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                               May 29 2013, 9:35 am
judicata, collateral estoppel, or the law
of the case.




APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:

LEONARD F. WILLIAMS                                  GREGORY F. ZOELLER
Bunker Hill, Indiana                                 Attorney General of Indiana

                                                     JODI KATHRYN STEIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LEONARD F. WILLIAMS,                                 )
                                                     )
        Appellant-Petitioner,                        )
                                                     )
               vs.                                   )     No. 43A04-1206-PC-322
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Respondent.                         )


                     APPEAL FROM THE KOSCIUSKO SUPERIOR COURT
                             The Honorable Joe V. Sutton, Judge
                               Cause No. 43D03-1003-PC-2


                                            May 29, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

       Leonard Williams appeals the post-conviction court’s denial of his petition for

post-conviction relief. We affirm in part, reverse in part, and remand.

                                             Issues

       Williams raises several issues, which we restate as:

            I.      whether he was entitled to an evidentiary hearing on his
                    petition for post-conviction relief;

           II.      whether his guilty plea was involuntary;

          III.      whether he received ineffective assistance of trial counsel;
                    and

          IV.       whether he received ineffective assistance of appellate
                    counsel.

                                             Facts

       The facts, as stated in Williams’s direct appeal, follow:

                         On November 30, 2007, Williams was driving a
                 Chevy Blazer in Kosciusko County while intoxicated.
                 Williams had three passengers in his vehicle—Michael
                 Nelson, Anthony Blankenship, and Anthony Hackworth.
                 Williams was driving at a high rate of speed and had
                 disregarded a stop sign. Despite pleas from the passengers in
                 his car to slow down, Williams continued driving. As
                 Williams disregarded a second stop sign, his vehicle collided
                 with a vehicle driven by Jon Kamp. Kamp died as a result of
                 the accident. A passenger in Kamp’s vehicle and the three
                 passengers in Williams’s vehicle were seriously injured, with
                 one passenger being airlifted to the hospital. Williams
                 climbed from his vehicle and fled the scene on foot before
                 police or medical personnel arrived. The Kosciusko Sheriff’s
                 Department eventually located Williams at his home three
                 hours after the crash. Williams initially told officers that he
                 was not the driver of the vehicle, but rather, was a victim.


                                               2
                 Williams later admitted that he was the driver of the Chevy
                 Blazer.

                          On December 3, 2007, the State charged Williams
                 with Count I, OWI causing death, as a class B felony, Counts
                 II, III, and IV, OWI causing serious bodily injury, as class C
                 felonies, and Count V, failure to remain at scene of accident
                 resulting in death, a class C felony. On January 22, 2008, the
                 State amended the charging information to add Count VI,
                 class C felony OWI causing serious bodily injury. Williams
                 entered into a plea agreement with the State whereby he
                 agreed to plead guilty to all counts. Under the terms of the
                 plea agreement, sentencing was left to the trial court’s
                 discretion except that the sentences for the five class C felony
                 offenses would run concurrent with one another.

                        On September 4, 2008, the trial court accepted
                 Williams’s guilty plea and conducted a sentencing hearing.
                 The trial court found Williams’s guilty plea to be a mitigating
                 factor for all counts, but refused to find any mitigating
                 remorse. The court also considered the following aggravating
                 factors: (1) Williams was on probation at the time of the
                 instant offense; (2) probation is not likely a tool for
                 rehabilitation; and (3) Williams’s criminal history. The trial
                 court sentenced Williams to eighteen years for Count I and
                 seven years for each of Counts II through VI. Pursuant to the
                 terms of the plea agreement, the court ordered the sentences
                 on Counts II through VI to run concurrently with each other.
                 Based on its finding that Williams acted with reckless
                 disregard for the safety of others, the trial court ordered that
                 the sentences on the class C felonies run consecutively to the
                 sentence imposed for Count I, for an aggregate sentence of
                 twenty-five years.

Williams v. State, No. 43A03-0809-CR-458, slip op. at 2-3 (Ind. Ct. App. Apr. 9, 2009),

trans. denied.

       On direct appeal, Williams challenged the trial court’s weighing of the aggravators

and mitigators and the imposition of consecutive sentences. We affirmed the twenty-

five-year sentence. Our supreme court then denied transfer.

                                                3
       Williams filed a petition for post-conviction relief, arguing that: (1) his guilty plea

was not made knowingly, intelligently, and voluntarily; (2) he received ineffective

assistance of trial counsel; and (3) he received ineffective assistance of appellate counsel.

After the State Public Defender filed a notice of non-representation, Williams filed a pro

se motion to set a hearing date.      Without holding a hearing, the trial court denied

Williams’ petition for post-conviction relief as follows:

              1.     The Defendant requested pauper counsel and was
                     referred to the State Public Defender’s office.

              2.     The State, by Prosecuting Attorney, filed an Answer
                     on November 29, 2011.

              3.     The State Public Defender reviewed the petition and
                     found the petition for Post-Conviction Relief to be
                     without merit and filed Notice of Non-Representation
                     on January 3, 2012.

              4.     Leonard Williams asserts a claim of ineffective
                     assistance of counsel for not raising the defense of
                     intoxication on a criminal charge of Operating a
                     Vehicle Causing Death and Serious Bodily Injury.

              5.     Intoxication is not a defense under Indiana Code 35-
                     41-2-5 (subject to the provision of Indiana Code 35-
                     41-3-5).

              6.     The petition of Leonard Williams is without merit.

                                    Conclusions of Law

                    The Court concurs with the State Public Defender that
              the pro se Petition for Post-Conviction Relief filed by
              Leonard Williams on November 22, 2012 is without merit.
              The Court therefore DENIES the petition.




                                              4
Appellant’s App. p. 32.1 Williams now appeals.

                                                Analysis

        Williams challenges the denial of his petition for post-conviction relief. 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. 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.

                                              I. Hearing



1
 Under the post-conviction rules, the Public Defender may represent an indigent petitioner if the “Public
Defender determines the proceedings are meritorious and in the interests of justice.” Ind. Post-Conviction
Rule 1(9)(a). In its order, the post-conviction court here concurred with the Public Defender that
Williams’s petition was “without merit.” Appellant’s App. p. 32. We express concern over using the
Public Defender’s determination regarding whether to represent an indigent petitioner as a basis for
summarily denying a petition for post-conviction relief. The post-conviction rules only allow such a
summary denial if “the pleadings conclusively show that petitioner is entitled to no relief . . . .” P-C.R.
1(4)(f).
                                                    5
       Williams first argues that the post-conviction court erred by summarily denying

his petition for post-conviction relief without having an evidentiary hearing. In general,

the post-conviction rules require the post-conviction court to hold a hearing on the

petition. However, Indiana Post-Conviction Rule 1, Section 4 provides, in part:

              (f)    If the State Public Defender has filed an appearance,
                     the State Public Defender shall have sixty (60) days to
                     respond to the State’s answer to the petition filed
                     pursuant to Rule PC 1(4)(a).         If the pleadings
                     conclusively show that petitioner is entitled to no
                     relief, the court may deny the petition without further
                     proceedings.

              (g)    The court may grant a motion by either party for
                     summary disposition of the petition when it appears
                     from the pleadings, depositions, answers to
                     interrogatories, admissions, stipulations of fact, and
                     any affidavits submitted, that there is no genuine issue
                     of material fact and the moving party is entitled to
                     judgment as a matter of law. The court may ask for
                     oral argument on the legal issue raised. If an issue of
                     material fact is raised, then the court shall hold an
                     evidentiary hearing as soon as reasonably possible.

The post-conviction court appears to have entered judgment under Indiana Post-

Conviction Rule 1, Section 4(f).

       When a court disposes of a petition under Indiana Post-Conviction Rule 1, Section

4(f), we essentially review the lower court’s decision as we would a motion for judgment

on the pleadings. Allen v. State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003), trans. denied.

The court errs in disposing of a petition in this manner unless “the pleadings conclusively

show that petitioner is entitled to no relief.” P-C.R. 1(4)(f). “If the petition alleges only

errors of law, then the court may determine without a hearing whether the petitioner is


                                             6
entitled to relief on those questions. Allen, 791 N.E.2d at 753. “However, if the facts

pled raise an issue of possible merit, then the petition should not be disposed of under

section 4(f).” Id. “This is true even though the petitioner has only a remote chance of

establishing his claim.” Id. For each of Williams’s claims, we will address whether he

was entitled to an evidentiary hearing.

                                        II. Guilty Plea

         Williams claims that his guilty plea was involuntary due to his medications.

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.

         The State concedes that Williams was entitled to an evidentiary hearing on this

claim.    According to the State, Williams’s petition contained facts supporting this

allegation, and this allegation of error should not have been summarily denied.

Consequently, we reverse and remand for the post-conviction court to hold an evidentiary

hearing on this issue.2

                          III. Ineffective Assistance of Trial Counsel

2
  If appropriate under the post-conviction rules, the post-conviction court could “order the cause
submitted upon affidavit” instead of holding an evidentiary hearing. See Ind. Post-Conviction Rule
1(9)(b).
                                                7
       Williams argues that he received ineffective assistance of trial counsel. To prevail

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

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

deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied.

A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for 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 reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be

resolved by a prejudice inquiry alone. Id.

       In analyzing prejudice in the context of a guilty plea, we review such ineffective

assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura

created two categories of claims and enunciated different treatments of each respective

category, depending upon whether the ineffective assistance allegation related to (1) an

unutilized defense or failure to mitigate a penalty, or (2) an improper advisement of penal

consequences. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing

Segura, 749 N.E.2d at 507), trans. denied.



                                              8
         Williams claims that his trial counsel failed to utilize a defense that he was too

intoxicated to have specific intent. “[I]n order to set aside a conviction because of an

attorney’s failure to raise a defense, a petitioner who has pled guilty must establish that

there is a reasonable probability that he or she would not have been convicted had he or

she gone to trial and utilized the omitted defense.” Willoughby, 792 N.E.2d at 564.

“Intoxication is not a defense in a prosecution for an offense and may not be taken into

consideration in determining the existence of a mental state that is an element of the

offense unless the defendant meets the requirements of IC 35-41-3-5.” Ind. Code § 35-

41-2-5. Indiana Code Section 35-41-3-5 provides: “It is a defense that the person who

engaged in the prohibited conduct did so while he was intoxicated, only if the

intoxication resulted from the introduction of a substance into his body: (1) without his

consent; or (2) when he did not know that the substance might cause intoxication.”

         Williams makes no argument or allegation that either of the exceptions is

applicable here. Thus, the intoxication defense is inapplicable. Because the pleadings

conclusively showed that Williams was not entitled to relief on this issue, a hearing was

unnecessary on this issue. Williams has failed to demonstrate that he would not have

been convicted had he gone to trial and utilized the intoxication defense. Consequently,

the post-conviction court properly denied his petition for post-conviction relief on this

basis.

                      III. Ineffective Assistance of Appellate Counsel

         Next, Williams argues that he received ineffective assistance of appellate counsel.

The standard for gauging appellate counsel’s performance is the same as that for trial

                                              9
counsel. Allen, 749 N.E.2d at 1166. Williams must demonstrate that his appellate

counsel was deficient and that he was prejudiced by the deficient performance. Ben-

Yisrayl, 729 N.E.2d at 106.

       Williams argues that his appellate counsel should have raised a sentencing issue

based upon Indiana Code Section 35-30-1-2(c), the single episode of criminal conduct

rule. Because the strategic decision regarding which issues to raise on appeal is one of

the most important decisions to be made by appellate counsel, appellate counsel’s failure

to raise a specific issue on direct appeal rarely constitutes ineffective assistance. See

Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court has adopted

a two-part test to evaluate the deficiency prong of these claims: (1) whether the unraised

issues are significant and obvious from the face of the record; and (2) whether the

unraised issues are “clearly stronger” than the raised issues. Bieghler v. State, 690

N.E.2d 188, 194 (Ind. 1997), cert. denied.       If this analysis demonstrates deficient

performance by counsel, the court then examines whether the issues that appellate

counsel failed to raise “would have been clearly more likely to result in reversal or an

order for a new trial.” Id.

       Indiana Code Section 35-50-1-2(c) provides:

              [E]xcept for crimes of violence, the total of the consecutive
              terms of imprisonment, exclusive of terms of imprisonment
              under IC 35-50-2-8 and IC 35-50-2-10, to which the
              defendant is sentenced for felony convictions arising out of an
              episode of criminal conduct shall not exceed the advisory
              sentence for a felony which is one (1) class of felony higher
              than the most serious of the felonies for which the person has
              been convicted.


                                            10
        Williams was found guilty of Class B felony operating a vehicle while intoxicated

causing death, four counts of Class C felony operating a vehicle while intoxicated

causing serious bodily injury, and Class C felony failure to remain at scene of accident

resulting in death. The Class C felony sentences were ordered to be concurrent with each

other but consecutive to the Class B felony conviction for an aggregate sentence of

twenty-five years.

        Even if the statute is applicable here, the total sentence must not exceed the

“advisory sentence for a felony which is one (1) class of felony higher than the most

serious of the felonies for which the person has been convicted.” I.C. § 35-50-1-2(c).

The advisory sentence for a Class A felony, which is one class higher than Williams’s

Class B felony conviction, is thirty years. Williams was only sentenced to twenty-five

years. As a result, the sentence does not violate Indiana Code Section 35-50-1-2(c).3

        Williams has failed to demonstrate that this sentencing issue was significant and

obvious from the face of the record, clearly stronger than the raised issues, and would

have been clearly more likely to result in reversal or an order for a new trial. Because the

pleadings conclusively showed that Williams was entitled to no relief on this issue, a




3
  The State also argues that the limitation on consecutive sentences does not apply here because operating
a vehicle while intoxicated causing death and operating a vehicle while intoxicated causing serious bodily
injury are classified as crimes of violence under Indiana Code Section 35-50-1-2(a). At the time of
Williams’s offense, “causing death when operating a motor vehicle” was classified as a crime of violence.
The offenses of operating a vehicle while intoxicated causing death and operating a vehicle while
intoxicated causing serious bodily injury were added as crimes of violence on July 1, 2008. See Ind. Pub.
L. No. 126-2008, § 12.


                                                   11
hearing was unnecessary on this issue. The post-conviction court’s denial of Williams’s

petition on this issue was not clearly erroneous.4

                                             Conclusion

        We reverse the post-conviction court’s judgment against Williams on his claim

that his guilty plea was involuntary and remand for the post-conviction court to hold an

evidentiary hearing on the issue.           We affirm the post-conviction court’s denial of

Williams’s petition on his claims of ineffective assistance of trial and appellate counsel.

We affirm in part, reverse in part, and remand.

        Affirmed in part, reversed in part, and remanded.

NAJAM, J., and BAILEY, J., concur.




4
  Williams also argues that his appellate counsel should have argued that his sentence was inappropriate
in light of the nature of the offense and the character of the offender under Indiana Appellate Rule 7(B).
However, on appeal, Williams makes no argument demonstrating that he was prejudiced by this alleged
deficient performance. Williams has failed to demonstrate that this sentencing issue was significant and
obvious from the face of the record, clearly stronger than the raised issues, and would have been clearly
more likely to result in reversal or an order for a new trial.
                                                   12
