                                                                               FILED
                                                                           Aug 08 2019, 5:49 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Curtis T. Hill, Jr.
      Public Defender of Indiana                                 Attorney General of Indiana

      Jonathan O. Chenoweth                                      Monika P. Talbot
      Deputy Public Defender                                     Deputy Attorney General
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Alandus James,                                             August 8, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-PC-3063
              v.                                                 Appeal from the Elkhart Superior
                                                                 Court
      State of Indiana,                                          The Honorable Teresa L. Cataldo,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 20D03-1704-PC-22



      May, Judge.




[1]   Alandus James appeals the denial of his amended petition for post-conviction

      relief. James raises two issues on appeal: whether the trial court adequately

      advised him of the rights he was waiving by pleading guilty to a habitual

      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019                           Page 1 of 9
      criminal offender (“HCO”) allegation; and whether the State met its burden of

      showing James was nonetheless aware of the rights being waived. We affirm.



                                Facts and Procedural History
[2]   On June 27, 2012, the State charged James with Class D felony battery on a

      child, 1 Class D felony strangulation, 2 and Class D felony residential entry. 3 On

      March 4, 2014, the State amended the charging information to add an HCO

      sentencing enhancement because on two prior occasions James had been

      convicted of sexual misconduct with a minor. On March 26, 2014, after being

      convicted by a jury on the felony charges, James pleaded guilty to the HCO

      enhancement without a plea agreement.


[3]   James appealed, challenging the court’s order that he serve a thirty-month

      sentence for Class D felony residential entry consecutive to two concurrent

      eighteen-month sentences for Class D felony battery on a child and Class D

      felony strangulation, and we affirmed the trial court in an unpublished decision.

      See James v. State, No. 20A03-1405-CR-173 (Ind. Ct. App. Feb. 19, 2015). On

      April 24, 2017, James filed his pro se petition for post-conviction relief. The trial

      court appointed the Indiana State Public Defender to represent James, and on

      June 21, 2018, James filed an amended petition for post-conviction relief



      1
          Ind. Code § 35-42-2-1 (2014).
      2
          Ind. Code § 34-42-2-9 (2014).
      3
          Ind. Code § 35-43-2-1.5 (2014).


      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019          Page 2 of 9
      arguing that “his guilty plea was involuntary because the trial court had failed

      to advise him that he was waiving his right to confront and cross-examine

      witnesses and his right against self-incrimination.” (Br. of Appellant at 5.)


[4]   On July 20, 2018, the court held an evidentiary hearing. On November 30,

      2018, the court issued an order denying James’ amended petition for post-

      conviction relief. The court concluded:


               12. The Record herein shows that certain explicitly stated rights
                   were not articulated by the trial court judge at the specific
                   time of the guilty plea; however, they were expressed earlier
                   in the trial proceedings. Also, there was no evidence
                   presented at the post[-]conviction hearing from the Petitioner
                   that he was inadequately informed or unaware that he was
                   waiving the three rights stated in [Boykin 4]. Moreover, at the
                   time of his guilty plea, the trial court noted on the record that
                   the stage of the proceedings was just after the jury had
                   returned the guilty verdict on the three D felony counts, and
                   explained the Habitual Offender admission would apply to
                   and enhance the sentence. The judge asked the Petitioner if
                   he understood the penalties associated with the Habitual
                   Offender Enhancement, and Petitioner responded, “yes, your
                   Honor.” The trial court judge also said, “now you have all
                   the rights to have an attorney, which you have.” Petitioner
                   was also told that he had the right to a jury trial and that the
                   jury was “ready to roll,” and it appeared to the court that the
                   Petitioner was familiar with how the jury process worked,
                   trial having just ended. The court then asked the Petitioner if
                   he had any questions at all about his rights. The Petitioner



      4
       See Boykin v. Alabama, 395 U.S. 238 (1969) (holding three federal constitutional privileges—the privilege
      against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers—are
      waived when a plea of guilty is entered in a state criminal trial).

      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019                                  Page 3 of 9
              asked the judge if he was referring to a jury trial on the
              Habitual, and the court said, “yes, right.” Then the
              Petitioner asked the Court if all the [S]tate had to prove was
              that he had two prior felonies, and the Court replied, that
              was what it boiled down to. But, the trial court judge then
              proceeded to explain to the Petitioner that he had the right to
              “sit back and go through it, see how it comes out”, but that
              his attorney had suggested that he may want to admit, to
              which the Petitioner responded, “Yeah.”

        13. The guilty plea colloquy proceeded with the judge asking the
            Petitioner if he had any further questions and he responded,
            “no.” Thereafter, the judge told the Petitioner that the court
            had to be satisfied that the Petitioner understood the
            proceedings and had the mental clarity of mind to decide to
            plead guilty. The trial court judge indicated that he had
            observed the Petitioner, heard his testimony and that he was
            satisfied; however, the judge again asked the Petitioner if that
            was a correct statement, and Petitioner said “yes.” The
            Court asked Petitioner if it should go ahead with the guilty
            plea on the Habitual enhancement, and the Petitioner said
            “yes.” (Trial Transcript, pp. 504-507).

        14. It is evident to the Court from the guilty plea colloquy that
            Petitioner was specifically advised that he had the right to an
            attorney. Also, the Court noted that based on the
            Petitioner’s testimony earlier in the day and during the trial
            process, he was acutely familiar with the rights against self[-
            ]incrimination. Further, he had employed his right to
            confront and cross-examine witnesses during the
            immediately preceding two[-]day trial. Additionally, the
            court had told Petitioner that even though he was correct that
            the [S]tate had to prove two prior felonies, the Petitioner had
            the right to require the State to put on witnesses and evidence
            to prove the Habitual Offender Enhancement. Therefore,
            based on the record and evidence, it cannot be said that
            Petitioner was unaware that he was waiving his [Boykin]

Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019              Page 4 of 9
                    rights.” [See, e.g. Winkleman], 22 N.E.3d at 852 (defendant
                    voluntary [sic] pled guilty to an enhancement in the midst of
                    a jury trial where [Boykin] rights were clearly on display;
                    therefore, defendant did not establish that he was unaware
                    that he was waiving those rights). To the contrary, the
                    record and evidence establish[] that the Petitioner understood
                    that by admitting the Habitual Offender Enhancement he
                    was waiving his right to an attorney, right to a jury trial, right
                    against self[-]incrimination and right to confront and cross-
                    examine witnesses.

                    Accordingly, his plea of guilty was voluntary. The Petitioner
                    has not met his burden of demonstrating that he was
                    inadequately advised of his rights at the Habitual Offender
                    stage of the proceedings held on March 25, 2014.


      (Appellant’s App. Vol. II at 45-47.) 5



                                  Discussion and Decision
[5]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Connor v.

      State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh’g denied, cert. denied 531 U.S. 829

      (2000); see also Ind. Post-Conviction Rule 1(1)(a). Such proceedings are not

      “super appeals” through which convicted persons can raise issues that they

      failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391

      (Ind. 2002), reh’g denied. Post-conviction proceedings are civil in nature, and




      5
       We thank the post-conviction court for its thorough and informative order, which greatly assisted our
      consideration of James’ claims.

      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019                               Page 5 of 9
      petitioners bear the burden of proving their grounds for relief by a

      preponderance of the evidence. P-C.R. 1(5).


[6]   When a petitioner appeals the denial of post-conviction relief, he appeals from a

      negative judgment. Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996).

      Consequently, we may not reverse the judgment of the post-conviction court

      unless the petitioner demonstrates that the evidence “as a whole, leads

      unerringly and unmistakably to a decision opposite that reached by the post-

      conviction court.” Id. We accept the post-conviction court’s findings of fact

      unless they are clearly erroneous, but we do not give deference to the court’s

      conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996),

      reh’g granted on other grounds 674 N.E.2d 1293, cert. denied 522 U.S. 1119 (1998).


[7]   In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court

      held a trial court must advise a defendant of his right against self-incrimination,

      right to trial by jury, and right to confront his accusers. Id. at 243. Our court

      has held Boykin “does not require that the record of the guilty plea proceeding

      show that the accused was formally advised that entry of his guilty plea waives

      certain constitutional rights[,]” nor does the holding require that the record

      contain a formal waiver of those rights. Barron v. State, 330 N.E.2d 141, 144,

      164 Ind. App. 638, 644 (1975). However, we are required to reverse a

      conviction if the defendant did not know he was waiving his Boykin rights when

      he pled guilty. Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001).




      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019         Page 6 of 9
[8]   James asks us to reverse the judgment of the post-conviction court and vacate

      his HCO enhancement because: (1) the trial court did not advise him that he

      was waiving his Boykin rights prior to accepting his guilty plea to the HCO

      charge, and (2) the State did not meet its burden of showing James nonetheless

      was aware of the rights he was waiving.


[9]   James first argues the court, prior to accepting his guilty plea, made no mention

      of the right to confront witnesses or the right to remain silent. We agree, based

      on the following dialogue, that the trial court did not explicitly advise James of

      his Boykins rights:


              [Court]: Now, you have all rights to have an attorney, which you
              have. I think you ought to kind of be familiar with the jury
              process now. You have a right to a jury trial, and they’re ready
              to roll I think. And so do you have any questions at all about
              your rights there?


              [James]: A jury trial on the Habitual?


              [Court]: Yes. Right.


              [James]: All you have to prove [is] that I have two prior felonies?


              [Court]: Well, that’s what it boils down to. Okay. But you know
              you have the right to sit back and go through it, just kind of see
              how it comes out, or the suggestion that your attorney had made
              a little bit ago was that it sounded like you might just want to say
              you are going to admit that’s true and put this up for sentencing
              on the D with Habitual?



      Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019            Page 7 of 9
               [James]: Yeah.


       (Prior Case Tr. Vol. III at 504-05.)


[10]   However, because the HCO stage of James’ trial immediately followed his jury

       trial, we reject James’ second argument that “the fact that he exercised them at

       the felony phase does not show such knowledge, as it does not show that James

       knew that those rights would carry over to the habitual phase.” (Appellant’s Br.

       at 11.) The trial court told James he had a right to a jury and that James “ought

       to kind of be familiar with the jury process now,” (Prior Case Tr. Vol. III at

       504), because James had just finished the jury trial of the underlying felonies.

       The court’s language indicates the process for the HCO phase would be the

       same as the felony phase. Accordingly, the record demonstrates James was

       aware of the rights he was waiving to plead guilty during the HCO phase

       because he had just exercised those rights during the felony phase. See

       Winkleman v. State, 22 N.E.3d 844, 851 (Ind. Ct. App. 2014) (defendant knew

       Boykin rights based on the fact he was in the midst of a jury trial at the time he

       admitted to habitual offender allegation), trans. denied; see also Barron, 330

       N.E.2d at 144, 164 Ind. App. at 644 (defendant knew his rights under Boykin

       based on the fact that he was advised of his rights during arraignment); see also

       Dewitt, 755 N.E.2d at 171 (defendant knew his rights under Boykin because he

       had been advised of them during arraignment). James has not demonstrated

       the post-conviction court’s denial of his petition was contrary to law.




       Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019          Page 8 of 9
                                                 Conclusion
[11]   As we conclude James knew his constitutional rights under Boykin when he

       pled guilty to the HCO by virtue of the trial court’s partial advisement, which

       occurred just after the jury had returned its verdicts on James’ underlying

       felonies, James has not demonstrated the post-conviction court’s judgment was

       contrary to law. Accordingly, we affirm.


[12]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PC-3063 | August 8, 2019       Page 9 of 9
