MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Jan 15 2019, 8:38 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Anne C. Kaiser                                           George P. Sherman
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin Darrell Keen,                                   January 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1104
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Respondent                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1508-PC-17



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019                 Page 1 of 10
[1]   Benjamin Keen pled guilty to Class B felony dealing methamphetamine and

      admitted to being a habitual substance offender. His plea agreement provided

      for a sentencing cap of twenty years executed, which is the sentence he

      ultimately received. Keen filed a petition for post-conviction relief claiming

      that he received ineffective assistance of trial counsel and that his guilty plea

      was not knowing, voluntary, and intelligent because his trial counsel

      misadvised him about his eligibility for the habitual-substance-offender

      enhancement. Following a hearing, the post-conviction court denied Keen’s

      request for relief. On appeal, Keen presents several issues for our review, which

      we consolidate and restate as whether the post-conviction court erred in

      denying his petition.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On August 10 and August 17, 2013, Keen sold methamphetamine to a

      confidential informant working for the Huntington Police Department. On

      March 3, 2014, the State charged Keen with two counts of Class B felony

      dealing methamphetamine. The State also alleged that Keen was a habitual

      substance offender based on his prior convictions for Class A misdemeanor

      possession of paraphernalia and Class D felony possession of

      methamphetamine.


[4]   On June 6, 2014, Keen pled guilty to one count of Class B felony dealing in

      methamphetamine and admitted to being a habitual substance offender, and the

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 2 of 10
      State dismissed the second Class B felony charge. The plea agreement provided

      for a sentencing cap of twenty years executed, and, while the State agreed to

      remain silent at sentencing, Keen was free to argue for a lesser sentence. At a

      sentencing hearing on June 24, 2014, two witnesses testified on Keen’s behalf,

      informing the court of Keen’s efforts to overcome his addiction. Keen also gave

      a statement regarding his participation in rehabilitation and requested that the

      court consider purposeful incarceration. The trial court noted Keen had seven

      prior felony convictions, nineteen prior misdemeanor convictions, and nineteen

      probation violations. The court sentenced Keen to fifteen years for the Class B

      felony and enhanced such by five years based on Keen’s status as a habitual

      substance offender.


[5]   Keen filed a pro se petition for post-conviction relief in 2015, which was

      amended twice by counsel in 2017 and 2018. Keen alleged that he received

      ineffective assistance of trial counsel and that his guilty plea was not entered

      knowingly, voluntarily, and intelligently. Both arguments were based on

      Keen’s claim that his counsel “performed deficiently by failing to recognize that

      Keen did not qualify as a habitual substance offender.” Appellant’s Appendix Vol.

      II at 28.


[6]   The post-conviction court held an evidentiary hearing on January 16, 2018.

      Scott Harter, Keen’s trial counsel, testified that he had practiced law for thirty-

      five years and that he had served as a public defender “throughout all [of his]

      career.” Transcript Vol. II at 22. Attorney Harter maintained that because the

      two methamphetamine deals took place with the same informant, he advised

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 3 of 10
      Keen that the sentences thereon would have to be served concurrently and

      therefore, he faced a maximum sentence of twenty years for the Class B felony

      dealing charges1 and up to an additional eight years for the habitual substance

      offender allegation.2 Given the strength of the evidence against Keen, Attorney

      Harter advised Keen to accept the plea agreement because it called for a cap of

      twenty years on the executed sentence and permitted Keen to argue for a lesser

      sentence in light of his efforts to overcome his drug addiction.


[7]   Attorney Harter testified that he did not believe there was a valid defense to

      challenge Keen’s conviction for possession of paraphernalia as a qualifying

      offense for the habitual-substance-offender enhancement. He also testified that

      he was aware that Keen had another conviction that was a qualifying substance

      offense, although he did not know the details of that offense. At the post-

      conviction hearing, the State presented evidence to show that Keen had a 2001

      conviction in Florida for possession of cannabis.3


[8]   Keen also testified at the post-conviction hearing. He claimed that Attorney

      Harter told him he could receive up to forty-eight years—twenty years on each

      Class B felony dealing offense and eight years for being a habitual substance

      offender. Having been so informed, Keen decided to accept a plea agreement




      1
          See Ind. Code § 35-50-2-5.
      2
          See Ind. Code § 35-50-2-10(f) (repealed effective July 1, 2014).
      3
       Keen does not dispute that his conviction for possession of cannabis is a qualifying offense for a habitual
      offender allegation.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019                   Page 4 of 10
      that provided for a twenty-year cap on sentencing and dismissed one of the

      dealing offenses. Keen maintains that Attorney Harter did not advise him that

      the sentences for the dealing offenses would have to be served concurrently or

      that the habitual-substance-offender allegation was not supported by two

      qualifying substance offenses. Keen testified that he would have gone to trial

      and preserved his right to appeal if he had known that the maximum sentence

      he faced if he went to trial was twenty years, thus negating any benefit to

      pleading guilty. On April 12, 2018, the post-conviction court entered its

      findings of fact and conclusions of law denying Keen post-conviction relief.

      Keen now appeals. Additional evidence will be provided as necessary.


                                          Discussion & Decision


[9]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Fisher v. State, 810

      N.E.2d 674, 679 (Ind. 2004); 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, 810 N.E.2d at 679. On

      review, we will not reverse the judgment unless the evidence as a whole

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

      post-conviction court. Id. Further, the post-conviction court in this case

      entered findings of fact and conclusions thereon in accordance with P-C.R.

      1(6). Id. “A post-conviction court’s findings and judgment will be reversed

      only upon a showing of clear error—that which leaves us with a definite and

      firm conviction that a mistake has been made.” Id. In this review, we accept

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 5 of 10
       findings of fact unless clearly erroneous, but we accord no deference to

       conclusions of law. Id. The post-conviction court is the sole judge of the

       weight of the evidence and the credibility of witnesses. Id.


[10]   Keen first argues that he was denied the effective assistance of counsel. Claims

       of ineffective assistance of trial counsel are generally reviewed under the two-

       part test announced in Strickland v. Washington, 466 U.S. 668 (1984); that is, a

       defendant must demonstrate that his counsel’s performance fell below an

       objective standard of reasonableness based on prevailing professional norms

       and that counsel’s deficient performance resulted in prejudice. Id. at 687-88.

       Because a petitioner must prove both deficient performance and prejudice to

       prevail on a claim of ineffective assistance of counsel, the failure to prove either

       component defeats such a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind.

       2001).


[11]   Keen argues that his trial counsel rendered ineffective assistance because he did

       not advise him of a potential defense to the habitual-substance-offender

       enhancement. Specifically, Keen argues his conviction for possession of

       paraphernalia could not support the habitual-substance-offender enhancement

       because such conviction did not qualify as a “substance offense” under the

       now-repealed habitual-substance-offender statute.4




       4
        Effective July 1, 2014, the legislature made significant changes to the criminal code, including repeal of the
       habitual-substance-offender statute. Now, substance offenses are included under the general habitual-
       offender statute.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019                   Page 6 of 10
[12]   In considering counsel’s performance, we have observed that “‘[c]ounsel is

       afforded considerable discretion in choosing strategy and tactics, and we will

       accord that decision deference. A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

       2009) (alteration in original) (quoting Lambert v. State, 743 N.E.2d 719, 730

       (Ind. 2001)).


[13]   Here, while there may have been some debate at the time of Keen’s plea as to

       the applicability of the habitual substance offender statute to certain offenses, no

       court in this State had held that possession of paraphernalia was not a

       qualifying substance offense. Although this court had held that a conviction for

       possession of precursors was not a substance offense for purposes of proving a

       habitual-substance-offender enhancement, see Murray v. State, 798 N.E.2d 895,

       903 (Ind. Ct. App. 2003), such did not necessarily dictate that a conviction for

       possession of paraphernalia would fall in the same category. Indeed, after

       Murrary, another panel of this court noted that “a conviction for paraphernalia

       possession would merit the HSO enhancement.” Aslinger v. State, 2 N.E.3d 84,

       92 n.4 (Ind. Ct. App. 2014), clarified on reh’g, No. 35A02-1303-CR-296 (May 7,

       2014).


[14]   In addition, Attorney Harter testified that in his experience as a criminal public

       defender in the county, a conviction for possession of paraphernalia was

       considered a valid substance offense for purposes of the habitual offender

       enhancement. He also testified that even if Keen’s possession of paraphernalia

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 7 of 10
       conviction was not a qualifying substance offense, he was aware that Keen had

       another qualifying conviction that would have supported the habitual substance

       offender enhancement. Finally, Attorney Harter stated that even assuming

       Keen’s possession of paraphernalia conviction did not qualify as a substance

       offense, he still would have advised Keen to plead guilty given the strength of

       the State’s evidence and because the State agreed to remain silent at sentencing

       and permit Keen to argue for a lesser sentence. In light of the state of the law

       coupled with counsel’s experience, Keen’s trial counsel rendered adequate

       assistance in light of his reasonable professional judgment. The post-conviction

       court did not err in finding that Keen was not denied the effective assistance of

       counsel.


[15]   Keen also challenges the validity of his guilty plea. He argues that his guilty

       plea was illusory because he was not advised of a possible defense to the

       habitual substance offender allegation in that his conviction for possession of

       paraphernalia was not a qualifying substance offense, and thus, he “was

       motivated to accept the State’s plea due to the threat of an illegal sentence of

       twenty-eight years.” Appellant’s Brief at 25. Keen maintains that “[h]ad he not

       been misled about the benefit of his plea, it would have been reasonable for him

       to go to trial.” Id.


[16]   “The long-standing test for the validity of a guilty plea is ‘whether the plea

       represents a voluntary and intelligent choice among the alternative courses of

       action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)

       (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 8 of 10
       (1970)). In furtherance of this objective, the Indiana Code provides that the

       court accepting the guilty plea determine that the defendant: (1) understands

       the nature of the charges; (2) has been informed that a guilty plea effectively

       waives several constitutional rights, including trial by jury, confrontation and

       cross-examining of witnesses, compulsory process, and proof of guilt beyond a

       reasonable doubt without self-incrimination; and (3) has been informed of the

       maximum and minimum sentences for the crime charged. Ind. Code § 35-35-1-

       2. When a petition for post-conviction relief claims that “an error in advice

       supports a claim of intimidation by exaggerated penalty, a petitioner must

       establish specific facts that lead to the conclusion that a reasonable defendant

       would not have entered a plea had the error in advice not been committed.”

       Roberts v. State, 953 N.E.2d 559, 564 (Ind. Ct. App. 2011) (quoting Willoughby v.

       State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied), trans. denied.


[17]   Keen has failed to establish that any error in advice regarding the habitual

       substance offender allegation was material to his decision to plead guilty. Even

       if his trial counsel had informed him that he had a possible defense to the

       habitual offender allegation, the totality of the circumstances was that (1) no

       court had ever held that possession of paraphernalia was not a qualifying

       offense; (2) in trial counsel’s experience, such conviction had been used to

       support a habitual substance offender determination, (3) an appellate opinion

       had recently noted that a conviction for possession of paraphernalia would

       support a habitual substance offender enhancement; and (4) even if the

       possession of paraphernalia conviction was not a qualifying offense, the State


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 9 of 10
       could have amended the allegation to add the Florida drug conviction that even

       Keen does not dispute was a substance offense. Keen has not established that

       had he been advised of all of the above, he would not have pled guilty and gone

       to trial.


[18]   The post-conviction court’s denial of Keen’s request for post-conviction relief is

       not clearly erroneous.


[19]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019   Page 10 of 10
