johnson, “after being advised

of his rights, freely and voluntarily entered a plea of guilty to the charges alleged by the

State of Indiana.” Appellant’s P-C App. p. 176. The court further found that the State

“has lain a factual basis to accept the plea of guilty by the Defendant” and accordingly

entered “a judgment of conviction for Child Molesting (Deviate Sexual Conduct) a Class

A felony, and also f[ound] he is a Habitual Offender, as per IC 35-50-2-8.” Id.

       In April 2000, the trial court sentenced Johnson to thirty years for child molesting

and a thirty-year enhancement for his habitual-offender status.

       Approximately five months later, Johnson filed a petition for post-conviction

relief. Several years later, the State Public Defender filed a motion to dismiss Johnson’s

petition without prejudice in order to pursue a belated appeal challenging his sentence.

Johnson then pursued an appeal in this Court in which he challenged his thirty-year

sentence for Class A felony child molesting. We affirmed the sentence. Johnson, 845

N.E.2d at 154.

       After our decision, Johnson, pro se, resurrected his petition for post-conviction

relief. The State Public Defender later amended Johnson’s petition and made clear that

the trial court erred in accepting Johnson’s guilty plea because he “consistently

maintained his innocence” to Class A felony child molesting. Appellant’s P-C App. p.

139-40.


                                             4
       After a hearing on Johnson’s petition, the post-conviction court denied it without

any findings or conclusions. Johnson filed a motion to correct error and requested

findings and conclusions. The post-conviction court denied Johnson’s motion to correct

error and incorporated its findings and conclusions nunc pro tunc. The post-conviction

court concluded that “there was an adequate factual basis to support [Johnson’s] guilty

plea” and Johnson had “not maintained his innocence throughout this process.” Id. at

381, 382. The court explained:

       At the change of plea hearing on March 6, 2000, his attorney informed the
       court that he would plead “straight up.” Mr. Johnson stated that he was
       pleading voluntarily and that no one was threatening, tricking, or coercing
       him to do so. He answered affirmatively when the judge asked him
       whether he had read and understood the information and probable cause
       affidavit. He also told the court that he understood that the victim would
       testify at trial that his tongue contacted her vagina. He also openly
       admitted in court that his hand touched the victim’s vagina. That admission
       standing alone could qualify as the class A felony under Indiana Code 35-
       42-4-3(a) or (b). Under these facts, the court, in denying Mr. Johnson’s
       petition for post-conviction relief, can be assured that Mr. Johnson could
       have been convicted within the law of a Class A felony Child Molesting
       had he stood trial.

Id. at 382 (citations omitted).

       Johnson now appeals the denial of his petition for post-conviction relief.

                                  Discussion and Decision

       Post-conviction proceedings provide defendants the opportunity to raise issues not

known or available at the time of the original trial or direct appeal. Stephenson v. State,

864 N.E.2d 1022, 1028 (Ind. 2007), reh’g denied. “In post-conviction proceedings, the

defendant bears the burden of proof by a preponderance of the evidence.” Id. We review

factual findings of a post-conviction court under a “clearly erroneous” standard but do


                                             5
not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the

credibility of the witnesses and will examine only the probative evidence and reasonable

inferences therefrom that support the decision of the post-conviction court.                Id.

Additionally, the post-conviction court here entered findings of fact and conclusions

thereon, as required by Indiana Post-Conviction Rule 1(6).            We cannot affirm the

judgment on any legal basis, but rather must determine if the court’s findings are

sufficient to support the judgment. Huddleston v. State, 951 N.E.2d 277, 280 (Ind. Ct.

App. 2011), trans. denied.

       We first address two preliminary matters.         Johnson points out that the post-

conviction court made an error when it said the following:

       [Johnson] also openly admitted in court that his hand touched the victim’s
       vagina. That admission standing alone could qualify as the class A felony
       under Indiana Code 35-42-4-3(a) or (b). Under these facts, the court, in
       denying Mr. Johnson’s petition for post-conviction relief, can be assured
       that Mr. Johnson could have been convicted within the law of a Class A
       felony Child Molesting had he stood trial.

Appellant’s P-C App. p. 382 (emphasis added). Johnson is correct. If Johnson used only

his hand to touch the child’s vagina, it would not qualify as deviate sexual conduct. See

Ind. Code § 35-41-1-9. Rather, according to Indiana Code section 35-42-4-3(b), child

molesting is a Class C felony, and not a Class A felony, if the defendant with a child

under fourteen years of age “performs or submits to any fondling or touching, of either

the child or the older person, with intent to arouse or to satisfy the sexual desires of either

the child or the older person.”

       Next, we note that the post-conviction court found that Johnson’s petition was

barred by the doctrine of laches. However, the State concedes on appeal that because it

                                              6
did not plead and prove by a preponderance of the evidence that Johnson unreasonably

delayed in seeking relief, the post-conviction court erroneously relied upon laches to

support the denial of post-conviction relief. Appellee’s Br. p. 14. Given the State’s

concession, we do not address laches. We now turn to the merits of this appeal.

       Johnson contends that the trial court should not have accepted his guilty plea

because he proclaimed his innocence to Class A felony child molesting. Nearly sixty

years ago, the Indiana Supreme Court held that “a plea of guilty tendered by one who in

the same breath protests his innocence, or declares he does not actually know whether or

not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a

judgment of conviction.” Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502

(1953). Accordingly, “a judge may not accept a plea of guilty when the defendant both

pleads guilty and maintains his innocence at the same time. To accept such a plea

constitutes reversible error.”   Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983).           “A

defendant who says he did the crime and says he did not do the crime has in effect said

nothing, at least nothing to warrant a judge in entering a conviction.” Carter v. State, 739

N.E.2d 126, 128-29 (Ind. 2000).

       Indiana jurisprudence has insisted that a factual basis must exist for a guilty plea

and a judge may not accept a guilty plea while a defendant claims actual innocence.

Norris v. State, 896 N.E.2d 1149, 1152 (Ind. 2008); Ross, 456 N.E.2d at 423. In order for

the Ross/Harshman rule to apply, a defendant’s protestation of innocence must occur at

the same time as the defendant attempts to enter the plea and not at a later time or in a

different proceeding. Carter, 739 N.E.2d at 129. “This rule was designed to both


                                              7
increase the reliability of guilty pleas and prevent the diminishment of respect for the

court system as jailing people who committed no crime.” Norris, 896 N.E.2d at 1152.

       Here, when the State asked Johnson during his guilty plea hearing if he admitted

to touching the child’s vagina with his mouth or tongue, which elevated the offense from

a Class C to a Class A felony, he said, “[N]o I don’t plead guilty to that, no. I touched

her with my hand.” Tr. p. 13. Then, when the State followed up by asking Johnson if he

understood that by pleading guilty he was admitting that the child said that his tongue

contacted her vagina, he said, “Yes, but I didn’t do that, no.” Id. at 14. While Johnson

stated that if the child was called to testify, she would say that his tongue contacted her

vagina, he did not admit to doing so. Id. Based on these exchanges, we find that Johnson

has consistently maintained his innocence to Class A felony child molesting. Although

Johnson admitted to Class C felony child molesting for touching the victim’s vagina with

his hand, see I.C. § 35-42-4-3(b), the trial court accepted Johnson’s guilty plea and

entered judgment of conviction for a Class A felony. This was error.

       The State argues that because Johnson acknowledged that the victim would testify

at trial that his tongue touched her vagina, there is a sufficient factual basis for the Class

A felony. But the State’s argument is based on a fundamental misunderstanding of

protestation-of-innocence claims. That is, the Ross/Harshman rule is applied separately

from traditional factual-basis analysis. Huddleston, 951 N.E.2d at 280 n.3. “[T]here is a

difference between cases where the defendant actually denies guilt as to some necessary

element of the offense and cases where the defendant merely fails to admit the existence




                                              8
of such an element.” Id. (quotation omitted). In the latter scenario, a sufficient factual

basis may be established by evidence aside from a defendant’s statements. Id.

        Likewise, no separate showing of prejudice is required for protestation-of-

innocence claims because to accept a plea of guilty when the defendant both pleads guilty

and maintains his innocence at the same time constitutes reversible error. See Ross, 456

N.E.2d at 423 (“To accept such a plea constitutes reversible error.”); Kindred v. State,

674 N.E.2d 570, 575 n.5 (Ind. Ct. App. 1996) (“Reversible error occurs only if prejudice

results to the defendant.”), reh’g denied, trans. denied. Accordingly, there was no need

to show prejudice here because prejudice is inherent in protestation-of-innocence claims.

        Johnson clearly denied touching the victim’s vagina with his tongue even though

he admitted that the victim would testify otherwise.2 And without this act, Johnson’s

offense is not a Class A felony. Simply put, Johnson’s acknowledgement that the victim

would testify a certain way (thus satisfying the factual basis) does not negate his

protestations of innocence to the Class A felony. Despite the State’s attempts to extract

an admission from Johnson that he was guilty of Class A felony child molesting, he did

not admit and specifically denied that he touched the victim’s vagina with his tongue or

mouth, which is the basis for the Class A felony. The trial court erred in accepting

Johnson’s guilty plea to Class A felony child molesting because he pled guilty and




        2
           This fact distinguishes this case from Hitlaw v. State, 178 Ind. App. 124, 381 N.E.2d 527
(1978), upon which the State relies on appeal. In Hitlaw, the defendant did not protest his innocence but
rather claimed lack of memory. Nevertheless, the defendant admitted that the statements used against
him at his guilty plea hearing “were true to the best of his knowledge.” Id. at 126-27, 381 N.E.2d at 528.
Johnson, however, did not admit to the truth of the victim’s allegations.
                                                    9
maintained his innocence at the same time.3 Accordingly, the post-conviction court erred

in denying Johnson’s petition for post-conviction relief.                  We therefore reverse and

remand for further proceedings.4

        Reversed and remanded.

FRIEDLANDER, J., and DARDEN, J., concur.




        3
          The State argues that this case is on par with Bland v. State, 708 N.E.2d 880 (Ind. Ct. App.
1999). See Appellee’s Br. p. 9. In Bland, the defendant was charged with operating a vehicle after a
lifetime suspension. At the guilty plea hearing, the defendant initially informed the trial court that he did
not believe his license was suspended for life. The trial court, however, pointed out the State’s evidence,
which included BMV records, and ordered a recess so that the defendant could examine this evidence.
After the recess and when the State was laying the factual basis, the defendant stated, “[my] license
wasn’t suspended for life in no court.” Id. at 882. Despite this comment, the defendant admitted that the
State’s evidence showed that his license had been suspended for life in March 1982 and that the notice
was mailed to his last known address.
         We first note that there was limited analysis of this issue in Bland. In fact, we cannot decipher if
the Bland Court concluded that the trial court did not err in accepting the defendant’s guilty plea because
he did not protest his innocence or because he did not do so at the same time he pled guilty. To the extent
the opinion might be construed as holding that a defendant can plead guilty and maintain his innocence at
the same time, we think the court erred.
        4
         The trial court may accept Johnson’s guilty plea to the Class C felony or set this matter for trial
on the Class A felony.
                                                    10
