MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 14 2018, 10:19 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




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Aaron Blanche                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Aaron Blanche,                                          December 14, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-CR-1619
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley E. Kroh,
Appellee-Respondent.                                    Magistrate
                                                        Trial Court Cause No.
                                                        49F15-9203-PC-44282



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018             Page 1 of 9
                                          Case Summary
[1]   Pro-se litigant Aaron Blanche (“Blanche”) appeals the denial of his Motion to

      Dismiss Felony Enhancement, arguing that his 1992 conviction for Carrying a

      Handgun Without a License was improperly elevated to a Class D felony. 1 The

      State argues the elevation was proper—but, as a threshold matter, challenges

      the jurisdictional footing of this appeal. The State asserts, inter alia, that the

      appeal is improperly before us because Blanche has not expressly pursued a

      petition for post-conviction relief. However, for the reasons herein, we address

      this case as an appeal from the denial of a petition for post-conviction relief.


[2]   We affirm.



                                Facts and Procedural History
[3]   In 1992, the State filed a two-part information alleging (1) that Blanche had

      committed Carrying a Handgun Without a License as a Class A misdemeanor

      and (2) that Blanche had a prior felony conviction that would elevate the

      offense to a Class D felony. As to the prior felony, the information stated:


                 AARON BLANCHE, on or about March 27, 1992, was
                 previously convicted of a felony within fifteen (15) years before
                 the date of this offense, that is: Theft in Marion County Superior




      1
          Ind. Code §§ 35-47-2-1, -23.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 2 of 9
              Court Number Two (II), Cause Number 49G028912CF142445,
              on June 14, 1990 . . . .


      Appellee’s App. Vol. 2 at 4. Blanche and the State reached an agreement

      whereby Blanche would plead guilty to the Class D felony and the State would,

      among other things, recommend a specific sentence. The trial court accepted

      the plea and entered judgment of conviction on the Class D felony.


[4]   In January 2014, Blanche filed a petition for post-conviction relief as to the

      instant conviction, but later sought and obtained dismissal without prejudice.

      At some point, Blanche also sought post-conviction relief concerning the 1990

      cause identified in the charging information. In a February 2016 order, that

      post-conviction court concluded that the only felony in that cause—Auto

      Theft—had been incorrectly entered as a Class C felony. The court directed the

      clerk to issue an amended Abstract of Judgment showing “Count 1 – Auto

      Theft, a Class D felony.” Appellant’s App. Vol. II at 15.


[5]   Blanche, pro se, filed the instant Motion to Dismiss Felony Enhancement on

      May 11, 2018. As an exhibit, Blanche provided the post-conviction order

      concerning his Auto Theft conviction. Blanche pointed out that his charging

      information identified a prior felony conviction for Theft. Blanche argued that

      “the information was defective” and that the elevation was “based off an

      invalid conviction for theft that did not exist.” Id. at 10. Blanche asked the

      court to dismiss the elevation and “let the record reflect that the handgun

      conviction show as a Class A misdemeanor.” Id. at 11. The court summarily

      denied relief, entering the following remarks: “Whether the prior felony
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 3 of 9
      conviction was a Class C felony or a Class D felony and used as part two of

      count one is irrelevant. The order from G02 does not show your plea

      agreement should be set aside.” Id. at 9.


[6]   Blanche now appeals.



                                Discussion and Decision
[7]   At the outset, we address the procedural posture of this case. “Generally, a trial

      judge has no authority over a defendant after he or she pronounces [a]

      sentence,” and “[a]ny continuing jurisdiction after final judgment has been

      pronounced must either derive from the judgment itself or be granted to the

      court by statute or rule.” State v. Fulkrod, 735 N.E.2d 851, 852 (Ind. Ct. App.

      2000), summarily aff’d. Here, more than twenty years after sentencing—well

      after any deadline for direct appeal—Blanche filed a document with the

      following title: Motion to Dismiss Felony Enhancement. Therein, Blanche

      focused on sections of the Indiana Code that, in general, relate only to pre-trial

      motions to dismiss a charging information. At bottom, however, Blanche

      sought to withdraw aspects of his guilty plea, requesting that the court “dismiss

      [his] felony enhancement.” Appellant’s App. Vol. II at 6. Indeed, the court

      recognized the nature of Blanche’s request, remarking that “[t]he order from

      G02 does not show your plea agreement should be set aside.” Id. at 9.


[8]   Indiana Code Section 35-35-1-4(c) provides that “[a] motion to vacate judgment

      and withdraw the plea . . . shall be treated by the court as a petition for


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 4 of 9
      postconviction relief under the Indiana Rules of Procedure for Postconviction

      Remedies.” Thus, Blanche’s claim was properly before the court as a petition

      for post-conviction relief—and we treat this case as an appeal from the denial of

      that petition. See State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013) (“A motion to

      set aside a guilty plea is treated as a petition for post-conviction relief.” (citing

      I.C. § 35-35-1-4)); cf. State v. Arnold, 27 N.E.3d 315, 319 (Ind. Ct. App. 2015)

      (“[I]n the interests of judicial economy we will treat [the] motion to set aside

      habitual offender enhancement as a request for postconviction relief and review

      the trial court’s judgment accordingly.”), trans. denied. We therefore discern no

      jurisdictional impairment and proceed to the merits of this case. See I.C. § 35-

      35-1-4(e) (“The order of the court upon a motion made under subsection . . . (c)

      of this section shall constitute a final judgment from which the moving party or

      the [S]tate may appeal as otherwise provided by law.”); Ind. Post-Conviction

      Rule 1(7) (“An appeal may be taken by the petitioner or the State from the final

      judgment in this proceeding, under rules applicable to civil actions.”); Ind.

      Appellate Rule 5 (providing jurisdiction over appeals from final judgments).


[9]   In post-conviction matters, “[t]he petitioner has the burden of establishing his

      grounds for relief by a preponderance of the evidence.” P-C.R. 1(5); see also I.C.

      § 35-35-1-4(e) (identifying this burden of proof for post-sentencing motions

      involving the withdrawal of a plea of guilty). Moreover, “[i]f the pleadings

      conclusively show that petitioner is entitled to no relief, the court may deny the

      petition without further proceedings.” P-C.R. 1(4)(f); see also Godby v. State, 809

      N.E.2d 480, 482 (Ind. Ct. App. 2004) (“Where the post-conviction court is able


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 5 of 9
       to determine, after reading the petition and consulting the record, that there is

       no factual issue in dispute, a summary denial of a petition for post-conviction

       relief is proper.”), trans. denied. What is more, when the petitioner appeals the

       denial of his petition, he is in the position of appealing a negative judgment.

       Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). “In order to prevail on an

       appeal from the denial of post-conviction relief, a petitioner must show that the

       evidence leads unerringly and unmistakably to a conclusion opposite that

       reached by the post-conviction court.” Id. Moreover, in conducting our

       review, “we do not defer to the court’s legal conclusions,” and will reverse the

       court’s findings and judgment only upon a showing of clear error—that which

       leaves us with a definite and firm conviction that a mistake has been made. Id.


[10]   Pursuant to Indiana Code Section 35-35-1-4(c)—which directs us to treat the

       instant motion as a petition for post-conviction relief—“[u]pon motion of the

       convicted person, the court shall vacate the judgment and allow the withdrawal

       [of the plea of guilty] whenever the convicted person proves that withdrawal is

       necessary to correct a manifest injustice.” The statute further provides:


               For purposes of this section, withdrawal of the plea is necessary
               to correct a manifest injustice whenever:


                       (1) the convicted person was denied the effective assistance
                       of counsel;


                       (2) the plea was not entered or ratified by the convicted
                       person;



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 6 of 9
                       (3) the plea was not knowingly and voluntarily made;


                       (4) the prosecuting attorney failed to abide by the terms of
                       a plea agreement; or


                       (5) the plea and judgment of conviction are void or
                       voidable for any other reason.


       I.C. § 35-35-1-4(c). Here, it appears that only subparagraph (5) applies.


[11]   In Oney, the Indiana Supreme Court affirmed the grant of post-conviction relief

       under subparagraph (5). There, the petitioner had pleaded guilty to operating a

       vehicle while suspended as a habitual traffic violator (“HTV”). Oney, 993

       N.E.2d at 160. The HTV status was based upon, inter alia, a 1989 conviction.

       Id. Later, a post-conviction court vacated that 1989 conviction. Id. at 161. The

       petitioner then sought to set aside his plea of guilty to the HTV offense. Id.

       The court set aside the plea and vacated the HTV conviction. Id. On transfer,

       the Indiana Supreme Court concluded that “[t]he absence of a predicate offense

       justifying an HTV determination provided sufficient basis for the trial court

       here—acting as a post-conviction court—to conclude that the guilty plea and

       judgment of conviction were voidable.” Id. at 166.


[12]   In this case, the pertinent statutes provided that Carrying a Handgun Without a

       License could be elevated to a Class D felony if the defendant “ha[d] been

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

       I.C. § 35-47-2-23. The State alleged that there was a qualifying felony offense:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 7 of 9
               AARON BLANCHE, on or about March 27, 1992, was
               previously convicted of a felony within fifteen (15) years before
               the date of this offense, that is: Theft in Marion County Superior
               Court Number Two (II), Cause Number 49G028912CF142445,
               on June 14, 1990 . . . .


       Appellee’s App. Vol. 2 at 4. Blanche pleaded guilty to the offense as a Class D

       felony. In doing so, Blanche signed a plea agreement containing this provision:


               The defendant further acknowledges that entry of a guilty plea
               pursuant to this agreement constitutes an admission of the truth
               of all facts alleged in the charge or counts to which the defendant
               pleads guilty and that entry of the guilty plea will result in a
               conviction on those charges or counts.


       Id. at 7.


[13]   Blanche now seeks relief, claiming that “the information was defective, i.e., no

       conviction for theft ever existed . . . and as a matter of law, [he] was not eligible

       for an enhancement.” Appellant’s Br. at 5-6. Yet, Blanche does not dispute his

       felony conviction of Auto Theft in the 1990 cause—and, in contrast with Oney,

       the offense was not vacated through subsequent post-conviction proceedings.

       Ultimately, Blanche appears to complain only of the description of the felony

       identified in the information: that the felony offense was described as Theft but

       should have been described as a more particular type of theft, i.e., Auto Theft.


[14]   Yet, under the applicable statute, the information need only contain a “plain,

       concise, and definite written statement of the essential facts constituting the

       offense charged” and “need not contain . . . any other matter not necessary to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 8 of 9
       the statement.” I.C. § 35-34-1-2. Moreover, it is well-settled that courts

       disregard surplusage in charging instruments. See, e.g., Powell v. State, 250 Ind.

       663, 237 N.E.2d 95, 98 (1968) (acknowledging the “general rule” that what is

       unnecessary to allege is automatically unnecessary to prove). Here, the State

       sought an elevated conviction, and alleged the existence of a predicate felony

       offense. The State identified a particular cause number and there was a felony

       conviction under that cause number. We conclude that the State adequately

       alleged the existence of a predicate offense—and, because it was unnecessary

       for the State to further describe the offense, the complained-of language

       amounts to mere surplusage. See Madison v. State, 234 Ind. 517, 130 N.E.2d 35,

       47 (1955) (“Unnecessary descriptive material in a charge is surplusage.”); see

       also Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997). Ultimately, Blanche has

       failed to identify any defect in the charging information, and has failed to

       demonstrate manifest injustice that would support withdrawal of his plea.


[15]   Blanche has not demonstrated an unerring, unmistakable entitlement to relief.


[16]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 9 of 9
