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                     Dec 05 2013, 9:58 am
estoppel, or the law of the case.




APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

DARRYL L. ABRON                                     GREGORY F. ZOELLER
Plainfield, Indiana                                 Attorney General of Indiana

                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

DARRYL L. ABRON,                                    )
                                                    )
        Appellant-Petitioner,                       )
                                                    )
                vs.                                 )    No. 49A04-1301-PC-56
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Respondent.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Clark Rogers, Judge
                            Cause No. 49G22-0805-FC-116813


                                         December 5, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Darryl Abron appeals the denial of petition for post-conviction relief. We affirm.

                                         Issues

      Abron raises three issues, which we restate as:

             I.     whether the post-conviction court properly determined
                    that he did not receive ineffective assistance of trial
                    counsel;

             II.    whether the post-conviction court properly determined
                    that his guilty plea was knowing, intelligent, and
                    voluntary; and

             III.   whether the post-conviction court properly determined
                    that the jury trial issue was waived.

                                         Facts

      In 2008, Abron was charged with Class C felony burglary, Class A misdemeanor

resisting law enforcement, and Class A misdemeanor criminal mischief. Abron was also

alleged to be an habitual offender. Attorney Dan Mohler was appointed to represent

Abron.

      Shortly before the scheduled jury trial, the State offered Abron a plea arrangement

in which he would plead guilty to the burglary charge and the habitual offender

enhancement with a minimum sentence of six years and a maximum sentence of twelve

years. After Mohler and Abron discussed the offer, Abron did not accept it, and the offer

expired.

      On September 29, 2008, after a jury was selected, Abron had a panic attack and

was transported to the hospital, and the trial was continued until the next day. In the


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meantime, Abron and the State entered into a written plea agreement that called for

Abron to plead guilty to the burglary and resisting law enforcement charges and to being

an habitual offender. In exchange, the criminal mischief charge would be dismissed, and

the executed sentence would be capped at twelve years.

       When the trial reconvened on September 30, 2008, Abron refused to plead guilty

to being an habitual offender. Abron then indicated he wanted to abandon the plea

agreement, plead guilty as charged to the burglary, resisting law enforcement, and

criminal mischief charges, and have a jury trial on the habitual offender enhancement.

Abron explained that Mohler suggested this strategy before his panic attack the day

before. In response, Mohler explained that that advice was given before the current plea

offer was made. Mohler then advised Abron to take the plea agreement because “[t]hings

have changed” and it “is a totally different situation” than when he was advising Abron

the day before. Trial Tr. p. 43. Abron rejected this advice and again indicated he wanted

to plead guilty to the pending charges and have a jury decide the habitual offender

enhancement. Mohler and Abron discussed the situation, and Mohler stated, “Things

have changed since my advice to you last time. . . . My previous advice has changed

because of an intervening situation.” Id. at 45-46.

       Mohler then informed the trial court and Abron that the decision to plead guilty

was Abron’s alone, that he was disassociating himself from Abron’s decision to plead

guilty or proceed to a jury trial, and that he was not saying anything else until Abron

made a final decision. Mohler then apparently walked away from the defense table but

remained in the courtroom while Abron pled guilty to the pending charges.

                                             3
       Mohler then represented Abron during the jury trial on the habitual offender

allegation and objected to the use of the prior convictions on cruel and unusual

punishment and double jeopardy grounds. The objection was overruled, and Abron was

found to be an habitual offender. The trial court sentenced Abron to eight years on the

burglary charge, which was enhanced by twelve years for being an habitual offender, and

to one year on each of the misdemeanor charges, for a total sentence of twenty-two years.

       Abron filed a direct appeal arguing that his convictions for burglary and criminal

mischief violated double jeopardy principles and that his sentence was not proportionate

to the nature of the crime. A panel of this court dismissed his appeal as it related to his

convictions and affirmed his sentence. See Abron v. State, No. 49A02-0811-CR-986

(Ind. Ct. App. July 30, 2009).

       In 2010, Abron filed a pro se petition for post-conviction relief, which he amended

in 2012. Following a hearing, at which Mohler and Abron testified, the post-conviction

court denied Abron’s petition. Abron now appeals.

                                        Analysis

       A petitioner in a post-conviction proceeding bears the burden of proof, and an

unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903 N.E.2d

899, 905 (Ind. 2009). A petitioner appealing from a negative judgment must show that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to

that reached by the post-conviction court. Id. We will disturb a post-conviction court’s

decision as being contrary to law only where the evidence is without conflict and leads to

but one conclusion and the post-conviction court has reached the opposite conclusion. Id.

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                           I. Ineffective Assistance of Counsel

       Abron claims that he received ineffective assistance of counsel. “To prevail on a

claim of ineffective assistance of counsel, a petitioner must demonstrate both that his

counsel’s performance was deficient and that the petitioner was prejudiced by the

deficient performance.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App.

2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984)), trans. denied. The failure to satisfy either prong will cause the claim to fail. Id.

“Counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms.” Id. To establish prejudice, the

petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

           A. Counsel’s Advice Regarding Habitual Offender Enhancement

       Abron asserts that Mohler incorrectly advised him that the State could not use the

prior felony convictions to support the habitual offender enhancement because those

same convictions had already been used to support a previous habitual offender

enhancement. Abron claims that Mohler’s advice regarding the use of the convictions

informed his decision to reject the plea agreement and plead guilty to the pending charges

and to have a jury trial on the habitual offender enhancement.

       The record does not establish that Abron was misadvised by Mohler. It is clear

from the transcript of the trial proceedings that Mohler’s advice to plead guilty to the

pending charges and proceed to a jury trial on the habitual offender enhancement was



                                             5
given when there was no plea offer from the State. Mohler explained that the situation

changed in light of the plea offer and advised Abron to accept the offer.

       At the post-conviction hearing, Mohler testified that he had come across this issue

before in his representation of another client and learned that the State could use the same

convictions it had already used to support a previous habitual offender enhancement.

Mohler testified that, although the higher courts had already ruled on the issue, he

intended to challenge the use of the same underlying felony convictions.            This is

consistent with Mohler’s objection to the use of the prior convictions on cruel and

unusual punishment and double jeopardy grounds during the habitual offender trial. This

was a reasonable strategy in the absence of a plea offer.

       The post-conviction court concluded:

              The fact that Petitioner ultimately set out on a course that led
              to a longer prison sentence (22 years, instead of the capped
              12-year offer that Mr. Mohler had advised him to take) cannot
              be blamed on Mr. Mohler, who, in the Court’s opinion, did
              everything that he could lawfully and properly do to advise
              Petitioner, who, to his detriment, thought he could do better
              for himself. As stated above, the Court does not find that
              Petitioner’s mistaken belief about the State’s ability to prove
              the habitual offender charge can be attributed to Mr. Mohler.


App. p. 41. Based on our review of the post-conviction relief hearing testimony and the

transcript of the underlying proceedings, Abron has not established that the evidence as a

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

post-conviction court.

                                    B. Abandonment


                                              6
       When Abron rejected the plea agreement and decided to plead guilty to the

pending charges, the relationship between Abron and Mohler became very strained and

Mohler walked away from the defense table but remained in the courtroom while the trial

court accepted Abron’s guilty plea and a factual basis was established. Abron claims

that, by walking away from the table, Mohler abandoned him during a critical stage in the

proceeding.

       Abron has not established that Mohler’s representation fell below an objective

standard of reasonableness because Mohler did not abandon Abron during the guilty plea

proceedings. Mohler testified at the post-conviction relief hearing that, when he met with

Abron at the jail, Abron agreed to accept the plea agreement but, when they arrived at

court, Abron changed his mind. Mohler testified that he and Abron were not on the same

page the day of the plea and that he explained to Abron that he could not make the

decision whether to plead guilty for Abron. Mohler then physically removed himself

from sitting next to Abron to try to show him that the decision regarding the plea was his.

       On this issue, the post-conviction court found that, by creating space, Mohler most

likely reduced tension levels to a point where Abron could more effectively make his

decision and that the transcript revealed “that the continual dithering by Petitioner, his

constant vacillations and apparent refusal to hear what was being told to him put all

parties and the Court in a tense and frustrating situation.”      App. p. 40. The post-

conviction court concluded that, at that point, Abron had been fully advised by Mohler,

that Abron was fully and accurately advised by the trial court about the plea, and that

Mohler did not cease to act as Abron’s attorney simply because he momentarily walked

                                             7
away from the table when Abron was “making it difficult, if not impossible for Mr.

Mohler to perform his duties.” Id. at 41. The evidence as a whole does not lead

unerringly and unmistakably to the opposite conclusion.

                                   C. Failure to Object

       Abron argues that he received ineffective assistance of counsel because Mohler

failed to object to the trial court’s convening of a jury to determine Abron’s habitual

offender status. According to Abron, the habitual offender status should have been

determined by the trial court pursuant to Indiana Code Section 35-50-2-8(f), which

provides, “If the person was convicted of the felony in a jury trial, the jury shall

reconvene for the sentencing hearing. If the trial was to the court or the judgment was

entered on a guilty plea, the court alone shall conduct the sentencing hearing under IC 35-

38-1-3.”

       The transcript of the trial proceedings clearly shows that Abron requested a jury

trial on his habitual offender status. It is well-settled that a defendant may not request a

trial court to take an action and later claim on appeal that such action is erroneous.

Baugh v. State, 933 N.E.2d 1277, 1280 (Ind. 2010). Under the invited error doctrine,

Abron may not take advantage of any error that was created by his request for a jury trial

on the habitual offender allegation. See id.

       Nevertheless, on this issue, the post-conviction court concluded that Abron “fails

to show any prejudice from being permitted, albeit erroneously under state statute, to

exercise his constitutionally guaranteed right to a jury trial. And he fails to show any



                                               8
likelihood of a different result had the evidence been presented to the judge alone.” App.

p. 43.

         In an attempt to circumvent the prejudice prong of an ineffective assistance of

counsel claim, Abron claims that the resulting jury trial amounted to fundamental error

and, therefore, prejudice is presumed.      The cases Abron cites do not support this

proposition. In fact, Benefield v. State, 945 N.E.2d 791, 804 (Ind. Ct. App. 2011), trans.

denied, upon which Abron relies, explains that fundamental error and prejudice for

ineffective assistance of trial counsel claims are different questions.         Ineffective

assistance prejudice is based on a reasonable probability of a different result, while

fundamental error occurs only when the error is so prejudicial that a fair trial is rendered

impossible.    Id.   Thus, our review is limited to whether Abron has established a

reasonable probability that the result of the habitual offender trial would have been

different had it been decided by the trial court. He has not. The post-conviction court

properly rejected this claim.

                       II. Knowing, Intelligent, and Voluntary Plea

         Abron claims that the post-conviction court failed to address his claim that,

because of the ineffective assistance of counsel, his guilty plea was not knowing,

intelligent, and voluntary. To the contrary, the post-conviction court specifically found

that Abron’s “decision to plead guilty as he did was made knowingly, intelligently and

voluntary as it pertains to Mr. Mohler’s performance as defense counsel.” App. p. 41.

The post-conviction court also found, based on the evidence presented at the hearing, that

there is “no reason to believe that the state of Petitioner’s mental health had an effect on

                                             9
his decision to reject a more favorable plea.” Id. at 41-42. Thus, Abron’s contention that

the post-conviction court failed to address this issue is not supported by the record.

       Further, the record does not support Abron’s assertion that Mohler ultimately

advised him to reject the State’s offer, plead guilty to the pending charges, and have a

jury trial on the habitual offender status. During the trial proceedings, Mohler clearly and

repeatedly advised Abron to accept the plea agreement and explained that his earlier

advice was no longer relevant in light of the plea offer. Thus, Abron has not established

that counsel’s advice rendered his guilty plea unknowing or unintelligent.

       As for Abron’s claim that Mohler knew Abron suffered from mental issues, which

rendered Abron “unstable and unable to make important and intelligent decision[s],” the

record does not support this claim. Appellant’s Br. p. 17. Although Abron had a panic

attack on the first day of the trial court proceedings, there is no indication that his guilty

plea to the pending charges was unknowing, unintelligent, or involuntary.             Mohler

testified that, although Abron was agitated and angry and “coming off the effects of drug

addiction,” he believed Abron “had sufficient mental capacity to be able to make

decisions such as pleading guilty.” Tr. p. 28. Mohler explained that, had he felt Abron

did not have that capacity, he would have filed a motion for a competency evaluation.

Mohler also believed that the judge accepting Abron’s guilty plea would confirm that he

was acting voluntarily. In light of this evidence, Abron has not shown that the evidence

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

the post-conviction court.

                                        III. Waiver
                                             10
       Abron alleged that the trial court erred in allowing a jury to determine his habitual

offender status after he pled guilty to the pending charges. The post-conviction court

held that this issue is waived because it was available at the time of Abron’s direct appeal

and not raised. Abron argues that the post-conviction court erred because a defendant

who pleads guilty may not challenge the plea by direct appeal and must seek relief

through post-conviction remedies. See Tumulty v. State, 666 N.E.2d 394, 395 (Ind.

1996). As Tumulty explained, “the plea as a legal act brings to a close the dispute

between the parties, much as settling civil parties do by submitting an agreed judgment.

To permit appeal by settling parties would, of course, make settlements difficult to

achieve in any litigation.” Id.

       Although Abron is generally correct, he did not plead guilty to the habitual

offender status. Instead, a jury found him to be an habitual offender. Thus, the reasoning

in Tumulty does not apply here. As such, an impropriety in conducting a jury trial, as

opposed to a bench trial, to determine Abron’s habitual offender status was a free-

standing issue available for direct appeal. Because this issue was not raised on direct

appeal, the post-conviction court correctly determined that it is waived. See Timberlake

v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (“[M]ost free-standing claims of error are

not available in a postconviction proceeding because of the doctrines of waiver and res

judicata.”), cert. denied.




                                            11
                                      Conclusion

      Abron has not established that he received ineffective assistance of trial counsel,

that his guilty plea was unknowing, unintelligent, or involuntary, or that the jury trial

issue was available for post-conviction relief proceedings. We affirm.

      Affirmed.

CRONE, J., and PYLE, J., concur.




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