MEMORANDUM DECISION
                                                              Jun 11 2015, 8:52 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Eric L. Davis, Sr.                                        Gregory F. Zoeller
Westville, Indiana                                        Attorney General of Indiana

                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Eric L. Davis, Sr.,                                       June 11, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1410-PC-374
        v.                                                Appeal from the St. Joseph Superior
                                                          Court;
                                                          The Honorable Jane W. Miller,
State of Indiana,                                         Judge;
Appellee-Plaintiff.                                       71D08-1210-PC-47




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015      Page 1 of 7
[1]   Eric L. Davis, Sr. appeals the denial of his petition for post-conviction relief.

      We affirm.


                                     Facts and Procedural History
[2]   On December 18, 2009, Davis agreed to plead guilty to Class C felony carrying

      a handgun without a license 1 and Class C misdemeanor operating a vehicle

      while never licensed. 2 His plea agreement left the issue of sentencing open to

      the discretion of the trial court. On February 10, 2010, the trial court

      pronounced an eight-year sentence.


[3]   On October 4, 2012, Davis filed a petition for post-conviction relief, which he

      later amended. He claimed, among other things, his trial counsel was

      ineffective for incorrectly advising him he was subject to a habitual offender

      enhancement if he went to trial and the trial court acted inappropriately when it

      questioned witnesses during a hearing on Davis’ motion to suppress. The post-

      conviction court held evidentiary hearing on December 20, 2013, and on

      September 17, 2014, denied Davis’ petition.


                                         Discussion and Decision
[4]   We first note Davis proceeds pro se. A litigant who proceeds pro se is held to the

      rules of procedure that trained counsel is bound to follow. Smith v. Donahue,




      1
          Ind. Code § 35-47-2-1(a) (2012); Ind. Code § 35-47-2-23(c) (2009).
      2
          Ind. Code § 9-24-18-1.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015   Page 2 of 7
      907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk

      a litigant takes when he proceeds pro se is that he will not know how to

      accomplish all the things an attorney would know how to accomplish. Id.

      When a party elects to represent himself, there is no reason for us to indulge in

      any benevolent presumption on his behalf or to waive any rule for the orderly

      and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

      Ct. App. 2006).


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

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

      v. State, 763 N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are

      civil in nature, the petitioner must prove his grounds for relief by a

      preponderance of the evidence. Id. A party appealing a post-conviction

      judgment must establish that the evidence is without conflict and, as a whole,

      unmistakably and unerringly points to a conclusion contrary to that reached by

      the post-conviction court. Id. Where, as here, the post-conviction court makes

      findings of fact and conclusions of law in accordance with Indiana Post-

      Conviction Rule 1(6), we do not defer to the court’s legal conclusions, but “the

      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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation

      and citation omitted).


[6]   A successful claim of ineffective assistance of trial counsel must satisfy two

      components. First, the defendant must show deficient performance -

      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015   Page 3 of 7
      representation that fell below an objective standard of reasonableness involving

      errors so serious that the defendant did not have the counsel guaranteed by the

      Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g

      denied. Second, the defendant must show prejudice - a reasonable probability

      (i.e., a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different. Id.


[7]   Davis argues his trial counsel incorrectly advised him an additional habitual

      offender count could be added to his charges if he went to trial, and this alleged

      misinformation induced him to accept the State’s plea offer. One category of

      claims under which we review allegations of ineffective assistance of counsel

      following a guilty plea is “improper advisement of penal consequences.”

      Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied.

      Improper advisement includes “incorrect advice as to the law.” Id.


[8]   Our Indiana Supreme Court has held:

              Whether viewed as ineffective assistance of counsel or an involuntary
              plea, the post-conviction court must resolve the factual issue of the
              materiality of the bad advice in the decision to plead, and the post-
              conviction relief may be granted if the plea can be shown to have been
              influenced by counsel’s error. However, if the post-conviction court
              finds that the petitioner would have pleaded guilty even if competently
              advised as to the penal consequences, the error in advice is immaterial
              to the decision to plead and there is no prejudice.
      Segura v. State, 749 N.E.2d 496, 504-5 (Ind. 2001).




      Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015   Page 4 of 7
[9]    Davis alleges his trial counsel advised him “the State would file a habitual

       offender count against him if he did not plead guilty[.]” (PCR Order at 6.) 3

       Davis contends he decided to plead guilty after his motion to suppress was

       denied because he was concerned about the sentence enhancement should he be

       found guilty at trial.


[10]   “The state may not seek to have a person sentenced as a habitual offender for a

       felony offense . . . if the current offense is a misdemeanor that is enhanced to a

       felony in the same proceeding as the habitual offender proceeding solely

       because the person had a prior unrelated conviction.” Ind. Code § 35-50-2-8.

       The State charged Davis with Class C misdemeanor operating while never

       licensed; Class A misdemeanor carrying a handgun without a license; and Class

       C felony possession of a handgun by a felon. Davis’ misdemeanor handgun

       charge was enhanced to a felony by virtue of a prior unrelated conviction, so a

       habitual offender enhancement was prohibited by Ind. Code § 35-50-2-8.


[11]   The post-conviction court acknowledged Davis’ trial counsel was incorrect in

       his interpretation of the relevant statutes, but found: “Although counsel’s advice

       was inaccurate, [Davis] has failed to demonstrate how he was prejudiced by his

       counsel’s actions. . . . By pleading guilty Davis was in no worse position than

       he would have [been in] had he gone to trial.” (PCR Order at 8-9.) We agree.




       3
        Davis did not include a copy of the post-conviction court’s order in his appendix, and thus we cite to the
       order he attached to the end of his Appellant’s Brief.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015                Page 5 of 7
[12]   Police pulled Davis over because he did not signal a turn. After stopping Davis,

       the officer discovered an outstanding warrant for Davis’ arrest. While placing

       Davis under arrest, the officer asked Davis if he had any weapons on his

       person, and Davis indicated he was carrying a gun. At the time of the arrest,

       Davis was on probation for a prior felony, and thus the State had sufficient

       evidence Davis committed Class C felony possession of a handgun by a felon.

       See Ind. Code § 35-47-2-1 (2009) (“a person shall not carry a handgun in any

       vehicle . . . without a license issued under this chapter being in the person’s

       possession”); and see Ind. Code § 35-47-2-23(c)(2) (2009) (“A person who violates

       [Ind. Code § 35-47-2-1] commits a Class A misdemeanor. However, the offense

       is a Class C felony: . . . (2) if the person . . . (B) has been convicted of a felony

       within fifteen (15) years before the date of the offense.”).


[13]   Pursuant to the plea agreement, Davis entered a plea of guilty to Class C felony

       possession of a handgun by a felon and Class C misdemeanor operating a

       vehicle without ever receiving a license; sentencing was left open to the trial

       court’s discretion. Davis received a sentence of eight years, which is the

       statutory maximum for a Class C felony. Davis has not indicated how he could

       have achieved a more favorable outcome had he gone to trial, and therefor he

       has not demonstrated prejudice. See Missouri v. Frye, 132 S. Ct. 1399, 1409

       (2012) (To establish prejudice in a claim of ineffective assistance of counsel

       following a guilty plea, “it is necessary to show a reasonable probability that the

       end result of the criminal process would have been more favorable by reason of




       Court of Appeals of Indiana | Memorandum Decision 71A03-1410-PC-374 | June 11, 2015   Page 6 of 7
       a plea to a lesser charge or a sentence of less prison time.”). Accordingly, we

       affirm the denial of his petition for post-conviction relief. 4


[14]   Affirmed.


       Robb, J., and Mathias, J., concur.




       4
         Davis also appeals the post-conviction court’s decision that the trial court did not err when it questioned
       witnesses during the hearing on Davis’ motion to suppress. However, Davis has not provided citation to
       legal precedent or the record in support of his claim; thus, it is waived. See Ind. Appellate Rule 46(A)(8)(a)
       (argument must be supported by citations to relevant parts of the record); and see Reed v. State, 702 N.E.2d
       685, 689 (Ind. 1998) (failure to provide complete record and citations thereto results in waiver of issue on
       appeal).



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