MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Feb 07 2019, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Darrell McNary                                           Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell McNary,                                          February 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1710-PC-2408
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1612-PC-42



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019          Page 1 of 9
[1]   Darrell McNary appeals the denial of his petition for post-conviction relief. He

      raises one issue which we revise and restate as whether the post-conviction

      court erred in denying his petition. We affirm.


                                      Facts and Procedural History

[2]   On November 16, 2015, the State charged McNary with: Count I, dealing in

      cocaine as a level 4 felony; Count II, dealing in cocaine as a level 5 felony;

      Count III, possession of methamphetamine as a level 6 felony; and Count IV,

      possession of cocaine as a level 6 felony. On January 19, 2016, McNary and

      the State entered into a plea agreement in which McNary agreed to plead guilty

      to Count II, dealing in cocaine as a level 5 felony, and the State agreed to

      dismiss the remaining charges.


[3]   On January 19, 2016, the court held a hearing at which other defendants as well

      as McNary, who was represented by counsel, were present. The court informed

      McNary of his trial rights and the process if he did not plead guilty. The court

      also stated:


              Here’s the deal, guys. The lawyers should know this, and the
              defendants should know it. What is going to happen is I’m going
              to talk to you about your plea agreements. If I find there’s a basis
              to accept them, I’ll take them under advisement. They will be
              under advisement until March because there will not be any
              sentencing – any more sentencings set in February. And it will
              be a different judge that is going to be doing the sentencing on
              this plea.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 2 of 9
      Transcript Volume II at 6-7. McNary answered affirmatively when asked if he

      understood and agreed to that.


[4]   Upon questioning by the court, McNary indicated that he had a GED and

      some college and that he understood clearly what was going on. The following

      exchange then occurred:


              THE COURT: . . . Whose decision to plead guilty?

              MR. MCNARY: Your Honor, it’s my decision to plead to this
              because I want to save the State –

              THE COURT: All right.

              MR. MCNARY: - time and money.

              THE COURT: You want to accept your responsibility?

              MR. MCNARY: Yes, because –

              THE COURT: Okay. And are you guilty?

              MR. MCNARY: Yes, I am, your Honor.


      Id. at 9. McNary also indicated that he would waive his trial rights. After

      further discussion, the court asked McNary: “Have I talked you out of your

      plea?” Id. at 15. McNary answered: “No, your Honor.” Id.


[5]   The court asked for a factual basis. Upon questioning by defense counsel,

      McNary testified that he knowingly delivered cocaine to another individual on

      November 10, 2015. The court scheduled a sentencing hearing.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 3 of 9
[6]   An entry in the chronological case summary (“CCS”) dated the same day as the

      hearing states:


              Hearing Journal Entry (Judicial Officer: Frese, Jerome)

              Hearing Date: 01/19/2016

              State by DPA Andres. Defendant in custody and represented by
              Attorney Keller. Defendant advised of rights. Parties file written
              plea agreement. Defendant advised that due to Judge Frese’s
              retirement another judge will sentence the Defendant. Defendant
              waives sentencing within thirty days. Defendant moves to have
              Court accept plea to Count II, Dealing in Cocaine, Level 5
              felony. Voluntariness and factual basis found. Court takes
              motion to enter plea under advisement. Pre-sentence report
              ordered. Sentencing set for 3-7-16 at 9:00 a.m. Over State’s
              objection, bond modified to $500 full cash. ORDER
              ENTERED.

      Appellant’s Supplemental Appendix Volume II at 4. The court also entered an

      Order on Plea Hearing which stated in part: “Voluntariness and factual basis

      found. Court takes motion to enter plea under advisement.” Id. at 26.


[7]   On March 28, 2016, the court held a sentencing hearing. At the beginning of

      the hearing, the court asked: “What are we doing with Mr. McNary?”

      Transcript Volume II at 22. McNary’s counsel answered: “Judge, this was set

      over for sentencing.” Id. The court sentenced McNary to four years in the

      Department of Correction and recommended Purposeful

      Incarceration/Therapeutic Community. That same day, the court entered a

      sentencing order which states that the court “accepts plea unconditionally,”

      entered judgment of conviction on Count II, dealing in cocaine as a level 5

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 4 of 9
       felony, dismissed the remaining counts, sentenced McNary to four years in the

       Department of Correction, and indicated that it would consider a sentence

       modification of placement to community corrections should McNary

       successfully complete Therapeutic Community. Appellant’s Supplemental

       Appendix Volume II at 31.


[8]    On December 1, 2016, McNary filed a petition for post-conviction relief. On

       March 6, 2017, McNary filed a motion for leave to amend his petition for post-

       conviction relief.


[9]    On April 21, 2017, the court held a post-conviction hearing. McNary’s trial

       counsel testified as to his advice regarding the charges, defenses, and the plea

       agreement. He testified that he discussed the plea agreement multiple times

       with McNary and advised him of his constitutional and statutory rights.

       McNary testified in part that the trial court did not advise him or ask him if it

       was his desire to withdraw the formal plea of not guilty and enter a plea of

       guilty, that no factual basis existed to accept the guilty plea, that the court did

       not accept the plea agreement, and the court did not pronounce the judgment of

       conviction.


[10]   On September 27, 2017, the court entered an order denying McNary’s petition

       for post-conviction relief. Specifically, the court concluded that the CCS and

       the sentencing order indicate that the trial court accepted the plea, McNary

       indicated that he heard the advisement of rights at trial, and a factual basis was

       established.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 5 of 9
                                                    Discussion

[11]   Before discussing McNary’s allegations of error, we observe that he is

       proceeding pro se. Such litigants are held to the same standard as trained

       counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

       We also note the general standard under which we review a post-conviction

       court’s denial of a 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. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. “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.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.


[12]   McNary argues that the post-conviction court erred in finding that he did not

       prove that the guilty plea and plea agreement were not accepted and that he did

       not prove that a judgment of conviction was not entered. He asserts that the

       trial court did not reject or accept any plea of guilty or pronounce any judgment

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 6 of 9
       of conviction at the plea and sentencing hearings. The State argues that the

       record indicates that the trial court accepted McNary’s guilty plea and plea

       agreement and entered judgment of conviction. It also asserts that McNary’s

       claim that the post-conviction court could not rely on the guilty plea order,

       sentencing order, and CCS is meritless.


[13]   Generally, “[w]hen a defendant pleads guilty, he makes a judicial admission of

       actual guilt.” Ford v. State, 570 N.E.2d 84, 87 (Ind. Ct. App. 1991) (citing Patton

       v. State, 517 N.E.2d 374, 375 (Ind. 1987), reh’g denied), trans. denied. “It has long

       been the law in this state that no reversible error occurs when a court conducts a

       hearing at which a guilty verdict is made, does not formally enter judgment on

       that verdict, but then sentences the defendant.” Id. (citing Thompson v. State,

       492 N.E.2d 264, 271-272 (Ind. 1986), reh’g denied). The Indiana Supreme Court

       has held that “[f]ailure to enter judgment prior to sentencing does not constitute

       error where the defendant is otherwise properly sentenced.” Thompson, 492

       N.E.2d at 272.


[14]   McNary entered into a plea agreement in which he agreed to plead guilty to

       Count II, dealing in cocaine as a level 5 felony. At the plea hearing, the court

       informed McNary of his rights. McNary indicated that he understood clearly

       what was going on, stated that it was his decision to plead guilty, indicated that

       he would waive his trial rights, and testified that he knowingly delivered

       cocaine to another individual. A CCS entry and order dated the same day as

       the hearing both indicated that the trial court found voluntariness and a factual

       basis with respect to the plea and that it would take the matter under

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 7 of 9
       advisement. On the same day of the sentencing hearing, the court entered a

       sentencing order which stated that it accepted the plea and entered judgment of

       conviction on dealing in cocaine as a level 5 felony. To the extent McNary

       suggests that the court’s CCS entries and orders do not indicate that the trial

       court accepted the plea agreement, we disagree. See Benson v. State, 780 N.E.2d

       413, 420 (Ind. Ct. App. 2002) (holding that the CCS is an official record of the

       trial court, that the official record shows unequivocally that the trial court had

       accepted the defendant’s guilty plea and entered judgment of conviction, and

       that the case was distinguishable from State v. Daniels, 680 N.E.2d 829 (Ind.

       1997), because there was no order book entry in Daniels finding Daniels guilty

       pursuant to the plea agreement and because, unlike in Daniels, the trial court,

       the defendant, and the State behaved as if the court had accepted the guilty

       plea), reh’g denied, trans. denied. We cannot say that the evidence as a whole

       unerringly and unmistakably lead to a conclusion opposite that reached by the

       post-conviction court. See Ford, 570 N.E.2d at 87 (rejecting the petitioner’s

       argument that the trial court erred by sentencing him without having formally

       accepted his guilty plea on the record and observing that the petitioner did not

       deny his guilt and affirmed several times to the trial court prior to sentencing he

       was pleading guilty).


                                                   Conclusion

[15]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       McNary’s petition.


[16]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 8 of 9
Bailey, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019   Page 9 of 9
