      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  FILED
      regarded as precedent or cited before any                         Jun 20 2017, 8:59 am
      court except for the purpose of establishing
                                                                             CLERK
      the defense of res judicata, collateral                            Indiana Supreme Court
                                                                            Court of Appeals
      estoppel, or the law of the case.                                       and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General
      Deidre R. Eltzroth                                       J.T. Whitehead
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James A. Briley, Jr.,                                    June 20, 2017
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               58A01-1611-PC-2587
              v.                                               Appeal from the
                                                               Ohio Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Respondent.                                     James D. Humphrey, Judge
                                                               Trial Court Cause No.
                                                               58C01-1310-PC-3



      Kirsch, Judge.


[1]   Through plea agreements in two counties, James A. Briley (“Briley”) pleaded

      guilty to two Class B felony burglaries and six Class C felony burglaries. He


      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017       Page 1 of 20
      filed a petition for post-conviction relief, challenging his plea to the two Class B

      felony convictions.1 The post-conviction court denied relief. He appeals the

      denial of his petition raising the following restated issues:


                 I. Whether Briley received ineffective assistance of trial counsel;
                 and


                 II. Whether Briley’s guilty plea was knowing, intelligent, and
                 voluntary.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Following investigation into a string of burglaries occurring in Ohio, Dearborn,

      and Switzerland counties, the State charged Briley, in October and November

      2009, with sixteen felonies, eight in Ohio county and eight in Dearborn County.

      The Ohio charges consisted of: Count I, Class B felony burglary; Count II,

      Class B felony conspiracy to commit burglary; Count III, Class C felony

      burglary; Count IV, Class C felony conspiracy to commit burglary; Count V,

      Class C felony burglary; Count VI, Class C felony conspiracy to commit

      burglary; Count VII, Class B felony burglary; Count VIII, Class B felony

      conspiracy to commit burglary. Pet’r’s Ex. 4. The burglaries were committed at

      various bars and restaurants. The two Class B felony burglary charges, Counts

      I and VII, occurred at the River House III (“the River House”) and Hong Kong



      1
          Briley does not appeal the six Class C felony convictions.


      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 2 of 20
      Kitchen, respectively, and were elevated to a Class B felony because each was

      alleged to have been committed at a business with an attached dwelling. Briley

      was similarly charged in Dearborn County with having committed eight

      Class C felony burglary offenses. See Pet’r’s Ex. 1 at 10-12 (guilty plea

      transcript referring to Dearborn charges).


[4]   On April 23, 2010, Briley entered into a Negotiated Plea Agreement

      (“Agreement”) in which he agreed to plead guilty to the following four counts

      of burglary in Ohio County: Count I and VII, Class B felonies (for burglaries

      committed at Hong Kong Kitchen and River House, respectively) and Counts

      III and V, Class C felonies; Counts II, IV, VI, and VIII were dismissed, and

      sentencing was left open to trial court discretion. Around the same time, Briley

      entered into a similar plea agreement resolving the pending Class C felony

      burglaries in Dearborn County, pleading guilty to four counts of Class C

      felony burglary, Counts I, III, V, and VII; the remaining four counts were

      dismissed. In total, Briley pleaded guilty to two Class B felony burglary

      charges and six Class C felony burglary charges, and eight felony charges,

      consisting of burglary and conspiracy to commit burglary, were dismissed.


[5]   The trial court held a hearing on the two pleas on April 23, 2010.2 At the

      guilty plea hearing, the trial court specifically addressed the fact that Briley was

      pleading guilty to, not only Class C felonies, but also to Class B felonies: “I



      2
       By agreement of the parties, the trial court conducted the guilty plea hearing on both the Ohio County
      and the Dearborn County cases.

      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017        Page 3 of 20
      want to make sure you understand that you have two Class B felonies here.”

      Id. at 18. After that, Briley admitted the factual basis for the eight burglary

      charges to which he was pleading guilty, including, as is relevant here, “Count

      I, that on or about between October 17, 2009, and October 20, 2009, in Ohio

      County, State of Indiana, James A. Briley did break and enter the building or

      structure of another person, that being the River House III business and

      attached dwelling owned by [William] Sherman, located at 143 Main Street,

      Rising Sun, Ohio County, State of Indiana, with the intent to commit the felony

      of theft therein” and “Count VII, on or about November 7, 2009, in Ohio

      County, State of Indiana, James A. Briley did break and enter the building or

      structure of another person, to-wit: Hong Kong Kitchen business and attached

      dwelling, owned by Min [Qui], located at 206 Main Street, Ohio County, State

      of Indiana, with the intent to commit the felony of theft therein.” Id. at 19-20.

      The trial court advised Briley that a Class B felony is punishable by a sentence

      of six to twenty years, with an advisory sentence of ten, and a Class C felony is

      punishable by a sentence of two to eight years, with an advisory of four years,

      and it reminded Briley that sentencing was left to the discretion of the trial

      court. Id. at 15.


[6]   At the subsequent sentencing hearing, Briley presented character and

      conduct witnesses and testified on his own behalf. Among other things,

      Briley testified that he was breaking into the buildings to steal money to

      support his drug habit, but that he did not intend to encounter people or

      hurt anyone. He utilized his electrician skills to plan and methodically


      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 4 of 20
      carry out the burglaries. He used a GPS, mask, gloves, and walkie talkies to

      converse with one or more other individuals that he had persuaded or

      “buffaloed” into assisting him. Id. at 68. Briley admitted that he had two

      prior felony convictions, one in 2008 for being a convicted felon in

      possession of a firearm, and one in 1999 for “carrying a weapon where

      alcohol was served.”3 Id. at 57. Briley also admitted that he had a

      significant drug problem at the time of his arrest, was committing the

      burglaries to steal money to “feed [his] drug habit,” and was on probation at

      the time of the current offenses. Id. at 66. The State presented the

      testimony of Detective Normal Rimstidt (“Detective Rimstidt”), who stated

      that, after investigation and surveillance, investigators believed one

      individual was behind the string of burglaries and that, when Briley was

      apprehended and interviewed, he was, at first, not forthcoming, but

      thereafter was very cooperative.


[7]   The hearing was concluded and, when it resumed at a later date, the trial

      court addressed what it found to be aggravators and mitigators. It found as

      aggravating: Briley’s criminal history of twelve prior convictions, including

      two prior felonies; the fact that he was on probation in Kentucky at the time

      of the current offenses; and the level of planning and calculation that went

      into the crimes. It found as mitigating that jail officers testified that he was



      3
       We note that at the hearing on Briley’s petition for post-conviction relief, Briley stated that the two felonies
      were for (1) possession of a firearm by a convicted felon and (2) possession of a controlled substance. Tr. at
      14-15.

      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017                 Page 5 of 20
      a good inmate, he was in a committed relationship, and he pleaded guilty;

      however, the trial court found that “none . . . [rose] to the level of a

      significant mitigating factor.” Id. at 92.


[8]   On August 13, 2010, the trial court issued its written Judgment and

      Pronouncement of Sentence (“Sentencing Order”). For the four Ohio County

      burglary convictions, the trial court sentenced Briley to twenty years on each of

      the two Class B felony convictions and six years on each of the two Class C

      felony convictions, to run concurrent with each other, for a total of twenty

      years. On each of the four Dearborn County Class C felony burglary

      convictions, the trial court sentenced Briley to six years, to be served

      concurrently. The trial court ordered the Dearborn County sentences to be

      served consecutive to the Ohio County sentences, for a twenty-six-year

      aggregate sentence in the Indiana Department of Correction. The trial court’s

      Sentencing Order addressed the aggravating and mitigating circumstances that

      were discussed at the prior hearing, as well as “the number of burglary offenses

      . . . indicating Defendant’s level of dangerousness to the community.” Pet’r’s

      Ex. 6. The trial court also found that each of the eight offenses occurred at a

      separate date, at separate locations, and involved separate victims. Id.


[9]   On October 31, 2013, Briley filed his pro se Petition for Post-Conviction Relief

      in which he challenged his conviction to the elevated burglary charges.

      Appellant’s App. at 13. The petition was later amended by counsel to allege

      claims that Briley received ineffective assistance of counsel because he was

      misled about the choices before him, the State lacked sufficient evidence to

      Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 6 of 20
       support the Class B felony burglary charges, and his plea was not knowing,

       voluntary, and intelligent. Id. at 36-38. Briley’s petition asserted that counsel

       failed to properly investigate and “[h]ad he done so, Briley would have refused

       the plea, insisted on taking the case to trial, and would have succeeded in

       defending himself against the elevated [] charge[s].” Id. at 37.


[10]   On October 28, 2016, the post-conviction court held a hearing on Briley’s

       petition for post-conviction relief. Briley presented evidence consisting of the

       deposition testimony of the owner of Hong Kong Kitchen, Min Qui (“Qui”),

       and an affidavit of the manager of the River House, William Sherman

       (“Sherman”). Qui stated that he and his family lived in an apartment above

       Hong Kong Kitchen and that he had not used the restaurant for any family

       purpose after closing hours. Pet’r’s Ex. 8. Sherman stated that at the time of the

       burglary, he lived above the River House, he kept all personal effects in his

       apartment, and that after the bar would close for the night, he would go upstairs

       and not return to the bar until the following day. Pet’r’s Ex. 9. Qui’s deposition

       and Sherman’s affidavit each stated that the entrance to the residential

       apartment, which was located above each of those restaurants, was from the

       exterior of the building and was separate from the entrance to the restaurant.


[11]   Briley also presented the testimony of his trial attorney, Gary Sorge (“Sorge”).

       Briley’s post-conviction counsel asked Sorge about “the elevated Class B felony

       charges, those pertaining, specifically, to the River House and the Hong Kong

       Kitchen[,] and Sorge replied, “I felt like the State could easily prove that he had



       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 7 of 20
       actually broken into them and committed a felony.” Tr. at 8-9. Counsel further

       inquired:

               Q. And how about the additional element of Burglary of a
               Dwelling in those two charges?


               A. My memory is that we discussed whether or not the State
               could actually prove a B felony versus a C felony, but I cannot
               remember why that wasn’t further looked into.


       Id. Briley also testified at the hearing, stating that he and Sorge had discussed

       whether Briley “could defend [himself] against the elevated burglary charges[,]”

       and Sorge told him that the State “had [him] by the reading of the law, that the

       law read a dwelling attached[.]” Id. at 13. Briley’s counsel asked, “Had you

       been advised that you could defend yourself against the B felony charges, would

       you have pled guilty?” Id. Briley replied “No” and said he would have taken

       the case to trial. Id. Upon cross-examination, Briley conceded that the eight

       burglaries were each separate incidents and that he had two prior felony

       convictions in Kentucky.


[12]   The State presented the testimony of Detective Rimstidt. He stated that when

       on patrol during daytime hours, he regularly observed the Qui family, including

       their minor children, gathered in the restaurant, with the children playing or

       doing homework. Id. at 16-17. Detective Rimstidt testified that, when he was

       on patrol for the 6:00 p.m. to 6:00 a.m. shift, he sometimes observed the owners

       in the business after it was closed, doing such activities as food preparation or

       repairs. Id. at 17-19, 21.

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 8 of 20
[13]   On November 18, 2016, the post-conviction court issued a written order

       denying Briley’s petition. Its order included the following:


               10. On cross examination of trial counsel, Gary Sorge stated that
               the Petitioner received a sentence significantly less than the
               maximum sentence he could have received in this matter. In
               addition the Court finds that Mr. Sorge discussed the issue of
               proof of Burglary of a Dwelling or Business, with the Petitioner,
               in making the decision to accept the proposed plea.


               11. The Court also finds that relevant legal authorities regarding
               the issues of “dwelling” were not sufficiently settled or clear to
               allow the Court to find that counsel for the Petitioner was
               incompetent in his representation.


               The Court, therefore, finds that the Petitioner has failed to show
               that trial counsel’s performance was deficient, or that any
               possible deficient representation prejudiced the Petitioner and
               altered the outcome of the proceedings.


       Appellant’s App. at 78. Concluding that Briley failed to carry his burden of

       proof, the post-conviction court denied his petition for post-conviction relief.

       Briley now appeals.


                                      Discussion and Decision
[14]   Briley appeals the post-conviction court’s denial of his petition for post-

       conviction relief. The petitioner in a post-conviction 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 post-conviction

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 9 of 20
       court must make findings of fact and conclusions of law. P-C.R. 1(6). A

       petitioner who appeals the denial of his post-conviction 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. “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 post-

       conviction 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 post-conviction court. Massey, 955 N.E.2d at

       253.


[15]   In this appeal, Briley contends that the post-conviction court erred in denying

       his petition for post-conviction relief, asserting that his trial counsel was

       ineffective and that his guilty plea was not knowing, voluntary, and intelligent.

       Both claims stem from whether the Hong Kong Kitchen and the River House

       burglaries could be considered as having occurred in a dwelling under Indiana’s

       burglary statute.




       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 10 of 20
                                 I. Assistance of Trial Counsel
[16]   Briley maintains that he was denied his constitutional right to effective

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

       must satisfy two components: he must demonstrate both deficient performance

       and prejudice resulting from it. Carrillo v. State, 982 N.E.2d 461, 464 (Ind. Ct.

       App. 2013) (citing Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) and

       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 whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind.

       Ct. App. 2011), trans. denied. “[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 v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans.

       denied.


[17]   Prejudice results where there is “a reasonable probability that, but for counsel’s

       unprofessional errors, the result of the proceedings would have been different.”

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 11 of 20
       Carrillo, 982 N.E.2d at 464. “A reasonable probability is a probability sufficient

       to undermine confidence in the outcome.” Perez v. State, 748 N.E.2d 853, 854

       (Ind. 2001). “Failure to satisfy either prong will cause the claim to fail.” French

       v. State, 778 N.E.2d 816, 824 (Ind. 2002). Thus, if the petitioner cannot

       establish prejudice, we need not evaluate counsel’s performance. Bryant v. State,

       959 N.E.2d 315, 319 (Ind. Ct. App. 2011). 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 pleaded 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 trial.4 Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001); Jeffries v. State,

       966 N.E.2d 773, 779 (Ind. Ct. App. 2012), trans. denied.


[18]   Briley claims that Sorge was ineffective for failing to inform him that “[t]he

       State lacked sufficient evidence to elevate Briley’s Class B felony charges in

       reliance on dwellings adjacent to both the River House and the Hong Kong

       Kitchen,” Appellant’s Br. at 10, and that had he been accurately advised, he

       would have refused the plea, insisted on taking the case to trial, and would

       have succeeded in defending himself against the elevated version of the charge;

       alternatively, he states that he would have entered a guilty plea to the lesser

       Class C felony charges for those burglaries and been sentenced to less time.




       4
        As this court has recognized, a defendant’s self-serving testimony that he would not have pleaded guilty is
       by itself insufficient to establish prejudice. Carrillo v. State, 982 N.E.2d 461, 465 (Ind. Ct. App. 2013).

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017            Page 12 of 20
       See id. at 16 (asserting that he would have entered guilty plea to lesser Class

       C felony charges and had decreased sentence exposure).


[19]   Briley’s position assumes the premise that the State lacked sufficient evidence to

       convict Briley of burglary as a Class B felony. At the time of the crimes,

       Indiana law provided that burglary was a Class C felony, but was a Class B

       felony if “the building or structure is a . . . dwelling.” Ind. Code § 35-43-2-1.

       Dwelling was defined as “a building, structure, or other enclosed space,

       permanent or temporary, movable or fixed, that is a person’s home or place of

       lodging.” Ind. Code § 35-41-1-10.5 Our courts have said that burglary of a

       dwelling is not so much an offense against property as it is an offense against

       the sanctity and security of habitation. Howell v. State, 53 N.E.3d 546, 549 (Ind.

       Ct. App. 2016), trans. denied. “To that end, the legislature has provided an

       increased penalty for burglarizing a dwelling ‘because of the potential danger to

       the probable occupants.’” Id. (quoting Byers v. State, 521 N.E.2d 318, 319 (Ind.

       1988)).


[20]   Briley presented evidence at the post-conviction hearing that the businesses

       were on the first floor and the apartments were on the second floor in their

       respective buildings, that the entrances to the apartments were from the exterior

       of the buildings, and that personal effects were not kept in the businesses. Thus,

       he argues, “the adjacent apartments were physically and meaningfully separate




       5
           This definition was moved in 2012 to Indiana Code section 35-31.5-2-107.


       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 13 of 20
       from the businesses Briley burgled.” Appellant’s Br. at 8-9. His evidence

       indicates that, had he not pleaded guilty and proceeded to trial, Briley could

       have presented argument and evidence in defense of the Class B felony charges.

       However, the State presented evidence at the post-conviction hearing in support

       of its contrary position. For instance, Detective Rimstidt testified that he

       regularly saw the Qui family use the Hong Kong Kitchen for personal purposes

       during the day and sometimes saw the adults there after hours. Briley urges

       that “[t]he post-conviction court erred in finding any credibility or

       relevance to Detective Rimstidt’s testimony.” Id. at 12. However, we

       neither reweigh evidence nor judge witness credibility, and we consider only the

       evidence and reasonable inferences most favorable to the judgment. McKnight,

       1 N.E.3d at 199. Furthermore, at any trial, the factfinder would have been

       assigned the task of assessing Detective Rimstidt’s credibility and

       weighing the evidence, as well as that of any other witnesses that the

       State may have called on the issue, against that of witnesses that Briley

       called to testify.


[21]   In sum, the record before us indicates that a factual dispute existed, such that

       evidence would have been presented at trial as to if, how, and when the

       restaurants/bars were used for personal use, such as cooking, dining, or

       studying and whether or to what extent the businesses, or either of them,

       fulfilled a purpose connected with residential living. We agree with the State

       that “[g]iven the case law regarding structures that contained both dwellings




       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 14 of 20
       and businesses,6 the facts of the crimes, and the evidence that would have been

       presented at trial, it was not unsound nor deficient for counsel to advise that the

       State could prevail on the elevated counts.” Appellee’s Br. at 11. Briley has not

       established that Sorge should have advised him that the State lacked sufficient

       evidence to convict him of the Class B felony charges.


[22]   Nevertheless, assuming without deciding that, as Briley claims, there

       was insufficient evidence to prove that the burglaries committed at the

       Hong Kong Kitchen and at the River House constituted burglaries of a

       dwelling and that they should have been charged as Class C felonies –

       and that counsel Sorge performed deficiently for failing to so advise

       Briley – we still find no error. To succeed in obtaining post-conviction

       relief, Briley was required to prove that not only was Sorge’s

       representation deficient, but that Briley was prejudiced thereby. Carrillo,

       982 N.E.2d at 464. He has failed to prove such prejudice.


[23]   Briley concedes that “the State only had sufficient evidence to support

       eight Class C felonies[.]” Appellant’s Br. at 15. The sentencing range for




       6
         The State argues that “[t]he lack of direct access between the business section and home section of a
       structure” is not necessarily “fatal to the [Class B] elevation.” Appellee’s Br. at 19. In support, the State refers
       us to Shepard v. State, 839 N.E.2d 1268, 1270 (Ind. Ct. App. 2005), where this court held that a garage
       attached to a home was a “dwelling” for purposes of burglary, even though there was not a point of access
       connecting the garage to the home and the garage was primarily used for storage. He also cites to Minneman
       v. State, 466 N.E.2d 438, 439 (Ind. 1984), cert. denied, 470 U.S. 1030 (1985), where a defendant broke into a
       store that was adjoined by a garage and living quarters and connected by interior doors. The defendant
       argued that the owner intended that the middle area be a commercial space, and that because he did not enter
       the living quarters, he had not broken into a dwelling, but the Minneman Court found that it was
       “immaterial” that the designated living quarters were not entered. 466 N.E.2d at 440.

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017                 Page 15 of 20
       Class C felony is two to eight years, with the advisory being four. Ind.

       Code § 35-50-2-6. Thus, if convicted of eight Class C felonies Briley

       faced a maximum of sixty-four years, if the four sentences in each

       county were ordered to be served consecutive to each other, as well as

       consecutive to those in the other county. Here, for each of the six Class

       C felonies to which Briley pleaded guilty, the trial court sentenced him

       to six years of imprisonment; there is nothing in the record to suggest

       that if the two Class B felonies were, instead, Class C felonies, the trial

       court would have imposed anything less than six years per conviction.

       Assuming for the moment that he received that same six-year term for

       each of eight Class C felony convictions, his aggregate sentence, if

       entirely consecutive, would be forty-eight years, which is twenty-two

       years more than the twenty-six-year sentence that he received in the

       Sentencing Order.


[24]   Briley contends that the record suggests that, if he had been convicted of

       eight Class C felonies (instead of two Class B felonies and six Class C

       felonies), the trial court would have imposed “a similar sentence,”

       whereby four six-year Ohio County convictions would run concurrent

       with each other, and four six-year Dearborn County convictions would

       run concurrent with each other and consecutive to those in Ohio county,

       such that “Briley would have received a sentence of twelve years

       aggregate between the two counties.” Appellant’s Br. at 15. Given the

       record before us, this assertion not only is speculative, but also assumes far too


       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 16 of 20
much in terms of what the trial court would or would not do had it imposed

sentence on eight Class C felonies. Specifically, the trial court’s Sentencing

Order recognized that Briley was on probation at the time of his offense,

he had twelve prior convictions, two of which were prior felonies, which

might have exposed him to an habitual offender charge. The trial court

also stated that it considered each of the burglaries in each of the

counties as separate offenses because they occurred on different dates,

were in different locations, and had different victims and, further, that

the number of burglaries reflected a “level of dangerousness to the

community.” Pet’r’s Ex. 6. The trial court specifically recognized the

degree of skill and planning that Briley used to conduct the crimes,

including Briley’s use of his skills as an electrician, a GPS, mask, gloves,

and walkies-talkies to communicate with one or more accomplices that

he had persuaded or tricked into assisting him. Based on the record

before us, we reject Briley’s suggestion that, if all eight of the convictions

would have been entered as Class C felonies, it is likely that he would have

received a lesser sentence. Under Segura, Briley was required to show that

“there is a reasonable probability that he would have received a more favorable

result in a competently run trial.” 749 N.E.2d at 507. We find that he has not

done so. Briley has failed to show that he was prejudiced by the

performance of his trial counsel, and, accordingly, the post-conviction

court did not err when it denied his petition for post-conviction relief.




Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 17 of 20
                                              II. Guilty Plea
[25]   Briley claims that his guilty plea to two Class B felonies was not

       knowing, intelligent and voluntary pursuant to the Fifth, Sixth and

       Fourteenth Amendments to the United States Constitution and Article

       One, Sections Twelve and Thirteen of the Indiana Constitution. “The

       long-standing test for the validity of a guilty plea is ‘whether the plea

       represents a voluntary and intelligent choice among the alternative

       courses of action open to the defendant.’” Diaz v. State, 934 N.E.2d

       1089, 1094 (Ind. 2010) (quoting North Carolina v. Alford, 400 U.S. 24, 31

       (1970)).


[26]   Before accepting a guilty plea, a trial court judge is required to take steps

       to ensure that a defendant’s plea is voluntary. See Ind. Code §§ 35-35-1-

       2, -3. Here, at the guilty plea hearing, the trial court informed Briley of his

       rights were he to go to trial, confirmed that Briley understood those rights, that

       he had read his advisement, and informed Briley of the State’s burden of proof

       if he went to trial. The trial court reviewed the charges with Briley and

       confirmed that he understood the nature of the charges to which he would be

       pleading guilty, including two Class B felonies, if the trial court accepted the

       agreement, and it advised Briley of the potential penalties. Generally

       speaking, if a trial court undertakes these steps, a post-conviction

       petitioner will have a difficult time overturning his guilty plea on

       collateral attack. Lineberry v. State, 747 N.E.2d 1151, 1156 (Ind. Ct.

       App. 2001). However, a defendant who can show that he was coerced

       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 18 of 20
       or misled into pleading guilty by the judge, prosecutor, or defense

       counsel will present a colorable claim for relief. Id. In assessing the

       voluntariness of the plea, appellate courts review all the evidence before

       the post-conviction court, including testimony given at the post-

       conviction trial, the transcript of the petitioner’s original sentencing, and

       any plea agreements or other exhibits which are part of the record. Diaz,

       934 N.E.2d at 1094. Here, Briley’s claim is that he was “misadvised of

       his penal consequences when he was told he faced Class B felonies

       rather than lesser Class C felony charges[,]” and “had he known he

       faced only Class C felonies, he would not have pled to B felonies[.]”

       Appellant’s Br. at 17.


[27]   Contrary to his argument, Briley did, in fact, “face[]” Class B felonies. Id. He

       was charged with having committed two, and as we determined above, the

       post-conviction court heard evidence that if trial had occurred each party would

       have presented evidence as to whether the locations Briley burglarized served

       some residential purpose or would otherwise constitute a dwelling under

       Indiana law. According to the testimony of both Sorge and Briley, Sorge

       discussed the elevated Class B felony charges with Briley, and Sorge believed

       that the facts and law were against the defense. Tr. at 13. At the guilty plea

       hearing, the trial court expressly confirmed with Briley his understanding that

       he was pleading guilty to two Class B felonies, it confirmed his understanding

       of possible penalties, and Briley admitted the factual basis as alleged for the

       charges. Pet’r’s Ex. 1 at 18-20.


       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 19 of 20
[28]   Briley has not shown that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite the one reached by the post-conviction

       court. Accordingly, we find that the post-conviction court did not err when it

       denied Briley’s petition for post-conviction relief.


       Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 20 of 20
