MEMORANDUM DECISION
                                                                     Aug 13 2015, 10:04 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.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Joel Williams                                             Gregory F. Zoeller
Greencastle, Indiana                                      Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joel Williams,                                           August 13, 2015

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         18A02-1408-PC-554
        v.                                               Appeal from the Delaware Circuit
                                                         Court
                                                         Cause No. 18C01-0107-CF-45
State of Indiana,
Appellee-Respondent.                                     The Honorable Marianne Vorhees,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015        Page 1 of 8
                                                Case Summary
[1]   Joel Williams appeals the post-conviction court’s denial of his petition for post-

      conviction relief. We affirm.


                                                         Issue
[2]   Williams raises one issue, which we restate as whether his guilty plea was

      involuntary.


                                                         Facts
[3]   In July 2001, the State charged Williams with Class A felony possession of

      cocaine, Class B felony burglary, two counts of Class B felony robbery, and two

      counts of Class B felony criminal confinement under Cause No. 18C01-0107-

      CF-45. A separate civil forfeiture action regarding some property seized as a

      result of Williams’s arrest was instituted under Cause No. 18C02-0107-MI-65.1


[4]   At a change of plea hearing, Williams’s counsel noted that the parties had

      reached a plea agreement but that the agreement had not been reduced to

      writing. Williams’s counsel then stated:

               Judge, the agreement is that the State of Indiana would dismiss count
               one (1), that’s possession of cocaine, a class ‘A’ felony. In exchange
               for that, the Defendant would plead guilty to count two (2), three (3),
               four (4), five (5), and six (6). On sentencing, there would be a forty
               (40) year cap meaning the Defendant could not be sentenced to more




      1
       Williams asserts without citation to authority that the forfeiture action was closed prior to the change of
      plea hearing.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015                Page 2 of 8
              than forty (40) years. There is also some property that was seized and
              there is an agreed resolution of the civil forfeiture action that could be
              filed and that resolution is that the Defendant’s car and one half (1/2)
              of the money that was seized from the Defendant’s apartment would
              be returned to Marilyn Hopson.
      Petitioner’s Ex. A p. 3. The deputy prosecutor agreed with Williams’s counsel’s

      description of the agreement and stated: “The civil part of it, or what could

      have been the civil part of it was negotiated by Mr. McKinney. He handles

      those matters in our office, that that’s what he told me that he agreed to.” Id. at

      3-4. The trial court asked Williams, “[I]s that what you agree to?” and

      Williams said, “Yes sir it is Your Honor.” Id. at 4. The trial court proceeded

      with the guilty plea hearing, and the seized property was not mentioned again. 2

      The trial court imposed an aggregate forty-year sentence.


[5]   In October 2002, Williams filed a motion to enforce the plea agreement,

      arguing that the State had failed to return his seized vehicle and cash. The

      Chronological Case Summary does not show a resolution of this motion.

      Williams also filed a motion for return of his property in October 2009. The

      trial court struck the request, finding that Circuit Court No. 2 had jurisdiction

      over the request because the forfeiture action had been filed under Cause No.

      18C02-0107-MI-0065.




      2
       We note that, although Indiana Code Section 35-35-3-3 requires that a prosecutor submit a plea agreement
      on a felony charge in writing to the trial court, there was no written plea agreement here.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015          Page 3 of 8
[6]   Williams filed a petition for post-conviction relief in February 2003, but later

      received permission to pursue a belated appeal, which he did in 2010. In his

      direct appeal, Williams challenged his sentence, and we affirmed. See Williams

      v. State, No. 18A05-1002-CR-52, slip op. at 7 (Ind. Ct. App. Oct. 29, 2010). In

      August 2011, Williams filed an amended petition for post-conviction relief,

      raising ineffective assistance of trial and appellate counsel claims and arguing

      that his guilty plea was involuntary and that his sentence violated the

      prohibition against double jeopardy. With respect to the voluntariness

      argument, Williams contended that his guilty plea was involuntary because the

      State had breached the plea agreement by failing to return his property.


[7]   After an evidentiary hearing, the post-conviction court concluded that Williams

      had waived his claims except for his argument that his guilty plea was

      involuntary. However, the post-conviction court concluded that Williams had

      failed to demonstrate that his guilty plea was involuntary. Williams now

      appeals.


                                                  Analysis
[8]   Williams argues that the post-conviction court’s denial of his petition is clearly

      erroneous. A court that hears a post-conviction claim must make findings of

      fact and conclusions of law on all issues presented in the petition. Pruitt v. State,

      903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The

      findings must be supported by facts and the conclusions must be supported by

      the law.” Id. Our review on appeal is limited to these findings and conclusions.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015   Page 4 of 8
       Id. Because the petitioner bears the burden of proof in the post-conviction

       court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing

       P-C.R. 1(5)). “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 trial court.’” Id. (quoting Allen v. State, 749

       N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review,

       “[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.


[9]    Williams argues that part of his guilty plea included the return of property that

       was subject to a forfeiture action and that the State failed to do so. Williams

       argues that this alleged breach results in the guilty plea being involuntary. He

       requests “specific performance” of the plea agreement or, alternatively, a

       withdrawal of his guilty plea.


[10]   A trial court is bound by the terms of the plea agreement that it accepts.

       Lineberry v. State, 747 N.E.2d 1151, 1155 (Ind. Ct. App. 2001). “[D]efendants

       who can show that they were coerced or misled into pleading guilty by the

       judge, prosecutor or defense counsel will present colorable claims for relief.”

       Id. at 1156. “If a prosecutor made a promise to a defendant, and that promise

       comprised part of the inducement or consideration for the plea agreement, then

       that promise must be fulfilled because the breach of such a promise would

       render the defendant’s guilty plea involuntary.” Id. (citing Ryan v. State, 479



       Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015   Page 5 of 8
       N.E.2d 517, 519 (Ind. 1985), and Santobello v. New York, 404 U.S. 257, 263, 92

       S. Ct. 495, 499 (1971)).


[11]   Voluntariness “focuses on whether the defendant knowingly and freely entered

       the plea, in contrast to ineffective assistance, which turns on the performance of

       counsel and resulting prejudice.” Cornelious v. State, 846 N.E.2d 354, 358 (Ind.

       Ct. App. 2006), trans. denied. In assessing the voluntariness of a plea, we review

       all of the evidence before the post-conviction court, including testimony given

       at the post-conviction hearing, the transcript of the petitioner’s original

       sentencing, and any plea agreements or other exhibits that are a part of the

       record. Id. at 357-58.


[12]   The post-conviction court rejected Williams’s argument for several reasons.

       One reason was that Williams had failed to present any evidence that the

       property was not returned to him. We agree. At the evidentiary hearing,

       Williams failed to present evidence demonstrating that the State did not comply

       with the alleged agreement. Williams testified but did not mention the

       disposition of the property. Further, the alleged agreement called for the

       property to be given to Marilyn Hopson, and Williams did not call Hopson to

       testify. Williams failed to meet his burden of proof.


[13]   Even if we assume that the property was not returned to Williams, his

       argument still fails. The post-conviction court concluded that the alleged

       agreement regarding the property was separate from the plea agreement. The

       evidence supports the post-conviction court’s conclusion. The property


       Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015   Page 6 of 8
       forfeiture action was initiated under a different cause number than the criminal

       charges. At the guilty plea hearing, after discussing the plea agreement of the

       criminal charges, Williams’s attorney said:

                There is also some property that was seized and there is an agreed
                resolution of the civil forfeiture action that could be filed and that
                resolution is that the Defendant’s car and one half (1/2) of the money
                that was seized from the Defendant’s apartment would be returned to
                Marilyn Hopson.
[14]   Petitioner’s Ex. A at 3. The deputy prosecutor agreed with Williams’s counsel’s

       description of the agreement and stated: “The civil part of it, or what could

       have been the civil part of it was negotiated by Mr. McKinney. He handles

       those matters in our office, that that’s what he told me that he agreed to.” Id. at

       3-4. These statements indicate that any agreement reached with respect to the

       property forfeiture issues was separate from the plea agreement.3 Williams’s

       efforts to enforce the alleged property forfeiture agreement in this action fail.

       The post-conviction court’s conclusion is not clearly erroneous.4




       3
         The State points out that Williams included a document in his appendix entitled “Confidential Settlement
       Agreement,” which was signed by Williams’s counsel and counsel for the drug task force but not by
       Williams, was dated October 2002, after the guilty plea hearing, and concerned disposition of the property at
       issue. Appellant’s App. p. 27. That document was not admitted into evidence during the post-conviction
       hearing, and it is not properly before us for our consideration.
       4
        The post-conviction court also concluded that the alleged agreement with respect to the property was not
       material to Williams’s decision to plead guilty. Williams argues that this conclusion is clearly erroneous, but
       given our resolution of the other arguments, we need not address this contention.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015               Page 7 of 8
                                                 Conclusion
[15]   The post-conviction court’s denial of Williams’s petition for post-conviction

       relief is not clearly erroneous. We affirm.


[16]   Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1408-PC-554 | August 13, 2015   Page 8 of 8
