Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Jan 22 2014, 9:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

ANTHONY BARNETT                                   GREGORY F. ZOELLER
Michigan City, Indiana                            Attorney General of Indiana

                                                  JODI KATHRYN STEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTHONY BARNETT,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )       No. 22A01-1302-PC-84
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                      APPEAL FROM THE FLOYD CIRCUIT COURT
                          The Honorable J. Terrence Cody, Judge
                              Cause No. 22C01-0310-PC-2



                                       January 22, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SULLIVAN, Senior Judge
          Over thirty years ago, Anthony Barnett pleaded guilty to a Class C felony based

on the State’s assurances that it would recommend a ten-year sentence. At the sentencing

hearing, the State realized its recommendation was erroneously made as though the crime

was a Class B felony. Without objection, the trial court allowed the State to reduce its

recommendation to five years and imposed that sentence.

          Barnett now appeals the denial of his petition for post-conviction relief, which

claimed in part that his guilty plea was not knowing, intelligent, and voluntary. We

conclude the post-conviction court did not err by denying Barnett’s petition and therefore

affirm.

          In December 1979, the State charged Barnett with Class C felony burglary in

cause number 13794. In March 1980, pursuant to plea recommendations filed by the

State, Barnett pleaded guilty to this charge as well as to a Class C felony robbery charge

and a Class C felony battery charge in two other cause numbers.               The State’s

recommendation in cause number 13794 stated that if Barnett followed through with his

intent to plead guilty to Class C felony burglary, the State recommended a sentence of ten

years, with four years executed and six years suspended, to be served concurrent with the

two other causes. The recommendations in the two other causes were the same.

          At the guilty plea hearing, Barnett’s counsel told the trial court that the plea

recommendation called for concurrent ten-year sentences, with four years executed and

six years suspended. The court asked Barnett, “Is this the recommendation as you

understand it, Mr. Barnett?” Ex. Vol. p. 24. Barnett responded, “Yes, sir.” Id. The



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court and defense counsel then asked whether he understood the terms of the offer, to

which he responded, “Yeah.” Id.

        At the sentencing hearing, the State observed that its plea recommendations,

which clearly noted Class C felonies, were within the statutory parameters of Class B

instead of Class C felony sentences. 1 Defense counsel agreed there was a mistake. Upon

the State’s request and defense counsel’s assent, the trial court allowed the

recommendation to be amended to five years, with four years executed and one year

suspended, noting, “I certainly don’t see how the defendant is going to be prejudiced by a

reduction in the amount of time in the recommendation and I don’t see where that’s going

to cause us any problem.” Id. at 53. The court found the amended recommendation

reasonable and thus sentenced Barnett to concurrent five-year sentences, with four years

executed and one year suspended.

        Over twenty years later in 2003, after he was charged with being a habitual

offender in another cause number, Barnett filed a petition for post-conviction relief

challenging his Class C felony burglary conviction in cause number 13794. The petition

was dismissed without prejudice, then later reinstated and amended. In the amended

petition, Barnett claimed that he received ineffective assistance of trial counsel and that

his guilty plea was not knowing, intelligent, and voluntary. After several hearings, the

post-conviction court denied the petition.



1
  At the time Barnett committed these offenses, the statutory range for a Class B felony was between six
and twenty years, with the presumptive sentence being ten years. Ind. Code § 35-50-2-5 (1977). The
statutory range for a Class C felony was between two and eight years, with the presumptive sentence
being five years. Ind. Code § 35-50-2-6 (1977).
                                                   3
       In this appeal, Barnett abandons his claim of ineffective assistance and contends

only that the post-conviction court erred by denying relief on the guilty plea issue.

Specifically, he contends that he was misled into thinking he faced twenty years, the

maximum sentence for a Class B felony, and that he was not informed that the minimum

sentence for a Class C felony was two years. Had he been properly advised, he claims,

he would have chosen to go to trial on the burglary charge.

       In a post-conviction proceeding, the petitioner bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment.     Henley, 881 N.E.2d at 643.        The reviewing court will not reverse the

judgment unless the petitioner shows that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at

643-44.     Further, the post-conviction court in this case made findings of fact and

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will

reverse a post-conviction court’s findings and judgment only upon a showing of clear

error, which is that which leaves us with a definite and firm conviction that a mistake has

been made. Id. at 644. The post-conviction court is the sole judge of the weight of the

evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.

2004). We accept findings of fact unless clearly erroneous, but we accord no deference

to conclusions of law. Id.



                                            4
      On review of a guilty plea, we look at all the evidence before the post-conviction

court. Moffitt v. State, 817 N.E.2d 239, 249 (Ind. Ct. App. 2004), trans. denied. If the

evidence exists to support the post-conviction court’s determination that the guilty plea

was knowing, intelligent, and voluntary, we will not reverse. Id. When a guilty plea is

attacked because of alleged misinformation concerning sentencing, the issue of the

validity of such plea is determined by the following two-part test: (1) whether the

defendant was aware of actual sentencing possibilities; and (2) whether the accurate

information would have made any difference in his decision to enter the plea. Id.

      The transcript of Barnett’s guilty plea hearing does not show he was informed of

the sentencing range for a Class C felony. At the post-conviction hearings, the court took

judicial notice that neither defense counsel nor the State recalled any specifics of the

case. For his part, Barnett testified he was inexperienced with criminal proceedings and

pleaded guilty based on the State’s sentencing recommendation of ten years because he

was told he could otherwise receive up to twenty years. He claimed no one explained

what was going on at the sentencing hearing when the State reduced its recommendation

and that he was never informed that the minimum sentence for a Class C felony was two

years. Had he known, he claimed, he would have taken his chances and gone to trial on

the burglary charge. Among his exhibits, Barnett submitted commitment orders showing

he was sentenced to concurrent ten-year terms.

      The post-conviction court’s order denying relief stated:

             1.    Petitioner has asserted that he was misled into pleading guilty
      to a Class B Felony offense for which he was not charged. The Official
      Court Records do not support this assertion, although the Commitment

                                            5
       Order and the Amended Commitment Order certainly make it appear that
       he did so.
               2.     With respect to Petitioner’s claim that his Guilty Plea was not
       inte[lligent]ly, knowingly, and voluntarily [m]ade, the transcript of
       Petitioner’s plea change hearing establishes that he was advised of his
       Boykin rights and voluntarily waived them. Petitioner has not pled specific
       facts from which a trier of fact could reasonably find by a preponderance of
       the evidence that his guilty plea was not inte[lligent], knowing, or
       voluntary.
               3.     The only evidence that Petitioner has offered to demonstrate
       that his plea was not inte[lligent]ly, knowingly, and voluntarily made is his
       own recollection of events. No additional corroboration has been
       presented. In the absence of additional corroboration, Petitioner’s self-
       serving statement is insufficient to allow a trier of fact to reasonably find
       for him by a preponderance of the evidence.

Appellant’s App. p. 98. As noted above, we will not reverse the denial unless Barnett

shows the evidence as a whole leads unerringly and unmistakably to the opposite

conclusion.

       We acknowledge that the guilty plea hearing transcript does not show Barnett was

advised of the sentencing range for a Class C felony and that Barnett testified he was

never informed of the two-year minimum sentence. We further acknowledge Barnett’s

testimony that he was told he faced up to twenty years. We note, however, that Barnett’s

recollection during the post-conviction proceedings of this last point is unclear at best.

At the first evidentiary hearing, before he had reviewed the guilty plea and sentencing

transcripts, Barnett told the post-conviction court that the trial judge told him at his guilty

plea hearing that he was pleading guilty to a Class B felony and that the maximum

sentence he faced was twenty years. Tr. p. 18. Later at that same evidentiary hearing,

Barnett claimed it was both the trial court and the State who told him he faced up to

twenty years for a Class B felony. Id. at 32. Before the final evidentiary hearing, Barnett

                                              6
reviewed the guilty plea and sentencing transcripts, neither of which showed he was told

that he was pleading guilty to a Class B felony or that he faced up to twenty years. He

thus testified at the final hearing that it must have been defense counsel or “somebody”

that told him he faced up to twenty years: “I was just told that I could get up to ten (10)

years or twenty (20) years if I didn’t plead guilty, and apparently at first I thought that it

may have been the Judge that told me that, but after reading and studying the transcripts

then it had to be my – my attorney. Somebody had me under the – had me under the –

had me under the impression that I could get up to twenty (20) years if I didn’t plead

guilty and take the ten (10) years.” Id. at 107-08.

         For purposes of this appeal, we accept at face value Barnett’s assertion that he was

not aware that the minimum sentence for a Class C felony as charged was two years. In

any event, Barnett fails with respect to the second part of the two-pronged test. Despite

his assertion to the contrary, he did not establish that accurate information would have

made a difference in his decision to plead guilty to Class C felony burglary in cause

number 13794. See Jackson v. State, 676 N.E.2d 745, 752 (Ind. Ct. App. 1997), trans.

denied. Barnett points to his own testimony that, had he known the minimum sentence

for a Class C felony was only two years, he would have taken his chances and gone to

trial.

         The evidence in the record, however, does not support this assertion. See White v.

State, 497 N.E.2d 893, 905 (Ind. 1986) (“To decide a claim that a plea was not made

voluntarily and intelligently, we will review all the evidence before the court which heard

his post-conviction petition, including testimony given at the post-conviction trial, the

                                              7
transcript of the petitioner’s original sentencing, and any plea agreements or other

exhibits which are a part of the record.”). The record shows that Barnett committed three

separate Class C felony offenses within a three-month period. Because he committed

several offenses within a limited time span, it is unlikely that he would have received the

minimum two-year sentence for the underlying burglary charge had he been convicted at

trial. Indeed, with the possibility of consecutive maximum sentences, his sentencing

exposure for all three offenses was twenty-four years. 2 Instead, by pleading guilty,

Barnett received a recommendation from the State that he serve an executed sentence of

only four years. In addition, he was able to dispose of all three charges.

        Moreover, both the trial court and defense counsel questioned Barnett at the guilty

plea hearing to ensure he understood the State was recommending concurrent ten-year

sentences, with four years executed and six years suspended, if he pleaded guilty in all

three causes. As Barnett was willing to accept a four-year executed sentence at the outset

(even if the aggregate sentence was erroneous), it is difficult to believe he would have

rejected that same four-year executed sentence and gone to trial on the burglary charge if

he had known the minimum sentence for a Class C felony was two years. Because the

State’s plea recommendation involved all three charges, going to trial on the burglary

charge would have risked a deal on the two other charges.

        Given these circumstances, Barnett has failed to show that he would not have

pleaded guilty had he known the minimum sentence for a Class C felony was two years.

2
 Barnett claims the trial court was required to impose concurrent sentences because he was not subject to
mandatory consecutive sentences. Even if consecutive sentences were not mandatory, the trial court
would have still had the discretion to impose his sentences consecutively.
                                                   8
See Jackson, 676 N.E.2d at 752 (petitioner not entitled to post-conviction relief on claim

that two years of probation was contrary to plea agreement where he was allowed to

plead to a lesser offense and his entire sentence was suspended in exchange for two years

of probation). Barnett has not shown that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite that reached by the post-conviction court. We

therefore affirm the court’s denial of relief.

       Affirmed.

BAILEY, J., and MAY, J., concur.




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