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
                                                            FILED
                                                         Oct 19 2012, 9:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                     CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

ALBERT HARRIS                                   GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ALBERT HARRIS,                                  )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 49A02-1205-PC-386
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marc T. Rothenberg, Judge
                        The Honorable Ann Flannelly, Commissioner
                             Cause No. 49F09-9503-PC-40173


                                     October 19, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Petitioner, Albert Harris (Harris), appeals the post-conviction court’s

denial of his petition for post-conviction relief.

       We affirm.

                                           ISSUES

       Harris raises two issues on appeal, which we restate as the following three issues:

       (1) Whether the post-conviction court erred in denying his claim that the trial court

           did not properly advise him of the minimum possible sentence he could receive

           before pleading guilty;

       (2) Whether the post-conviction court erred in denying his claim that his judgment

           of conviction was inappropriately entered by a master commissioner; and

       (3) Whether the post-conviction court erred in denying his claim that the trial

           court’s judgment was void because the trial court failed to sign his abstract of

           judgment.

                         FACTS AND PROCEDURAL HISTORY

        On March 22, 1995, Police Officer David Schutz (Officer Schutz) of the Marion

County Police Department received a radio dispatch concerning a stolen 1984 gray

Chevy van with temporary plates. While en route to the location of the theft, he turned

eastbound at an intersection and saw a vehicle matching the stolen van’s description

traveling in the same direction. At that point, the driver of the van, later identified as

Harris, began “accelerating in an erratic manner.” (G.P. Transcript p. 7). He crossed the
                                               2
double yellow line into the westbound lane in an attempt to overtake and pass a smaller

gray vehicle that was traveling eastbound. Officer Schutz activated his emergency lights

and pursued Harris. Harris continued to accelerate but lost control of his vehicle. The

vehicle skidded, veered to the right, and eventually flipped over onto its side. Officer

Schutz got out of his vehicle and observed Harris attempting to flee but apprehended him

before he could.

        On June 7, 1995, the trial court held a hearing and Harris pled guilty to Count I,

auto theft, a Class D felony.1 In exchange, the State dismissed Count II, resisting law

enforcement, as well as charges against Harris in another Cause. That same day, the trial

court sentenced Harris to 545 days executed.

        On September 23, 2011, Harris filed a petition for post-conviction relief in which

he claimed that: (1) his guilty plea was not made intelligently, knowingly, or voluntarily

because the trial court failed to advise him that he could be sentenced to a Class A

misdemeanor instead of a Class D felony; (2) the judgment of conviction was improper

because it was not signed by a judge; and (3) the abstract of judgment was not signed by

the trial court. On February 8, 2012, the post-conviction court held a hearing on the

petition and denied all of Harris’ claims.

        Harris now appeals. Additional facts will be provided as necessary.

1
 Harris has failed to provide an Appellant’s Appendix that complies with the requirements of Indiana
Appellate Rule 50(A). His Appendix does not include copies of the Chronological Case Summary, his
petition for post-conviction relief, his charging Information, or his plea agreement. Accordingly, we do
not know the exact date or nature of his charges. Nevertheless, we will attempt to address his arguments
based on the record before us.

                                                    3
                                  DISCUSSION AND DECISION

        On appeal from the denial of post-conviction relief, a petitioner stands in the

position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,

498 (Ind. 2011). In such a case, a petitioner must show that the evidence, taken as a

whole, leads unerringly and unmistakably to a conclusion opposite that reached by the

trial court. Id. We do not defer to the post-conviction court’s legal conclusions, but we

will reverse only on a showing of clear error. Id. Moreover, this court will only consider

the probative evidence and all reasonable inferences therefrom that support the post-

conviction court’s determination and will not reweigh the evidence. Bigler v. State, 732

N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.

                                     I. Guilty Plea Advisements

         First, Harris argues that he did not intelligently, knowingly, or voluntarily enter

into his plea agreement because the trial court did not inform him of the possibility that

he could be sentenced for a Class A misdemeanor rather than a Class D felony. Before a

criminal defendant pleads guilty, the trial court is required to advise the defendant of the

maximum and minimum possible sentences for the offenses to which he is pleading

guilty. I.C. § 35-35-1-2. At the time of Harris’ offense, the maximum possible sentence

for a Class D felony was three years’ imprisonment, and the minimum sentence was six

months’ imprisonment. I.C. § 35-50-2-7(a) (1993).2 However, pursuant to I.C. § 35-50-

2
 We will evaluate Harris’ claims under the sentencing statute in effect in 1995, as our supreme court
declared in Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) that the sentencing statute in effect
at the time a crime is committed governs the sentence for that crime.

                                                     4
2-7(b) (1993), “notwithstanding subsection (a), if a person has committed a Class D

felony, the court may enter judgment of conviction of a Class A misdemeanor and

sentence accordingly.” Harris points to this provision as evidence that the trial court

should have advised him that he could be sentenced for a Class A misdemeanor rather

than a Class D felony. We disagree.

      I.C. §§ 35-50-2-7(b)(1),-(2) (1993) list certain exceptions to the trial court’s ability

to sentence a defendant for a Class A misdemeanor rather than a Class D felony. I.C. §

35-50-2-7(b) (1993) states: “however, the court shall enter a judgment of conviction of a

Class D felony if . . . (2) the offense is auto theft (I.C. § 35-43-4-2.5).” Thus, because

Harris was convicted of auto theft as a Class D felony, the trial court did not have the

discretion to lower his sentence to that of a Class A misdemeanor.             We therefore

conclude that the post-conviction court did not err in denying Harris’ claim that he was

not informed of a potential Class A misdemeanor sentence.

                               II. Judgment of Conviction

      Next, Harris argues that his judgment and sentence are void because the master

commissioner rather than the presiding judge of the trial court signed his judgment of

conviction. He contends that under I.C. § 33-5-35.1-8(f), the rules governing magistrates

were applicable to commissioners, including I.C. §§ 33-4-7-4, -8, which provided that a

magistrate could not enter a final judgment unless sitting as judge pro tempore or special

judge. The transcript of Harris’ guilty plea and sentencing hearing states that it was

presided over by “the Honorable Charles A. Wiles, Judge” (Judge Wiles), and Harris

                                             5
claims that Judge Wiles was a commissioner at the time of the hearing and not a judge.

(G.P. Tr. p. 3).

       Pursuant to Indiana Post-Conviction Rule 1(5), a petitioner has the burden of proof

in post-conviction proceedings to establish his claims by a preponderance of the

evidence. Harris has not fulfilled his burden on appeal because he has not provided us

with any evidence that Judge Wiles was a commissioner when he signed the judgment.

The post-conviction court found that Judge Wiles served as both a Marion County

Municipal Court Judge and a Marion County Superior Court Judge, but did not find that

he had ever served as a commissioner. Thus, absent evidence contrary to the post-

conviction court’s findings, we conclude that the post-conviction court did not err in

determining that Judge Wiles was a judge when he signed Harris’ judgment of

conviction.

                                III. Abstract of Judgment

        Finally, although he admits that Judge Wiles signed his judgment of conviction,

Harris claims that his plea is void because no one signed his abstract of judgment. We

disagree. Our supreme court has previously held that it is the trial court’s judgment of

conviction and not the abstract of judgment that is the official trial court record and

which thereafter is the controlling document. Robinson v. State, 805 N.E.2d 783, 794

(Ind. 2004). The abstract of judgment is merely a Department of Correction document

and does not constitute the judgment of the trial court. See id. In Robinson, the supreme

court held that there was no error in denying Robinson’s motion to correct sentence in

                                            6
which he requested that the trial court correct an error in his abstract of judgment. Id. In

light of this precedent, we conclude that the post-conviction court did not err in declining

to grant Harris’ claim that his judgment was void because the trial court signed the

judgment of conviction rather than the abstract of judgment.

                                     CONCLUSION

       Based on the foregoing, we conclude that: (1) the post-conviction court did not err

in denying Harris’ claim that the trial court did not properly advise him of the minimum

possible sentence he could receive prior to his guilty plea; (2) the post-conviction court

did not err in denying his claim that his judgment was inappropriately entered by a master

commissioner; and (3) the post-conviction court did not err in denying his claim that the

trial court’s judgment was void because the trial court did not sign the abstract of

judgment.

       Affirmed.

BAILEY, J. and CRONE, J. concur




                                             7
