MEMORANDUM DECISION
                                                                     Mar 15 2016, 9:12 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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen T. Owens                                        Gregory F. Zoeller
Public Defender of Indiana                              Attorney General of Indiana

Tracy A. Nelson                                         Eric P. Babbs
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Demajio Ellis,                                          March 15, 2016
Appellant-Petitioner,                                   Court of Appeals Cause No.
                                                        71A05-1511-PC-1845
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jerome Frese,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        71D03-1301-PC-1



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016        Page 1 of 16
                                             Case Summary
[1]   Demajio Ellis appeals the trial court’s denial of his petition for post-conviction

      relief. We affirm.


                                                     Issue
[2]   The sole restated issue is whether Ellis consistently denied culpability for the

      crimes to which he plead guilty, undermining the reliability of his plea and

      requiring the post-conviction court to vacate it as a matter of law.


                                                     Facts
[3]   In November 2010, Ellis and his cousin, Shawn Alexander, approached two

      teenage boys and forced them into an abandoned house. There, Ellis and

      Alexander took a pocket knife and a hat and/or jacket from the boys.

      Alexander slashed the boys’ throats, and he and Ellis left.


[4]   The State charged Ellis with two counts of attempted murder and two counts of

      attempted robbery, all Class A felonies, under an accomplice theory of liability.

      On May 11, 2011, Ellis pled guilty to all four charges, and the State agreed to a

      fifty-year cap on Ellis’s executed sentence. During the June 22, 2011,

      sentencing hearing, Ellis filed, and then withdrew, a motion to withdraw his

      guilty plea. The trial court convicted Ellis of two counts of Class A felony

      attempted murder and two counts of attempted robbery as Class C felonies.

      The trial court sentenced Ellis to consecutive fifty-year sentences with thirty

      years suspended for each of the attempted murder convictions. It sentenced

      him to eight years for each of the attempted robbery convictions and ordered
      Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 2 of 16
      him to serve those sentences concurrent with his sentences for the Class A

      felonies. Ellis’s aggregate sentence was 100 years with sixty years suspended to

      probation.


[5]   On January 4, 2013, Ellis filed a petition for post-conviction relief, which

      counsel later amended twice. On August 28, 2015, the trial court held an

      evidentiary hearing. On October 12, 2015, the trial court denied Ellis’s second

      amended petition for post-conviction relief. Ellis appeals.


                                                  Analysis
[6]   At the outset, we note that Ellis contends the trial court failed to make specific

      findings of fact and enter conclusions of law with regard to the issue he appeals;

      the State agrees. Appellant’s Br. p. 7; Appellee’s Br. p. 16. The parties

      disagree, however, regarding the standard of review we should apply in such a

      situation. Ellis urges us to review his claim do novo. The State argues we may

      either remand this matter for findings and conclusions or address the issue on

      its merits “if the outcome is clear under any standard of review or if the issues

      are purely legal and not factual.” Appellee’s Br. p. 17.


[7]   We have reviewed the trial court’s order and determined it “contains sufficient

      information to enable review on the merits.” See Herman v. State, 526 N.E.2d

      1183, 1184 (Ind. 1988). Even if the order in this matter did not include the

      requisite specificity, Indiana courts have long held, “the failure to enter specific

      findings of fact and conclusions of law is not reversible error” and does not

      mandate a remand for more specific findings. Allen v. State, 749 N.E.2d 1158,

      Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 3 of 16
      1170 (Ind. 2001), cert. denied. Instead, where, as here, the issues are clear, the

      parties address them on their merits, and those issues are sufficiently presented

      for our review, we will find no reversible error. See Lowe v. State, 455 N.E.2d

      1126, 1128 (Ind. 1983) (citing Sims v. State, 422 N.E.2d 436, 438 (Ind. Ct. App.

      1981)); Adcock v. State, 22 N.E.3d 720, 724 (Ind. Ct. App. 2014).


[8]   “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). “When appealing from the denial of post-conviction relief, the

      petitioner stands in the position of one appealing from a negative judgment.”

      Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We review a post-conviction

      court’s factual findings under a “clearly erroneous” standard and do not defer

      to any legal conclusions. Huddleston v. State, 951 N.E.2d 277, 280 (Ind. Ct.

      App. 2011), trans. denied. We do not reweigh the evidence or judge the

      witnesses’ credibility and will examine only the probative evidence and

      reasonable inferences that support the post-conviction court’s decision. Id. We

      must determine if the court’s findings are sufficient to support the judgment. Id.


[9]   Ellis contends we should vacate his guilty plea pursuant to the Ross/Harshman

      rule because he protested his innocence during his guilty plea hearing and the

      trial court committed reversible error by accepting it.1 Harshman v. State, 232

      Ind. 618, 115 N.E.2d 501 (1953); Ross v. State, 456 N.E.2d 420 (Ind. 1983).



      1
       Although Ellis presented an additional argument—whether the factual basis was sufficient to support his
      guilty plea—in his petition for post-conviction relief, he does not raise that issue on appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016           Page 4 of 16
[10]   In North Carolina v. Alford, the Supreme Court found the United States

       Constitution does not bar a court from accepting a guilty plea when the

       defendant maintains innocence, but it recognized that the states may refuse to

       accept such pleas. 400 U.S.25, 38-39, 91 S.Ct. 160, 168 (1970). Indiana law

       has long refused to accept them: “a plea of guilty tendered by one who in the

       same breath protests his innocence, or declares he does not actually know

       whether or not he is guilty, is no plea at all.” Harshman, 232 Ind. at 621, 115

       N.E.2d at 502. “[A] judge may not accept a plea of guilty when the defendant

       both pleads guilty and maintains his innocence at the same time. To accept

       such a plea constitutes reversible error.” Ross, 456 N.E.2d at 423. Although

       Harshman and Ross clearly established that an Indiana court may not accept a

       guilty plea that is accompanied by a denial of guilt, application of that rule is

       contingent upon the protestation of innocence occurring at the same time the

       defendant attempts to enter the plea. Carter v. State, 739 N.E.2d 126, 129 (Ind.

       2000).


[11]   In support of his argument, Ellis directs us to these passages of the transcript:


                [DEFENSE ATTORNEY]:              Okay. At some point Shawn
                Alexander had a knife either that he got from them or he had
                before and he cut both their throats; is that right?


                MR. ELLIS:              Yes, sir.


                                                    *****




       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 5 of 16
               [DEFENSE ATTORNEY]:                Now, your involvement in this
               is that you were there for one thing, and you did hit or kick one
               of the individuals; is that right?


               MR. ELLIS:               Yes, sir.


               [DEFENSE ATTORNEY]:              And are you admitting by just
               being there and by your assault on one of the individuals you
               aided Shawn Alexander in doing the things that he did? You
               essentially helped him do what he did?


               THE COURT:               Well, you didn’t go away and say cut this out
               or –


               [DEFENSE ATTORNEY]:                       Right. You didn’t stop him?


               THE COURT:               -- argue it or anything?


               MR. ELLIS:               I did tell him don’t do it, sir, you know.


               THE COURT:               Well, but you still stayed around . . . .


       Appellant’s Br. p. 9 (quoting Ex. 4, pp. 23-25) (emphasis added by Appellant)

       (omissions by Appellant). This is the only portion of the guilty plea hearing to

       which Ellis cites. Instead, Ellis quotes generous portions of the transcript from

       the sentencing hearing and bases much of his argument on the dialogue from that

       proceeding. See Appellant’s Br. pp. 10-12.


[12]   The Ross rule, by its language, applies only to defendants who plead guilty and

       maintain their innocence at the same time. Patton v. State, 517 N.E.2d 374, 376

       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 6 of 16
       (Ind. 1987). In order for the Ross/Harshman rule to apply, a defendant's

       protestation of innocence must occur at the same time as the defendant

       attempts to enter the plea and not at a later time or in a different proceeding.2

       Johnson v. State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (citing Cater, 739

       N.E.2d at 129) (emphasis added).

                There is a substantive difference between a defendant who
                maintains innocence but asks the court to impose punishment
                without trial, and one who concedes guilt in one proceeding but
                contradicts that admission by claiming innocence in a later
                proceeding. In the former case, the defendant has consistently
                denied culpability, and has therefore never made the reliable
                admission of guilt that Indiana requires. In the latter case, a
                defendant under oath has told the court two opposing stories,
                both of which cannot be true.


                An admission of guilt that is later retracted may nonetheless be
                reliable. Admissions of guilt and assertions of innocence come in
                many shades of gray, and the trial judge is best situated to assess
                the reliability of each.


       Carter, 739 N.E.2d at 130. The case law is clear: we may not consider the

       statements Ellis made during the sentencing hearing.


[13]   The following is the entirety of the factual basis given during Ellis’s guilty plea

       hearing, giving full context to the brief passage upon which Ellis relies:




       2 Captial cases are the exception to this rule. See Patton, 517 N.E.2d at 376 (“Patton did
       not protest his innocence at the same time as he pled guilty, but he did firmly contradict his admission of guilt
       at the sentencing hearing. Although the plea and contradiction were separate in time, the principle
       of Ross must apply to the sentencing hearing in a capital case.”)

       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016                Page 7 of 16
        THE COURT:               Can we have a factual here?


        [DEFENSE ATTORNEY]:             Mr. Ellis, back on November
             th
        the 6 of last year you were with Shawn Alexander; is that right?


        MR. ELLIS: Yes, sir.


        [DEFENSE ATTORNEY]:             And sometime during that night
        you two met up with guys named Jerry and Jason at McDonald’s
        originally on South Michigan Street; is that right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:            And then later when you guys
        were walking along by Riley High School you saw those two
        again?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:              Now, we know part of what
        you’re charged with is that you aided Shawn in doing things, that
        he’s the main one who was involved in doing this; is that right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:             And the first thing that was
        done I guess is he somewhat forced these guys to go into a vacant
        house; is that right?


        MR. ELLIS:               Yes, sir.




Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 8 of 16
        [DEFENSE ATTORNEY]:                       And then later out into an alley
        I guess. Right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:                       At some point he – well, tell me
        what he did.


        MR. ELLIS:         Okay. It started off earlier when we were at
        McDonald’s. Later on we seen them. We was walking down St.
        Joe, and they was walking down Calvert Street. He called their
        name. We went up to them, and we was like what’s up, you
        know, we seen ya’ll earlier, you know.


        Then the police ran past us coming from St. Joe going down
        Calvert. So Shawn and I started walking off. I guess he thought
        the police were called. Somebody called the police. Because,
        you know, at this time he had one of they knives, you know. I
        guess he thought that, you know, maybe somebody called the
        police said that he went in they pocket or whatever. So then –


        [DEFENSE ATTORNEY]:             You said he had one of their
        knives. How did he get one of their knives?


        MR. ELLIS:        I guess he took it out the pocket. Because,
        you know, we walked up, and you know, I didn’t speak to them
        at McDonald’s, and like, you know, he knew who they was from
        McDonald’s like.


        Like from the story I didn’t do nothing, you know, sir. I was
        involved to the point that I did hit somebody, but I didn’t cut
        nobody. I did not rob nobody, sir.




Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 9 of 16
        [DEFENSE ATTORNEY]:              Okay. At some point Shawn
        Alexander had a knife either that he got from them or he had
        before and he cut both their throats; is that right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:             Okay. Not to the point that
        they were dead because they got up and got away. But he cut
        their throats. Right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:             And part of cutting their throats
        was that you guys either attempted or did take some property
        from them. Right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:                       And one of the things that was
        probably taken was a knife?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:             But then there was also a hat or
        something else that was taken – or a coat that was taken from
        somebody else. Right?


        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:                Now, your involvement in this
        is that you were there for one thing, and you did hit or kick one
        of the individuals; is that right?


Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 10 of 16
        MR. ELLIS:               Yes, sir.


        [DEFENSE ATTORNEY]:              And are you admitting by just
        being there and by your assault on one of the individuals you
        aided Shawn Alexander in doing the things that he did? You
        essentially helped him do what he did?


        THE COURT:               Well, you didn’t go away and say cut this out
        or –


        [DEFENSE ATTORNEY]:                       Right. You didn’t stop him?


        THE COURT:               -- argue it or anything?


        MR. ELLIS:               I did tell him don’t do it, sir, you know.


        THE COURT:          Well, but you still stayed around. You did
        hit one of them or kick them or something?


        MR. ELLIS:               Yes, sir.


        THE COURT:               Why did you do that?


        MR. ELLIS:               You know –


        THE COURT:               Being stupid?


        MR. ELLIS:               You know, it was my decision I made to do.


        THE COURT:               Okay. Okay. All this was here in South
        Bend. Right?


Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 11 of 16
        MR. ELLIS:               Yes, sir.


        THE COURT:          Okay. Are you okay on the factual? What
        was the – oh, serious bodily injury, was it? Was it serious bodily
        injury?


        [THE STATE]:             Yes.


        THE COURT:          Surely if somebody takes a knife and cuts
        your throat even a little bit, that’s pretty serious stuff; wouldn’t
        you agree?


        MR. ELLIS:               Yes, sir.


        THE COURT:               I mean you could hit a carotid or whatever.
        Right?


        MR. ELLIS:               Uh-huh.


        THE COURT:               And he cut both of them?


        MR. ELLIS:               Yes, sir.


        THE COURT:               Gees. That’s terrible. Okay. All right. Yes?
        What?


        [THE STATE]:          Your Honor, the State does generally agree
        with Mr. Ellis. Based on lots of the interviews and victims in this
        case and in the other ones, we do believe that Mr. Alexander was
        the primary actor. But it is also the State’s position that Mr. Ellis
        was a part of it, did act to help to assist, aid, and that’s what he’s
        agreeing to today is my take on this. Is that correct?


Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 12 of 16
               MR. ELLIS:               Yes, sir.


               THE COURT:            Yea, I guess the bottom line on it, Demajio,
               is you didn’t stay there because you were afraid that he’d kill you
               if you tried to leave or something? That wasn’t the situation?


               MR. ELLIS:               No, sir.


               THE COURT:               You had made a very bad decision?


               MR. ELLIS:               Yes, sir.


               THE COURT:               Okay. All right. Let’s get a pre-sentence
               report.


       Ex. 4, pp. 21-27.


[14]   The post-conviction court concluded:


               This Court was not required to reject Defendant’s plea when he
               himself had acknowledged that he had participated with Shawn
               Alexander in confronting the two victims, physically attacking
               them, failing to oppose Alexander’s cutting of their throats,
               failing to withdraw (at the least) from this attack, and sharing in
               its fruits.


       Appellant’s App. p. 4. Implicit in the trial court’s conclusion is that Ellis did

       not maintain his innocence. To the extent the post-conviction court relied on

       statements Ellis made during the sentencing hearing, that reliance is improper.

       Nonetheless, our review of the entire guilty plea hearing reveals that Ellis did

       not consistently deny his guilt in such a way that would render his plea

       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 13 of 16
       unreliable. Instead, Ellis admitted that he aided Alexander in forcing two boys

       into a vacant house and then into an alley, that a knife and at least one article of

       clothing was taken from one of the boys, that Alexander cut the boys’ throats,

       that Ellis himself hit or kicked one of the boys, and that “it was [Ellis’s] decision

       [he] made to do.” See Ex. 4, pp. 22-25.


[15]   Ellis protested his role as the primary actor—“Like from the story I didn’t do

       nothing, you know, sir. I was involved to the point that I did hit somebody, but

       I didn’t cut nobody. I did not rob nobody, sir.”—but the State charged Ellis

       under an accomplice theory of liability. Id. at 23. Whether Ellis was the

       primary actor or Alexander’s accomplice is a distinction without a difference in

       this case. “It is well established that a person who aids another in committing a

       crime is just as guilty as the actual perpetrator.” Hart v. State, 30 N.E.3d 1283,

       1288 (Ind. Ct. App. 2015), trans. denied. Ellis’s explanation that he was not the

       primary actor is not a claim of innocence, and it does not affect the reliability of

       his guilty plea. Ellis also unwaveringly admitted—twice—that he aided

       Alexander. See Ex. 4, p. 22 (answering, “Yes, sir” to the question, “Now, we

       know part of what you’re charged with is that you aided [Alexander] in doing

       things, that he’s the main one who was involved in doing this; is that right?”)

       and Id. at 26 (answering, “Yes, sir” to the question, “[I]t is also the State’s

       position that Mr. Ellis was a part of it, did act to help to assist, aid, and that’s

       what he’s agreeing to today is my take on this. Is that correct?”).


[16]   Ellis contends, “[d]uring the guilty plea hearing, no one mentioned specific

       intent, much less asked Ellis if he intended for his accomplice to kill the victims.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 14 of 16
       Ellis denied any such intent by telling the court he instructed the accomplice not

       to cut the victims’ throats.” Appellant’s Br. p. 9. He directs our attention to his

       statement, “I did tell him don’t do it, sir, you know.” See Appellant’s Br. p. 9

       (quoting Tr. p. 25). We do not find that statement to be as clear-cut as Ellis

       argues it is. Ellis did not deny his culpability. Further, that single statement,

       read in the context of Ellis’s admissions, does not amount to the consistent

       denial of culpability Indiana case law requires to undermine the reliability of his

       plea. See Carter, 739 N.E.2d at 130.


[17]   Ellis seems to conflate protestation-of-innocence claims and claims that a guilty

       plea lacked a sufficient factual basis. “[T]he Ross/Harshman rule is applied

       separately from traditional factual-basis analysis.” Johnson v. State, 960 N.E.2d

       844, 849 (Ind. Ct. App. 2012). “[T]here is a difference between cases where the

       defendant actually denies guilt as to some necessary element of the offense and

       cases where the defendant merely fails to admit the existence of such an

       element.” Id. (citation omitted) (alteration in Johnson). In the latter scenario,

       an appellant must show he was prejudiced by the error and that establishing a

       factual basis would have affected his decision to plead guilty. 3 State v. Eiland,

       723 N.E.2d 863, 864-65 (Ind. 2000). Ellis has waived any claim that the factual




       3
        “A factual basis may be established by relatively minimal evidence about the elements of the crime from
       which the court could reasonably conclude that the defendant is guilty . . . ‘Reasonably concluding’ that a
       defendant is guilty for purposes of a factual basis is not the same as concluding guilt beyond a reasonable
       doubt.” Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App. 2011) aff'd on reh'g, 947 N.E.2d 962 (Ind. Ct.
       App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016            Page 15 of 16
       basis was insufficient in this case because he did not raise the issue on appeal.

       Therefore, we need not determine whether the factual basis was sufficient.


                                                 Conclusion
[18]   Ellis entered a reliable guilty plea and did not deny his culpability. His plea

       should not be vacated as a matter of law. The post-conviction court’s order

       denying Ellis’s petition is not clearly erroneous. We affirm.


[19]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1511-PC-1845| March 15, 2016   Page 16 of 16
