                                                                            FILED
                                                                        Mar 28 2016, 8:45 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana
William D. Polansky                                       J.T. Whitehead
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Vorice Williams-Bey,                                      March 28, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A03-1508-PC-1173
        v.                                                Appeal from the Elkhart County
                                                          Superior Court 1
State of Indiana,                                         The Honorable Evan S. Roberts,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          20D01-1401-PC-1



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016                       Page 1 of 14
                                              Case Summary
[1]   Vorice Williams-Bey (“Williams”) pled guilty to Escape, as a Class B felony,1

      and was sentenced to fifteen years imprisonment, with five years suspended to

      probation. He subsequently sought post-conviction relief, which was denied.

      Williams now appeals.


[2]   We reverse and remand for further proceedings.2



                                                         Issue
[3]   Williams presents several issues for our review, one of which we find

      dispositive: whether the post-conviction court erred when it concluded that

      Williams did not protest his innocence as to infliction of injury during the guilty

      plea hearing.



                              Facts and Procedural History
[4]   On May 5, 2011, Williams was placed under arrest and was taken to an Elkhart

      hospital to be checked for injuries. While being escorted to a police squad car,

      Williams fled on foot from police and re-entered the hospital. A police




      1
        See Ind. Code § 35-44-1.3-4. Williams was charged under I.C. § 35-44-3-5, which was recodified in 2012 at
      I.C. § 35-44-1.3-4. We refer throughout to the statutory provisions applicable at the time of his offense.
      2
       This Court heard oral argument on this case on February 26, 2016, at Brown County High School in
      Nashville. We extend our thanks to the school for its hospitality, and to the parties’ counsel for their able
      advocacy.

      Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016                            Page 2 of 14
      detective, Crystal Garcia (“Detective Garcia”), located Williams in a hospital

      stairwell and attempted to apprehend him by grabbing Williams’s jacket from

      behind. Detective Garcia managed to grab hold of the jacket, and her hand was

      injured in the process. Williams, however, got away from Detective Garcia and

      was eventually caught by other officers.


[5]   Williams was charged with Escape, elevated to a Class B felony because of

      Detective Garcia’s injury, and a number of other offenses. After charges were

      filed, Williams was represented by an attorney from the public defender’s office.

      Williams became dissatisfied with the attorney’s representation, however, and

      on October 29, 2012 he submitted a handwritten “Notice of Entry of

      Appearance,” requesting permission to represent himself. This notice was sent

      by the court to both the prosecutor and Williams’s defense attorney, but no

      hearing was held on Williams’s request.


[6]   On January 28, 2013, Williams, still represented by a public defender, entered

      into a plea agreement under which he pled guilty to Escape, as a Class B felony.

      Also pursuant to the plea agreement, the State dismissed charges of Battery and

      Resisting Law Enforcement, as Class A misdemeanors, as well as charges in

      another case. At the guilty plea hearing, Williams admitted fleeing from police

      custody and admitted that Detective Garcia was injured when she grabbed his

      coat, but repeatedly denied having intended Detective Garcia’s injury or of

      knowing of her injury until after he was apprehended. However, Williams

      acknowledged that he understood himself to be pleading guilty, and the trial

      court accepted his guilty plea. On February 28, 2013, Williams was sentenced

      Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 3 of 14
      to a prison term of ten years, and a number of charges against him were

      dismissed.


[7]   On January 17, 2014, Williams filed a petition for post-conviction relief,

      requesting representation from the office of the Indiana State Public Defender,

      which accepted Williams’s request. Represented by the State Public Defender,

      Williams sought to have his conviction for Escape vacated on three bases.

      First, Williams challenged the voluntariness of his guilty plea, arguing that

      though he admitted to having fled from police custody, his statements

      concerning the cause of Detective Garcia’s injury amounted to a protestation of

      innocence precluding acceptance of his guilty plea. Second, Williams

      contended that the trial court did not follow proper procedures when it failed to

      conduct a hearing on his request to represent himself at trial, a hearing required

      by U.S. Supreme Court precedent, and thus his conviction was invalid. Third,

      Williams argued that the trial court’s failure to conduct a hearing and grant his

      request to represent himself deprived him of his constitutional right to effective

      assistance of counsel.


[8]   On April 24, 2015, the post-conviction court conducted a hearing on Williams’s

      petition, during which Williams and his public defender from the trial court

      testified. On July 24, 2015, the post-conviction court denied Williams’s petition

      for post-conviction relief.




      Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 4 of 14
[9]    This appeal followed.3



                                      Discussion and Decision
                                             Standard of Review
[10]   Our standard of review upon an appeal from a post-conviction proceeding is

       well settled:


                  Post-conviction proceedings do not grant a petitioner a “super-
                  appeal” but are limited to those issues available under the
                  Indiana Post-Conviction Rules. Timberlake v. State, 753 N.E.2d
                  591, 597 (Ind. 2001) (citing Ind. Post-Conviction Rule 1(1)).
                  Post-conviction proceedings are civil in nature, and petitioners
                  bear the burden of proving their grounds for relief by a
                  preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
                  A petitioner who appeals the denial of PCR faces a rigorous
                  standard of review, as the reviewing court may consider only the
                  evidence and the reasonable inferences supporting the judgment
                  of the post-conviction court. Kien v. State, 866 N.E.2d 377, 381
                  (Ind. Ct. App. 2007), trans. denied. The appellate court must
                  accept the post-conviction court’s findings of fact and may
                  reverse only if the findings are clearly erroneous. Bahm v. State,
                  789 N.E.2d 50, 57 (Ind. Ct. App. 2003), trans. denied. If a PCR
                  petitioner was denied relief, he or she must show that the
                  evidence as a whole leads unerringly and unmistakably to an
                  opposite conclusion than that reached by the post-conviction
                  court. Ivy v. State, 861 N.E.2d 1242, 1244 (Ind. Ct. App. 2007),
                  trans. denied.




       3
           Additional facts will be provided below as required.


       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016       Page 5 of 14
       Roberts v. State, 953 N.E.2d 559, 562-63 (Ind. Ct. App. 2011), trans. denied.


                                             Plea Agreement
[11]   Williams contends that the post-conviction court erred when it found that he

       entered into the plea agreement voluntarily even though he protested his

       innocence of an element of the enhanced offense of Escape, as a Class B felony,

       at the change-of-plea hearing.


[12]   Where, as here, a petitioner seeks post-conviction relief on the ground that a

       plea was entered on bad legal advice or involuntarily, it is immaterial whether

       the petitioner bases his claim on ineffectiveness of counsel or involuntariness of

       the plea. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans.

       denied. In either case, a petitioner must establish that his decision to enter a plea

       was influenced by counsel’s error. Id. (citing Segura v. State, 749 N.E.2d 496,

       504 (Ind. 2001)). “‘However, if the post-conviction 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.’” Id.


[13]   As this Court has observed, “there is a legal distinction between a claim that a

       guilty plea was entered without an adequate factual basis and a claim that it

       was entered by one who was, at the same time, protesting his innocence.”

       Wingham v. State, 780 N.E.2d 1164, 1164 (Ind. Ct. App. 2002). The Indiana

       Supreme Court held in Harshman v. State,



       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 6 of 14
               a plea of guilty tendered by one who in the same breath protests
               his innocence, or declares he actually does not know whether or
               not he is guilty, is no plea at all. Certainly it is not a sufficient
               plea upon which to base a judgment of conviction. No plea of
               guilty should be accepted when it appears to be doubtful whether
               it is being intelligently and understandingly made, or when it
               appears that, for any reason, the plea is wholly inconsistent with
               the realities of the situation.


       232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953). “A judge may not accept a plea

       of guilty when the defendant both pleads guilty and maintains his innocence at

       the same time. To accept such a plea constitutes reversible error.” Ross v. State,

       456 N.E.2d 420, 423 (Ind. 1983).


[14]   Williams does not assert that he entered a strategic plea wherein he clearly pled

       guilty while maintaining his innocence in all respects. Rather, Williams

       contends that he pled guilty not to Escape, as a Class B felony, but only to the

       unenhanced offense of Escape, as a Class C felony, and that he protested his

       innocence as to the element that enhanced the offense to a Class B felony. The

       crime of Escape, as a Class B felony, was defined at the time of Williams’s

       offense as follows: “A person…who intentionally flees from lawful detention

       commits escape, a Class C felony. However, the offense is a Class B felony if,

       while committing it, the person draws or uses a deadly weapon or inflicts bodily

       injury on another person.” I.C. § 35-44.1-3-4(a) (West 2012).


[15]   Williams admits that he intentionally fled from a lawful detention. (Ex. 1 at

       22.) However, in arguing that he maintained his innocence of the Class B

       felony for which he pled guilty and was convicted, Williams draws our

       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 7 of 14
attention specifically to the following exchanges in the transcript of the guilty

plea hearing:


        [COUNSEL]: Right. And during the course of your attempting
        to break away from [Detective Garcia], she got her hand caught
        up in your coat. Is that correct, sir?


        [WILLIAMS]: Yes, she did.


        [COUNSEL]: Well, that’s what I mean. She got her hand –


        [WILLIAMS]: Just making it clear.


        [COUNSEL]: Okay. She got her had caught up in your coat
        while she was attempting to apprehend you. Is that correct?


        [WILLIAMS]: Yes. Yes.


        [COUNSEL]: Yes. During the course of that period of time did
        she suffer—you later learned that she suffered some pain to her
        hand as a result of her getting her hand caught up in your coat.
        Is that correct, sir?


(Ex. 1 at 23-24.) After this examination by trial counsel, the State inquired:

        [STATE]: Okay. Inflicting bodily injury on [Detective Garcia].
        Is that correct?


        [WILLIAMS]: That she had got harmed in the process of this
        happening, yes.


(Ex. 1 at 25.)

Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 8 of 14
[16]   Williams contends that this was sufficient to constitute a denial that he had

       inflicted injury on Detective Garcia. The post-conviction court found

       otherwise, referring in particular to Bates v. State, 517 N.E.2d 379 (Ind. Ct. App.

       1988), as supporting a conclusion that “failure to admit a particular element of

       the crime to which one pleads guilty, by making an ambivalent statement

       during the factual basis colloquy, does not constitute a protestation of

       innocence.” (App’x at 101.)


[17]   Whether Williams’s statements amount to any kind of denial rests in part upon

       the interpretation of the Escape statute under which he pled guilty and was

       convicted. As he notes in his brief, Williams did not admit to conducting

       himself in a manner that caused Detective Garcia’s injury; rather, he testified

       that after Detective Garcia grabbed him from behind, her hand was bound up in

       his coat and that this was the cause of the injury. Williams contends that this is

       insufficient as a factual basis to satisfy the requirements for elevating the offense

       of Escape to a Class B felony, because the elevation of the offense requires

       proof that “while committing it, the person … inflicts bodily injury on another

       person.”


[18]   Williams’s position as to the meaning of the Escape statute’s bodily injury

       requirement finds support in the language of the statute when compared with

       other similar statutory provisions. For example, elevation of the offense of

       Resisting Law Enforcement from a Class A misdemeanor to a Level 6 felony

       applies where an individual “inflicts bodily injury on or otherwise causes bodily

       injury to another person.” I.C. § 35-44.1-3-1(b)(1)(B). This Court has

       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 9 of 14
       interpreted the “inflicts or otherwise causes bodily injury” provision to require

       that the defendant not be a passive participant in a situation that leads to a

       police officer’s injury. Thus, in Smith v. State, 21 N.E.3d 121 (Ind. Ct. App.

       2014), we reversed a Class D felony conviction where the defendant resisted by

       refusing to cooperate with a police officer who then attempted various means

       by which to force the defendant to the ground. Smith remained stationary and

       eventually the officer threw Smith to the ground, scraping his knuckles on the

       ground as he tried to remove Smith’s arms from under her body. In reversing

       Smith’s conviction, the Smith court observed that “Smith did not create a

       scenario in which Officer Jones’s only option in handcuffing her was to remove

       her hands from a location in which he could not reach.” Id. at 126. Noting that

       Smith was a “passive part of the encounter” and “took no actions toward” the

       officer, the Smith Court held that Smith’s actions fell outside both the “inflicts”

       and “causes” provisions of the statute. Id. at 125.


[19]   In reaching that conclusion, the Smith Court held as distinguishable a prior

       decision, Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006). In Whaley, the

       defendant was charged under a prior version of the Resisting Law Enforcement

       statute that did not include the “or otherwise causes” language reviewed in

       Smith, so that the language of the enhanced offense matches that of the Escape

       statute at issue in this case. Whaley, who had been fleeing police on foot after

       abandoning a vehicle after a car chase, fell down and put his hands underneath

       his body to prevent pursuing deputies from handcuffing him. Id. at 5. To bring

       Whaley’s arms behind his back, the deputies “had to hit Whaley’s forearms,”

       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 10 of 14
       resulting in injury to one deputy’s right hand and to another deputy’s wrist and

       right hand. Id.


[20]   Most recently, a panel of this Court again addressed the language of the

       Resisting Law Enforcement statute in Moore v. State, No. 49A02-1505-CR-321,

       slip op. (Ind. Ct. App. Jan. 29, 2016). In Moore, the defendant fled from police

       on foot. During the foot chase, one of the pursuing officers fell and was

       injured, but none of the injury came as a result of physical contact with Moore.

       A majority of the Moore panel reversed Moore’s conviction for Resisting Law

       Enforcement as a Level 6 felony, holding that there was no evidence that

       Moore proximately caused the officer’s injury. Judge Bradford, however,

       dissented, concluding that Moore’s flight made foreseeable the possibility that a

       pursuing officer might fall and be injured, and that but for Moore’s conduct no

       injury would have occurred. Moore, No. 49A02-1505-CR-321, slip op. at 27-28.


[21]   At oral argument, Williams directed this Court to a discussion during the

       sentencing hearing between his trial counsel and the trial court concerning

       whether Escape, as a Class B felony, requires proof that a defendant acted with

       intent to injure another person. During oral argument, Williams suggested that

       the trial court had opined that proof of intent was unnecessary because the

       injury element is a strict liability requirement, and this misapprehension

       contributed to the involuntariness of the plea.


[22]   Our review of the exchange between Williams’s trial counsel and the court

       reveals that trial counsel stated, in argument concerning Williams’s sentence:


       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 11 of 14
               When he was apprehended by Detective Garcia, he didn’t even
               see her right away and the injury occurred as he was trying to
               break through as someone was grabbing on to him at that point.
               It was not an intentional act on Mr. Williams’s part, although pursuant
               to the statute, it is something that happened in connection with it. So I
               want the Court to realize, once again, this was not necessarily a
               physical confrontation that Mr. Williams was trying to create
               and extenuate or make worse.


       (Tr. at 64; emphasis added.) Following upon this, the trial court stated:


               Now whether or not Mr. Williams intentionally or knowingly
               hurt the police officer is irrelevant in the context of a police
               officer was hurt. Mr. Williams put himself into that position by
               running.


       (Tr. at 69.)


[23]   Trial counsel thus appears, in advising Williams’s entry of a guilty plea, to have

       relied upon an interpretation of the “inflicts” language in the Escape statute that

       construed the statute as not requiring scienter to support a conviction for the

       Class B-level enhanced offense. The trial court agreed with this interpretation.


[24]   The matter of the interpretation of the “inflicts” element of the Escape statute

       was unsettled at the time, and indeed remains unsettled at this time. The post-

       conviction court recognized this in its order on Williams’s post-conviction

       petition, but concluded that the question was irrelevant. The court instead

       found that, whatever the proper interpretation of the statute, Williams’s

       statements during the change-of-plea hearing were intended “to clarify his legal



       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016      Page 12 of 14
       position as to the meaning of ‘inflicts,’ not protest his innocence.” (App’x at

       101.)


[25]   Yet if the purpose of the statements was to clarify a legal position, that legal

       position made it clear that Williams did not agree that he had committed the

       elevated offense. Williams’s repeatedly denied having inflicted injury on

       Detective Garcia through his repeated and careful insistence that Detective

       Garcia had been harmed, using passive-voice language that disclaimed any

       effort on his part to cause harm. These statements amounted to a denial of

       culpability for the Class B-level enhancement with which Williams was

       charged.


[26]   Accordingly, we conclude that the post-conviction court clearly erred when it

       found that Williams’s statements denying culpability for the enhanced offense

       with which he was charged failed to amount to a protestation of his innocence.

       We accordingly reverse the post-conviction court’s order denying Williams’s

       petition for relief.


                                                    Remedy
[27]   The question remains as to the precise nature of Williams’s remedy in this case.

       Williams suggested during proceedings before the post-conviction court that an

       appropriate remedy would be vacation of the Class B conviction and entry of a

       judgment of conviction and sentence for Escape, as a Class C felony.


[28]   Here, Williams’s petition for post-conviction relief sought to set aside a guilty

       plea associated with a plea agreement under which charges against him were
       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 13 of 14
       dismissed both in the criminal case underlying this appeal and in an unrelated

       case. Because vacating Williams’s plea reaches the core of the bargain between

       him and the State, we cannot agree that the appropriate remedy here is simply

       to order the post-conviction court to vacate the Class B felony conviction and

       replace it with a Class C, unenhanced conviction for Escape. Rather, the

       appropriate remedy here—and our instruction upon remand to the post-

       conviction court—is to order that the plea agreement be vacated in its entirety.

       To be clear, this may result in the State reinstating all the dismissed charges

       against Williams; that is a necessary consequence of vacating the plea

       agreement. Should Williams again be convicted—whether by virtue of a trial

       or a guilty plea—sentencing will still be subject to the limits imposed by Post-

       Conviction Rule 1(10).



                                                Conclusion
[29]   The post-conviction court erred when it found that Williams did not protest his

       innocence of Escape, as a Class B felony. We accordingly reverse the judgment

       of the post-conviction court and remand for further proceedings consistent with

       our decision today.


[30]   Reversed and remanded with instructions.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1508-PC-1173 | March 28, 2016   Page 14 of 14
