MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                      FILED
regarded as precedent or cited before any                                              Aug 17 2020, 8:31 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
John Jay Lacey                                           Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

John Jay Lacey,                                          August 17, 2020
Appellant,                                               Court of Appeals Case No.
                                                         19A-CR-2715
        v.                                               Appeal from the Boone County
                                                         Superior Court
State of Indiana,                                        The Honorable Matthew C.
Appellee.                                                Kincaid, Judge
                                                         Trial Court Cause No.
                                                         06D01-1606-F3-149



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020          Page 1 of 7
[1]   John Jay Lacey, pro se, appeals the trial court’s denial of his motion to vacate a

      plea agreement. We reverse and remand.


                                      Facts and Procedural History

[2]   On June 22, 2016, the State charged Lacey with aggravated battery as a level 3

      felony. The State later alleged he was an habitual offender. On November 18,

      2016, the State and Lacey entered into a plea agreement in which Lacey agreed

      to plead guilty as charged and the State agreed not to file any additional charges

      arising out of “the fact situation on which these charges are based.” Appellant’s

      Appendix Volume II at 36. The plea agreement provided for an open sentence

      but limited the habitual offender enhancement to fourteen years.


[3]   On February 15, 2017, the court accepted the plea and sentenced Lacey to

      fifteen years for aggravated battery and enhanced the sentence by thirteen years

      for an aggregate sentence of twenty-eight years. On August 13, 2018, Lacey

      filed a Motion to Correct Erroneous Sentence asserting in part that the two

      previous crimes in the State of Florida were insufficient to support the habitual

      offender enhancement. On September 9, 2018, the court denied Lacey’s

      motion.


[4]   On appeal, this Court held there was insufficient evidence to support the

      thirteen-year habitual offender enhancement, reversed the judgment of the trial

      court on the habitual offender finding, and remanded to the trial court for

      resentencing. Lacey v. State, 124 N.E.3d 1253, 1257 (Ind. Ct. App. 2019). On

      July 17, 2019, the trial court held a sentencing hearing and entered a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020   Page 2 of 7
      resentencing order which vacated its earlier finding that Lacey was an habitual

      offender and sentence enhancement of thirteen years and ordered that the

      executed sentence of fifteen years for aggravated battery as a level 3 felony

      would remain.


[5]   On September 11, 2019, Lacey filed a pro se Motion to Vacate Conviction,

      which asserted “[c]urrently, there exists no plea agreement governing Count I:

      Aggravated Battery . . . .” Appellant’s Appendix Volume II at 151. On

      September 17, 2019, the court denied the motion.


[6]   On September 25, 2019, Lacey filed a Motion to Vacate Plea Agreement

      asserting that the habitual offender allegation was the determining factor and

      benefit in signing the plea agreement, he was not advised by counsel that the

      habitual offender enhancement was erroneous, and he was no longer receiving

      the benefit of the sentence cap on the habitual offender enhancement. On

      October 23, 2019, the court denied Lacey’s motion.


                                                  Discussion

[7]   Before addressing Lacey’s argument, we observe that although he is proceeding

      pro se, such litigants are held to the same standards as trained attorneys and are

      afforded no inherent leniency simply by virtue of being self-represented. See

      Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Lacey argues that his plea

      is not constitutionally valid, he received ineffective assistance of trial counsel,

      his due process rights were violated by the court’s failure to inform him of his

      lack of eligibility for the habitual offender allegation, the State erred in filing the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020   Page 3 of 7
      habitual offender enhancement, the plea agreement is void and improper under

      Federal Criminal Procedure Rule 11(a)(2), and he is wrongfully incarcerated as

      a result of the partially vacated plea agreement. He requests that this Court

      vacate the plea agreement and conviction. The State asserts that we should

      remand this cause for proceedings under the Indiana Rules of Post-Conviction

      Remedies. In reply, Lacey argues that “Appellees [sic] should be denied their

      request for remand to proceed in accordance with I.C. 35-35-1-4(c) due to the

      trial court’s procedural errors and statutory violations which are clear and

      blatant violations of the Appellant’s due process rights.” Appellant’s Reply

      Brief at 12.


[8]   Ind. Code § 35-35-1-4(c) provides:


              After being sentenced following a plea of guilty, or guilty but mentally
              ill at the time of the crime, the convicted person may not as a
              matter of right withdraw the plea. However, upon motion of the
              convicted person, the court shall vacate the judgment and allow
              the withdrawal whenever the convicted person proves that
              withdrawal is necessary to correct a manifest injustice. A motion
              to vacate judgment and withdraw the plea made under this subsection
              shall be treated by the court as a petition for postconviction relief under
              the Indiana Rules of Procedure for Postconviction Remedies. For
              purposes of this section, withdrawal of the plea is necessary to
              correct a manifest injustice whenever:

                      (1) the convicted person was denied the effective assistance
                      of counsel;

                      (2) the plea was not entered or ratified by the convicted
                      person;

                      (3) the plea was not knowingly and voluntarily made;

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020        Page 4 of 7
                       (4) the prosecuting attorney failed to abide by the terms of
                       a plea agreement; or

                       (5) the plea and judgment of conviction are void or
                       voidable for any other reason.

               The motion to vacate the judgment and withdraw the plea need
               not allege, and it need not be proved, that the convicted person is
               innocent of the crime charged or that he has a valid defense.


       (Emphases added).


[9]    The record reveals that Lacey filed both his September 11, 2019 Motion to

       Vacate Conviction and his September 25, 2019 Motion to Vacate Plea

       Agreement more than two years after the trial court’s February 15, 2017

       sentencing order and more than one month after the court’s July 17, 2019

       resentencing order. Thus, the trial court was required to treat Lacey’s motions

       challenging the judgment and plea as a petition for post-conviction relief

       pursuant to Ind. Code § 35-35-1-4(c).


[10]   Ind. Post-Conviction Rule 1(5) provides:


               The petition shall be heard without a jury. A record of the
               proceedings shall be made and preserved. All rules and statutes
               applicable in civil proceedings including pre-trial and discovery
               procedures are available to the parties, except as provided above
               in Section 4(b). The court may receive affidavits, depositions,
               oral testimony, or other evidence and may at its discretion order
               the applicant brought before it for the hearing. The petitioner has
               the burden of establishing his grounds for relief by a
               preponderance of the evidence.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020   Page 5 of 7
[11]   Ind. Post-Conviction Rule 1(4)(g) provides:


               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.


[12]   Ind. Post-Conviction Rule 1(6) provides that “[t]he court shall make specific

       findings of fact, and conclusions of law on all issues presented, whether or not a

       hearing is held.”


[13]   Based upon the record, we cannot say that the trial court treated Lacey’s

       motion to vacate judgment and withdraw the plea as a petition for post-

       conviction relief. The court did not set the matter for hearing, and neither party

       moved for summary disposition of the petition. The record includes only a

       summary entry denying Lacey’s motion, and no findings of fact or conclusions

       of law were entered. In light of Ind. Code § 35-35-1-4(c), we remand for the

       trial court to treat Lacey’s motion as a petition for post-conviction relief. See

       generally State v. Oney, 993 N.E.2d 157, 166 (Ind. 2013) (observing “the

       Legislature’s specific directive that[] ‘a motion to vacate judgment and

       withdraw the plea made under this subsection shall be treated by the court as a

       petition for postconviction relief,’”) (quoting Ind. Code § 33-35-1-4(c))

       (emphasis added in Oney); Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020   Page 6 of 7
       (holding that “[t]he proper avenue for challenging one’s conviction pursuant to

       a guilty plea is through filing a petition for post-conviction relief and presenting

       evidence at a post-conviction proceeding”) (quoting Tumulty v. State, 666

       N.E.2d 394, 395-396 (Ind. 1996)); Collins v. State, 676 N.E.2d 741, 743 (Ind. Ct.

       App. 1996) (holding that “[i]t is basic to and idiosyncratic in Indiana law that

       error premised upon a guilty plea must be brought by a petition for post-

       conviction relief under Ind. Rules of Procedure, Post-Conviction Rule 1”).


[14]   For the foregoing reasons, we reverse and remand.


[15]   Reversed and remanded.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020   Page 7 of 7
