MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Jul 31 2018, 10:17 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                           CLERK
                                                                         Indiana Supreme Court
purpose of establishing the defense of res judicata,                        Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                       ATTORNEYS FOR APPELLEE
Bruce Morgan                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                 Attorney General of Indiana
                                                       Michael Gene Worden
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bruce Morgan,                                              July 31, 2018
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           17A-PC-3062
        v.                                                 Appeal from the Huntington
                                                           Circuit Court
State of Indiana,                                          The Honorable Thomas Hakes,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           35C01-1704-PC-8



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018                    Page 1 of 8
                                           Case Summary
[1]   In 2008, pursuant to a written plea agreement, Morgan pled guilty to several

      counts of burglary. The trial court sentenced Morgan to fifty years of

      incarceration with twenty-two suspended to probation. Morgan filed a petition

      for post-conviction relief (“PCR”), claiming he received ineffective assistance of

      trial counsel and his guilty plea was not knowing, intelligent, and/or voluntary.

      Both claims were based on allegedly bad advice from Morgan’s trial counsel.

      The post-conviction court denied Morgan’s PCR petition in full, and Morgan

      appeals, claiming that the post-conviction court’s ruling was clearly erroneous.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On February 4, 2008, pursuant to a written plea agreement, Morgan pled guilty

      to eight counts of Class B felony burglary and one count of Class C felony

      burglary. In exchange, the State agreed to (1) not pursue a habitual offender

      enhancement, (2) concurrent sentencing on one of the Class B felonies and the

      Class C felony, and (3) a cap of twelve-and-one-half years on any initially

      executed sentence for each count. Pursuant to the agreement, the maximum

      initially executed sentence Morgan could receive was fifty years.


[3]   On March 3, 2008, the trial court sentenced Morgan to an aggregate sentence of

      fifty years of incarceration with twenty-two years suspended to probation. On

      September 26, 2008, this court, in a memorandum decision, denied Morgan’s


      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 2 of 8
      direct appeal, concluded that Morgan had waived his right to appeal his

      sentence in his plea agreement. Morgan v. State, No. 35A02-0804-CR-350, slip

      op. at 3–4 (Ind. Ct. App. September 26, 2008).


[4]   On April 27, 2017, Morgan filed his pro se PCR petition. Morgan alleged that

      he had been denied the effective assistance of trial counsel when he pled guilty

      because counsel had allegedly advised him that he could only receive an

      executed sentence of no more than twenty-five years. Morgan also alleged that

      his guilty plea was not entered knowingly, intelligently, and/or voluntarily

      because of trial counsel’s failure to properly advise him of the terms of the plea

      agreement.


[5]   On August 1, 2017, Morgan filed a motion for summary disposition of his

      claims, alleging that he had no witnesses to present, the facts were not in

      dispute, and the law was on his side. Attached to the motion was Morgan’s

      affidavit, which provides as follows:


                     I, Bruce Morgan, affirms [sic] under the penalty of perjury:
                     1. My former attorney, Stefan Poling advised me that if I
              pleaded guilty to nine counts of burglary, I would receive 25
              years in prison.
                     2. I was under the impression that I would get 25 years in
              prison, and no more than 30 if he was a little off in his
              calculation.
                     3. If I knew that I could have got 72 years in prison, I
              would have never pleaded guilty, and insisted on going to trial.
                     I affirm under the penalty of perjury that the foregoing is
              true and correct.



      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 3 of 8
      Appellant’s App. Vol. II p. 23. On August 6, 2017, the State filed its response

      to Morgan’s motion for summary disposition, in which it disagreed that there

      were no factual disputes, alleged that it had raised an affirmative defense that

      required the presentation of evidence, and denied that Morgan was entitled to

      any relief.


[6]   On November 17, 2017, the post-conviction court denied Morgan’s PCR

      petition in full. The post-conviction court concluded that Morgan had failed to

      present any evidence that he did not actually understand the sentencing terms

      of the plea agreement or that counsel had erroneously advised him regarding

      those terms.



                                 Discussion and Decision
                                             Standard of Review

[7]   Morgan contends the post-conviction court erred in denying his PCR petition.

      Our standard for reviewing the denial of a PCR petition is well-settled:


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting its judgment. The post-conviction court is the sole
              judge of the evidence and the credibility of the witnesses. 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 to that
              reached by the post-conviction court[.] 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 disturbed as being contrary to law.

      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 4 of 8
      Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and

      quotations omitted).


                    I. Ineffective Assistance of Trial Counsel
[8]   Morgan contends that his trial counsel was ineffective for erroneously advising

      him regarding the possible penal consequences of his plea agreement. We

      review claims of ineffective assistance of counsel based upon the principles

      enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


              Under Strickland […], a claim of ineffective assistance of counsel
              requires a showing that: (1) counsel’s performance was deficient
              by falling below an objective standard of reasonableness based on
              prevailing professional norms; and (2) counsel’s performance
              prejudiced the defendant so much that “there is a reasonable
              probability that, but for counsel’s unprofessional errors, the result
              of the proceeding would have been different.” Id. at 687, 694,
              104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
              1994). [….] Failure to satisfy either prong will cause the claim to
              fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

      French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[9]   In cases such as this one, where a petitioner is claiming that he received

      incorrect advice which affected his decision to plead guilty,


              a petitioner must establish, by objective facts, circumstances that
              support the conclusion that counsel’s errors in advice as to penal
              consequences were material to the decision to plead. Merely
              alleging that the petitioner would not have pleaded is insufficient.
              Rather, specific facts, in addition to the petitioner’s conclusory
              allegation, must establish an objective reasonable probability that


      Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 5 of 8
                  competent representation would have caused the petitioner not to
                  enter a plea.

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


[10]   The only evidence presented in support of Morgan’s claim that trial counsel

       erroneously advised him of the penal consequences of the plea agreement is his

       own self-serving affidavit, which the post-conviction court was under no

       obligation to credit. Moreover, because Morgan presented no affidavit from his

       trial counsel relevant to this claim, the post-conviction court could have inferred

       that trial counsel would not have corroborated his claim. See Dickson v. State,

       533 N.E.2d 586, 589 (Ind. 1989) (“Where trial counsel is not presented in

       support, the post-conviction court may infer that trial counsel would not have

       corroborated appellant’s allegations.”).


[11]   Morgan argues that the transcript shows1 that counsel told him and the court

       that the plea agreement was for no more than twenty-five years of incarceration:

       “We are asking you to make uh, counts I through III concurrent and counts IV

       through IX concurrent, uh, separately and then make those two consecutive for

       a sentence of twenty-five years, which I think is more appropriate, especially

       considering the sentence of the co-defendant.” Appellant’s Brief p. 4. The

       excerpt quoted by Morgan, even if we assume that it is accurate, is obviously

       nothing more than Morgan’s trial counsel arguing for an aggregate sentence of




       1
           The transcript of Morgan’s guilty plea hearing is not part of the record on appeal.

       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018             Page 6 of 8
       twenty-five years, not telling Morgan that twenty-five years was his maximum

       possible sentence. The transcript excerpt does not support Morgan’s claim.

       Because Morgan has failed to establish that his trial counsel’s performance was

       deficient in this regard, his ineffective assistance of counsel argument fails

       without the need for us to determine if he suffered prejudice. See Vermillion, 719

       N.E.2d at 1208.


                              II. Voluntariness of Guilty Plea
[12]   In the alternative, Morgan argues that his trial counsel’s allegedly bad advice

       rendered his guilty plea involuntary.


               A plea of guilty is an admission or confession of guilt made in
               court before a judge. It is also a waiver of specific constitutional
               rights. Fundamental due process requires that a criminal charge
               be proven beyond a reasonable doubt, In Re Winship, (1970) 397
               U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, and a defendant’s
               waiver of this right must be knowing, intelligent and voluntary,
               and appear affirmatively on the record of the guilty plea
               proceedings. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct.
               1709, 23 L. Ed. 2d 274. In order to uphold a guilty plea as
               knowing and voluntary the record must provide a sufficient basis
               for the conclusion that the defendant was meaningfully informed
               of the rights and law detailed in Ind. Code § 35-4.1-1-3 (Burns
               1979); Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d 483, at
               487.

       Anderson v. State, 465 N.E.2d 1101, 1102 (Ind. 1984).


[13]   As with Morgan’s previous claim of ineffective assistance of trial counsel, this

       claim is premised on his assertion that his trial counsel erroneously advised him

       that his executed sentence could be no longer than twenty-five years. As
       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 7 of 8
       mentioned, Morgan’s affidavit by itself is insufficient to warrant reversal of the

       post-conviction court’s conclusion that Morgan was not given bad advice, and

       the transcript excerpt cited by Morgan does not support his position. As with

       his previous claim, Morgan has not established that the post-conviction court

       erred in declining to find that his guilty plea was rendered unknowing,

       unintelligent, and/or involuntary by bad advice.


[14]   We affirm the judgment of the post-conviction court.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-PC-3062 | July 31, 2018   Page 8 of 8
