MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Oct 13 2016, 5:52 am
regarded as precedent or cited before any
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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Sam Milligan                                             Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sam Milligan,                                            October 13, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A04-1602-PC-263
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Respondent.                                     Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-8509-CF-393



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 1 of 31
[1]   Sam Milligan appeals the denial of his successive petition for post-conviction

      relief. Milligan raises seven issues which we consolidate and restate as whether

      the post-conviction court erred in denying his petition. We affirm.


                                        Facts and Procedural History

[2]   On September 20, 1985, Milligan was involved in a domestic dispute that

      resulted in a double homicide and an attempted murder of a third person. On

      September 25, 1985, the State charged Milligan with the murders of Margaret

      Milligan and Nkosana Ncube and the attempted murder of Thandeka Ncube.

      In October 1985, the State filed an application for death sentence, citing Ind.

      Code § 35-50-2-9(b)(8), and alleging that Milligan committed the murder of

      Margaret and Nkosana on September 20, 1985. 1


[3]   At some point, Donald C. Swanson, Jr., filed an appearance on Milligan’s

      behalf. 2 On October 28, 1985, Attorney Swanson filed a Notice of Defense of

      Mental Disease or Defect requesting that the court appoint three disinterested

      psychiatrists to examine Milligan, and the court granted the request. 3 On




      1
       At the time of the offense, Ind. Code § 35-50-2-9(a) provided that the State “may seek a death sentence for
      murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one
      (1) of the aggravating circumstances listed in subsection (b),” and subsection (b)(8) provided: “The defendant
      has committed another murder, at any time, regardless of whether the defendant has been convicted of that
      other murder.” (Subsequently amended).

      2
       The Appellant’s Appendix contains a chronological case summary for the underlying cause number 02D04-
      8509-CF-393, but the first entry occurs in 1993.
      3
       The order granting the request appointed Dr. Robert L. Greenlee, Dr. Ronald L. Pancner, and Dr. Joseph
      Fiacable. The order contains a handwritten notation near the date associated with Dr. Fiacable which states
      “canceled.” Appellant’s Appendix at 25.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016        Page 2 of 31
      November 25, 1985, Attorney Swanson filed a motion to withdraw appearance

      and requested that the court appoint a public defender.


[4]   In a letter to the court dated November 13, 1985, Dr. Robert L. Greenlee stated

      that he found no history of psychiatric treatment or hospitalization, found

      Milligan to be oriented as to time, place, and person, found no evidence of

      delusional thinking, and observed that Milligan denied hallucinations and drug

      use at the time of the alleged offense. Dr. Greenlee concluded that Milligan

      was sane at the time of the alleged offense, able to understand the nature of the

      charges against him, and able to assist his counsel in preparation of his defense.


[5]   In a letter to the court dated December 10, 1985, Dr. Ronald J. Pancner stated

      that he reviewed the probable cause affidavit 4 and concluded that Milligan was

      competent to stand trial and understood the charges and that the act of killing is

      illegal and morally wrong. He concluded that Milligan was verbal and able to

      answer questions and able to assist his counsel in the preparation of his defense.

      He also concluded that Milligan was sane at the time of the offense, that he

      demonstrated no signs of any major psychiatric disorder, and that he denied

      any history of serious psychiatric symptoms such as delusions or hallucinations.




      4
        The probable cause affidavit alleged in part that the police discovered Milligan had suffered an apparent
      self-inflicted gunshot wound.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016         Page 3 of 31
[6]   On December 11, 1985, Jerry E. Levendoski filed an appearance for Milligan. 5

      In February 1986, Attorney Levendoski filed a motion requesting the court to

      order an encephalogram examination of Milligan and to appoint a psychiatrist

      or psychologist for the purpose of developing a complete psychological profile

      of Milligan in order to assist counsel in the development and presentation of

      Milligan’s defense in both phases of the trial. He also filed a Motion to Dismiss

      Count IV State’s Motion for the Death Penalty, arguing that it would be a

      violation of due process and the Fourteenth Amendment to the United States

      Constitution to try Milligan for both charges of murder before the same jury

      and then use one of the charged murders as an aggravating circumstance to

      impose the death penalty in the other charged murder.


[7]   On February 11, 1986, Attorney Swanson again filed an appearance for

      Milligan. On February 12, 1986, the court entered an order stating that, at the

      request of Attorney Swanson, the court arranged a third psychiatric evaluation

      of Milligan by Dr. Herbert Trier.


[8]   In a letter to the court dated March 17, 1986, Dr. Trier wrote that he examined

      Milligan and found that he was able to assist in his own defense, was able to

      understand the nature of the charges against him, and was sane at the time of

      the offense.




      5
        The appearance filed by Attorney Levendoski requested that he appear as co-counsel. Some of the motions
      filed by Attorney Levendoski were filed with Attorney Bruce S. Cowen, who filed a motion to withdraw in
      February 1986.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016    Page 4 of 31
[9]    On July 10, 1986, Milligan filed a “Motion to Withdraw Former Plea of Not

       Guilty and Enter a Plea of Guilty to Count I, ‘Murder’, Count II, ‘Murder’, and

       Count III, ‘Attempt-Murder.’” Appellant’s Appendix at 45. The motion,

       which was signed by Milligan and his counsel, stated in part that the guilty plea

       was being made “knowingly and voluntarily pursuant to a plea agreement

       which has been marked Exhibit ‘A-1’” and that “I represent that I have read the

       plea agreement or I have had it read to me, and that I fully understand it.” Id.

       at 48. That same day, the State filed a Notice of Recommendation by State on

       Plea of Guilty which recommended the sentence for each count of murder be

       sixty years, that the sentence for attempted murder be fifty years, and that the

       sentences be served consecutive to each other for an aggregate sentence of 170

       years. The notice also stated that a specific condition of the plea agreement was

       that Milligan agreed that his stepdaughter, Thandeka T. Ncube, desired to

       maintain her residence in the United States, that Milligan’s cooperation would

       be needed from time to time to help to minimize the possibility that Thandeka

       would be deported to South Africa, that Milligan agreed to execute all papers

       and documents prepared on behalf of Thandeka by her attorney, and that he

       pledged good faith cooperation in all matters related thereto. 6


[10]   On July 10, 1986, the court held a guilty plea hearing at which Milligan was

       present and represented by counsel, and the following exchange occurred:




       6
           The prosecutor and Thandeka signed this notice.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 5 of 31
               [Milligan’s Counsel:] Your Honor, at this time, the defendant
               would tender to the court a Motion to Withdraw Former Pleas of
               Not Guilty and enter a plea of guilty to Count I, Count II and
               Count III, pursuant to a plea agreement. The plea agreement is
               attached to those motions. The motions are signed by myself
               and my client, Mr. Milligan.


               [Prosecutor:] Your Honor, in light of the defendant and his
               attorney’s written motion, the State would file in open court, a
               written recommendation upon a plea of guilty to Counts I, II,
               and III.


       Appellee’s Appendix at 5.


[11]   During questioning by the court, Milligan provided his name and age. The

       following exchange then occurred:

               [The Court:] Mr. Milligan, before this court can accept your
               pleas of guilty, I must be satisfied that you fully understand your
               constitutional rights; that your pleas of guilty are made freely,
               voluntarily, and that you are, in fact, guilty. It will, therefore, be
               necessary that I ask you certain questions and hear some
               evidence. If you do not understand the questions or the words
               that I use, please let me know and I will explain them to you.
               You may also talk with your attorney at any time. Have you
               ever been treated for any mental illness or, to your knowledge, do
               you now suffer from any mental or emotional disability?


               A I haven’t been treated for any, but I don’t know what I’m
               suffering – probably suffered some.


               [Milligan’s Trial Counsel:] Your Honor, my client has, pursuant
               to our notice of intention to file an insanity plea, been examined
               by two court appointed psychiatrists, both of whom found him

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 6 of 31
               not only sane at the time of the commission of these incidents,
               but also competent to assist his counsel in his representation.
               Other than that, I know of no other psychiatric or psychological
               counseling or problems that he has had in the past.


               Q Okay. Is that correct, Mr. Milligan?


               A Yes.


       Id. at 6-7. The court then asked Milligan questions regarding whether he was

       under the influence of alcohol or drugs, his intention to plead guilty, and

       whether he understood his rights, and answered the questions.


[12]   The court then read the charging informations, and Milligan indicated that he

       understood that pleading guilty constituted an admission of the truth of the

       material facts. The court asked Milligan if he understood that the sentence for

       Counts I and II could include a death sentence because the State filed a motion

       for the death penalty, and Milligan indicated that he understood. He indicated

       that he read the plea agreement and discussed it with his attorney, and

       responded affirmatively when asked if his pleas were of his own free and

       voluntary acts.


[13]   The following exchange occurred between the court and Milligan:

               Q I have before me a plea agreement. Did you read it?


               A Yes.


               Q Did you discuss it with your attorney?

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 7 of 31
               A Well, yes.


               Q It reads as follows, omitting formal parts: It says, “That you
               would be convicted and sentenced in Count I of Murder, a
               felony, Count II Murder, a felony. Count III, Attempted
               Murder, a Class A felony. That the sentence in Count I would be
               sixty years to serve. That the sentence in Count II would be sixty
               years to serve, consecutive to the sentence in Count I, for a total
               of 120 years. The sentence in Count III would be 50 years to
               serve consecutive to the sentences imposed in Counts I and II for
               accumulative [sic] sentence of 170 years on all three counts. As a
               specific condition of this plea agreement, the defendant agrees
               that his . . . stepdaughter Thandeka T. Ncube, desires to maintain
               her residence in the United States of America. That the
               defendant’s cooperation will be needed from time to time to help
               to minimize the possibility that said Thandeka T. Ncube will be
               deported to South Africa. That the defendant is aware that the
               prosecuting attorney’s office has solicited the aid of attorney, . . .
               to aid the victim in this cause and the prosecuting attorney’s
               office is securing permanent residence status for said Thandeka
               T. Ncube. That the defendant specifically agrees that he will
               execute all papers and documents prepared on behalf of
               Thandeka T. Ncube by her attorney and that the defendant will
               also pledge good faith cooperation in all matters related thereto.”
               Is that what you understand the agreement to be?


               A Yes.


       Id. at 15-17. The court asked Milligan how he pled as to each count, and

       Milligan responded “Guilty” each time. Id. at 19-20.


[14]   The prosecutor then asked Milligan if he read his written motion and that he

       was asking the court to take into account all the things that he and his attorney

       went over and filed in open court, and Milligan answered: “Yes.” Id. at 20.
       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 8 of 31
       The prosecutor introduced video taped statements from Pearl Washington,

       Violet Washington, and Thandeka Ncube. 7 Milligan’s counsel stated that he

       had no objection and stipulated to the exhibits. The prosecutor also introduced

       a police report, and Milligan’s counsel also stipulated to that exhibit. The court

       admitted the coroner’s reports and the psychiatric evaluations without

       objection. 8


[15]   The court found that Milligan understood the nature of the charges against him

       and the possible sentences, that his pleas were freely and voluntarily made, and

       that there was a factual basis for the pleas, and took the pleas under advisement.


[16]   On August 5, 1986, the court sentenced Milligan to sixty years for each count of

       murder and fifty years for attempted murder and ordered that the sentences be

       served consecutive to each other.


[17]   On January 26, 1996, Milligan filed a pro se petition for post-conviction relief. 9

       On June 12, 1996, the post-conviction court denied the petition. 10




       7
           The record does not contain a copy of the statements.
       8
           The record appears to contain only the coroner’s report related to Margaret Milligan.
       9
           The record does not contain a copy of this petition.
       10
            The record does not contain a copy of this order.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016      Page 9 of 31
[18]   On April 25, 2000, this court granted Milligan permission to file a successive

       petition for post-conviction relief. In May 2000, Milligan, pro se, filed a form

       successive post-conviction relief petition.


[19]   On May 30, 2000, the State filed an answer to Milligan’s petition. On February

       11, 2015, the State filed a Motion to Require Petitioner to Submit Case by

       Affidavit pursuant to Post-Conviction Rule 1(9)(b), 11 and the court granted the

       motion and gave Milligan until June 15, 2015 to submit his case by affidavit.

       On June 15, 2015, Milligan filed his affidavit in support of his verified petition

       for post-conviction relief. In October 2015, Milligan filed a motion to

       incorporate exhibits, and the court granted the motion. On January 7, 2016,

       the court denied Milligan’s petition.


                                                         Discussion

[20]   Before addressing Milligan’s allegations of error, we observe that Milligan is

       proceeding pro se. Such litigants are held to the same standard as trained

       counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

       We also note the general standard under which we review a post-conviction




       11
            Ind. Post-Conviction Rule 1(9)(b) provides in part:

                  In the event petitioner elects to proceed pro se, the court at its discretion may order the
                  cause submitted upon affidavit. It need not order the personal presence of the petitioner
                  unless his presence is required for a full and fair determination of the issues raised at an
                  evidentiary hearing. If the pro se petitioner requests issuance of subpoenas for witnesses at
                  an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the
                  witness’ testimony is required and the substance of the witness’ expected testimony. If the
                  court finds the witness’ testimony would be relevant and probative, the court shall order
                  that the subpoena be issued. If the court finds the proposed witness’ testimony is not
                  relevant and probative, it shall enter a finding on the record and refuse to issue the
                  subpoena.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016            Page 10 of 31
       court’s denial of a petition for post-conviction relief. 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. “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 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.


       A. Competency


[21]   Milligan argues that he was incompetent to enter a plea of guilty. He asserts

       that despite the number of psychiatric evaluations, the court failed to conduct a

       hearing on the issue of competency or declare a determination of competency.

       He contends that the written evaluations by Dr. Greenlee and Dr. Trier did not

       address the issue of his attempted suicide. He argues that the evidence of his

       attempted suicide and statements made by him as to his mental state and

       uncertainty about understanding the charges filed against him seriously

       undermined his competency at the change of plea hearing.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 11 of 31
[22]   The State argues that the trial court implicitly found that no competency

       hearing was needed, points out that defense counsel stated in open court that

       the appointed psychiatrists found Milligan to be not only sane at the time of the

       crimes but also competent to assist counsel in the proceedings, and asserts that

       it did not appear that any of Milligan’s words or actions at the plea hearing cast

       any doubt upon his competency.


[23]   With respect to this argument, the post-conviction court concluded in part:

               3. It is evident that the Court’s reason for not conducting a
               competency hearing was that the Court found a competency
               hearing was not needed, in view of [defense counsel’s]
               representations and the Court’s own observations, especially with
               regard to Mr. Milligan’s acknowledged understanding of his
               rights, the charges, the possible penalties, and the provisions of
               the plea agreement. This was an adequate basis for the decision
               not to hold a competency hearing. . . .


               4. . . . . Mr. Milligan expressed no uncertainty about his
               understanding of the charges, but rather specifically stated with
               respect to each charge that he understood he was admitting the
               truth of all material facts alleged in the charging informations.
               He did state that he had probably suffered from some mental or
               emotional disability, but acknowledged that he had been found
               competent and sane by the psychiatrists. His assertion that he
               had attempted to commit suicide does not appear to be
               corroborated by independent evidence. A convicted defendant’s
               uncorroborated, self-serving statements do not suffice to support
               a claim for post-conviction relief. McChristion v. State, 511
               N.E.2d 297, 301 (Ind. 1987). Furthermore, even if he did
               attempt suicide, this would not establish that he lacked the ability
               to understand the proceedings and to consult with counsel. See
               Weedman v. State, 21 N.E.3d 873, 881 (Ind. Ct. App. 2014), trans.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 12 of 31
               denied (defendant Weedman was found competent to stand trial
               although he had attempted suicide). Even facts having a greater
               tendency than a single suicide attempt to cast doubt upon a
               defendant’s mental functioning, such as the defendant’s delusion
               that there is an organized, systematic conspiracy against him, do
               not necessarily establish that the defendant is incompetent.
               Matheney v. State, 688 N.E.2d 883, 891-892 (Ind. 1997)[, reh’g
               denied, cert. denied, 525 U.S. 1148, 119 S. Ct. 1046 (1999)].


       Appellant’s Appendix at 11-13 (some citations omitted).


[24]   A guilty plea constitutes a waiver of constitutional rights and this waiver

       requires a trial court to evaluate the validity of every plea before accepting it.

       Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For the plea to be valid, the

       defendant’s decision to plead guilty must be knowing, voluntary and intelligent.

       Id. (citing Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S. Ct. 1709, 1711-1713

       (1969)). A competency hearing is required only when there is evidence before

       the trial court that creates a reasonable and bona fide doubt as to the

       defendant’s competency. Evans v. State, 489 N.E.2d 942, 948 (Ind. 1986). The

       presence of indicators sufficient to require the court to hold a hearing lies within

       the province of the trial judge and will not be disturbed absent an abuse of

       discretion. Id. (citing Perry v. State, 471 N.E.2d 270 (Ind. 1984)).


[25]   Based upon the three psychiatric evaluations all of which concluded that

       Milligan was competent to stand trial and Milligan’s responsive and coherent

       exchanges with the trial court at the guilty plea hearing, we cannot say that the

       evidence as a whole unerringly and unmistakably leads to a conclusion opposite

       that reached by the post-conviction court. See Underhill v. State, 477 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 13 of 31
       284, 287-288 (Ind. 1985) (rejecting the petitioner’s argument that the trial court

       erred when it accepted his guilty plea without first holding a competency

       hearing where three doctors agreed that the petitioner was competent to stand

       trial and the trial court was in an excellent position to observe the demeanor of

       the appellant during the hearing).


       B. Written Plea Agreement


[26]   Milligan argues that that trial court erroneously accepted his plea based upon a

       non-existent written plea agreement. The State argues that Milligan has no

       basis for asserting that the written plea agreement was non-existent or otherwise

       invalid, and that his motion to withdraw his former plea of not guilty and enter

       pleas of guilty and the notice of recommendation constitute the written plea

       agreement.


[27]   At the time that Milligan pled guilty, Ind. Code § 35-35-3-3(a) provided:

               No plea agreement may be made by the prosecuting attorney to a
               court on a felony charge except:


                        (1) in writing; and


                        (2) before the defendant enters a plea of guilty.


               The plea agreement shall be shown as filed, and if its contents
               indicate that the prosecuting attorney anticipates that the
               defendant intends to enter a plea of guilty to a felony charge, the
               court shall order the presentence report required by IC 35-38-1-8
               and may hear evidence on the plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 14 of 31
       (Subsequently amended by Pub. L. No. 136-1987, § 4).


[28]   Milligan filed a “Motion to Withdraw Former Plea of Not Guilty and Enter a

       Plea of Guilty to Count I, ‘Murder’, Count II, ‘Murder’, and Count III,

       ‘Attempt-Murder,’” which was dated July 10, 1986. Appellant’s Appendix at

       45-48. This motion was signed by Milligan and his counsel and stated in part:

               I represent to the Court that this guilty plea is being made
               knowingly and voluntarily pursuant to a plea agreement which
               has been marked Exhibit “A-1” and attached to this document as
               an intricate part hereof. I represent that I have read the plea
               agreement or I have had it read to me, and that I fully understand
               it.


       Id. at 48. The Notice of Recommendation by State of Plea of Guilty was dated

       July 10, 1986, and detailed the State’s recommendation for sentencing. At the

       beginning of the guilty plea hearing, Milligan’s counsel stated “at this time, the

       defendant would tender to the court a Motion to Withdraw Former Pleas of

       Not Guilty and enter a plea of guilty to Count I, Count II and Count III,

       pursuant to a plea agreement. The plea agreement is attached to those

       motions.” Appellee’s Appendix at 5. The trial court stated that it had a plea

       agreement, and Milligan indicated that he read it and discussed it with his

       attorney. The court then stated it would read an excerpt from the plea

       agreement and this excerpt appears to come from the Notice of

       Recommendation by State of Plea of Guilty. Milligan then indicated that that




       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 15 of 31
       was what he understood the agreement to be. Under these circumstances, we

       cannot say that Milligan has demonstrated that reversal is warranted. 12


       C. Factual Basis


[29]   Milligan argues that the trial court failed to establish a sufficient factual basis for

       the guilty plea. He asserts that he never made an evidentiary admission of the

       facts or admitted to the element of intent. Without citation to authority, he

       asserts that the video taped statements could not represent evidence toward a

       factual basis or to establish the necessary mens rea.


[30]   The State argues that the adequacy of the factual basis was res judicata, not

       subject to relitigation in a successive post-conviction proceeding. The State also

       notes that even if this claim is available for review, an adequate factual basis

       can be established where the defendant acknowledges that he understands the

       nature of the offenses and that his plea is an admission of the charges.


[31]   As to Milligan’s assertion that a sufficient factual basis had not been

       established, the post-conviction court’s order states:




       12
          Milligan also argues that the plea agreement exceeded the penal consequences for the offense and should
       be voided because it contained an illegal term that required him to cooperate with the attorneys of Thandeka
       T. Ncube, constituted a separate civil penalty not authorized by the legislature, and represented a cumulative
       punishment prohibited by double jeopardy. Milligan does not cite to specific authority that this type of
       provision is improper nor does he develop a cogent argument as to this issue. Accordingly, we conclude that
       this argument is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the
       defendant’s contention was waived because it was “supported neither by cogent argument nor citation to
       authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument
       on appeal by failing to develop a cogent argument).



       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016        Page 16 of 31
               9. Mr. Milligan asserts that the factual basis is insufficient to
               support his guilty plea. This issue was decided against Mr.
               Milligan in his first post-conviction proceeding. Conclusions of
               Law, June 12, 1996, ¶ 2. Repetitious litigation of essentially the
               same dispute is not permitted. Hughes v. State, 880 N.E.2d 1186,
               1188 (Ind. 2008); Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998),
               cert. denied, 527 U.S. 1035[, 119 S. Ct. 2393 (1999)]. Mr. Milligan
               therefore cannot raise the same issue again in this successive
               post-conviction proceeding.


               10. Furthermore, even if Mr. Milligan could now raise that
               issue, he would not be entitled to prevail. A factual basis is
               sufficiently established when the defendant, after having been
               read the charging information, admits that the allegations of the
               information are true. Melton v. State, 611 N.E.2d 666, 669 (Ind.
               Ct. App. 1993), trans. denied, and cases cited therein; see also Butler
               v. State, 658 N.E.2d 72, 77 (Ind. 1995). Mr. Milligan was read
               the charging informations; he expressed his understanding that,
               by pleading guilty, he was admitting the truth of all material facts
               alleged in the informations; and, having this understanding, he
               explicitly entered a plea of guilty to each count. Plea, at 6-8.
               This was sufficient to establish a factual basis.


               11. Finally, in order to obtain post-conviction relief on the
               ground of inadequate factual basis for a guilty plea, a convicted
               defendant must show that he suffered prejudice as a result of the
               lack of a proper factual basis. State v. Eiland, 707 N.E.2d 314,
               316-317 (Ind. Ct. App. 1999), [reh’g denied,] adopted, 723 N.E.2d
               863, 864-865 (Ind. 2000). Mr. Milligan has made no showing of
               prejudice resulting from the allegedly inadequate factual basis.


       Appellant’s Appendix at 15-16.


[32]   Even assuming that Milligan could raise this issue in his successive petition for

       post-conviction relief, we cannot say that it warrants reversal. Trial court
       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 17 of 31
       determinations of adequate factual bases, like other parts of the plea process,

       arrive here on appeal with a presumption of correctness. Butler v. State, 658

       N.E.2d 72, 77 (Ind. 1995). The Indiana Supreme Court has held that a factual

       basis exists when there is evidence about the elements of the crime from which

       a court could reasonably conclude that the defendant is guilty. Id. Relatively

       minimal evidence has sometimes been held adequate. Id. (citing Lowe v. State,

       455 N.E.2d 1126, 1129 (Ind. 1983) (defendant’s admission of guilt after

       prosecutor read all allegations adequately established factual basis)).


[33]   At the guilty plea hearing, the court read the charging informations, and

       Milligan indicated that he understood that pleading guilty constituted an

       admission of the truth of the material facts. Specifically, the following

       exchange occurred between the court and Milligan:

               Q Do you understand that the charges to which you are pleading
               guilty: Count I, Murder; Count II, Murder; and, Count III,
               Attempted Murder, and that in order to be guilty of these crimes,
               the State must prove each of the following elements beyond a
               reasonable doubt. First, in regard to Count I, the charge of
               Murder, “That on or about the 20th day of September, 1985, in
               Allen County, Indiana, that you did, knowingly or intentionally
               kill Margaret Milligan, another human being, to-wit: By shooting
               at and against the body of Margaret Milligan with a deadly
               weapon, to-wit: a gun, thereby inflicting a mortal wound in and
               upon the body of Margaret Milligan, causing her to die on
               September 20, 1985, being contrary to the form of the statute in
               such case made and provided.” Do you understand that pleading
               guilty to this charge, you are admitting the truth of all material
               facts that I just related to you?



       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 18 of 31
           A Yes.


           Q Count II, the charge of Murder: “On or about the 20th day of
           September, 1985, in Allen County, Indiana, that you did
           knowingly or intentionally kill Nkosoma[ 13] Ncube, another
           human being, to-wit: by shooting at and against the body of
           Nkosoma Ncube, with a deadly weapon, to-wit: a gun, thereby
           inflicting a mortal wound in and upon the body of Nkosoma
           Ncube, causing him to die on September 20, 1985, being contrary
           to the form of the statute in such case made and provided.” Do
           you understand that by pleading guilty to this charge, you are
           admitting the truth of all material facts that I just related to you?


           A Yes.


           Q In regard to Count III, the information for Attempted Murder.
           “That on or about the 20th day of September, 1985, in Allen
           County, Indiana, that you did attempt to commit the crime of
           Murder of Thandeka Ncube, another human being, in that said
           Sam Milligan did knowingly or intentionally attempt to kill said
           Thandeka T. Ncube, by shooting at and against the body of
           Thandeka T. Ncube, with a deadly weapon, to-wit: a gun,
           inflicting serious bodily injury which conduct constituted a
           substantial step toward the commission of the crime of murder
           against Thandeka T. Ncube, being contrary to the form of the
           statute in such case made and provided.” Do you understand
           that by pleading guilty to this charge, you are admitting the truth
           of all material facts that I just related to you?


           A Yes.




13
     The charging information spelled the name “Nkosana.” Appellant’s Appendix at 20.


Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 19 of 31
       Appellee’s Appendix at 9-11. We also note that the motion to plead guilty,

       which was signed by Milligan, stated that he had either been provided with a

       copy of the charging informations or that he had the charging informations read

       to him, that he understood the nature of the charges against him, and that a

       plea of guilty is an admission of the truth of the material facts set forth in the

       charging information. Further, the coroner’s report, which was admitted

       without objection, indicated the cause of death of Margaret Milligan to be

       multiple gunshot wounds to the head.


[34]   Under the circumstances, we cannot say that reversal is warranted on this basis.

       See Butler, 658 N.E.2d at 77 (observing that the petitioner told the trial judge

       that the allegations of the information were accurate and that the Court could

       not say that all the evidence pointed unmistakably to a conclusion opposite that

       reached by the post-conviction court.)


       D. Ineffective Assistance


[35]   Milligan argues that he received ineffective assistance of counsel because his

       counsel failed to conduct a reasonable and adequate factual investigation into

       his mental history and competency, failed to challenge the perfunctory

       examination reports dealing with his competency, failed to request a

       competency hearing, failed to request the court to make a declaration on his

       competency prior to accepting his guilty plea, advised him to accept a plea

       agreement that contained the clause regarding Thandeka, and allowed the

       factual basis to be established in such a manner absent evidence or admission by


       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 20 of 31
       Milligan on the statutory element of intent as the requisite mens rea for

       acceptance of the plea. Milligan also argues that his guilty plea was not made

       knowingly and intelligently because it was induced by an unconstitutional

       death penalty aggravating factor and that his counsel was ineffective for failing

       to challenge the constitutionality of Ind. Code § 35-50-2-9(b)(8) as applied to

       him.


[36]   The State contends that Milligan has not established error with respect to any

       issue and has failed to establish that his counsel’s performance was deficient.

       The State also asserts that there is no claim that Milligan had any affirmative

       defenses, that this appears to be a case where the surviving victim was a witness

       to the crimes and provided direct evidence of Milligan’s guilt, and that pleading

       guilty by an agreement that dismissed the State’s death penalty request appears

       to be a fundamentally fair and reliable outcome.


[37]   To the extent that Milligan suggests he would not have pled guilty if his trial

       counsel had not committed the alleged errors and omissions, we observe that,

       with respect to the voluntariness of his guilty plea, the Indiana Supreme Court

       has held that a plea entered after the trial judge has reviewed the various rights

       which a defendant is waiving and made the inquiries called for by statute is

       unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d

       1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079, 118 S. Ct. 1528

       (1998). However, defendants who can show that they were coerced or misled

       into pleading guilty by the judge, prosecutor or defense counsel will present

       colorable claims for relief. Id. at 1266. In assessing the voluntariness of the

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 21 of 31
       plea, we review all the evidence before the court which heard his post-

       conviction petition, including the transcript of the petitioner’s original

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

       record. Id. In Moore, the Court held that “[v]oluntariness is also distinct from

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

       involuntary” and that 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.” Id.


[38]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. 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.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[39]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 22 of 31
       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997).


[40]   Because Milligan was convicted pursuant to a guilty plea, we analyze his claims

       under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main

       types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d 290,

       295 (Ind. 2002). The first category relates to “an unutilized defense or failure to

       mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App.

       2003), trans. denied. The second relates to “an improper advisement of penal

       consequences,” and this category has two subcategories: (1) “claims of

       intimidation by exaggerated penalty or enticement by an understated maximum

       exposure;” or (2) “claims of incorrect advice as to the law.” Id. Milligan

       appears to raise claims under both categories.


[41]   In Segura, the Court held “in order to establish that the guilty plea would not

       have been entered if counsel had performed adequately, the petitioner must

       show that a defense was overlooked or impaired and that the defense would

       likely have changed the outcome of the proceeding.” 749 N.E.2d at 499. The

       Court stated that “in the case of claims related to a defense or failure to mitigate

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 23 of 31
       a penalty, it must be shown that there is a reasonable probability that a more

       favorable result would have obtained in a competently run trial.” Id. at 507. If

       a petitioner is convicted pursuant to a guilty plea “and later claims that his

       counsel rendered ineffective assistance because counsel overlooked or impaired

       a defense, the petitioner must show that a defense was indeed overlooked or

       impaired and that the defense would have likely changed the outcome of the

       proceeding.” Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007).


[42]   With respect to claims of exaggerated penalty, the Segura Court stated:


               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the postconviction court must resolve the factual
               issue of the materiality of the bad advice in the decision to plead,
               and postconviction relief may be granted if the plea can be shown
               to have been influenced by counsel’s error. However, if the
               postconviction court finds that the petitioner would have pleaded
               guilty even if competently advised as to the penal consequences,
               the error in advice is immaterial to the decision to plead and there
               is no prejudice.



       Segura, 749 N.E.2d at 504-505.


[43]   In light of Milligan’s trial counsel’s filing of a Notice of Defense of Mental

       Disease or Defect requesting that the court appoint three disinterested

       psychiatrists to examine him which was granted by the trial court, and the three

       letters that all concluded that Milligan was competent, as well as his trial

       counsel’s filing of the motion requesting the court to order an encephalogram

       examination of Milligan, we cannot say that his trial counsel were ineffective

       regarding challenging his competency or the trial court’s handling of the issue.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 24 of 31
       As for Milligan’s argument that his trial counsel was ineffective for advising

       him to accept a plea agreement that contained the clause regarding Thandeka,

       we noted earlier that we cannot say that he develops a cogent argument as to

       this issue. With respect to his argument regarding the factual basis, we

       concluded above that a sufficient factual basis existed.


[44]   To the extent that Milligan asserts that his trial counsel failed to challenge the

       constitutionality of Ind. Code § 35-50-2-9(b)(8) as applied to him or that his plea

       was not made knowingly and intelligently because it was induced by an

       unconstitutional death penalty aggravating factor, he discusses State v.

       McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979), and Conner v. State, 580

       N.E.2d 214 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S. Ct. 1501 (1992), reh’g

       denied, and asserts that the “narrowing process set forth under subsection (b)(8)

       is capricious and arbitrary under those decisions.” Appellant’s Brief at 13.


[45]   The State argues that the aggravator could properly have applied to Milligan

       because he committed two murders at the same time and that, while Milligan

       acknowledges McCormick and Conner, he improperly claims those decisions are

       capricious and arbitrary.


[46]   We observe that Milligan’s trial counsel filed a Motion to Dismiss Count IV,

       State’s Motion for the Death Penalty, arguing that it would be a violation of

       due process and the Fourteenth Amendment to the United States Constitution

       to try Milligan for both charges of murder before the same jury and then use

       one of the charged murders as an aggravating circumstance to impose the death


       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 25 of 31
       penalty in the other charged murder. Moreover, as explained below, we cannot

       say that McCormick or Conner require reversal or that the aggravator pursuant to

       Ind. Code § 35-50-2-9(b)(8) constituted an illusory threat.


[47]   At the time of the offense, Ind. Code § 35-50-2-9 provided:


               (a) The state may seek a death sentence for murder by alleging,
               on a page separate from the rest of the charging instrument, the
               existence of at least one (1) of the aggravating circumstances
               listed in subsection (b). In the sentencing hearing after a person
               is convicted of murder, the state must prove beyond a reasonable
               doubt the existence of at least one (1) of the aggravating
               circumstances alleged.


               (b) The aggravating circumstances are as follows:


                                                     *****


                        (8) The defendant has committed another murder, at any
                        time, regardless of whether the defendant has been
                        convicted of that other murder.


[48]   In McCormick, Count I alleged that Jesse A. McCormick strangled a man on

       October 5, 1978, resulting in his later death. 272 Ind. at 275, 397 N.E.2d at

       278. Count II set forth an allegation which allegedly constituted one of the

       statutory aggravating circumstances. Id. Specifically, Count II was brought

       under Ind. Code § 35-50-2-9(b)(8) and alleged that McCormick murdered

       another man on May 17, 1977. Id. In a separate cause, McCormick also stood

       charged with the murder of the man on May 17, 1977, and McCormick had not

       been tried on that charge. Id. The State and McCormick stipulated that the
       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 26 of 31
       two killings were not related or connected in any way. Id. The Court held that

       the effect of the statutory procedure would be that the defendant would be fully

       tried on two separate and unrelated charges before the same jury and that he

       would be tried on the second count to a jury which had been undeniably

       prejudiced by having convicted him of an unrelated murder. Id. at 278, 397

       N.E.2d at 280. The Court held that Ind. Code § 35-50-2-9(b)(8) denied due

       process as applied to the defendant and confined its holding to those cases in

       which the murder alleged as an aggravating circumstances is not related to the

       principal murder charge. Id. at 280, 397 N.E.2d at 281.


[49]   In Conner, the defendant was convicted of three counts of murder and sentenced

       to death. 580 N.E.2d at 216. The Court addressed the defendant’s argument

       that the prosecutor’s discretion to charge the death penalty count renders the

       penalty arbitrary and capricious and, therefore, cruel and unusual, by holding

       as follows:

               Under our State’s system of criminal justice, the prosecutor
               always has been allowed broad discretion in representing the
               people of the State in determining what crimes to prosecute and
               in requesting the imposition of various sentences. We reject the
               argument that the legislature’s continued placement of such
               discretion on the prosecutor to determine which cases warrant
               the request for the imposition of the death penalty renders the
               penalty unconstitutional. Coleman v. State (1990), Ind., 558
               N.E.2d 1059, 1065, cert. denied (1991), 501 U.S. 1259, 111 S. Ct.
               2912, 115 L.Ed.2d 1075; Games [v. State], 535 N.E.2d [530, 537
               (Ind. 1989), cert. denied, 493 U.S. 874, 110 S. Ct. 205 (1989), reh’g
               denied]. There is nothing in this record which leads us to believe



       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 27 of 31
               that the prosecutor abused his discretion in seeking the death
               penalty for a triple murder.


       Id. at 218. In an opinion concurring in result, Justice DeBruler observed that all

       three killings were on the same morning within approximately a two hour

       period and at different locations on the south side of Indianapolis and stated

       that Ind. Code § 35-50-2-9(b)(8) was applicable in cases involving double or

       multiple murders for which the defendant is tried in a single proceeding. Id.


[50]   We cannot say that McCormick or Conner require reversal or that the aggravator

       pursuant to Ind. Code § 35-50-2-9(b)(8) constituted an illusory threat. See Judy

       v. State, 275 Ind. 145, 171, 416 N.E.2d 95, 109 (1981) (“As the jury here

       considered the sentence to be imposed on Judy for each of the four murders,

       they had before them their own finding of guilt beyond a reasonable doubt of

       the other three murders involved in the entire incident. Therefore, they could

       properly consider these convictions as aggravating circumstances in deciding to

       recommend the death penalty.”). Accordingly, we cannot say that Milligan has

       demonstrated that he was prejudiced or that his plea was involuntary.


                                                   Conclusion

[51]   For the foregoing reasons, we affirm the denial of Milligan’s successive petition

       for post-conviction relief. Affirmed.


       Vaidik, C.J., concurs.

       Robb, J., concurs in result with separate opinion.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 28 of 31
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Sam Milligan,                                             October 13, 2016

       Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                 02A04-1602-PC-263
               v.                                                Appeal from the Allen Superior
                                                                 Court

       State of Indiana,                                         The Honorable John F. Surbeck, Jr.,
                                                                 Judge
       Appellee-Respondent.
                                                                 Trial Court Cause No.
                                                                 02D04-8509-CF-393




       Robb, Judge, concurring in result.

[52]   I concur with the majority that the post-conviction court did not err in denying

       Milligan’s successive petition for post-conviction relief. I write only to note the

       following with respect to Milligan’s allegation that there was an insufficient
       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 29 of 31
       factual basis for his plea: on this record, we have no reason to disbelieve the

       post-conviction court’s finding that res judicata precluded consideration of this

       issue and even if we did, Milligan has waived the issue.


[53]   As the majority notes, the record does not include Milligan’s first petition for

       post-conviction or the order denying that petition. However, the State’s answer

       to Milligan’s successive petition for post-conviction relief alleges any issue

       regarding the factual basis for his plea has “been decided against [him] in the

       original post-conviction proceeding and may not be relitigated in a successive

       post-conviction proceeding according to the doctrine of res judicata.”

       Appellant’s Appendix at 73. The successive post-conviction court ordered the

       case submitted by affidavit; in response to Milligan’s affidavit, the State alleges

       the factual basis issue “was decided against Mr. Milligan in his first post-

       conviction proceeding,” citing paragraph 2 of the post-conviction court’s June

       12, 1996, conclusions of law. Id. at 93. Although Milligan alleges in his reply

       brief that the State has failed to show evidence that he presented the same issue

       in his prior petition, see Reply Brief of Appellant at 3, he did not include a copy

       of the prior petition or order in his appendix, and he does not actually refute

       that he raised the factual basis issue therein.


[54]   On this record, I would say Milligan, who bears the burden of establishing

       grounds for relief, has not shown any error in the post-conviction court’s

       finding that consideration of the factual basis issue was precluded by res judicata.

       Further, presuming the initial post-conviction decision decided the factual basis

       issue against Milligan, he has not shown that the initial post-conviction decision

       Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 30 of 31
was manifestly unjust in order to avoid res judicata when seeking successive

post-conviction relief. See Annes v. State, 789 N.E.2d 953, 954 (Ind. 2003). And

finally, regardless of whether or not Milligan raised the factual basis issue in his

first petition for post-conviction relief, he could have raised it in his first petition,

and has therefore waived its consideration as a standalone claim (as opposed to

an ineffective assistance of counsel claim) in a successive petition. See P-C.R.

1(8); Kirk v. State, 632 N.E.2d 776, 779 (Ind. Ct. App. 1994) (noting the

“established rule that a petitioner raise all available grounds for relief in his

original petition unless they were not available or were unknown to him at that

time”).




Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016   Page 31 of 31
