MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 Apr 16 2019, 9:16 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                            CLERK
                                                                                 Indiana Supreme Court
court except for the purpose of establishing                                        Court of Appeals
                                                                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Jonathan O. Chenoweth                                     Attorney General of Indiana
Indianapolis, Indiana                                     J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Slaton,                                           April 16, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-1607
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Robert J. Pigman,
Appellee-Respondent.                                      Judge.
                                                          Trial Court Cause No.
                                                          82D03-1604-PC-2070



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019                     Page 1 of 20
                                              Case Summary
[1]   William Slaton Jr. appeals the post-conviction court’s (“PC court”) denial of his

      petition for post-conviction relief (“PCR”). We affirm.


                                                     Issues
[2]   Slaton raises two issues, which we restate as:


              I.       Whether Slaton was denied the effective assistance of
                       appellate counsel.

              II.      Whether Slaton pleaded guilty involuntarily to the habitual
                       substance offender allegation because he was not properly
                       advised of his rights.


                                                      Facts
[3]   The facts, as stated in Slaton’s direct appeal, follow:


              On June 27, 2013, the Evansville Police Department received a
              report of suspected methamphetamine manufacturing at Slaton’s
              address. Four officers arrived at the address and smelled a
              chemical odor, which they associated with the manufacture of
              methamphetamine, coming from the house. Officers Robert
              Hahn and Nick Henderson approached the house, which was
              divided into two apartments. The officers walked up onto the
              porch, which allowed access to doors belonging to each
              apartment.


              The officers first knocked on the door to the rear apartment, and
              a woman answered. The officers explained why they were at the
              house. The woman informed them that the odor was coming
              from next door and pointed them to the other apartment. The
              officers walked across the porch to the front apartment. The

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 2 of 20
        door to that apartment was boarded up, but next to the door was
        an open window. Officer Hahn looked through the window and
        into the apartment that belonged to Slaton. He saw Slaton
        inside, carrying a glass jar toward the kitchen sink. Officer Hahn
        asked Slaton to stop. Slaton made eye contact with Officer
        Hahn, but Slaton, still holding the jar, continued more quickly
        toward the sink despite the officer’s repeated requests to stop. At
        that point, Officer Henderson dove through the open window
        and grabbed Slaton.


        The police detained Slaton and two other individuals located in
        the house. Once outside, Slaton consented to a search of the
        apartment. The search produced a number of items associated
        with the manufacture of methamphetamine, including:
        pseudoephedrine blister packs; lithium batteries; ammonium
        nitrate cold packs; aluminum foil; lye; acid-based drain cleaner; a
        glass jar with tubing attached to it; and several empty two-liter
        bottles. Additionally, 0.69 grams of methamphetamine was
        found in Slaton’s bedroom.


        The State charged Slaton as follows: Count 1, dealing in
        methamphetamine, a Class B felony; Count 2, maintaining a
        common nuisance, a Class D felony; and Count 3, dealing in
        methamphetamine, a Class B felony. The State also alleged that
        Slaton was an habitual substance offender. Slaton filed a pre-trial
        motion to suppress, which the trial court denied. A jury trial was
        held in September 2014, and the jury found Slaton guilty of
        attempted dealing in methamphetamine, a lesser included offense
        of Count 1, and guilty of possession of methamphetamine, a
        lesser included offense of Count 3. Slaton admitted to being an
        habitual substance offender. The trial court sentenced Slaton to
        fifteen years on Count 1, enhanced by three years due to his
        habitual substance offender status, and one and one-half years on
        Count 3, to be served concurrently with Count 1.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 3 of 20
      Slaton v. State, No. 82A05-1412-CR-589, slip op. at 2-4 (Ind. Ct. App. July 20,

      2015) (footnote omitted).


[4]   On direct appeal, Slaton raised two issues: (1) whether evidence admitted at

      trial was obtained as a result of an illegal search of Slaton’s curtilage and

      residence, and (2) whether his sentence was inappropriate in light of the nature

      of his offenses and his character. We concluded that Slaton’s Fourth

      Amendment rights were not violated and that his sentence was not

      inappropriate.


[5]   In April 2016, Slaton filed a petition for post-conviction relief, which he later

      amended. Slaton argued that his appellate counsel rendered ineffective

      assistance of counsel because counsel failed to raise a jury instruction issue on

      direct appeal and that his guilty plea to being a habitual substance offender was

      involuntary because the trial court failed to advise Slaton of his rights. After a

      hearing, the PC court entered findings of fact and conclusions of law denying

      Slaton’s petition for PCR. Slaton now appeals.


                                                   Analysis
[6]   Slaton appeals the PC court’s denial of his petition for PCR. Our Supreme

      Court has stated:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. When appealing from the denial of post-conviction
              relief, the petitioner stands in the position of one appealing from
              a negative judgment. To prevail on appeal from the denial of

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 4 of 20
              post-conviction relief, a petitioner must show that the evidence as
              a whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. [Where, as
              here, a post-conviction court has made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6), we] do not defer to the post-conviction court’s legal
              conclusions[.] 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.


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

      citations omitted). As the clearly erroneous standard “is a review for

      sufficiency of evidence, we neither reweigh the evidence nor determine the

      credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

      “Rather, we ‘consider only the evidence that supports that judgment and the

      reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

      v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.

      Ct. 1178 (2000)).


                            I. Ineffective Assistance of Appellate Counsel

[7]   Slaton argues that his appellate counsel rendered ineffective assistance by failing

      to raise a jury instruction issue on direct appeal. The standard of review for a

      claim of ineffective assistance of appellate counsel is the same as for trial

      counsel. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), cert. denied, 534

      U.S. 830, 122 S. Ct. 73 (2001). To prevail on a claim of ineffective assistance of

      counsel, a petitioner must demonstrate both that: (1) his or her counsel’s

      performance was deficient, and (2) the petitioner was prejudiced by the

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 5 of 20
      deficient performance. Id. (citing Strickland v. Washington, 466 U.S. 668, 687,

      104 S. Ct. 2052, 2064 (1984). The failure to satisfy either prong will cause the

      claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective

      assistance of counsel claims, thus, can be resolved by a prejudice analysis alone.

      Id.


[8]   Our Supreme Court has held that ineffective assistance of appellate counsel

      claims “generally fall into three basic categories: (1) denial of access to an

      appeal, (2) waiver of issues, and (3) failure to present issues well.” Garrett v.

      State, 992 N.E.2d 710, 724 (Ind. 2013). Slaton’s claim is based upon the waiver

      of issues category. “To show that counsel was ineffective for failing to raise an

      issue on appeal thus resulting in waiver for collateral review, ‘the defendant

      must overcome the strongest presumption of adequate assistance, and judicial

      scrutiny is highly deferential.’” Id. (quoting Ben-Yisrayl, 738 N.E.2d at 260-61).


[9]   To evaluate the performance prong when appellate counsel waived issues upon

      appeal, 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. Id. “If the analysis

      under this test demonstrates deficient performance, then we evaluate the

      prejudice prong which requires an examination of 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.’” Id. (quoting Bieghler v. State, 690 N.E.2d

      188, 194 (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998)).



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 6 of 20
[10]   Slaton argues that the trial court improperly gave a jury instruction on

       attempted dealing in methamphetamine as a lesser-included offense, that he

       objected to the instruction, and that appellate counsel was ineffective for failing

       to raise the issue on direct appeal. We disagree. We conclude that the jury

       instruction issue was not clearly stronger than the issues raised by appellate

       counsel. Moreover, even if Slaton’s appellate counsel had raised the jury

       instruction issue on direct appeal, the issue would not have been likely to result

       in a reversal of Slaton’s convictions.


[11]   Our Supreme Court has developed a three-part test to determine whether to

       instruct a jury on a lesser-included offense of the crime charged. “First, the trial

       court must compare the statute defining the crime charged with the statute

       defining the alleged lesser-included offense to determine if the alleged lesser-

       included offense is inherently included in the crime charged.” Fisher v. State,

       810 N.E.2d 674, 678 (Ind. 2004). “Second, if a trial court determines that an

       alleged lesser-included offense is not inherently included in the crime charged

       under step one, then it must determine if the alleged lesser-included offense is

       factually included in the crime charged.” Id. “If the alleged lesser-included

       offense is neither inherently nor factually included in the crime charged, the

       trial court should not give an instruction on the alleged lesser-included offense.”

       Id. “Third, if a trial court has determined that an alleged lesser-included offense

       is either inherently or factually included in the crime charged, it must look at

       the evidence presented in the case by both parties to determine if there is a

       serious evidentiary dispute about the element or elements distinguishing the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 7 of 20
       greater from the lesser offense and if, in view of this dispute, a jury could

       conclude that the lesser offense was committed but not the greater.” Id.


[12]   Here, Slaton argues only with respect to the third step. 1 According to Slaton,

       there was no serious evidentiary dispute that would have warranted instructing

       the jury on attempted dealing in methamphetamine. Slaton was charged with

       dealing methamphetamine, which, at the time of Slaton’s offense, provided in

       part: “A person who: (1) knowingly or intentionally: (A) manufactures . . .

       methamphetamine, pure or adulterated, . . . commits dealing in

       methamphetamine, a Class B felony. . . .” Ind. Code § 35-48-4-1.1(a). The

       term “manufacture” means “the production, preparation, propagation,

       compounding, conversion, or processing of a controlled substance, either

       directly or indirectly by extraction from substances of natural origin,

       independently by means of chemical synthesis, or by a combination of

       extraction and chemical synthesis, and includes any packaging or repackaging

       of the substance or labeling or relabeling of its container.” Ind. Code § 35-48-1-

       18.


[13]   Slaton notes that “Indiana courts have consistently held that the manufacturing

       process need not be complete to violate the manufacturing statute.” Buelna v.

       State, 20 N.E.3d 137, 141 (Ind. 2014). Slaton contends that the police officers

       smelled odors associated with a meth lab and found precursors, used reaction




       1
           An attempt to commit an offense is inherently included in that offense. See Ind. Code § 35-31.5-2-168(2).


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019                     Page 8 of 20
       vessels, and methamphetamine. According to Slaton, “there was no dispute

       that meth had been made; at issue was whether it had been made by Slaton or

       Hale.” Appellant’s Br. p. 24. Slaton argues that, because manufacturing was in

       process, there was no evidence to support an attempted dealing

       methamphetamine instruction. The State, however, points out that our

       appellate opinion “makes it clear that there was no active lab at work when the

       police officers arrived at Petitioner’s home, and Petitioner himself argued as

       such at trial.” Appellee’s Br. p. 15.


[14]   The PC court found that the instruction was proper because a serious

       evidentiary dispute existed:


               In Petitioner’s case, there was a serious evidentiary dispute
               regarding the extent of operations, when and if the operation
               occurred, and who performed what part of the operation. As
               noted by the Indiana Court of Appeals in its opinion and by trial
               counsel in her argument at sentencing, the evidence at trial
               established that there was no active lab at the time police arrived.
               One officer observed Petitioner walking with a glass jar toward
               the sink and Petitioner’s subsequent refusal to follow his
               command to stop. In its later search, police discovered items
               associated with the manufacture of methamphetamine
               (pseudoephedrine blister packs, lithium batteries, ammonium
               nitrate cold packs, aluminum foil, lye, drain cleaner; a glass jar
               with tubing attached, and several empty two-liter bottles).
               However, a complete and intact operational lab was not present.
               Officers noted a smell before entering but no smoke, heat or other
               evidence of active “cooking” was observed once they had made
               entry. No methamphetamine was in production at that time, and
               the two-liter bottles were empty of any partially finished or
               finished product. Officers located less than a gram of
               methamphetamine in a separate room, and there was no
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 9 of 20
               evidence that it or the “pill dough,” a by-product of the
               methamphetamine cooking process, found in the toilet were from
               the possible lab components. Nor was there evidence that the
               “pill dough” had been recently produced or placed in the toilet.
               While there was a scintilla of evidence that a lab had been active
               sometime prior to officers’ entry, it is questionable whether the
               State could prove beyond a reasonable doubt that the lab had
               been in operation while Petitioner was present. This conclusion
               is consistent with the fact that the jury did in fact convict
               Petitioner of attempted dealing only.


       Appellant’s App. Vol. II pp. 11-12. The PC court concluded that the jury

       instruction issue was not clearly stronger than the issues raised on direct appeal

       and that Slaton failed to demonstrate appellate counsel’s performance was

       deficient.


[15]   As we noted in our opinion in Slaton’s direct appeal, when officers entered

       Slaton’s residence, they found many precursors needed to manufacture

       methamphetamine, and they found a small amount of methamphetamine in a

       bedroom. They did not, however, discover an active methamphetamine lab.

       The PC court’s conclusion that a serious evidentiary dispute existed as to

       whether Slaton committed dealing methamphetamine or attempted dealing

       methamphetamine is not clearly erroneous.


[16]   Given the serious evidentiary dispute, the jury instruction issue was not clearly

       stronger than the Fourth Amendment and sentencing issues raised by appellate

       counsel on direct appeal. Moreover, even if appellate counsel had raised the

       jury instruction issue on direct appeal, Slaton failed to demonstrate that the

       outcome of the appeal would have been different. The PC court properly
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 10 of 20
       denied Slaton’s petition for PCR on his claim of ineffective assistance of

       appellate counsel.


                                              II. Involuntary Guilty Plea

[17]   Next, Slaton argues that his guilty plea to the habitual substance offender

       allegation was involuntary. A post-conviction proceeding is a proper vehicle

       for challenging a guilty plea, and we look at the evidence before the post-

       conviction court that supports its determination that a guilty plea was

       voluntary, intelligent, and knowing. Moffitt v. State, 817 N.E.2d 239, 248-49

       (Ind. Ct. App. 2004), trans. denied. According to Slaton, the guilty plea was

       involuntary because the trial court did not inform him of his rights pursuant to

       Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969). See Hall v. State, 849

       N.E.2d 466, 469 (Ind. 2006) (“Boykin requires that the record must show, or

       there must be an allegation and evidence which show, that the defendant was

       informed of, and waived, three specific federal constitutional rights: the

       privilege against compulsory self-incrimination, right to trial by jury, and the

       right to confront one’s accusers.”); see also Ind. Code § 35-35-1-2. 2 The State,




       2
           At the time of Slaton’s offense and trial, Indiana Code Section 35-35-1-2(a) provided:

                The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime
                without first determining that the defendant:
                (1) understands the nature of the charge against the defendant;
                (2) has been informed that by the defendant’s plea the defendant waives the defendant’s rights
                to:
                  (A) a public and speedy trial by jury;
                  (B) confront and cross-examine the witnesses against the defendant;
                  (C) have compulsory process for obtaining witnesses in the defendant’s favor; and

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019                         Page 11 of 20
       however, argues that Slaton did not plead guilty to the habitual substance

       offender allegation; rather, Slaton stipulated to the facts and a Boykin

       advisement was not required.


[18]   After the jury found Slaton guilty, the following discussion occurred outside the

       presence of the jury:


               BY COURT: Okay. Have the parties talked about - everybody
               can be seated. Have the parties had any conversation about the
               remaining Count [the habitual offender count]?


               [Deputy Prosecutor]: Judge with respect to the remaining count
               the terms of years is three to eight years. The State is willing to
               make an offer on the HSO if Defendant pleads of [sic] three years
               with the Court to determine placement.


               BY COURT: Okay.




               (D) require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at
               which the defendant may not be compelled to testify against himself or herself;
             (3) has been informed of the maximum possible sentence and minimum sentence for the crime
             charged and any possible increased sentence by reason of the fact of a prior conviction or
             convictions, and any possibility of the imposition of consecutive sentences;
             (4) has been informed that the person will lose the right to possess a firearm if the person is
             convicted of a crime of domestic violence (IC 35-31.5-2-78); and
             (5) has been informed that if:
               (A) there is a plea agreement as defined by IC 35-31.5-2-236; and
               (B) the court accepts the plea;
             the court is bound by the terms of the plea agreement.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019                     Page 12 of 20
        [Deputy Prosecutor]: But there needs to be a decision because
        the jury is waiting.


        BY COURT: Right. You want to talk to your client about that?


        [The parties then arrange a meeting between defense counsel and
        Slaton]


        BY COURT: Okay. All right. Come and get me when you’re
        finished.


                                              *****


        [Defense Counsel]: Mr. Slaton I have advised you that the State
        has offered you a plea deal for three years and at this time after
        hearing the maximum and the minimum that you can serve if
        you go to trial on this what would you like to do?


        BY DEFENDANT: Take the three I guess.


        [Defense Counsel]: He wants to take the three year offer.


        BY COURT: Okay. Is that a voluntary act on your part sir?


        BY DEFENDANT: Yeah (affirmative) as much as I hate to
        even do time at all.


        BY COURT: Okay. Well it’s an enhancement of your sentence
        so if you appeal your sentence and you get it reversed then this
        goes away. Do you understand that?


        BY DEFENDANT: I know.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 13 of 20
               BY COURT: Okay. And so you admit that you have those two
               misdemeanor marijuana possession charges?


               BY DEFENDANT: Yes.


               BY COURT: Okay. And that you - you’d have a right to a
               hearing on that and your Counsel would be here, you’d have a
               right to question the evidence just like you did at the trial. Do
               you understand all that? Do you understand that sir?


               BY DEFENDANT: Yeah (affirmative).


               BY COURT: Okay. All right. And you want to go ahead and
               admit that that petition they’ve filed is true, is that right?


               BY DEFENDANT: Yes.


               BY COURT: Okay. Let’s set a sentencing date then. We’ll
               show an admission. Let’s set a sentencing date for . . .


       Trial Tr. Vol. pp. 402-05.


[19]   The chronological case summary provides a “Plea Guilty” disposition of the

       habitual substance offender allegation on the day of the trial. Appellant’s

       Direct Appeal Suppl. App. p. 72. At sentencing, however, the CCS provides:

       “Defendant admitted to the Habitual Substance Offender count during Trial by

       jury.” Id. at 73. The trial court’s sentencing order provides both a “Plea

       Guilty” with respect to the habitual substance offender allegation and that

       “Defendant admitted to the Habitual Substance Offender count during Trial by

       Jury.” Direct Appeal App. Vol. I p. 125.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 14 of 20
[20]   The PC court found that Slaton did not, in fact, plead guilty. Rather, the PC

       court found Slaton’s situation “nearly identical” to the situation in Hopkins v.

       State, 889 N.E.2d 314 (Ind. 2008), and concluded:


               The trial transcript establishes that after the jury found Petitioner
               guilty of two charges, the State offered that it would agree to a
               sentence of three (3) years with the Court to determine placement
               for execution of the sentence if Petitioner admitted to “the
               HSO.” After discussions with trial counsel, Petitioner agreed to
               do so. The jury was still present in the jury room and the State
               had witnesses and exhibits. The State submitted its evidence to
               trial counsel who was granted time to review and discuss the
               evidence and its implications and consequences with Petitioner.
               Petitioner then admitted the two (2) misdemeanor convictions for
               possession of marijuana that were listed on the documents and
               confirmed that he was doing so voluntarily. After further
               inquiry, he also admitted that the State’s allegations in its
               pleading were true – that the convictions were prior and
               unrelated as set forth in the statute. Because Petitioner did not
               plead guilty but rather stipulated to facts, the Court was not
               required to confirm Petitioner had been advised of and waived
               any specific rights before accepting his admission. Consequently,
               Petitioner had failed to carry his burden of proof as to this
               allegation.


       Appellant’s App. Vol. II pp. 13-14.


[21]   In Hopkins, the defendant challenged his habitual offender status in a petition

       for PCR. He argued that his “guilty plea” to the habitual offender allegation

       was not voluntary and intelligent because he was not advised of his rights under

       Boykin, including his right against self-incrimination, the right to trial by jury,

       and the right to confront his accusers. The parties, however, contested whether

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 15 of 20
       the defendant had entered into a guilty plea or a stipulation of facts. The post-

       conviction court determined that the defendant had entered into a stipulation of

       facts, not a guilty plea. Consequently, the defendant was not required to be

       advised of his Boykin rights.


[22]   On appeal, our Supreme Court noted the following:


               After the jury returned its verdict on the principal charges back in
               2000, Hopkins and his lawyers indicated a desire to waive trial by
               jury on the habitual allegation. There followed a discussion
               between the trial court, counsel, and the defendant.


                    MR. GELLER: Yes, Judge, (inaudible). . . . Judge, my client
                    will admit to the elements involved in the habitual offender.


                                                      ******


                    THE COURT: Mr. Hopkins, you’re aware that you have the
                    continuing right to have this phase of the trial determined by
                    the Jury which has previously been sworn in this cause—is
                    that correct?


                    DEFENDANT ANTHONY HOPKINS: Yes.


                    THE COURT: And it’s your choice to waive that jury trial
                    and to proceed by stipulation and admit your guilt on the—or
                    admit that the State has proven the habitual offender
                    sentence enhancement—is that correct, sir?


                    DEFENDANT ANTHONY HOPKINS: Is it—can I ask
                    you a question on this?


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 16 of 20
             THE COURT: Um hum . . . .


             DEFENDANT ANTHONY HOPKINS: As far as me
             pleading guilty on that. If I appeal my case and over turn
             [sic] it—does that still stand—if I plead guilty for the
             habitual?


                                               ******


             THE COURT: Okay—it is correct that if you appeal and the
             Court of Appeals over turns [sic] the conviction upon which
             the Court attaches the sentencing enhancement, then that’s
             out—because it’s not a new crime. It’s enhancement of that
             sentence. It is also possible that the Court of Appeals could
             reverse and remand for retrial—if the reversal wasn’t for
             insufficiency of the evidence. So, it could get reversed. It
             could come back and we could retry that count in theory and
             then the sentencing enhancement could again attach. Do
             you understand that?


             DEFENDANT ANTHONY HOPKINS: Yes, ma’am.


                                               ******


             THE COURT: Okay—I believe I asked you, but let me
             repeat or—just to cover my bases, that you have the right
             to—continuing right to counsel throughout the habitual
             phase of this trial. Do you understand that?


             DEFENDANT ANTHONY HOPKINS: Yes, ma’am.


             THE COURT: Okay. Do you want to proceed with the
             stipulation of the habitual sentencing enhancement at this
             time?
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 17 of 20
             DEFENDANT ANTHONY HOPKINS: Yes, ma’am.


             [The State then set forth the dates of the commission,
             conviction, and sentencing of the three felony offenses used
             to establish Hopkins’ habitual offender status, and the
             exhibits were admitted into evidence without objection from
             Hopkins.]


             THE COURT: Okay, Mr. Hopkins, is that true as stated by
             the Prosecutor?


             DEFENDANT ANTHONY HOPKINS: Yes, ma’am.


                                               ******


             THE COURT: Okay, the Court finds that the State has
             proven that Anthony Hopkins accumulated three—two or
             more—in this case, three, prior unrelated felony convictions.
             The commission, conviction and sentencing on the first
             occurring before the commission, conviction and sentencing
             [on the second]; the second which occurred before the
             commission, conviction and sentencing on the third—all of
             which occurred before the commission and conviction of Mr.
             Hopkins in the present case. And we will show that the
             sentence enhancement has been—habitual sentence
             enhancement has been proven.


        (Tr. at 737-47 (emphasis added).) The trial court then brought
        the jurors back into the courtroom and informed them what had
        just transpired: “Okay—the good news is that [phase two] of this
        trial, the Defendant [ ] and the State resolved by stipulation or
        admission.” (Id. at 748 (emphasis added).) The Court then
        dismissed the jury and eventually imposed additional years for
        the habitual.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 18 of 20
       Hopkins, 889 N.E.2d at 315-17. Our Supreme Court agreed with the post-

       conviction court and held that the “post-conviction court’s determination that

       what occurred was a stipulation rather than a plea should stand.” Id. at 317.


[23]   We agree that this case is much like Hopkins. As in Hopkins, the trial court and

       the parties here mentioned both guilty pleas and admitting prior convictions.

       Slaton attempts to argue that he was in fact pleading guilty because, in addition

       to admitting to the underlying prior offenses, he also admitted that the petition

       was true. The petition alleged that Slaton had two prior substance offenses,

       which were Class A misdemeanors or Class D felonies and were unrelated to

       the current substance offenses charged. The PC court found that Slaton was

       merely admitting “that the State’s allegations in its pleading were true – that the

       convictions were prior and unrelated as set forth in the statute.” Appellant’s

       App. Vol. II p. 102.


[24]   As in Hopkins, although the trial court could have been much clearer here in the

       procedure it was following, we cannot say that the PC court’s conclusion is

       clearly erroneous. Because the PC court determined that the procedure here

       was a stipulation rather than a guilty plea, the Boykin advisements were not

       required. The PC court’s denial of Slaton’s PCR petition on this issue is not

       clearly erroneous.


                                                  Conclusion
[25]   The PC court’s denial of Slaton’s petition for PCR is not clearly erroneous. We

       affirm.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 19 of 20
[26]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1607 | April 16, 2019   Page 20 of 20
