MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Dec 31 2015, 9:57 am
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
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Anne C. Kaiser                                           Justin F. Roebel
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Javier Morales, Jr.,                                     December 31, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         48A02-1506-PC-596
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Carol J. Orbison,
Appellee-Respondent.                                     Sr. Judge
                                                         Trial Court Cause No.
                                                         48C01-1209-PC-30



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015    Page 1 of 10
[1]   Javier Morales appeals the denial of his petition for post-conviction relief. As

      he has not established his counsel was ineffective or that his guilty plea was not

      knowing and voluntary, we affirm.


                                   Facts and Procedural History
[2]   In 2009, Morales was charged with Class A felony child molesting 1 and Class B

      felony rape. 2 He agreed to plead guilty to child molesting. In exchange the

      State dropped the rape charge and agreed to a thirty-year sentence with ten

      years suspended. The court accepted that plea and entered judgment.


[3]   About five years later Morales petitioned for post-conviction relief, alleging he

      accepted the plea agreement because his trial counsel told him he would be

      subject to a maximum sentence of seventy years in prison if he went to trial and

      Morales “was going to lose at trial because of my race, being Hispanic.” (Tr. at

      42.) Morales’ trial counsel believed the trial judge “tended to be . . . a harsh

      sentencer [sic] with child molestation.” 3 (Id. at 25.)




      1
          Ind. Code § 35-42-4-3.
      2
          Ind. Code § 35-42-4-1.
      3
         We note that on at least two occasions, our Indiana Supreme Court reversed child molesting convictions
      entered by that same judge because the judge’s comments and rulings indicated he was not impartial. See
      Everling v. State, 929 N.E.2d 1281, 1291 (Ind. 2010) (The “cumulative result of Judge Spencer’s comments,
      exclusions, and general demeanor toward the defense was a trial below the standard towards which Indiana
      strives.”); Abernathy v. State, 524 N.E.2d 12, 15 (Ind. 1988) (“By suggesting he disbelieved the witnesses, the
      judge necessarily indicated his disbelief of Abernathy’s defense. His opinion of any exculpatory evidence was
      readily apparent to the jury. Because of the deference which juries accord the judge’s opinions, this lack of
      neutrality was detrimental to Abernathy’s defense.”).

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015           Page 2 of 10
[4]   Trial counsel testified he never told Morales he was facing seventy years, as

      counsel knew such a sentence would have subjected Morales to double

      jeopardy. A handwritten annotation on the charging document indicates

      “seventy over thirty-five,” which Morales’ counsel testified meant “he was

      potentially facing seventy years where he would serve thirty-five.” (Id. at 18.)

      Counsel testified he would typically draw up for his clients “the most extreme

      that – what potentially could happen, possibly, or the absolute minimum,

      meaning a dismissal.” (Id.) Counsel testified he did not recall whether he told

      Morales he could not be sentenced on both charges, but as noted above he also

      testified he never told Morales he was “facing seventy years.” (Id. at 35.)


                                     Discussion and Decision
[5]   In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting its judgment. Carrillo v. State,

      982 N.E.2d 468, 471-72 (Ind. Ct. App. 2013). The post-conviction court is the

      sole judge of the evidence and the credibility of the witnesses. Id. at 472. To

      prevail on appeal from denial of post-conviction relief, the petitioner must show

      that the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id.


[6]   The post-conviction court entered findings of fact and conclusions thereon in

      accordance with Indiana Post-Conviction Rule 1(6). Only where the evidence

      is without conflict and leads to but one conclusion, and the post-conviction

      court has reached the opposite conclusion, will its findings or conclusions be


      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 3 of 10
      disturbed as being contrary to law. Id. We accept findings of fact unless they

      are clearly erroneous, but we afford no deference to conclusions of law.

      Springer v. State, 952 N.E.2d 799, 803 (Ind. Ct. App. 2011), trans. denied.


                                          Effectiveness of Counsel

[7]   The post-conviction court did not err in finding Morales had not proven his trial

      counsel was ineffective. The petitioner for post-conviction relief has the burden

      of establishing his grounds for relief by a preponderance of the evidence. Id.

      To prevail on a claim of ineffective assistance of counsel, a petitioner must

      demonstrate counsel’s performance was deficient and he was prejudiced by the

      deficient performance. Id. Counsel’s performance is deficient if it falls below

      an objective standard of reasonableness based on prevailing professional norms.

      Id. Counsel’s performance is presumed effective, and a petitioner must offer

      strong and convincing evidence to overcome that presumption. Id.


[8]   Prejudice results where there is a reasonable probability that, but for counsel's

      unprofessional errors, the result of the proceeding would have been different.

      Id. A reasonable probability is one sufficient to undermine confidence in the

      outcome. Id. A petitioner must satisfy both prongs or his claim will fail. Id.

      We cannot find counsel’s performance prejudiced Morales or counsel’s

      performance was deficient.


[9]   To state a claim for post-conviction relief premised on erroneous advice about a

      guilty plea, a petitioner may not simply allege that a plea would not have been

      entered. Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001). Nor is the

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 4 of 10
       petitioner’s conclusory testimony to that effect sufficient to prove prejudice. Id.

       A petitioner may be entitled to relief if there is an objectively credible factual

       and legal basis from which it may be concluded that there is a reasonable

       probability that, but for counsel’s errors, he would not have agreed to plead

       guilty and would have insisted on going to trial. Id.


[10]   Morales argues counsel “performed deficiently when he told Morales he faced a

       maximum sentence of seventy years.” (Br. of Petitioner-Appellant at 9.)

       Morales notes double jeopardy principles would have prevented a conviction of

       both child molesting and rape. We cannot find deficient performance on that

       ground. The post-conviction court heard testimony counsel informed all his

       clients of “the most extreme that – what potentially could happen, possibly, or

       the absolute minimum, meaning a dismissal.” (Tr. at 18.) But counsel testified

       he did not tell Morales he faced seventy years. We acknowledge Morales

       testified to the contrary, but we cannot reweigh that testimony or rejudge the

       credibility of the witnesses.


[11]   Nor do we believe a handwritten notation “seventy over thirty-five,” (id. at 18),

       without more, amounts to “an objectively credible factual and legal basis from

       which it may be concluded that there is a reasonable probability that, but for

       counsel’s errors, he would not have agreed to plead guilty and would have

       insisted on going to trial,” as required by Segura, 749 N.E.2d at 507. We

       therefore cannot find Morales’ counsel was ineffective on the ground counsel

       misadvised him of penal consequences.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 5 of 10
[12]   Nor can we find Morales’ counsel ineffective because he advised Morales his

       trial judge sentenced child molesters harshly and had “very little, uh like for

       Hispanics,” (Tr. at 26), and there would likely be no Hispanics on Morales’

       jury. Neither party directs us to Indiana precedent addressing such a statement

       in this context, but the Kentucky Supreme Court recently addressed similar

       statements in Edmonds v. Com., 189 S.W.3d 558, 570 (Ky. 2006).


[13]   Edmonds sought to withdraw his guilty plea on the ground it was involuntary

       because “his attorney told him in a letter that he would be tried by an all white,

       female jury, and that such a jury would inevitably convict him.” Id. at 569.

       Counsel testified it was his experience that

               the vast majority of my cases with black defendants have been
               with an all white jury . . . and I told my client he would be tried
               by a predominantly white jury. . . . I projected that white female
               jurors will be uncomfortable talking about rape and anal
               intercourse. I don’t know that men will be more than women,
               but my sense was that women would be. And those are the
               remarks I made, and if they are false or misleading, I take full
               responsibility for it.


       Id. at 570.


[14]   The Edmonds Court determined statements by a defense attorney, based on his

       experience, that a criminal defendant faces the prospect of being tried by a jury

       devoid of members of that defendant’s race are not misleading or inaccurate.

       Id. We believe the Edmonds reasoning is instructive, and we decline to find the

       post-conviction court erred when it determined Morales’ counsel was not


       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 6 of 10
       ineffective for expressing concerns about difficulties Morales might face if he

       went to a jury trial before Judge Spencer. See supra n.3.


                                                Validity of Plea

[15]   Nor do we find error in the post-conviction court’s determination Morales’

       guilty plea was knowing and voluntary. In assessing voluntariness of a plea, we

       review all the evidence before the court that heard the post-conviction petition,

       including testimony given at the post-conviction trial, the transcript of the

       petitioner’s original sentencing, and any plea agreements or other exhibits that

       are a part of the record. Id.


[16]   A court accepting a guilty plea must determine that the defendant: (1)

       understands the nature of the charges; (2) has been informed that a guilty plea

       effectively waives several constitutional rights, including trial by jury,

       confrontation of witnesses, compulsory process, and proof of guilt beyond a

       reasonable doubt without self-incrimination; and (3) has been informed of the

       maximum and minimum sentences for the crime charged. State v. Moore, 678

       N.E.2d 1258, 1265 (Ind. 1997), reh’g denied, cert. denied sub nom. Moore v. Indiana,

       523 U.S. 1079 (1998). Any variance from those requirements that does not

       violate a constitutional right of the defendant is not a basis for setting aside a

       plea of guilty. Id. (citing Ind. Code § 35-35-1-2(c)). A plea entered after the trial

       judge has reviewed the various rights a defendant is waiving and made the

       inquiries called for in the statute is unlikely to be found wanting in a collateral

       attack. Id. But defendants who can show they were coerced or misled into


       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 7 of 10
       pleading guilty by the judge, prosecutor or defense counsel will present

       colorable claims for relief. Id. at 1266.


[17]   Morales directs us to Scott v. State, 986 N.E.2d 292, 296 (Ind. Ct. App. 2013), in

       support of the premise “counsel’s failure to inform him of the correct maximum

       sentence rendered his plea unintelligent.” (Br. of Petitioner-Appellant at 15.)

       Scott is distinguishable. There, Scott pled guilty to all counts, but without a plea

       agreement. Scott’s counsel had affirmatively told Scott his maximum sentence

       would be thirty years. In fact, the lengthiest sentence Scott could have received

       was twenty-three years. “Scott’s trial counsel’s performance was deficient for

       failing to inform Scott of this and informing him, instead, that his maximum

       sentence could be thirty years.” 986 N.E.2d at 296. Counsel’s failure to inform

       Scott of the correct maximum sentence rendered his plea unintelligent. Id. We

       noted that to establish ineffective assistance of trial counsel in a guilty plea

       context, the defendant must show a reasonable probability that, but for

       counsel’s errors, he would not have pleaded guilty and would have insisted on

       going to trial. Id. Scott did not show such a reasonable probability. Id.


[18]   Morales, by contrast, had a plea agreement and his counsel did not give

       Morales incorrect information about what his sentence might be. “Whether

       viewed as ineffective assistance of counsel or an involuntary plea, the post-

       conviction court must resolve the factual issue of the materiality of the bad

       advice in the decision to plead, and post-conviction relief may be granted if the

       plea can be shown to have been influenced by counsel’s error.” Segura, 749

       N.E.2d at 504-05. As explained above, we cannot find counsel incorrectly

       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 8 of 10
       advised Morales he was facing seventy years, and the post-conviction court

       therefore did not err in finding Morales had not established that counsel’s

       advice as to penal consequences was material to his decision to accept the

       State’s plea offer.


[19]   Nor can we find the plea involuntary by virtue of counsel’s advisement to

       Morales that the trial judge might sentence him harshly or that there would

       likely be no Hispanics on the jury:


               Reasonable forecasts by defense counsel regarding a defendant’s
               fate or likelihood of success at trial do not render a plea
               involuntary simply because the prediction is unwelcome or
               undesirable. Concern over the prospect of being tried by a jury
               with a racial composition permitted by the Constitution cannot
               render a subsequent guilty plea constitutionally invalid for want
               of voluntariness.


       Edmonds, 189 S.W.3d at 570.


                                                 Conclusion
[20]   The evidence supports the court’s finding counsel did not erroneously tell

       Morales he faced a seventy-year sentence, and counsel’s statements that

       Morales might face certain biases if he went to trial did not render his guilty

       plea involuntary. We therefore cannot find the denial of his petition for post-

       conviction relief was error, and we affirm.


[21]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 9 of 10
Najam, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 48A02-1506-PC-596 | December 31, 2015   Page 10 of 10
