MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Apr 26 2017, 6:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                             CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Michael E. Deferbrache                                    Curtis T. Hill, Jr.
Indiana State Prison                                      Attorney General of Indiana
Michigan City, Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael E. Deferbrache,                                   April 26, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A03-1606-PC-1429
        v.                                                Appeal from the Elkhart Circuit
                                                          Court
State of Indiana,                                         The Honorable Terry C.
Appellee-Respondent                                       Shewmaker, Judge
                                                          Trial Court Cause No.
                                                          20C01-0606-PC-15



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 1 of 19
                                                Case Summary
[1]   Michael E. Deferbrache appeals the denial of his petition for postconviction

      relief (“PCR”). He asserts that the postconviction court clearly erred in

      determining that he was not denied his constitutional right to effective

      assistance of counsel at both the trial court and the appellate level. He also

      challenges the postconviction court’s denial of his freestanding claims. We

      affirm.


                                   Facts and Procedural History1
[2]   In July 2003, the Goshen Police Drug Unit arrested a person (“Witness 2”) who

      was found in possession of one pound of methamphetamine (“meth”), which

      he said that he had bought that day from Deferbrache at Deferbrache’s trailer in

      Elkhart. Also that day, Elkhart Police Department officers spoke to another

      person (“Witness 3”) who claimed to have been inside Deferbrache’s trailer,

      seen firearms, and observed Witness 2 buying meth from Deferbrache. The

      Elkhart County prosecutor had previously received a telephone call from

      another individual (“Witness 1”) claiming that a relative living with

      Deferbrache’s mother in a house on the same property had witnessed

      Deferbrache’s sale of meth from his trailer and a high level of traffic entering




      1
         Ordinarily, in a PCR case involving a previous direct appeal, we include the facts as stated by this Court on
      direct appeal. However, Deferbrache has not provided us with a copy of the 2004 unpublished decision on
      his direct appeal. As such, we are forced to cobble together the underlying facts from various sources such as
      the probable cause affidavit, charging information, chronological case summary, postconviction court
      findings, various transcripts, and the parties’ briefs.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017              Page 2 of 19
      and exiting the trailer. Acting on the information provided by the three

      witnesses, police sought and obtained a search warrant for the trailer.


[3]   During the execution of the warrant, officers observed white powder that

      appeared to be meth and smelled a strong odor of ether. Deferbrache was

      Mirandized and, having waived his rights, admitted to police that he

      manufactured meth inside his trailer and cultivated marijuana outside near the

      property’s border.


[4]   Police obtained a second search warrant for the trailer and house. The search

      produced more than three grams of vacuum-sealed meth (finished product),

      over ten grams of ground ephedrine, numerous prescription/legend drugs for

      which there were no valid prescriptions, a vacuum sealer, baggies, several cans

      of starter fluid, scales, drug paraphernalia, marijuana plants, salt, coffee filters,

      ephedrine in the process of being converted into meth, containers of acid and

      other chemicals commonly used to manufacture meth, cash, several firearms,

      ammunition, a stun gun, a bulletproof vest, night-vision goggles, and a scanner.

      Appellant’s App. Vol. 3 at 128-29.


[5]   The State charged Deferbrache with class A felony possession of over three

      grams of methamphetamine with intent to deliver, class A felony

      methamphetamine manufacturing (over three grams), and class D felony

      cultivation of marijuana (over thirty grams), with a sentencing enhancement

      charge for possession of a sawed-off shotgun in a controlled substance offense.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 3 of 19
      At all stages of the proceedings in the trial court and on direct appeal,

      Deferbrache was represented by the same attorney (“Counsel”).


[6]   Deferbrache filed a motion to suppress the evidence obtained during the

      searches of his property, claiming that the initial search warrant was not

      supported by probable cause. During the suppression hearing, the State

      introduced both search warrants with accompanying affidavits, and the trial

      court heard testimony from Officer Jim Buchmann concerning the investigation

      that led to the issuance of the first warrant. After taking the matter under

      advisement, the trial court denied Deferbrache’s motion to suppress. While he

      was released on bond, Deferbrache was arrested and charged in a new cause

      with a class A felony drug offense.


[7]   A few days before the scheduled trial date, Deferbrache pled guilty as charged

      without the benefit of a plea agreement. However, the State agreed to reduce

      the class A felony charge in his new cause to a class B felony. The trial court

      sentenced him to concurrent thirty-year terms for the class A felonies, a ten-year

      enhancement on the manufacturing count, a concurrent one and a half years for

      the class D felony, with a ten-year enhancement for the sawed-off shotgun

      charge, a fifty-year aggregate term. Deferbrache appealed his sentence, which

      was affirmed by another panel of this Court in a memorandum decision.

      Deferbrache v. State, No. 20A03-0503-CR-91 (Ind. Ct. App. Nov. 18, 2004).


[8]   In 2008, Deferbrache, acting with the assistance of two different public

      defenders, filed a PCR petition, which he subsequently withdrew without


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 4 of 19
       prejudice. In the intervening years, he filed three petitions for sentence

       modification, all of which the trial court denied. Eight years after he withdrew

       his initial PCR petition, he filed the instant pro se PCR petition. Again, two

       different public defenders were appointed to assist him, but eventually, the

       public defender’s office filed a notice of nonrepresentation and was removed as

       counsel of record. Thereafter, Deferbrache filed a motion for the appointment

       of independent counsel, which the postconviction court denied on jurisdictional

       grounds.


[9]    During the PCR hearing, Deferbrache elicited testimony from two subpoenaed

       witnesses: Counsel and Deferbrache’s mother. The State moved to strike three

       of the allegations in Deferbrache’s PCR petition.2 After the hearing, the

       postconviction court ordered the parties to file proposed findings. In an order

       with findings of fact and conclusions of law, the postconviction court granted

       the State’s motion to strike the three allegations and denied the PCR petition on

       all remaining grounds, which included allegations of ineffective assistance of

       trial and appellate counsel and a freestanding claim of insufficient factual basis

       to support his guilty plea to the sawed-off shotgun enhancement count.


[10]   Deferbrache, pro se, now appeals the denial of his PCR petition. Additional

       facts will be provided as necessary.




       2
         The postconviction court granted the State’s motion to strike the following allegations in Deferbrache’s
       PCR petition: (1) complete denial of his right to counsel under U.S. v. Cronic, 466 U.S. 648 (1984); (2) newly
       discovered evidence; and (3) prosecutorial misconduct. Appellant’s App. Vol. 2 at 63-64.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017              Page 5 of 19
                                      Discussion and Decision
[11]   Deferbrache contends that the postconviction court erred in denying his PCR

       petition. The petitioner in a postconviction proceeding “bears the burden of

       establishing grounds for relief by a preponderance of the evidence.” Ind. Post-

       conviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When

       issuing its decision to grant or deny relief, the postconviction court must make

       findings of fact and conclusions of law. Ind. Post-conviction Rule 1(6). A

       petitioner who appeals the denial of his postconviction petition faces a rigorous

       standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). In

       conducting our review, we neither reweigh evidence nor judge witness

       credibility; rather, we consider only the evidence and reasonable inferences

       most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct.

       App. 2013), trans. denied (2014). “A post-conviction court’s 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.”

       Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other

       words, if a postconviction petitioner was denied relief in the proceedings below,

       he must show that the evidence as a whole leads unerringly and unmistakably

       to a conclusion opposite the one reached by the postconviction court. Massey,

       955 N.E.2d at 253.


[12]   Postconviction relief does not offer the petitioner a super appeal; rather,

       subsequent collateral challenges must be based on grounds enumerated in the

       postconviction rules. McKnight, 1 N.E.3d at 199. These rules limit the scope of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 6 of 19
       relief to issues unknown or unavailable to the petitioner on direct appeal. Id.

       Where, as here, the judge who presided over the defendant’s trial is also the

       judge who presided over his postconviction proceedings, the postconviction

       court’s findings and judgment should be entitled to “greater than usual

       deference.” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) (citation

       omitted), trans. denied (2014).


[13]   At the outset, we note that Deferbrache chose to proceed pro se, both in the

       PCR proceedings below and in this appeal. It is well settled that pro se litigants

       are held to the same legal standards as licensed attorneys. Lowrance v. State, 64

       N.E.3d 935, 938 (Ind. Ct. App. 2016). This means that they must follow our

       established rules of procedure and accept the consequences when they fail to do

       so. Id. It is not the court’s role to become an “advocate for a party, or address

       arguments that are inappropriate or too poorly developed or expressed to be

       understood.” Id.


[14]   Here, the transcript of the PCR hearing reflects an incoherent presentation of

       evidence, due largely to Deferbrache’s lack of preparation and inability to

       articulate issues and question witnesses in a way that conforms to the Indiana

       Rules of Trial Procedure. While exercising patience and restraint, the

       postconviction court repeatedly had to correct Deferbrache and to explain that

       the court could not act as his legal counsel as to how to conduct an

       examination. See, e.g., PCR Tr. at 20-21, 33, 37 (postconviction court to

       Deferbrache: “I can’t be your lawyer. I can’t guide you in what you’re

       supposed to do …. I can’t tell you what questions to ask.”; “You got a multi-

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 7 of 19
       faceted question there. Just one part at a time. Try it again.”; “What are you

       talking about? I have no idea what you mean.”) Additionally, the

       postconviction court explained that much of what Deferbrache was attempting

       to do amounted to relitigating sentencing issues that had been resolved on direct

       appeal. Though it is obvious from the transcript that Deferbrache brought a

       copy of this Court’s unpublished decision to the hearing, he has failed to

       include a copy in the record on appeal. As such, we are left to piece together

       arguments seemingly made on direct appeal and to sift through those that are

       not available to defendants who have entered a guilty plea.


           Section 1 – Deferbrache was not denied his constitutional
                  right to effective assistance of trial counsel.
[15]   Deferbrache maintains that he was denied his constitutional right to effective

       assistance of trial counsel. To prevail on an ineffective assistance claim,

       Deferbrache must satisfy two components: he must demonstrate both deficient

       performance and prejudice resulting from it. Strickland v. Washington, 466 U.S.

       668, 687 (1984). Deficient performance is “representation [that] fell below an

       objective standard of reasonableness, [where] counsel made errors so serious

       that counsel was not functioning as ‘counsel’ guaranteed by the Sixth

       Amendment.” Passwater, 989 N.E.2d at 770. We assess counsel’s performance

       based on facts that are known at the time and not through hindsight.

       Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied.

       Evidence of isolated poor strategy, inexperience, or bad tactics will not support

       an ineffective assistance claim; instead, we evaluate counsel’s performance as a

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 8 of 19
       whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied

       (2012). “[C]ounsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption.” Ritchie v.

       State, 875 N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect

       representation, only a reasonably competent attorney.” Hinesley, 999 N.E.2d at

       983. Where, as here, the defendant has entered a guilty plea, he is entitled to

       relief only if he proves that (1) he would not have pled guilty absent the

       ineffective assistance of counsel; and (2) there is a reasonable probability that he

       would have received a more favorable result in a competently run trial. Segura

       v. State, 749 N.E.2d 496, 507 (Ind. 2001).


[16]   Deferbrache claims that Counsel was ineffective at the trial court level in (1)

       failing to file an interlocutory appeal to challenge the denial of his motion to

       suppress the evidence obtained pursuant to the search warrant; and (2) failing to

       inform him of a plea offer.3 With respect to the latter, the record indicates that

       the State did not make a plea offer. Deferbrache chose not to testify at his PCR

       hearing, and Counsel testified that “there wasn’t an offer.” PCR Tr. at 49.

       Counsel went on explain,




       3
         Deferbrache raises other allegations of deficient performance at the trial court level. However, the
       postconviction court correctly found that several of the allegations do not apply where the defendant forgoes
       a trial and instead pleads guilty, i.e., failure to discover exculpatory evidence, conduct professional interviews
       of witnesses and to subpoena defense witnesses, and failure to investigate the crime scene, challenge the
       probable cause affidavit, or assert his actual innocence. Appellant’s App. Vol. 2 at 64. To the extent that he
       also raises issues pertaining to Counsel’s alleged lack of vigor in arguing for a more lenient sentence, we note
       that another panel of this Court has already considered and affirmed the appropriateness of his sentence. He
       has failed to establish prejudice.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017                Page 9 of 19
                [A]t the time, I knew that there wasn’t even a plea offer. And, in
                fact, had there been a plea offer I believe you might have had
                some of the charges dropped or some of the counts dropped. But
                what [the prosecutor] had said at the time was you could plead
                guilty to all the counts, which is what happened.


       Id. at 50.


[17]   Simply put, Counsel did not perform deficiently in failing to convey to

       Deferbrache a nonexistent plea offer. Thus, the postconviction court properly

       found Deferbrache’s argument to be “without merit.” Appellant’s App. Vol. 2

       at 65.


[18]   Moreover, we find neither deficient performance nor prejudice in Counsel’s

       failure to seek an interlocutory appeal of the denial of Deferbrache’s motion to

       suppress. The postconviction court found as follows with respect to Counsel’s

       performance during all proceedings at the trial court level:4


                Counsel stated that, in the course of his routine business practice,
                he reviews discovery to identify strengths and weaknesses, issues
                and defenses. He also said that he does not advise his clients
                whether or not to accept pleas, that it is the client’s decision
                alone. Counsel testified that in the instant case, he researched
                issues relating to suppression, double jeopardy, and then existing
                case law concerning manufacturing methamphetamine and
                finished product. Counsel filed and argued a motion to suppress
                evidence. He said these efforts were somewhat hindered by the
                fact that Deferbrache picked up new criminal charges while on



       4
         To the extent that the postconviction court used different designations for Deferbrache and Counsel, we
       use the designations consistent with the remainder of this decision.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017          Page 10 of 19
               bond awaiting trial. In spite of that, in exchange for the guilty
               plea, Counsel said he was able to get the State to reduce the Class
               A felony in the new case to a Class B felony, thereby saving
               Deferbrache from exposure to thirty (30) additional years of
               incarceration that could have been consecutive had Deferbrache
               gone to trial and lost on a second Class A felony.

               ….

               [T]he evidence and testimony presented established that Counsel
               reviewed discovery, filed a motion to suppress, and clearly
               advocated Deferbrache’s interests. Counsel is not ineffective
               simply because he does not take every action the client thinks he
               should.


       Appellant’s App. Vol. 2 at 65-66.


[19]   Counsel represented Deferbrache at the suppression hearing, arguing that the

       initial search warrant was not supported by probable cause. He was afforded

       the opportunity to examine Officer Buchmann concerning the underlying

       evidence that led to the warrant’s issuance. Three separate and unconnected

       witnesses implicated Deferbrache in the manufacture of meth. Although

       Deferbrache correctly observes that Witness 1 and Witness 2 were subject to

       criminal charges that might have affected their decisions to report, Witness 3

       was not subject to criminal charges and was simply acting as a concerned

       citizen. In short, the motion to suppress was denied not because of poor

       performance by Counsel but because the witnesses’ affidavits supported the

       issuance of the warrant. Deferbrache therefore has failed to demonstrate




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 11 of 19
       ineffective assistance of counsel in Counsel’s failure to file an interlocutory

       appeal of the denial of his motion to suppress.


           Section 2 – Deferbrache was not denied his constitutional
                right to effective assistance of appellate counsel.
[20]   Deferbrache also contends that he received ineffective assistance of counsel on

       direct appeal. The standard of review for a claim of ineffective assistance of

       appellate counsel is the same as that for trial counsel in that the defendant must

       show that appellate counsel was deficient in his performance and that the

       deficiency resulted in prejudice. Strickland, 466 U.S. at 686; Bieghler v. State, 690

       N.E.2d 188, 192-93 (Ind. 1997), cert. denied (1998). Ineffective assistance of

       appellate counsel claims generally fall into three categories: (1) denial of access

       to an appeal; (2) waiver of issues; and (3) failure to present issues well. Reed v.

       State, 856 N.E.2d 1189, 1195 (Ind. 2006).


[21]   “Ineffective assistance is very rarely found in cases where a defendant asserts

       that appellate counsel failed to raise an issue on direct appeal because the

       decision of what issues to raise is one of the most important strategic decisions

       to be made by appellate counsel.” Manzano v. State, 12 N.E.3d 321, 330 (Ind.

       Ct. App. 2014), trans. denied, cert. denied (2015). In evaluating the performance

       prong when appellate counsel has failed to raise an issue and waiver results, we

       apply the following test: (1) whether the unraised issues are significant and

       obvious from the face of the record and (2) whether the unraised issues are

       “clearly stronger” than the raised issues. Timberlake v. State, 753 N.E.2d 591,

       605-06 (Ind. 2001). “If the analysis under this test demonstrates deficient
       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 12 of 19
       performance, then we examine whether the issues which ... appellate counsel

       failed to raise, would have been clearly more likely to result in reversal or an

       order for a new trial.” Manzano, 12 N.E.3d at 329-30.


[22]   As best we can discern, Deferbrache’s claim against appellate Counsel concerns

       Counsel’s failure to raise the issue of double jeopardy on direct appeal. We

       reiterate that Deferbrache has failed to provide a copy of this Court’s

       unpublished decision in his direct appeal, but based on record before us, we are

       relatively certain that the issues raised in his direct appeal were properly limited

       to sentencing issues such as the trial court’s application of aggravators and

       mitigators and appropriateness of his sentence. See Alvey v. State, 911 N.E.2d

       1248, 1249 (Ind. 2009) (defendant who enters an open guilty plea cannot

       challenge his conviction on appeal but instead is limited to challenging his

       sentence).


[23]   Deferbrache asserts that appellate Counsel performed deficiently in failing to

       raise an obvious issue: double jeopardy. He relies on Caron v. State, 824 N.E.2d

       745 (Ind. Ct. App. 2005), trans. denied, for the proposition that under Indiana’s

       actual evidence test, his convictions for both possession of meth with intent to

       deliver and manufacturing meth violate his protection against double jeopardy.

       Under the actual evidence test, a defendant “must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish the

       essential elements of a second challenged offense.” Richardson v. State, 717

       N.E.2d 32, 53 (Ind. 1999). The postconviction court acknowledged

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 13 of 19
       Deferbrache’s reliance on Caron, but found it to be fact-specific, citing c.f., Storey

       v. State, 875 N.E.2d 243 (Ind. Ct. App. 2007) (companion case finding no

       double jeopardy violation).5 The court went on to find:

                Irregardless, the Court does not need to speculate what the
                outcome in the instant case would have been [whether following
                Caron or Storey] because Deferbrache waived his right to
                challenge his convictions by pleading guilty. Deferbrache
                received a substantial benefit for that plea, including a reduction
                in his new charge to a Class B felony. When a defendant pleads
                guilty and receives a benefit, he waives the right to challenge the
                conviction under double jeopardy. Mapp v. State, 770 N.E.2d
                332, 334-35 (Ind. 2002). Accordingly, it makes no difference that
                Counsel did not raise double jeopardy on direct appeal because
                there is no reasonable probability of a different outcome.
                Deferbrache has failed to prove that Counsel provided ineffective
                assistance of appellate counsel.


       Appellant’s App. Vol. 2 at 68.


[24]   Given the procedural framework of this case – involving a guilty plea rather

       than a jury trial – and given the large quantity of meth, ephedrine, and other

       evidence underpinning Deferbrache’s separate class A felony convictions for the

       distinct conduct of (1) possessing with intent to deal meth and (2)

       manufacturing meth, the actual evidence test simply was not implicated. As

       such, Counsel was not ineffective in failing to raise double jeopardy as an issue

       on direct appeal.



       5
         Unlike the present case, both Caron and Storey involved jury trials, thus implicating the reasonable
       possibility that the jury relied on the same evidentiary facts to establish both offenses.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017             Page 14 of 19
           Section 3 – Deferbrache has waived or otherwise failed to
                establish clear error on his freestanding claims.
[25]   Deferbrache also asks that we review his freestanding claims of error. First,

       with respect to his claim that he was denied his proper jailtime credit, he failed

       to raise it below and therefore has waived it for consideration on appeal. See

       Bieghler, 690 N.E.2d at 201 (PCR petitioner may not raise argument for first

       time on appeal of denial of his petition for PCR).


[26]   Deferbrache’s only remaining freestanding claim is that the postconviction

       court clearly erred in finding a sufficient factual basis to support his plea of

       guilty to using a firearm in a controlled substance offense. 6 A trial court may

       not accept a guilty plea unless it determines that a sufficient factual basis exists

       to support the plea. Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App.

       2011). The standard for demonstrating a sufficient factual basis to support a

       guilty plea is less rigorous than that which is required to support a conviction.

       Id. A factual basis may be established by relatively minimal evidence

       concerning the elements of the crime from which the trial court can reasonably

       conclude that the defendant is guilty. Id. A trial court’s finding of factual basis

       to support a guilty plea is presumptively correct. Id.


[27]   Here, Deferbrache’s challenge concerns the sufficiency of the factual basis to

       support the sawed-off shotgun enhancement. Indiana Code Section 35-50-2-



       6
         The postconviction court found this claim to be barred by res judicata, based on its resolution on direct
       appeal. As stated above, Deferbrache did not provide us with a copy of the unpublished decision.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017             Page 15 of 19
       13(a)(2) provides that the State may seek an additional fixed term for a

       defendant who allegedly committed a controlled substance offense if it can be

       shown beyond a reasonable doubt that while committing the offense the

       defendant possessed a handgun, sawed-off shotgun, or machine gun, in

       violation of statute. Where, as here, the case involves the possession of a

       sawed-off shotgun, the fixed additional term is up to ten years. Ind. Code § 35-

       50-2-13(c)(1); see also, Ind. Code § 35-47-1-10 (2003) (defining sawed-off

       shotgun as having one or more barrels less than eighteen inches in length and

       an overall length of less than twenty-six inches).


[28]   During his guilty plea hearing, the trial court attempted to establish a factual

       basis for this enhancement by questioning Deferbrache as follows:

               Q: Are you telling me that on that same day, July 17, 2003,
               when you committed the [offenses] involving controlled
               substances, the methamphetamine cases, at that time you
               knowingly possessed a sawed-off shotgun?

               A: Yes, sir.

               Q: And that was a 20-gauge shotgun?

               A: Yes, sir.

               Q: And it had a barrel less than 18 inches.

               A: I don’t know the particular length, sir; but it’s possible, yes.

               Q: Was the overall length less [th]an 26 inches?

               A: I never measured it, sir. I couldn’t tell you.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 16 of 19
        Q: Approximately how long was it?

        A: I couldn’t say for sure. I never measured it, like I said, but--

        Q: Well, I’m going to have to have some evidence that it was a
        sawed-off shotgun with a barrel less than 18 inches or an overall
        length of less than 26 inches. That’s what the state says it was.
        Do you disagree with that?

        A: No, sir.

        Q: Show me with your hands about how long it was.

        (The defendant indicated.)

        Q: The overall length was about 18 to 20 inches. Is that correct?

        A: Possibly, yes.

        Q: Would that be a fair assessment of how far apart your hands
        are?

        A: Yes. I would say it might have been out a little bit more but
        not--

        Q: Maybe 24 inches.

        A: Somewhere around there, a couple more inches, yes, sir.

        Q: All right. Are you telling me that this sawed[-]off shotgun
        that you had, this 20 gauge, was less than 26 inches overall?

        A: Yes, sir, it’s possible.

        Q: I need to know more than it’s possible.


Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 17 of 19
               A: Yes, sir.

               Q: All right. Are you telling me you’re guilty of possessing this
               sawed-off shotgun which because of its length is essentially a
               handgun under the statute?

               A: Excuse me, I’m sorry.

               Q: Are you telling me you’re guilty of possession of this
               handgun which is what a gun with an overall length less than 26
               inches or a barrel less than 18 inches, this sawed[-]off shotgun
               amounts to?

               A: Yes, sir.

               Q: And you’re telling me you possessed that at the same time
               you possessed the methamphetamine?

               A: Yes, sir.


       Guilty Plea Tr. at 5-7.


[29]   This interchange shows that Deferbrache knowingly possessed what he deemed

       to be a sawed-off shotgun. The only confusion came in his assertions that he

       had never measured the weapon to ascertain its precise barrel length or overall

       length. His attempt to illustrate with his hands the shotgun’s overall length

       placed it at an overall length of around twenty-four inches, within the statutory

       definition in place at the time. See Ind. Code § 35-47-1-10 (2003). A

       photograph of the sawed-off shotgun was introduced during the sentencing

       hearing. State’s Ex. 5. The photograph depicts several weapons laid out side

       by side. One of those is a weapon appearing to be within the size specifications


       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 18 of 19
       set for sawed-off shotguns. While the better practice would have been for the

       State to introduce the photograph or the shotgun itself during the guilty plea

       hearing, we are mindful that “determinations of sufficient factual bases need

       not turn into ‘veritable bench trials.’” Rhoades v. State, 675 N.E.2d 698, 700

       (Ind. 1996). Deferbrache knowingly possessed a sawed-off shotgun. As such,

       we find no error in the postconviction court’s determination that a sufficient

       factual basis supported the sawed-off shotgun enhancement. Accordingly, we

       affirm.


[30]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-PC-1429 | April 26, 2017   Page 19 of 19
