In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3736

Marshall Jackson,

Petitioner-Appellant,

v.

Charles B. Miller, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 56--Allen Sharp, Judge.

Argued November 9, 2000--Decided August 8, 2001



  Before Flaum, Chief Judge, and Bauer and
Kanne, Circuit Judges./*

  Kanne, Circuit Judge. On June 4, 1980,
a jury found Marshall Jackson guilty of
robbery, attempted murder, and of being a
habitual offender under Indiana’s
recidivist statute. See Ind. Code sec. 35-
50-2-8 (1998). At sentencing, the judge
enhanced Jackson’s forty-year sentence by
thirty years because of Jackson’s status
as a habitual offender. Jackson contends
that the resulting seventy-year sentence
was improper because one of the two
convictions that the jury relied upon to
make the habitual offender determination
was obtained in violation of his Sixth
Amendment right to counsel. He advanced
this claim, among others, in a petition
for a writ of habeas corpus in the
district court, see 28 U.S.C. sec. 2254,
and the district court denied the
petition. We granted Jackson’s request
for a certificate of appealability and
certified the following issue for appeal:
"Was the Petitioner denied counsel in
violation of the Sixth Amendment?"/1 We
now affirm.

I.   History

  On March 3, 1975, Jackson and his
brother, Louis Jackson, pleaded guilty to
theft in a Lake County Superior Court.
Several weeks later, Jackson and his
brother, represented by counsel, appeared
in court for sentencing on March 27,
1975. After listening to statements by
Jackson, Louis, and their attorney, the
judge stated: "The Court . . . now
sentences both defendants to not less
than one (1) nor more than ten (10) years
and orders them committed to the
Department of Corrections for assignment
to a proper institution. . . . Execution
of sentence is withheld until April 25,
1975." Tr. of Marshall Jackson Sentencing
H’rg at 3. Jackson appeared in court on
May 30, 1975 for execution of his
sentence./2 Although the record does
not include a transcript of that
proceeding, the court’s minute entry
indicates that Jackson appeared without
counsel "for the reason that the attorney
previously representing him is no longer
in the practice of law." Minute Order at
12. Because the record does not contain a
transcript of the May 30 appearance, it
is unclear whether or to what extent the
court addressed the fact that Jackson did
not have an attorney present. The court’s
written order on that date simply states:
"The Court after reviewing the pre-
sentence investigation now sentences the
defendant, Marshall Jackson, to not less
than one nor more than ten years.
Sentence suspended. The Defendant is
placed on probation for a period of two
years." Id.

  Approximately five years later, on June
4, 1980, a jury found Jackson guilty of
attempted murder, armed robbery, and of
being a habitual offender under Indiana’s
recidivist statute. The jury’s
determination that Jackson was a habitual
offender--based partially on the above-
described 1975 theft conviction--
increased Jackson’s forty-year sentence
by an additional thirty years for a total
sentence of seventy years. On direct
appeal, the Indiana Supreme Court
affirmed Jackson’s conviction as well as
his sentence. See Jackson v. State, 426
N.E.2d 685 (Ind. 1981).

  Several years later, on May 10, 1988,
Jackson, pro se, filed a petition in
state court for post-conviction relief
from the 1975 theft conviction. He
alleged, inter alia, that he was denied
the right to counsel at sentencing
because counsel was not present at the
May 30, 1975 appearance. The trial court
found that Jackson had waived his Sixth
Amendment claim by failing to incorporate
his original and first amended petitions
into his subsequent amended petitions
and, as such, did not address the merits
of the issue.

  On appeal, the Indiana Court of Appeals
found that the trial court erred in
refusing to consider the claims raised in
Jackson’s original and subsequent amended
petitions. See Jackson v. State, 676
N.E.2d 745, 748-50 (Ind. Ct. App. 1997).
The Indiana Court of Appeals rejected
Jackson’s claim on the merits, however,
finding that the absence of counsel at
the May 30, 1975 proceeding was not a
violation of Jackson’s right to counsel,
and even if it was, that Jackson was not
prejudiced. See id. at 751-52. To support
this conclusion, the Indiana Court of
Appeals relied on two Indiana cases,
Guajardo v. State, 544 N.E.2d 174, 177
(Ind. Ct. App. 1989) (holding that
reversal was not required where defendant
had already served out his sentence
because the error had been mooted and the
denial of counsel at sentencing did not
affect the validity of the underlying
conviction), and Ford v. State, 386
N.E.2d 709, 714 (Ind. Ct. App. 1979)
(holding that even if counsel’s inability
to address the court on defendant’s
behalf at sentencing was a violation of
defendant’s right to counsel, it did not
prejudice the defendant because his
sentence was mandated by statute). See
id. The court observed:

Although Jackson was not represented by
counsel on May 30, 1975, he appeared for
sentencing on March 27, 1975. Jackson’s
attorney was present and spoke on his
behalf at the sentencing hearing of March
27, 1975. The transcript of the March
sentencing indicated that the trial court
sentenced Jackson to not less than one
year nor more than ten years and ordered
him committed to the Department of
Correction for proper assignment.
Although the execution of the sentence
was withheld, the trial court ultimately
suspended the entire sentence and placed
him on probation for two years. Jackson
acknowledged at his guilty plea and
initial sentence hearing that he would
receive a one to ten year sentence. Even
if Jackson’s right to counsel was
violated, Jackson has failed to show how
he was prejudiced. At the time of
Jackson’s sentencing, [the statute he was
convicted of violating] required the
sentence that Jackson received. The fact
that the trial court ordered all of
Jackson’s sentence to be suspended is
diametrically opposed to his contention
that he was prejudiced. Additionally,
given that any error in sentencing would
not affect the validity of the
conviction, resentencing would serve no
apparent purpose and Jackson offers none.

Id. On March 26, 1997, the Supreme Court
of Indiana denied transfer. Jackson next
filed a petition for state post-
conviction relief from his 1980 robbery
and attempted murder convictions, raising
several grounds for relief including
ineffective assistance of counsel at
trial and ineffective assistance of
counsel on appeal. The court denied
relief on all but one of Jackson’s
claims,/3 and Jackson initiated an
appeal. Jackson failed to perfect the
appeal, however, and voluntarily
terminated it on June 9, 1998.

  On March 30, 1998, Jackson, again pro
se, filed a petition for a writ of habeas
corpus in the United States District
Court for the Northern District of
Indiana challenging the use of his
allegedly constitutionally infirm 1975
theft conviction to enhance his current
sentence. The district court denied
Jackson’s petition. Jackson then filed an
application for a certificate of
appealability, and the district court de
nied his application. On December 6,
1999, we granted Jackson’s request for a
certificate of appealability on the
following issue: "Was Petitioner denied
counsel in violation of the Sixth
Amendment to the Constitution at his May
30, 1975 sentencing hearing?"

II.   Analysis

A. Availability of Federal Post-
Conviction Relief

  Jackson claims that his 1975 theft
conviction was obtained in violation of
his Sixth Amendment right to counsel;
therefore, he claims that the use of that
conviction to enhance his current
sentence is unconstitutional. Because
Jackson seeks to challenge his current
sentence by attacking a fully expired
conviction used to enhance that sentence,
our first task is to determine whether
federal post-conviction relief is
available to a prisoner in Jackson’s
situation. To that end, we asked the
parties to consider the applicability of
our decision in Smith v. Farley, 25 F.3d
1363 (7th Cir. 1994), in which we held
that federal review of a fully expired
conviction that has been incorporated
into a new enhanced sentence is limited
to situations in which the petitioner had
no access to collateral review because
state procedures were "wholly absent, or
. . . constitutionally deficient." Id. at
1370. Smith is no longer controlling on
this issue, however, in light of two
intervening Supreme Court decisions that
address the availability of federal-post-
conviction relief to petitioners who
assert that an unconstitutional prior
conviction was used to enhance their
current sentence. See Daniels v. United
States, 121 S. Ct. 1578 (2001) and
Lackawanna County Dist. Att’y v. Coss,
121 S. Ct. 1567 (2001). We therefore
direct our attention to those decisions.

  In Daniels and Lackawanna, the Supreme
Court confirmed that, in general, habeas
relief is not available to petitioners
who challenge a fully expired conviction
used to enhance a subsequent sentence in
a petition brought under 28 U.S.C. sec.
2254 or sec. 2255. See Daniels, 121 S.
Ct. at 1583; Lackawanna, 121 S. Ct. at
1570. The Supreme Court held that "’if .
. . a prior conviction used to enhance a
federal sentence is no longer open to
direct or collateral attack in its own
right because the defendant failed to
pursue those remedies while they were
available (or because the defendant did
so unsuccessfully), then that defendant .
. . may not collaterally attack his prior
conviction’" through a motion under sec.
2254. Lackawanna, 121 S. Ct at 1573
(quoting Daniels, 121 S. Ct. at 1583).

  Recognizing the "special status of
Gideon claims," however, the Supreme
Court carved out an exception to the
general rule for cases in which the
challenged conviction was allegedly
obtained in violation of the Sixth
Amendment right to counsel. Lackawanna,
id. at 1574. The Supreme Court held that,
if a petitioner satisfies the other
procedural prerequisites for relief, he
may challenge "an enhanced sentence on
the basis that the prior conviction used
to enhance the sentence was obtained
where there was a failure to appoint
counsel in violation of the Sixth
Amendment, as set forth in Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792,
9 L. Ed. 2d 799 (1963)." Id. at 1574; cf.
Daniels, 121 S. Ct. at 1583. In
recognizing this exception to the general
rule, the Court acknowledged that "the
’failure to appoint counsel for an
indigent [is] a unique constitutional
defect . . . ris[ing] to the level of a
jurisdictional defect,’ which therefore
warrants special treatment among alleged
constitutional violations." Lackawanna,
121 S. Ct. 1574 (quoting Custis v. United
States, 511 U.S. 485, 496, 114 S. Ct.
1732, 128 L. Ed. 2d 517 (1994)).
Therefore, because Jackson alleges that
his 1975 theft conviction was obtained in
violation of his right to counsel, we
will review his petition to determine if
habeas relief is appropriate.

B.  Standard of Review
  Our review of Jackson’s petition for
habeas corpus is governed by the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), 28 U.S.C. sec.
2254, because Jackson filed his petition
for habeas relief after the effective
date of that Act. AEDPA provides that
habeas relief may be granted if a state
court’s adjudication of a matter
"resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C.
sec. 2254 (d)(1). A state court decision
is "contrary to" Supreme Court precedent
"if the state court arrives at a
conclusion opposite to that reached by
[the Supreme] Court on a question of law"
or "if the state court confronts facts
that are materially indistinguishable
from a relevant Supreme Court precedent
and arrives at a result opposite to [that
reached by the Supreme Court]." Williams
v. Taylor, 529 U.S. 362, 405, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000). An
"unreasonable application" of Supreme
Court precedent occurs when "the state
court identifies the correct governing
legal rule . . . but unreasonably applies
it to the facts of the particular state
prisoner’s case" or "if the state court
either unreasonably extends a legal
principle from [the Court’s] precedent to
a new context where it should not apply
or unreasonably refuses to extend that
principle to a new context where it
should apply." Id. at 407.

  In reviewing a district court’s denial
of a petition for habeas relief, we
review the district court’s legal
determinations de novo and its factual
determinations for clear error. See Denny
v. Gudmanson, 252 F.3d 896, 900 (7th Cir.
2001). We review a state court decision
de novo to determine whether it was
"contrary to" Supreme Court precedent;
however, we defer to reasonable state
court decisions in determining whether
the state court decision was an
"unreasonable application" of federal
law. See Ouska v. Cahill-Masching, 246
F.3d 1036, 1044 (7th Cir. 2001). "[S]tate
court factual findings that are
reasonably based on the record are
accorded a presumption of correctness."
Kurzawa v. Jordan, 146 F.3d 435, 439 (7th
Cir. 1998) (quotation omitted); see also
28 U.S.C. sec. 2254(e)(1).

C.   Jackson’s Sixth Amendment Claim

  As we indicated above, it is clear from
the record that Jackson was not
represented by counsel at the May 30,
1975 appearance at which his sentence was
to be executed. What remains to be
determined, then, is whether the
conclusion of the Indiana Court of
Appeals that the absence of counsel at
that appearance did not violate the
petitioner’s Sixth Amendment right to
counsel was "contrary to" or an
"unreasonable application" of Supreme
Court precedent as required by 28 U.S.C.
sec. 2254(d).

  The Sixth Amendment requires that
criminal defendants must be provided with
counsel unless the right is competently
and intelligently waived. See Gideon v.
Wainwright, 372 U.S. 335, 339-45, 83 S.
Ct. 792, 9 L. Ed. 2d (1963). As the
Supreme Court has repeatedly emphasized,
"[t]he right to be heard would be, in
many cases, of little avail if it did not
comprehend the right to be heard by
counsel." Powell v. Alabama, 287 U.S. 45,
68-69, 53 S. Ct. 55, 77 L. Ed. 158
(1932). Criminal defendants have a right
to counsel not only at trial but also at
all critical stages of the prosecution.
See Coleman v. Alabama, 399 U.S. 1, 9-10,
90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970);
see also United States v. Wade, 388 U.S.
218, 226, 87 S. Ct. 1926, 18 L. Ed. 2d
1149 (1967) ("[I]n addition to counsel’s
presence at trial, the accused is
guaranteed that he need not stand alone
against the State at any stage of the
prosecution, formal or informal, in court
or out, where counsel’s absence might
derogate from the accused’s right to a
fair trial.") (footnote omitted). The
inquiry into whether a particular
proceeding is a critical stage of the
prosecution focuses on "whether potential
substantial prejudice to the defendant’s
rights inheres in the . . . confrontation
and the ability of counsel to help avoid
that prejudice." Coleman, 399 U.S. at 9
(quotation omitted). The Supreme Court
has made it clear that sentencing is a
critical stage at which the Sixth
Amendment requires the assistance of
counsel. See Gardner v. Florida, 430 U.S.
349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d
393 (1977); see also Townsend v. Burke,
334 U.S. 736, 741, 68 S. Ct. 1252, 92 L.
Ed. 1690 (1948) (finding a denial of due
process where uncounseled defendant "was
sentenced on the basis of assumptions
concerning his criminal record which were
materially untrue"). Although a defendant
may waive his right to counsel, see
Gideon, 372 U.S. at 340, waiver may not
be presumed from a silent record. See
Burgett v. Texas, 389 U.S. 109, 114-15,
88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).

  Jackson first asks us to find that the
Indiana Court of Appeals applied a rule
that was contrary to Supreme Court
precedent. He alleges that the facts of
his case are materially indistinguishable
from the facts in Mempa v. Rhay, 389 U.S.
128, 88 S. Ct. 254, 19 L. Ed. 2d. 336
(1967), in which the Supreme Court found
that the petitioners had been denied the
right to counsel. Id. at 137. In the
consolidated cases in Mempa, the Supreme
Court considered the question of whether
petitioners, who appeared at a deferred
sentencing hearing without
representation, had been denied the right
to counsel in violation of the Sixth
Amendment. Petitioners’ deferred
sentencing hearings were held pursuant to
a Washington statute which allowed a
judge to order probation and defer
imposition of sentence. See id. at 130.
Both of the petitioners had pleaded
guilty to an offense with the advice of
counsel, been placed on probation, and
later committed a crime which led the
prosecuting attorney to move for the
revocation of probation. See id. at 130-
33. At the subsequent hearings to revoke
probation and impose sentence, neither
petitioner was represented by counsel.
See id. at 131, 132. The Supreme Court
found that the Sixth Amendment required
that petitioners have the assistance of
counsel at such a hearing "whether it be
labeled a revocation of probation or a
deferred sentencing hearing." Id. at 137.
The Court’s holding was based on its
determination that, at such a hearing,
"certain legal rights may be lost if not
exercised at this stage," id. at 135,
namely the right to appeal and the right
to withdraw a guilty plea, see id. at
136-37.

  Although Mempa and the case at hand both
involve deferred appearances, we disagree
with Jackson’s contention that the facts
of his case are materially
indistinguishable from the facts of
Mempa. Jackson’s claim that the May 30,
1975 appearance was equivalent to the
deferred sentencing hearing in Mempa is
not supported by the record. In Mempa,
the petitioners’ sentences were not
imposed at the initial hearing. Instead,
petitioners were placed on probation,
with sentence to be imposed later--only
if the terms of probation were violated.
Therefore, when the petitioners in Mempa
appeared at the probation
revocation/sentence imposition
proceeding, it was, in effect, as if they
were being sentenced for the first time.

  Jackson’s situation is materially
different. Although the Supreme Court in
Mempa rejected the State’s contention
that the petitioners were actually
sentenced at the first hearing and that
the second hearing was a "mere
formality," id. at 135, we find that
characterization appropriate in Jackson’s
case. The transcript of Jackson’s March
27, 1975 sentencing hearing reflects that
sentence was actually imposed at that
time. At that initial hearing, the Judge
stated, "[t]he Court . . . now sentences
both defendants to not less than one (1)
nor more than ten (10) years." Tr. of
Marshall Jackson Sentencing H’rg at 3
(emphasis added). The judge also told
Jackson and his brother, "I have imposed
sentence for both of you as one (1) to
ten (10) years. You won’t begin serving
that time today but you will be back here
on April 25,/4 do you understand that?"
Id. That sentence was imposed at the
initial hearing is also evidenced by the
fact that, at that time, the judge
performed all of the functions required
for sentencing: he acknowledged that he
had reviewed the pre-sentence
investigation report, ordered the
defendants committed to the Department of
Corrections, and gave the defendants
credit for time served. Moreover, the
judge referred to the purpose of the May
30 appearance as "execution of sentence"
and not as "sentencing," "deferred
sentencing," or "imposition of sentence."
Therefore, because sentence had already
been imposed on Jackson when he appeared
for the execution of his sentence, the
facts of Jackson’s case are materially
distinguishable from the facts in Mempa.

  Jackson next argues that the Indiana
Court of Appeals erred by holding that,
even if Jackson was denied the right to
counsel, this error was harmless. He
claims that harmless error analysis does
not apply to violations of the right to
counsel and that the Indiana Court of
Appeals therefore applied a rule of law
contrary to Supreme Court precedent.
Although the Supreme Court has made it
clear that "[a]ctual or constructive
denial of the assistance of counsel alto
gether is legally presumed to result in
prejudice," see Strickland v. Washington,
466 U.S. 668, 692, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the court has also
implied that a momentary lapse in
representation during a critical stage
may be subject to a harmless error
analysis. See Satterwhite v. Texas, 486
U.S. 249, 256, 108 S. Ct. 1792, 100 L.
Ed. 2d 284 (1988) (suggesting that Sixth
Amendment violations that do not "pervade
the entire proceeding" may be subject to
harmless error analysis). We need not
resolve this question, however, because
we find that the Indiana Court of
Appeals’ determination that Jackson’s
right to counsel was not violated at the
May 30 appearance is not contrary to
established Supreme Court precedent.

  Although the Supreme Court has never
directly confronted the issue of whether
the execution of an already imposed
sentence constitutes a critical stage
such that counsel is required, see
Coleman v. Alabama, 399 U.S. 1, 9, 90 S.
Ct. 1999, 26 L. Ed. 2d 387 (1970),
Jackson may still obtain habeas relief if
he is able to show that the state court’s
application of Supreme Court precedent
was unreasonable. See Williams v. Taylor,
529 U.S. 362, 407-08, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000). In an attempt
to do so, Jackson argues that the Indiana
Court of Appeals’ refusal to find that
the May 30, 1975 appearance was a
critical stage where counsel was required
was an unreasonable application of
Supreme Court precedent. Jackson claims
that, even if the only purpose of his
appearance was to execute his sentence,
the Supreme Court’s reasoning in Mempa
mandates the extension of the right to
counsel to such proceedings.

  The Supreme Court has directed that
whether counsel is required at a
particular proceeding is dependent on the
ability of counsel to provide assistance
to the defendant at that point. Thus, the
central question in determining whether a
proceeding is a critical stage is
"whether potential substantial prejudice
to defendant’s rights inheres in the . .
. confrontation and the ability of
counsel to help avoid that prejudice."
Coleman, 399 U.S. at 9 (quotation
omitted). The Supreme Court’s finding in
Mempa that the petitioners had certain
rights at the second sentencing hearing--
and therefore required counsel to ensure
the proper exercise of those rights--was
partially based on the fact that the
Washington law in effect at the time
allowed a guilty plea to be withdrawn at
any point prior to sentencing./5 See
Mempa, 389 U.S. at 136. Although Jackson,
at one point, had a similar right to
withdraw his plea for "any fair and just
reason," Ind. Code sec. 35-4.1-1-6
(repealed 1981),/6 that right did not
exist at his May 30 appearance because
sentence had already been imposed. At
that point, Jackson would have only been
entitled to withdraw his plea if he could
prove that "withdrawal [wa]s necessary to
correct manifest injustice." Id. In
Mempa, the Supreme Court was also
concerned about the possibility that the
absence of counsel at the deferred
sentencing hearing would cause
petitioners to lose their right to appeal
because Washington law provided that "an
appeal in a case involving a plea of
guilty followed by probation can only be
taken after sentence is imposed following
revocation of probation." 389 U.S. at
135-36 (citing State v. Farmer, 237 P.2d
734 (Wash. 1951)). Jackson, on the other
hand, could not have lost his right to
appeal at the May 30, 1975 appearance
"because a conviction based upon a guilty
plea may not be challenged . . . by
direct appeal" under Indiana law. See
Weyls v. State, 362 N.E.2d 481, 482 (Ind.
1977).

  Therefore, because we are not convinced
that Jackson was in danger of losing any
rights by appearing without counsel on
May 30, we cannot say that it was
unreasonable for the Indiana Court of
Appeals to conclude that Jackson had not
been denied the right to counsel. The
Supreme Court has directed that "a
federal habeas court may not issue the
writ simply because that court concludes
in its independent judgment that the
relevant state-court decision applied
clearly established federal law
erroneously or incorrectly. Rather that
application must also be unreasonable."
Williams, 529 U.S. at 411. Even if the
Indiana Court of Appeals was incorrect in
finding that the May 30 appearance was
not a critical stage of the prosecution
requiring counsel, we can say that, under
the relevant Supreme Court precedent, it
was not unreasonable for the court to
make that finding.

III.   Conclusion

  For the reasons stated above, we find
that the Indiana state court’s
determination that Jackson was not denied
the right to counsel in violation of the
Sixth Amendment at the May 30, 1975
appearance was not contrary to or an
unreasonable application of clearly
established Supreme Court precedent.
Thus, we AFFIRM the decision of the
district court.

FOOTNOTES

/* Judge Ripple was originally on the panel that
heard this case. An event occurring after oral
argument required Judge Ripple to recuse himself
from all further deliberation and decision in
this matter.

/1 Jackson’s motion to expand the certificate of
appealability is denied because the issues he
seeks to raise were resolved on independent and
adequate state grounds. Thus, federal law would
have no effect on the outcome. See Jenkins v.
Gramley, 8 F.3d 505, 507 (7th Cir. 1993).

/2 Jackson’s brother did not appear on this date.

/3 Although the court denied relief on all of the
issues pertinent to the case at hand, the court
did vacate a portion of the sentencing order
which required that Jackson’s seventy-year sen-
tence run consecutively to his sixty-year sen-
tence on an unrelated murder charge.

/4 The judge was referring to the May 30 hearing at
issue in this case; it was originally scheduled
for April 25.

/5 At the time the petitioners in Mempa were sen-
tenced, Washington law allowed the trial court to
grant a motion to withdraw a guilty plea at its
discretion, and "such discretion was to be exer-
cised liberally in favor of life and liberty."
State v. Armstead, 533 P.2d 147, 149 (Wash. Ct.
App. 1975).

/6 At the time, Indiana Code section 35-4.1-1-6
provided:

(b) After entry of a plea of guilty but before
imposition of sentence, upon motion of the defen-
dant, the court may allow the defendant to with-
draw his plea of guilty for any fair and just
reason unless the state has been substantially
prejudiced by reliance on the defendant’s plea.

(c) After judgment and sentence upon a plea of
guilty, the convicted person may not as a matter
of right withdraw the plea. However, . . . the
court shall vacate the judgment and allow the
withdrawal whenever the convicted person proves
that withdrawal is necessary to correct manifest
injustice.

Ind. Code sec. 35-4.1-1-6 (repealed 1981).
