      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Mar 25 2015, 9:26 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Victoria Christ                                          Gregory F. Zoeller
      Deputy Public Defender                                   Attorney General of Indiana
      Indianapolis, Indiana                                    Indianapolis, Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Adris Bailey,                                            March 25, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               49A02-1408-PC-549
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Steven Eichholtz,
                                                               Judge and the Honorable David
      Appellee-Respondent                                      Seiter, Commissioner
                                                               Cause No. 49G20-1004-PC-034280




      Mathias, Judge.

[1]   Adris Bailey (“Bailey”) pleaded guilty in Marion Superior Court to two counts

      of Class B felony attempted robbery. He was ordered to serve an aggregate

      sentence of twenty-eight years. Bailey subsequently filed a petition for


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 1 of 12
      postconviction relief arguing that his guilty plea was not knowing, intelligent,

      and voluntary, and that he received ineffective assistance of counsel. The trial

      court denied Bailey’s petition for post-conviction relief. Bailey appeals and

      raises two issues, which we restate as:

              I. Whether Bailey’s guilty plea was knowing, intelligent, and voluntary
              and

              II. Whether Bailey received ineffective assistance of trial counsel.

      Concluding that the post-conviction court properly denied Bailey’s petition for

      post-conviction relief, we affirm.


                                    Facts and Procedural History

[2]   On April 28, 2010, an undercover officer with the Indianapolis Metropolitan

      Police Department (“IMPD”) contacted Bailey by telephone and arranged to

      meet Bailey at a gas station on the city’s east side to purchase $100 worth of

      marijuana and some cocaine. Bailey and two undercover IMPD officers

      eventually met at another location, the parking lot of a Family Dollar store.

      Bailey entered the officers’ truck through the passenger side door. After the

      officers paid Bailey the $100, Bailey pulled out a baggie of cocaine then a

      handgun and ordered the officers to give him all of their cash. The officer

      sitting in the middle seat of the truck, next to Bailey, managed to disarm Bailey

      after a brief struggle. At this point, several uniformed IMPD officers who were

      stationed nearby descended on the scene and arrested Bailey.

[3]   The next day, April 29, 2010, the State charged Bailey with Class B felony

      conspiracy to deal cocaine, Class B felony dealing in cocaine, Class C felony
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 2 of 12
      possession of cocaine and a firearm, Class D felony possession of cocaine, two

      counts of Class B felony attempted robbery, and Class C felony carrying a

      handgun without a license.


[4]   Public defender Nicholas McGuinness (“McGuinness”) was appointed to

      represent Bailey. According to Bailey, at some point during plea negotiations,

      McGuinness incorrectly advised Bailey that he faced an aggregate sentence of

      up to sixty-five years if he were convicted of all of the charges brought against

      him. In actuality, because of a statutory cap on consecutive sentences imposed

      for non-violent crimes arising from a single episode of conduct, Bailey faced a

      maximum aggregate sentence of 30 years.1 Bailey ultimately decided to enter

      into an open plea agreement, whereby he agreed to plead guilty to the two Class

      B felony attempted robbery charges and the State dismissed the remaining

      charges. At Bailey’s guilty plea hearing, the Commissioner presiding over the


      1
          Indiana Code section 35-50-1-2(c) provides:
                [E]xcept for crimes of violence, the total of the consecutive terms of imprisonment . . . to which
                the defendant is sentenced for felony convictions arising out of an episode of criminal conduct
                shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than
                the most serious of the felonies for which the person has been convicted.
      Indiana Code section 35-50-1-2(a)(12) identifies robbery while armed with a deadly weapon and robbery
      resulting in serious bodily injury as crimes of violence but does not identify attempted robbery as a crime of
      violence. Reed v. State, 856 N.E.2d 1189 (Ind. 2006) (in general, trial court cannot order consecutive
      sentences in the absence of express statutory authority). Also, the two counts of attempted robbery to which
      Bailey pleaded guilty—one for each of the undercover officers—constituted a single episode of conduct,
      which is statutorily defined as “offenses or a connected series of offenses that are closely related in time,
      place, and circumstance.” I.C. § 35-50-1-2(b). See Dimmitt v. State, No. 79A02-1406-CR-443, 2015 WL
      386420 (Ind. Ct. App. Jan. 28, 2015) (concluding that misdemeanor battery convictions arose out of single
      “episode of criminal conduct” where, although batteries were committed against two separate victims, the
      two batteries took place just a few minutes apart, occurred as part of the same conflict, in the same place, and
      between the same groups of people).
      Because Bailey pleaded guilty to two Class B felonies, neither of which the Indiana Code expressly designates
      as crimes of violence, and which constituted a single episode of conduct, the total of his consecutive terms of
      imprisonment could not exceed the advisory sentence for a Class A felony, which is thirty years.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015                   Page 3 of 12
      hearing indicated to Bailey first that his maximum exposure was sixty-five years

      and then that his maximum exposure was forty years.

[5]   The trial court held a sentencing hearing on November 22, 2010. At the

      hearing, McGuinness argued that Bailey’s maximum sentencing exposure was

      thirty years, pursuant to the statutory consecutive sentence cap. In sentencing

      Bailey, the trial court found as mitigating that Bailey pleaded guilty to two

      counts of attempted robbery and as aggravating Bailey’s criminal history. At

      the time he was sentenced, twenty-two year old Bailey had acquired eleven

      juvenile referrals, including robbery, battery, theft, and receiving stolen property

      referrals. He had three prior felony convictions, including theft, receiving stolen

      property, and battery of a minor, and two misdemeanor convictions. He had

      also violated probation and was on probation at the time of the attempted

      robberies. After determining that the aggravating factors outweighed the

      mitigating factors, the trial court sentenced Bailey to two consecutive terms of

      fourteen years, for an aggregate sentence of twenty-eight years.

[6]   On September 12, 2013, Bailey filed a petition for post-conviction relief2

      alleging ineffective assistance of trial counsel and, more specifically, that

      McGuinness incompetently failed to advise Bailey during plea negotiations that

      his sentence would be statutorily capped at thirty years. Bailey also argued that

      his guilty plea was illusory and that McGuinness, the State, and the trial court




      2
          Bailey apparently did not pursue a direct appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 4 of 12
      coerced him into entering into the plea agreement by threatening him with a

      sentence of sixty-five years.

[7]   At the post-conviction proceeding, McGuinness testified that he thought had

      told Bailey during plea negotiations that he would argue that the consecutive

      sentence cap applied in Bailey’s case and limited his exposure to thirty years.

      McGuinness also admitted that he had incorrectly agreed with the trial court

      when, during Bailey’s guilty plea hearing, the court stated first that Bailey’s

      maximum exposure was sixty-five years, then that he faced up to forty years.

      Bailey testified that if he had known that his sentence would be capped a thirty

      years, he would have insisted on a trial because he felt that he could “beat some

      of the cases.” Tr. p. 19.


[8]   On July 17, 2014, the post-conviction court denied Bailey’s petition for relief.

      In its order, the court stated:

              The Court does not believe the Petitioner’s representation that he
              thought his exposure of trial was sixty-five years. Instead, the Court
              finds that the Petitioner wanted to receive the benefit of mitigation for
              admitting to the two charges that he and his counsel felt the State
              would be able to prove.
                                                      ***
              The record demonstrates that even though the Petitioner’s attorney
              was initially wrong about the exposure of time he could have received
              at trial (65 years), he was correct at sentencing by arguing that the
              Court was limited in the “open plea” to thirty years. Both the
              Petitioner in his own words and his counsel argued to the Court that
              the Petitioner had been willing to plea to the two attempted robbery
              charges from the beginning of the case. Mr. McGuinness argued that
              his client recognized he “wasn’t receiving much benefit to taking an
              open plea” but sought benefit in the form of mitigation from the Court

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 5 of 12
               for taking responsibility for his conduct. The Court, in turn,
               acknowledged that the Petitioner did receive benefit from pleading
               guilty and cites the Petitioner’s plea as his only mitigating
               circumstance. The Petitioner ultimately received a sentence lesser
               than what he could have legally received under the open plea.
               The Court thus finds that Petitioner has not met his burden of proof in
               showing that he was prejudiced by his trial counsel’s representation[.]

       Appellant’s App. p. 184. As to Bailey’s argument that his plea was coerced by

       threats from the State, the post-conviction court found that Bailey failed to meet

       his burden of proof “for the reasons shown above,” namely, that the court

       disbelieved Bailey’s claim that the only reason he entered into the plea

       agreement was that he believed he faced up to sixty-five years imprisonment,

       and that Bailey was not prejudiced since he received a sentence less than the

       maximum.


[9]    Bailey now appeals.


                               I. Involuntary or Illusory Guilty Plea

[10]   Bailey contends that the post-conviction court clearly erred in denying his claim

       that his guilty plea was not knowing, intelligent, and voluntary. Specifically,

       Bailey argues that McGuinness, the State, and the trial court coerced him into

       entering into the plea agreement by leading him to believe he could receive up

       to sixty-five years imprisonment.


[11]   A plea bargain motivated by an improper threat is deemed illusory and a denial

       of substantive rights. Champion v. State, 478 N.E.2d 681, 683 (Ind. 1985) (citing

       Gibson v. State, 456 N.E.2d 1006, 1009 (Ind. 1983)). The State must possess, at


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 6 of 12
       the moment a guilty plea is entered, the power to carry out any threat that was a

       factor in obtaining the plea agreement. Daniels v. State, 531 N.E.2d 1173, 1174

       (Ind. 1988). “‘[A] threat by a prosecutor to do what the law will not permit, if it

       motivates a defendant ignorant of the impossibility, renders the plea

       involuntary.’” Munger v. State, 420 N.E.2d 1380, 1387 (Ind. Ct. App. 1981)

       (quoting Lassiter v. Turner, 423 F.2d 897, 900 (4th Cir.1970), cert. denied ).


[12]   In Segura v. State, 749 N.E.2d 496 (Ind. 2001), the defendant pleaded guilty to

       dealing in cocaine and, in a subsequent post-conviction proceeding, sought to

       set aside that plea on the basis that his trial attorney had been ineffective for

       failing to advise him of the possibility of deportation if he pled guilty. With

       respect to a claim that a defendant has received incorrect advice as to penal

       consequences of a plea, the court stated:

               Whether viewed as ineffective assistance of counsel or an involuntary
               plea, the post-conviction court must resolve the factual issue of the
               materiality of the bad advice in the decision to plead, and post-
               conviction relief may be granted if the plea can be shown to have been
               influenced by counsel’s error. 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. at 504–05.


[13]   The court went on to hold that a defendant seeking to set aside a guilty plea on

       the basis of incorrect advice as to penal consequences need not establish his or

       her actual innocence, or in other words, need not establish that the ultimate




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 7 of 12
       result of a full trial and sentencing would have been more favorable than the

       result of the guilty plea. Id. at 507. Rather, the court held:

               We believe a showing of prejudice from incorrect advice as to the
               penal consequences is to be judged by an objective standard, i.e., there
               must be a showing of facts that support a reasonable probability that
               the hypothetical reasonable defendant would have elected to go to trial
               if properly advised.... [A] petitioner may be entitled to relief if there is
               an objectively credible factual and legal basis from which it may be
               concluded that “there is a reasonable probability that, but for counsel’s
               errors, he would not have pleaded guilty and would have insisted on
               going to trial.”
               . . . [F]or claims relating to penal consequences, a petitioner must
               establish, by objective facts, circumstances that support the conclusion
               that counsel’s errors in advice as to penal consequences were material
               to the decision to plead. Merely alleging that the petitioner would not
               have pleaded is insufficient. Rather, specific facts, in addition to the
               petitioner’s conclusory allegation, must establish an objective
               reasonable probability that competent representation would have
               caused the petitioner not to enter a plea.

       Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203

       (1985)). Citing Segura, our court later held that “when an error in advice

       supports a claim of intimidation by exaggerated penalty, a petitioner must

       establish specific facts that lead to the conclusion that a reasonable defendant

       would not have entered a plea had the error in advice not been committed.”

       Willoughby v. State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied.


[14]   Although Segura and Willoughby dealt specifically with ineffective assistance of

       counsel claims, the standard they established is equally applicable to

       straightforward claims of an involuntary or illusory plea. Segura expressly refers

       to both ineffective assistance and involuntary plea claims. See Segura, 749

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 8 of 12
       N.E.2d at 504; see also Willoughby, 792 N.E.2d at 563 (stating “it is immaterial

       whether [a defendant’s] claim is of an involuntary plea or ineffective assistance

       of counsel.”).


[15]   Here McGuinness admitted that, during plea negotiations, he improperly

       agreed with the trial court that Bailey could receive up to sixty-five years

       imprisonment if convicted on all charges. However, Bailey failed to present

       specific evidence, except for his own self-serving testimony, that he would have

       rejected the plea offer if he had been correctly advised of the law. The post-

       conviction court heard Bailey’s testimony and disbelieved Bailey’s claim that he

       only accepted the plea offer because he believed that he faced up to sixty-five

       years imprisonment if the case went to trial. The court noted McGuinness’s

       testimony that Bailey planned to enter into a plea agreement from the initial

       stages of the case, since the evidence against him was overwhelming and he

       sought to use his guilty plea as a mitigator to weigh against his extensive

       criminal history. See Sentencing Tr. pp. 77-78; Appellant’s App. pp. 185-86.

       Although Bailey’s sentence was only two years less than the maximum

       sentence, in light of Bailey’s criminal history and the evidence against him,

       Bailey was still benefited, not prejudiced, by entering into his plea agreement.

       Therefore, under these facts and circumstances, we conclude that Bailey’s plea

       was entered knowingly, intelligently, and voluntarily.3



       3
        Another panel of this court recently issued an opinion concluding that a defendant who pleaded guilty to
       avoid what he believed was a maximum sentence of 141 years when in fact the maximum sentence was 111
       years demonstrated a reasonable probability that the hypothetical reasonable defendant would have decided
       to go to trial if properly advised. See Springer v. State, 952 N.E.2d 799 (Ind. Ct. App. 2011). However,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015          Page 9 of 12
                                  II. Ineffective Assistance of Counsel

[16]   “To establish a post-conviction claim alleging violation of the Sixth

       Amendment right to effective assistance of counsel, a defendant must establish

       the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984).”

       Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013).


[17]   First, a defendant must show that counsel’s performance was deficient. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that counsel made errors so serious that counsel

       was not functioning as counsel guaranteed to the defendant by the Sixth

       Amendment. Second, a defendant must show that the deficient performance

       prejudiced the defense. To establish prejudice, a defendant must show that

       there is a reasonable probability that, but for counsel’s unprofessional errors, the

       result of the proceeding would have been different. A reasonable probability is

       one that is sufficient to undermine confidence in the outcome. Id. at 718-19

       (citations omitted).


[18]   We initially observe that “[t]here are two different types of ineffective assistance

       of counsel claims that can be made in regards to guilty pleas: (1) failure to

       advise the defendant on an issue that impairs or overlooks a defense and (2) an

       incorrect advisement of penal consequences.” McCullough v. State, 987 N.E.2d

       Springer is factually distinguishable from the present case. The difference between a 141-year sentence and a
       111-year sentence is significant, since the former would likely amount to a life sentence where the latter might
       not. Here, although Bailey insists that he initially believed that his maximum sentence was sixty-five years,
       the trial court told Bailey at his guilty plea hearing that the maximum he faced was forty years, where the
       maximum he actually faced was thirty years. The difference in these two sentences amounts to five years of
       actual time served, which, unlike in Springer, does not determine whether or not Bailey will spend rest of his
       life in prison.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015              Page 10 of 12
       1173, 1176 (Ind. Ct. App. 2013) (citing Segura v. State, 749 N.E.2d 496, 500

       (Ind.2001)); see also Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). Bailey

       alleged and proved that McGuinness misstated the law. See Truiillo v. State, 962

       N.E.2d 110, 114 (Ind. Ct. App. 2011) (distinguishing between claims of

       “intimidation by exaggerated penalty or enticement by an understated

       maximum exposure” and “incorrect advice as to the law”).


[19]   However, Bailey must also establish prejudice, i.e. prove “by objective facts,

       circumstances that support the conclusion that [trial] counsel’s errors in advice

       as to penal consequences were material to the decision to plead.” See Segura,

       749 N.E.2d at 507. Therefore, Bailey had to establish an objective reasonable

       probability that competent representation would have caused him not to enter a

       plea. See id.


[20]   As noted above, Bailey failed to provide evidence, other than his own self-

       serving testimony, that he would not have entered into the plea agreement if he

       had been aware that his maximum exposure was only thirty years. In fact, the

       evidence indicates that at least part of Bailey’s decision to enter into a plea

       agreement arose from his understanding that no reasonable probability existed

       of acquittal on the attempted robbery charges and his hope to use his guilty plea

       as a mitigator at sentencing. In light of the overwhelming evidence against

       Bailey and his substantial criminal history, Bailey was not prejudiced by

       entering into a plea deal that resulted in a sentence that was two years less than

       the maximum. We therefore conclude that Bailey’s trial counsel was not

       ineffective.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 11 of 12
                                                  Conclusion

[21]   Because Bailey’s guilty plea was knowing, intelligent, and voluntary, and he

       was not subjected to ineffective assistance of counsel, we affirm the post-

       conviction court’s denial of his petition for post-conviction relief.


[22]   Affirmed.


       Najam. J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-549 | March 25, 2015   Page 12 of 12
