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                 Dec 05 2014, 5:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

De’CARLOS FREEMAN                               GREGORY F. ZOELLER
Westville, Indiana                              Attorney General of Indiana

                                                BRIAN REITZ
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

De’CARLOS FREEMAN,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 20A05-1310-PC-547
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                 APPEAL FROM THE ELKHART SUPERIOR COURT
                      The Honorable David C. Bonfiglio, Judge
                           Cause No. 20D06-1302-PC-11


                                     December 5, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                  Case Summary and Issues

         De’Carlos Freeman, pro se, appeals the post-conviction court’s denial of his petition

for post-conviction relief. Freeman raises several issues for review, which we have restated

as: 1) whether the post-conviction court erred in denying his motion for discovery; 2)

whether Freeman’s guilty plea was voluntary, intelligent, and knowing; 3) whether

Freeman was denied effective assistance of trial counsel; 4) whether he was erroneously

sentenced in violation of the Indiana Double Jeopardy Clause; and 5) whether the trial court

denied Freeman the right of allocution. Concluding that the post-conviction court did not

err in denying Freeman’s petition for post-conviction relief, we affirm.

                                 Facts and Procedural History

         While driving in his patrol car, Officer Michael Davis of the Elkhart Police

Department observed Freeman riding a moped down Fourth Street. Officer Davis saw

Freeman swerve in his lane and almost fall over twice. Officer Davis then observed

Freeman make a right turn into an alley without properly using his signal. Officer Davis

believed Freeman to be impaired, and he pulled Freeman over. Freeman immediately put

his hands into his pockets, and after Officer Davis commanded Freeman to keep his hands

up, Freeman fled on his moped. Officer Davis pursued Freeman in his patrol car and also

dispatched other officers in the area. Freeman eventually lost control, crashed the moped,

and fled on foot. Once the officers caught up with Freeman, he physically struggled with

them during the arrest. Freeman was eventually apprehended with the use of a K-9 and a

taser.



                                               2
      The State charged Freeman with receiving stolen property, a Class D felony;

resisting law enforcement, a Class D felony; and resisting law enforcement, a Class A

misdemeanor. After his initial hearing on July 1, 2001, a public defender (“Counsel”) was

appointed to represent Freeman. Counsel met with Freeman at the Elkhart County Jail.

On October 12, 2011, at the advice of Counsel, Freeman pled guilty to both counts of

resisting law enforcement in exchange for the dismissal of the receiving stolen property

charge. No written copy of the plea agreement was submitted to the court, and sentencing

was scheduled for November 9, 2011.

      During the course of Freeman’s legal proceedings, he and Counsel communicated

by letter on numerous occasions. In his letters, Freeman made several claims of innocence.

Although Freeman pled guilty on October 12, 2011, he received a letter from Counsel dated

November 4, 2011, which stated:

              The investigator has measured the are [sic] from Harrison where you
      pulled into the alley. I have provided you with a map so that you can ensure
      me that the area marked is where you went. If that is the case, it is only 115
      feet from Harrison to that point. Therefore, you could not have turned your
      signal on 200 ft prior. The statute would [sic] says you have to turn it on 200
      ft prior to the turn.
              I spoke with the prosecutor. I told him my position is that if you were
      not able to comply with the statute, then you can’t be pulled over for it and
      therefore, everything else should be dismissed. His argument at this point is
      that even if the stop was not legal, that you committed an independent crime
      after being stopped (by fleeing on the scooter) and therefore you are still
      responsible for your conduct. Had you not taken off, and only received a
      ticket for failure to turn in time, then because you could not comply with the
      statute, the ticket would have to be thrown out.
              I am, at this point, trying to do some research on the issue as to whose
      position is right. Unfortunately, so far, the legal authorities I have reviewed
      have sided with the prosecutor, but I will let you know as soon as I find
      something out.


                                             3
Appellant’s Appendix at 98. Freeman was sentenced on November 9, 2011. He neither

spoke nor asked to speak at the sentencing hearing. Freeman appealed, claiming that his

guilty plea was not in writing as required by Indiana Code section 35-35-3-3. This court

affirmed his conviction on March 30, 2012. Freeman v. State, Cause No. 20A04-1111-

CR-619, slip op. at 2 (Ind. Ct. App., March 30, 2012) (holding that the verbal guilty plea

was valid and affirming both of Freeman’s convictions).

       Freeman, pro se, filed his petition for post-conviction relief on March 12, 2013.

Freeman also filed with the post-conviction court a motion for discovery. The post-

conviction court denied Freeman’s discovery motion and held an evidentiary hearing on

June 20, 2013, at which both Officer Davis and Counsel testified. Because Freeman

appeared at the post-conviction hearing by video, the post-conviction court set a second

hearing for July 26, 2013, to allow Freeman time to mail his proposed exhibits to the court.

All exhibits, including the letters that had been exchanged with Counsel, were admitted

without objection at the hearing. The post-conviction court issued findings of fact and

conclusions of law denying Freeman’s petition for post-conviction relief on October 11,

2013. Freeman now appeals.

                                 Discussion and Decision

                                  I. Standard of Review

       “Post-conviction proceedings are civil proceedings in which the defendant must

establish his claims by a preponderance of the evidence.” Wilkes v. State, 984 N.E.2d

1236, 1240 (Ind. 2013) (citing Ind. Post–Conviction Rule 1(5)).           “Post-conviction

proceedings do not offer a super-appeal, rather, subsequent collateral challenges to

                                             4
convictions must be based on grounds enumerated in the post-conviction rules.” Id.

(citation and quotation marks omitted). These challenges are limited to issues unknown at

the original trial or issues unavailable on direct appeal. Id. Issues that are available on

direct appeal, if not raised, are waived, and issues litigated adversely to the defendant are

precluded from further review. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009).

       “Because the defendant is appealing from the denial of post-conviction relief, he is

appealing from a negative judgment and bears the burden of proof.” Wilkes, 984 N.E.2d

at 1240 (citation omitted). The defendant must show this court that the evidence, as a

whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction

court’s decision. Id. “The post-conviction court is the sole judge of the evidence and the

credibility of the witnesses,” Collins v. State, 14 N.E.3d 80, 86 (Ind. Ct. App. 2014)

(citation omitted), and we defer to its factual findings, unless they are clearly erroneous,

id. at 83.

                             II. Freeman’s Discovery Request

       Freeman contends the post-conviction court erred by denying his motion for a copy

of Counsel’s client file and the prosecutor’s file, which included the dash-cam video from

Officer Davis’s patrol car. “Trial and post-conviction courts are accorded broad discretion

in ruling on discovery matters and we will affirm their determinations absent a showing of

clear error and resulting prejudice.” Wilkes, 984 N.E.2d at 1251. The post-conviction

court found that Freeman’s discovery request was improper under Indiana Trial Rule 26.

The post-conviction court’s order does not say, specifically, why Freeman’s discovery

request was improper. However, we note that Freeman has made no argument as to why

                                             5
his request was proper. Therefore, we cannot say the post-conviction court abused its

discretion.

                                          III. Freeman’s Guilty Plea1

         Freeman contends that his convictions must be vacated because his guilty plea was

not voluntary, intelligent, and knowing and because there was not an adequate factual basis.

                                            A. Voluntariness of Plea

         Before accepting a guilty plea, the trial court must determine that the defendant

understands the nature of the charges to which he is pleading, understands that the plea will

waive certain rights, and understands the range of penalties he faces. See Ind. Code § 35-

35-1-2. These statutory requirements ensure that the guilty plea “represents a voluntary

and intelligent choice.” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010). “[P]ost-

conviction relief is a proper vehicle for challenging a guilty plea, and we look at all

evidence before the post-conviction court that supports its determination that a guilty plea

was voluntary, knowing, and intelligent.” Collins, 14 N.E.3d at 85. In this context,

voluntariness is dependent “on whether the defendant knowingly and freely entered the

plea . . . .” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997), cert. denied, 523 U.S. 1079

(1998).

         “A guilty plea entered after a trial court has reviewed the various rights that a

defendant is waiving and has made the inquiries called for by statute is unlikely to be found



         1
           We note that Freeman again argues that the trial court erred by accepting a verbal guilty plea. We addressed
the validity of Freeman’s verbal guilty plea on direct appeal, see Freeman, slip op. at 2, and further review is precluded.
See Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002).


                                                            6
wanting in a collateral attack.” Cornelious v. State, 846 N.E.2d 354, 357 (Ind. Ct. App.

2006), trans. denied. Such is the case here. During Freeman’s guilty plea hearing, the trial

court informed Freeman of the rights he would be waiving by pleading guilty and of the

possible sentences for his crimes. Freeman confirmed he understood he was waiving

certain rights, that he had not been threatened or coerced into pleading guilty, and that he

understood the possible penalties for his crimes. The transcript of the guilty plea hearing

does not reflect that the trial court specifically discussed with Freeman the charges against

him; however, Counsel represented at the post-conviction hearing that she would have gone

over the elements of the charges with him prior to the decision to enter a guilty plea.

Further, Freeman affirmed he had committed an act satisfying each element of the crimes

when he was questioned to establish a factual basis for his plea. It is clear from the entirety

of the record, therefore, that Freeman understood the nature of the charges against him.

       Because Freeman was appropriately advised prior to his guilty plea, the post-

conviction court did not err by concluding Freeman’s plea was knowing, intelligent, and

voluntary. To the extent Freeman argues his plea was not knowing, intelligent, and

voluntary because of Counsel’s advice, he is making an ineffective assistance of counsel

claim that we will discuss separately. See Moore, 678 N.E.2d 1266 (“Voluntariness is . . .

distinct from ineffective assistance of counsel, despite some references in our cases to pleas

as involuntary because not based on informed or effective counsel.”).

                                      B. Factual Basis

       Freeman also claims that his guilty plea lacked an adequate factual basis. The trial

court must not accept a guilty plea unless a sufficient factual basis has been established for

                                              7
the plea. Ind. Code § 35-35-1-3(b). “A factual basis exists when there is evidence about

the elements of a crime from which a court could reasonably conclude that the defendant

is guilty. The factual basis of a guilty plea need not be established beyond a reasonable

doubt.” Wilson v. State, 707 N.E.2d 318, 320 (Ind. Ct. App. 1999) (citation and quotation

marks omitted). At the time of Freeman’s offenses, Indiana Code section 35-44-3-3

provided:

      (a) A person who knowingly or intentionally:
          ***
          (3) flees from a law enforcement officer after the officer has, by visible
          or audible means, including operation of the law enforcement officer’s
          siren or emergency lights, identified himself or herself and ordered the
          person to stop;
      commits resisting law enforcement, a Class A misdemeanor, except as
      provided in subsection (b).
      (b) The offense under subsection (a) is a:
          (1) Class D felony if:
              (A) the offense is described in subsection (a)(3) and the person uses a
              vehicle to commit the offense . . . .

Ind. Code § 35-44-3-3(a)-(b) (2011).

      While Freeman was under oath at the guilty plea hearing, Counsel and Freeman

engaged in the following colloquy:

      [Counsel]:    DeCarlos, on June 25 of this year, were you in Elkhart County
                    in the State of Indiana?
      Freeman:      Yes.
      [Counsel]:    On that date, do you admit that you fled from a law
                    enforcement officer on a moped?
      Freeman:      Yes.
      [Counsel]:    And you knew that he was a police officer? Is that correct?
      Freeman:      Yes.
      [Counsel]:    And you knew he was trying to stop you or approach you to
                    talk to you?
      Freeman:      Yes.


                                            8
        [Counsel]:     Also, on that same date, do you admit that you resisting
                       physically a police officer in his attempt to arrest you?
        Freeman:       Yes.

Exhibit M at 5-6. Freeman admitted to the facts necessary for proving the elements of

resisting law enforcement. Accordingly, there was a sufficient factual basis for the trial

court to accept Freeman’s guilty plea, and the post-conviction court did not err by

concluding the same.

                         IV. Ineffective Assistance of Trial Counsel

                                  A. Standard of Review

        The Sixth Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective assistance

of counsel, a defendant must show (1) that counsel’s performance was deficient such that

it fell below an objective standard of reasonableness based on prevailing professional

norms     and    (2)    the   defendant    was    prejudiced    by     counsel’s   deficient

performance.     Strickland, 466 U.S. at 687.      When considering whether counsel’s

performance was deficient, the reviewing court begins with a “strong presumption” that

counsel’s performance was reasonable. Id. at 689. A defendant is prejudiced if “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

        When a defendant contests his guilty plea based on claims of ineffective assistance

of counsel, we apply the same two-part test from Strickland discussed above. Hill v.

                                             9
Lockhart, 474 U.S. 52, 58-59 (1985). The first part, regarding counsel’s performance, is

largely the same. Id. The prejudice requirement, however, “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process. In other

words, . . . the defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Id. at 59.

       The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant makes an

insufficient showing as to one of them. 466 U.S. at 697. For instance, “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed” without consideration of whether counsel’s performance was

deficient. Id.

       The premise underlying each of Freeman’s ineffective assistance of trial counsel

claims is that Officer Davis’s stop was unlawful. Freeman argues that Counsel provided

ineffective assistance when she failed to file a motion to suppress evidence arising from

the stop and when she failed to thoroughly investigate his case prior to advising him to

plead guilty.

                                  B. Motion to Suppress

       Freeman claims that Counsel was ineffective for failing to file a motion to suppress

the evidence proving he resisted law enforcement. Specifically, he argues that Officer

Davis unlawfully stopped him because he did not violate Indiana Code section 9-21-8-25

(the “Signal Statute”) which requires “[a] signal of intention to turn right or left [to] be

                                            10
given continuously during not less than the last two hundred (200) feet traveled by a vehicle

before turning . . . .” Accordingly, he believes Counsel should have filed a motion to

suppress all evidence arising out of the stop because it was made in violation of the Fourth

Amendment to the United States Constitution and Article 1, Section 11 of the Indiana

Constitution. See Gyamfi v. State, 15 N.E.3d 1131, 1136 (Ind. Ct. App. 2014) (“The fruit

of the poisonous tree doctrine . . . bars the admissibility in a criminal proceeding of

evidence obtained in the course of unlawful searches and seizures.”) (citation and quotation

marks omitted). To succeed on his argument, Freeman must show that the motion, if made,

would have been successful. See Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App.

2007), trans. denied.

        Under either constitutional provision, the stop was lawful. See Potter v. State, 912

N.E.2d 905, 907-08 (Ind. Ct. App. 2009) (under the Fourth Amendment, an officer needs

only “reasonable suspicion that a traffic law has been violated or that other criminal activity

is taking place” in order to make a valid traffic stop) (quoting Meredith v. State, 906 N.E.2d

867, 869 (Ind. 2009)); Veerkamp v. State, 7 N.E.3d 390, 396 (Ind. Ct. App. 2014) (under

Article 1, Section 11, a minor traffic violation is sufficient to give an officer probable cause

to stop a vehicle), trans. denied. Officer Davis observed Freeman riding his moped,

swerving and almost falling over twice, and he believed that Freeman was impaired.

Whether or not Freeman used his turn signal properly, these observations alone were

sufficient to give rise to reasonable suspicion. Accordingly, the stop was lawful.2


        2
           We note that Freeman also claims that Officer Davis committed perjury in the arrest report by concluding
Freeman violated the Signal Statute without first measuring the distance of Fourth Street. However, Freeman’s
allegations are founded on his belief that Officer Davis’s stop was unlawful. Thus, we do not address that claim.

                                                        11
        In addition, at the time of Freeman’s conviction, “[i]t was well settled that in

Indiana, an individual may not flee from a police officer who has ordered the person to

stop, regardless of the apparent or ultimate lawfulness of the officer’s order.” Cole v. State,

878 N.E.2d 882, 886 (Ind. Ct. App. 2007), abrogated by Gaddie v. State, 10 N.E.3d 1249

(Ind. 2014). Thus, even if the initial stop had been unlawful, evidence proving Freeman

resisted law enforcement would not have been excluded.

        For the foregoing reasons, Indiana law supported Counsel’s deliberate decision not

to file a motion to suppress, and it would have been futile for her to do so because a motion

to suppress would not have been granted. Freeman has not shown that Counsel was

ineffective.

                                        C. Counsel’s Investigation

        Freeman claims that Counsel incorrectly told him that he violated the Signal Statute,

which was the impetus for his guilty plea, before Counsel researched the law and

investigated his case. Freeman’s argument stems from the letter he received from Counsel

dated November 4, 2011—a date subsequent to his guilty plea—which states that Counsel

is “at this point, trying to do some research on the issue . . . .” Appellant’s App. at 98.

        Counsel testified at the post-conviction hearing that before advising Freeman to

plead guilty, she had an investigator measure Fourth Street and discovered Freeman did




         Freeman further claims the State unlawfully suppressed evidence showing that he did not violate the Signal
Statute and violated his right to due process by committing a Brady violation. See Brady v. Maryland, 373 U.S. 83,
87 (1963) (holding suppression by prosecution of evidence favorable to an accused upon request violates Due Process
where the evidence is material either to guilt or punishment). Because Officer Davis’s stop was lawful, we do not
address this claim.


                                                        12
have at least 200 feet in which to signal. She also watched the dash-cam video and

observed Freeman use his signal, but “too late.” Post-Conviction Transcript at 6. Finally,

Counsel testified that notwithstanding the date on the November 4, 2011, letter, she had

fully investigated the case and completed her legal research before Freeman’s guilty plea

hearing. See id. at 10 (Counsel testifying that “there was a thorough investigation of your

case prior to you deciding to plead guilty.”); id. at 13 (Counsel stating in response to

questioning about the date of the letter that “[j]ust because that’s the date on the letter I

sent you doesn’t mean . . . that I investigated something after you pled.”). Based on her

investigation and understanding of the law, she advised Freeman before he pled guilty that

regardless of his compliance with the Signal Statute, he had no authority to flee from

Officer Davis.     See Appellant’s App. at 98 (November 4, 2011 letter stating

“Unfortunately, so far, the legal authorities [Counsel has] reviewed have sided with the

prosecutor” that Freeman had no right to flee after being stopped). Counsel’s advice was

supported by Indiana law at the time of Freeman’s conviction. See State v. Howell, 782

N.E.2d 1066, 1067-68 (Ind. Ct. App. 2003) (holding that even if traffic stop was unlawful,

officer had probable cause to arrest for resisting arrest after the defendant attempted to

flee), abrogated by Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014).

       In advising Freeman to plead guilty, Counsel took into consideration the fact that

evidence showing Freeman resisted law enforcement would not be excluded at trial and

that the State had agreed to dismiss the receiving stolen property charge, a Class D felony,

in exchange for a guilty plea. See McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App.

2013) (stating that strategic choices made after thorough investigation of law and facts

                                             13
relevant to plausible options are virtually unchallengeable).                                Because the law

unambiguously supported Counsel’s advice at the time of Freeman’s guilty plea, we cannot

say that her performance was deficient such that it fell below an objective standard of

reasonableness. See Strickland, 466 U.S. at 686.3

                                   V. Indiana Double Jeopardy Clause

         Freeman claims that he was sentenced in violation of the Indiana Double Jeopardy

Clause. We note that this claim entails the kind of factual dispute that a post-conviction

court is suited for resolving. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002).

         Upon pleading guilty, Freeman was convicted of resisting law enforcement as a

Class D felony and resisting law enforcement as a Class A misdemeanor. He now claims

that because the Class A misdemeanor offense is a lesser included offense of the Class D

felony, his sentence violated the Indiana Double Jeopardy Clause. Freeman pled guilty in

exchange for the State’s dismissal of his third charge, receiving stolen property, a Class D

felony. By pleading guilty, Freeman avoided an additional felony conviction. In Mapp,

our supreme court held that the defendant waived his right to challenge his convictions on

double jeopardy grounds, because the defendant had entered into a plea agreement. 770

N.E.2d at 334. The court reasoned that the defendant benefited by receiving a shorter

sentence as the result of the plea. Id. at 335. Just like the defendant in Mapp, Freeman




         3
             Freeman also claims Counsel was ineffective for failing to memorialize his plea agreement in writing. The
validity of the verbal plea was previously raised on direct appeal and decided against Freeman. See Freeman, slip op.
at 2. Even if this issue were not precluded from further review, see Ben-Yisrayl, 738 N.E.2d at 258, Freeman could
show neither deficient performance nor prejudice.

                                                         14
waived his right to challenge his conviction on double jeopardy grounds by entering into a

favorable plea.

                             VI. Statutory Right of Allocution

       Freeman claims that he was denied the statutory right of allocution granted to

criminal defendants in Indiana Code section 35-38-1-5. The right of allocution affords

criminal defendants an opportunity to make statements on their own behalf before a judge

announces a sentence. Freeman believes he was denied the right of allocution because he

did not speak at his sentencing hearing. Although the court did not ask Freeman if he

wanted to speak at his sentencing hearing, the statutory right of allocution does not require

a trial court to make such an offer when a defendant is sentenced after a guilty plea. See

Biddinger v. State, 868 N.E.2d 407, 412 (Ind. 2007). Moreover, Freeman did not ask to

speak. Therefore, Freeman was not denied the right to allocution provided by Indiana Code

section 35-38-1-5. See id.

                                        Conclusion

       Freeman has not shown that the post-conviction court’s decision was contrary to the

evidence as a whole. Therefore, the post-conviction court did not err in denying Freeman

post-conviction relief.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




                                             15
