FOR PUBLICATION


ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

WARREN C. MATHIES                           GREGORY F. ZOELLER
Boonville, Indiana                          Attorney General of Indiana

                                            J.T. WHITEHEAD
                                            Deputy Attorney General

                                                                          FILED
                                            Indianapolis, Indiana

                                                                      Apr 30 2012, 9:30 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                 CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




JASON JEFFRIES,                             )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 87A01-1102-CR-128
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE WARRICK SUPERIOR COURT
                        The Honorable Keith A. Meier, Judge
                           Cause No. 87D01-1002-FA-29



                                  April 30, 2012

                            OPINION–FOR PUBLICATION


BAKER, Judge
          Today we decide whether the trial court should have permitted a defendant to

withdraw his guilty plea when his trial counsel failed to discover that the State could not

have charged him with being a habitual offender in only one of the two separate causes

that were filed against him.              Because the defendant could have been tried on one of the

habitual offender counts potentially resulting in a longer sentence than he received under

the plea agreement and both habitual counts were dismissed pursuant to the plea

agreement, we hold that the trial court did not abuse its discretion in denying the

defendant’s motion to withdraw the guilty plea.

          Appellant-defendant Jason Jeffries appeals his conviction for Possession of

Methamphetamine with Intent to Deliver or Manufacture,1 a class A felony, following his

plea of guilty to that offense. Specifically, Jeffries argues that the trial court erred in

denying his motion to set aside a guilty plea to that offense because his decision to plead

guilty was allegedly based on an improper threat by the State to file a habitual offender

count against him. Jeffries asserts that the trial court’s failure to set aside his guilty plea

results in a “manifest injustice.” Appellant’s Br. p. 1.

          Concluding that the trial court properly denied Jeffries’s motion to set aside his

guilty plea, we affirm.

                                                   FACTS

          On February 26, 2010, the State charged Jeffries in Cause FA-029, with Count I,

possession of methamphetamine with the intent to deliver or manufacture, a class A
1
    Ind. Code § 35-48-4-1.1(a)(2), (b).

                                                      2
felony; Count II, possession of three grams or more of methamphetamine while in

possession of a firearm, a class C felony; and Count III, failure to obey signs and

markings, a class C infraction. The trial court subsequently granted the State’s motion to

amend the charging information to add Count IV, the habitual offender charge.

       In a different case, the State amended a charging information in Cause FC-113,

alleging that Jeffries was a habitual offender for having accumulated two prior

convictions: (1) battery by means of a deadly weapon, a class C felony, on April 22,

2003, for which Jeffries was convicted on July 19, 2004, and (2) burglary, a class C

felony, on April 17, 2008, for which Jeffries was convicted on September 26, 2008.

       On July 26, 2010, the State and Jeffries entered into a plea agreement involving

both Causes, which provided that Jeffries was to plead guilty to Count I, possession of

methamphetamine with the intent to deliver or manufacture, a class A felony, in Cause

FA-029, in exchange for the dismissal of all remaining counts under that cause number

and all counts under Cause FC-113.

       At a hearing that commenced that same day, Jeffries indicated to the trial court

that he had completed an “advisement of rights” form. Tr. p. 2. It was established that

the agreement called for a dismissal of all counts under Cause FC-113, which included

the habitual offender allegation and one underlying count. The trial court confirmed with

the parties that the sentencing agreement provided for a sentence of forty years. Jeffries

would also reserve the right to seek a sentence modification and it was determined that all

the charges in both Causes alleging Jeffries to be a habitual offender would be dismissed.

                                            3
       After reviewing the terms of the sentencing agreement with Jeffries, the trial court

addressed Jeffries’s mental capacity and confirmed that he was not under the influence of

drugs or alcohol. The trial court then informed Jeffries of his rights were he to go to trial,

confirmed that Jeffries understood those rights, that he had read his advisement, informed

Jeffries of the State’s burden of proof if he went to trial, and confirmed that Jeffries had

no further questions regarding those rights.

       The trial court reviewed the charges with Jeffries and confirmed that he

understood the nature of the charge to which he would be pleading guilty if the trial court

accepted the agreement. The trial court also advised Jeffries of the potential penalties if

he went to trial, as well as the penalties that attached if the trial court accepted the

agreement.

       Jeffries acknowledged that he understood his sentence to be less than the

maximum and more than the advisory term if the trial court accepted the agreement. The

trial court also confirmed that Jeffries understood that his criminal history and parole or

probation status could impact a sentence were he to go to trial. Jeffries understood that if

he were to go to trial, the court could determine the sentence and that he might receive

consecutive sentences for multiple offenses. The trial court also told Jeffries that parole

or probation or a suspended sentence could be revoked. The trial court then confirmed

that Jeffries received no additional promises, inducements, and was not subject to threats

or force, before deciding to accept the agreement.



                                               4
       The trial court determined that Jeffries had reviewed the agreement and

advisement forms with his defense counsel, and had reviewed the probable cause

affidavits with Jeffries. In response, Jeffries stated that the information contained in the

information and probable cause affidavit in Cause FA-029 was true and correct. Jeffries

confirmed that he understood the nature of the charge to which he would be pleading

guilty and informed the trial court that he understood that the guilty plea was an

admission of the truth of the charge. The trial court was satisfied that Jeffries understood

that he would be admitting to the truth of the facts contained in the probable cause

affidavit and charging information by pleading guilty.

       Jeffries agreed to the factual basis for the guilty plea, which was that on “February

24, 2010, in Warrick County, . . . Jeffries knowingly and intentionally possessed

methamphetamine, in an amount of three grams or greater, specifically over twenty-one

grams, and did so with the intent to deliver or finance the delivery of the same.” Tr. p.

29-31. Jeffries acknowledged his commission of the offense and that he violated the

statute. Jeffries also informed the court that he saw no advantage in going to trial.

       Jeffries then pleaded guilty to this offense and the trial court accepted the plea.

The trial court informed Jeffries that it would accept the agreement and asked Jeffries,

again, if that is what he wanted, and Jeffries responded, “yes.” Tr. p. 33. The trial court

again asked Jeffries if he wanted to “back out,” of the plea, to which Jeffries responded,

“no.” Id. at 33-34. The trial court then ordered a pre-sentence investigation report and

set the matter for sentencing.

                                             5
       At the sentencing hearing, Jeffries’s counsel informed the trial court that his

review of the habitual offender statute indicated that Jeffries would not have been subject

to such an enhancement in Cause FA-029. On the other hand, defense counsel conceded

that Jeffries was eligible for the habitual offender charge in Cause FC-113. All of the

charges in cause FC-113 were to be dismissed under the agreement, and that cause was

pending, and only to be dismissed pursuant to the court’s acceptance of the sentencing

agreement. As noted above, the habitual offender count in Cause FA-029 was also to be

dismissed under the agreement.

       Defense counsel informed the trial court that he had reviewed Jeffries’s options

upon learning that the habitual offender enhancement was only available to the State

under Cause FC-113, and not cause FA-029, and that he informed Jeffries that those

options included the following: (1) proceed to sentencing and accept the sentencing

agreement; (2) move to withdraw the guilty plea, which, counsel for Jeffries admitted

would entail moving that cause and all others to “square one” for trial; or (3) move for

additional time. Tr. p. 38.    The trial court informed Jeffries that the matter could be

continued, but the time relating to the continuance would be charged to him. The trial

court also told Jeffries that he could move to withdraw his guilty plea, but there was no

guarantee that the motion would be granted.

       Jeffries chose to move to withdraw his guilty plea and requested the trial court to

appoint new counsel. The trial court asked the defense to prepare the motion to withdraw

the guilty plea in writing, and reminded Jeffries that if the agreement was eventually

                                              6
withdrawn, both causes “could come back.” Id. at 46. The trial court also appointed

Jeffries new counsel in both causes.

       On November 22, 2010, Jeffries moved to withdraw his guilty plea in writing. A

hearing on that motion was held on January 27, 2011. Jeffries was represented by his

fourth defense counsel, who requested the trial court to set aside the plea. The trial court

heard argument from both parties and took judicial notice of the presentence investigation

report (PSI).

       On February 2, 2011, the trial court denied Jeffries’s motion to withdraw his guilty

plea. Sentencing was conducted on February 18, 2011. The trial court made the PSI part

of the record. Pursuant to the agreement, the trial court sentenced Jeffries to forty years

for possession of methamphetamine in excess of three grams, with intent to manufacture

or deliver, a class A felony. The State dismissed all charges under Cause FC-113 and the

remaining counts under Cause FA-029. Jeffries now appeals.

                              DISCUSSION AND DECISION

       As noted above, Jeffries maintains that the trial court erred in denying his motion

to set aside his guilty plea. Jeffries alleges that his guilty plea was motivated by the

State’s improper threat of a habitual offender enhancement. In other words, because

Jeffries was allegedly not eligible for the habitual offender enhancement under one of the

causes, he argues that the State’s refusal to negotiate the sentence was improper and

results in a manifest injustice.

                                   I. Standard of Review

                                             7
       We first note that Indiana Code section 35-35-1-4(b) governs motions to withdraw

guilty pleas. In general, after a defendant pleads guilty but before a sentence is imposed,

a defendant may move to withdraw a plea of guilty. Id. The trial court must permit a

defendant to withdraw a guilty plea if it is “necessary to correct a manifest injustice.” Id.

On the other hand, the motion to withdraw the plea should be denied if the plea’s

withdrawal would substantially prejudice the State. Id. In all other cases, the court may

grant the defendant’s motion to withdraw a guilty plea “for any fair and just reason.” Id.

       We also note that a trial court’s ruling on a motion to withdraw a guilty plea

“arrives in this court with a presumption in favor of the ruling.” Brightman v. State, 758

N.E.2d 41, 44 (Ind. 2001). We will reverse the trial court only for an abuse of discretion.

Id. In determining whether a trial court has abused its discretion in denying a motion to

withdraw a guilty plea, we examine the statements made by the defendant at the guilty

plea hearing to decide whether the plea was offered “freely and knowingly.” Id.

                                        II. Jeffries’s Claims

                                           A. Generally

       In this case, Jeffries made it clear that he was entering into the plea because he

saw no advantage in going to trial. Although Jeffries indicated at one point that he had

not actually sold any methamphetamine, he subsequently acknowledged that he was, in

fact, guilty as charged.   Tr. p. 32.

       Also, Jeffries did not enter into the plea because he might be adjudged to be a

habitual offender. Appellant’s Br. p. 5-11. Indeed, Jeffries could have been found to be

                                                 8
a habitual offender, had he not entered into the plea agreement and had proceeded to trial.

Moreover, Jeffries’s counsel admitted as much. Tr. p. 38-40. Additionally, Jeffries

understood that the habitual offender counts were to be dismissed. Id. at 3, 8. Thus,

Jeffries was not subject to an habitual offender adjudication under the terms of the

agreement, and he cannot successfully claim that he was misled into pleading guilty on

this basis.

       To the extent that Jeffries maintains that his guilty plea was unknowing or

involuntary, we will proceed to examine the statements that were made at the guilty plea

hearing. Jeffries made it clear at the hearing that he entered into the agreement knowing

its terms and understood: (1) that those terms included a dismissal of both habitual

counts; (2) the possible penalties, had he gone to trial; (3) that those penalties could

include consecutive sentences, given the two causes and multiple counts; (4) that the

court would determine the sentence in case he went to trial; and (6) that his prior criminal

history could be considered by the trial court at sentencing.

       Here, Jeffries admitted that he was subject to a habitual offender charge. In our

view, the fact that the habitual offender enhancement could attach to Cause FC-113 but

not to Cause FA-029, does not give rise to a manifest injustice. Instances of manifest

injustice may include any of the following, none of which are present here: a defendant is

denied the effective assistance of counsel, the plea was not entered or ratified by the

defendant, the plea was not knowingly and voluntarily made, the prosecutor failed to



                                             9
abide by the terms of the plea agreement, or the plea and judgment of conviction are void

or voidable. Gillespie v. State, 736 N.E.2d 770, 775-76 (Ind. Ct. App. 2000).

       Here, the State did not fail to abide by the terms of the agreement because the

other counts were dismissed, including both habitual offender counts, as well as all

counts stemming from Cause FC-113. In essence, the confusion regarding application of

the habitual offender count to one cause and not the other, much like the issue raised by

the circumstances in Gillespie, does not rise to the level of a manifest injustice. Put

another way, the State could seek a habitual offender enhancement against Jeffries

because he qualified as such under Cause FC-113. While the State’s efforts with regard

to Cause FA-029 would have failed, the State nonetheless was legitimately poised to

carry out the threat that Jeffries be charged as a habitual offender. That said, the State did

not make any false threats about filing the habitual offender count in this case because he

was not coerced into pleading guilty to being a habitual offender under Cause FA-029.

       The mistaken application of the habitual count to one cause but not the other might

well have been a technical flaw, but it simply does not qualify as an intentional false

threat. Indeed, Jeffries managed to avoid both habitual offender charges, yet the State

could have legitimately pursued one of them. See Munger v. State, 420 N.E.2d 1380,

1387 (Ind. Ct App. 1981) (holding that if a plea is induced by a promise to forego a

recidivist proceeding, when no such proceeding would be warranted, the defendant is per

se misinformed as to the benefit of his plea and the bargain is illusory).



                                             10
       Had Jeffries gone to trial, he would have been subject to potential convictions on

five counts, including three from FA-029, plus conspiracy to traffic with an inmate, in

cause FC-113, plus the habitual offender enhancement in cause FC-113. His offense

from cause FA-029, to which he pleaded guilty, was a class A felony. Even assuming

that an advisory thirty-year sentence would be imposed on that offense, the trial court

could have ordered the sentence to be served consecutively with convictions from Cause

FC-113. Hence, Jeffries would be facing more than forty years of incarceration. And the

dialogue between the trial judge and Jeffries shows that he understood this possibility.

Tr. p. 20-25.

       In sum, Jeffries did in fact qualify for the application of the habitual offender

statute, even if it was misapplied to one cause number when it should have been applied

exclusively to the other. Jeffries correctly understood that he had the requisite prior

offenses and knew that under any calculation of his potential sentence, he faced more

time than the agreement allowed. Thus, Jeffries’ contention that the trial court should

have granted his motion to set aside his guilty plea on this basis fails.

                           B. Ineffective Assistance of Counsel

       Finally, to the extent that Jeffries is arguing that the motion to set aside his guilty

plea should have been granted because his defense counsel failed to advise him that the

habitual offender charge could not have been applied to Cause FA-029, his claim fails.

       To prevail on a claim of ineffective assistance of counsel, Jeffries must show both

that counsel’s performance fell below an objective standard of reasonableness and that

                                              11
the deficient performance prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.

1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a strong

presumption that counsel rendered adequate assistance. Id. Evidence of isolated poor

strategy, inexperience or bad tactics will not support a claim of ineffective assistance. Id.

at 273. Counsel’s performance is evaluated as a whole. Lemond v. State, 878 N.E.2d

384, 391 (Ind. Ct. App. 2007).

       To establish prejudice, the defendant must show there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App. 2002).           A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Id.

Prejudice exists when the conviction or sentence resulted from a breakdown in the

adversarial process that rendered the result of the proceeding fundamentally unfair or

unreliable. Coleman, 694 N.E.2d at 272.

       In this case, the outcome might have been different had Jeffries gone to trial, but

he cannot establish a better outcome than the forty-year sentence that he received under

the agreement if he had been convicted of the charges. As noted above, the multiple

offenses, the nature of the offense to which Jeffries pleaded, and the evidence in his

history that reveal his character, all point to a lengthier—rather than shorter—aggregate

sentence than the one he received. And even if his initial trial counsel failed to recognize

that the habitual offender charge should attach to Cause FC-113 and not cause FA-029,

counsel’s deficient performance did not prejudice Jeffries because it resulted in a more

                                             12
favorable sentence than the one he would have received, had he gone to trial and been

convicted of the charged offenses.

        In the guilty plea context, a defendant who claims that he was incorrectly advised

by counsel regarding a possible defense must show that but for that advice, he or she

would not have pleaded guilty and that the defense likely would have succeeded, and he

or she would have received a favorable outcome. Segura v. State, 749 N.E.2d 496, 499

(Ind. 2001). Although Jeffries would have had a defense to one of the habitual offender

counts, it had no impact on the issue of whether he would have prevailed at trial on the

underlying offenses in cause FA-029, nor does it mean a lesser sentence, and for all the

reasons already stated, he was likely facing a lengthier term of incarceration.2 Jeffries

indeed informed the trial court that he saw no advantage in going to trial and admitted

that there was no question that he committed the underlying felony to which he pleaded

guilty. In short, Jeffries’s ineffective assistance of trial counsel claim fails.

                                            CONCLUSION

        In light of our discussion above, we conclude that the trial court properly denied

Jeffries’s motion to withdraw his guilty plea. Jeffries was advised of his rights, the

possible penalties that could result from trial, and the terms of the agreement. The State

2
  The circumstances here are unlike those in Lafler v. Cooper, No. 10-209, (Mar. 21, 2012), where the
Supreme Court of the United States determined that the State had to reoffer a plea agreement to the
defendant when it was shown that the ineffective assistance of defense counsel caused the rejection of a
plea that led to a more severe sentence following a trial. In Lafler, the defendant demonstrated that but
for counsel’s deficient performance that led to the plea offer’s rejection, there was a reasonable
probability that he and the trial court would have accepted the guilty plea. As a result of not accepting the
plea and being convicted at trial, the defendant received a minimum sentence 3 ½ times greater than he
would have received under the plea.
                                                    13
was not making any kind of idle or unenforceable threat when it charged Jeffries with

being a habitual offender, as that charge could have been pursued under Cause FC-113.

      Moreover, Jeffries’s counsel’s failure to recognize the inapplicability of the

habitual offender enhancement to one of the two causes did not prejudice Jeffries, and he

has not demonstrated that the failure to advise him of such resulted in a worse outcome

had he proceeded to trial. To the contrary, a better outcome resulted, given the penalties

that would have attached had Jeffries proceeded to trial and been found guilty.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.




                                            14
