MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                         Dec 20 2018, 6:23 am
regarded as precedent or cited before any                                           CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
the defense of res judicata, collateral                                             and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
                                                         Ian McLean
Liisi Brien                                              Supervising Deputy Attorney
Deputy Public Defender                                   General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Hane C. Harris,                                          December 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1995
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff                                       Vorhees, Judge
                                                         Trial Court Cause No.
                                                         18C01-1605-PC-009



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018                Page 1 of 10
                                          Case Summary
[1]   Hane C. Harris appeals the denial of his petition for post-conviction relief,

      arguing that his guilty plea was not knowing, voluntary, and intelligent because

      the trial court did not advise him of his rights as required by Boykin v. Alabama,

      395 U.S. 238 (1969), or otherwise question him regarding his understanding

      and waiver of those rights. Because the trial court, at the guilty-plea hearing,

      referenced Harris’s plea agreement, which sets forth his Boykin rights and

      provides that he will be waiving those rights by pleading guilty, and because

      Harris did not present any evidence that he did not know about his Boykin rights

      when he pled guilty, we affirm the post-conviction court.



                            Facts and Procedural History
[2]   In March 2007, the State charged Harris with Count 1: Class D felony

      strangulation and Count 2: Class A misdemeanor domestic battery. The State

      later added a habitual-offender count. On June 15, 2007, Harris and the State

      entered into a plea agreement. According to the agreement, Harris would plead

      guilty to Counts 1 and 2, and the State would dismiss the habitual-offender

      count. In addition, the plea agreement advised Harris that, by pleading guilty,

      he was waiving certain rights:


              The Defendant understands that the State and Federal
              Constitutions guarantee all criminal Defendants certain rights,
              among them being the rights to a public trial by jury, to a speedy
              trial, to be free from self-incrimination, to confront and cross-
              examine the State’s witnesses, to have compulsory process for

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 2 of 10
              obtaining witnesses for the defense, and to require the State to
              prove guilt beyond a reasonable doubt. The Defendant further
              understands that the entry of a guilty plea pursuant to this
              agreement waives those rights and constitutes an admission of
              the truth of all the facts alleged in the information count to which
              a plea of guilty has been entered. . . .


      State’s Ex. 1. Both Harris and his attorney signed the plea agreement. Id.


[3]   At the guilty-plea hearing the following week, the trial court engaged in the

      following colloquy with Harris:


              THE COURT:               I’m looking at a document entitled Plea
                                       Agreement, is that your signature on the very
                                       last page?


              [HARRIS]:                Yes, ma’am.


              THE COURT:               And it indicates that you’re going to plead
                                       guilty to Counts 1 and 2, that you have an
                                       agreed upon sentence and the State’s going to
                                       dismiss the habitual offender enhancement, is
                                       that your understanding?


              [HARRIS]:                Yes, ma’am.


              THE COURT:               Before I can accept a guilty plea from you, I
                                       have to be satisfied that you fully
                                       understand your constitutional rights, that
                                       your plea of guilty is being made freely and
                                       voluntarily, and that you in fact committed
                                       the crime. Therefore, I have to ask you
                                       some questions and hear some evidence. If
                                       you don’t understand the questions, or the
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 3 of 10
                                 words that I use, please let me know and I
                                 will explain them to you. You may also
                                 speak privately with your attorney at any
                                 time. Do you understand that?


        [HARRIS]:                Yes, ma’am.


                                             *****


        THE COURT:               Have you ever been treated for any mental
                                 illness?


        [HARRIS]:                No, ma’am.


        THE COURT:               To your knowledge, do you now suffer from
                                 any mental or emotional disability?


        [HARRIS]:                No, ma’am.


        THE COURT:               Are you now under the influence of any
                                 alcohol or any drugs?


        [HARRIS]:                No, ma’am.


        THE COURT:               Do you want me to withdraw your earlier
                                 pleas of not guilty and plead guilty to Counts
                                 1 and 2 pursuant to the written Plea
                                 Agreement?


        [HARRIS]:                Yes, ma’am.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 4 of 10
              THE COURT:               It’s already placed in your plea agreement,
                                       the legal and constitutional rights that
                                       you’ll be giving up by entering into this
                                       plea. Do you understand that you will be
                                       giving up those rights?


              [HARRIS]:                Yes, I do.


      Def.’s Ex. 1, pp. 3-4 (emphases added). After the trial court asked Harris

      additional questions regarding whether he had been forced or threatened to

      plead guilty and a factual basis was established, the court said:


              The Court finds the Defendant is 40 years old. He understands
              the nature of the charges against him to which he has moved to
              plead guilty. He understands the possible sentences for the
              crimes. His pleas are freely and voluntarily made and that there
              is a factual basis for the pleas. The Court will accept the offers of
              pleas of guilty and find the Defendant Guilty of Count 1 . . . and
              Count 2 . . . and enter judgement of conviction accordingly. The
              Court will approve the written Plea Agreement . . . .


      Id. at 10; see also State’s Ex. 2 (trial court’s order on guilty plea).


[4]   In 2016, Harris filed a pro se petition for post-conviction relief, which was later

      amended by counsel. The petition alleged that Harris’s guilty plea was not

      knowing, intelligent, and voluntary because the trial court did not advise him of

      his Boykin rights. Appellant’s App. Vol. II p. 19. Before the hearing on his

      petition was held, Harris filed a waiver of his right to be present, in which he

      stated that he was not an essential witness and would not be “taking the stand.”

      Id. at 25.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 5 of 10
[5]   At the hearing, Harris introduced the transcript of his guilty-plea hearing, and

      the State introduced the plea agreement. In accordance with the waiver, Harris

      did not testify. After taking the matter under advisement, the post-conviction

      court entered an order denying Harris’s petition. Specifically, the court

      concluded:


              9. The parties agree to the facts and procedural posture as set
              forth above. This Amended Petition presents a legal issue:
              whether Petitioner is entitled to post-conviction relief because the
              trial court did not advise him specifically, out loud during the
              guilty plea hearing that he was waiving his Boykin rights by
              pleading guilty. Or, was it sufficient for the trial court judge to
              reference the written rights recitation in the Plea Agreement that
              the Petitioner acknowledged signing.


                                                   *****


              11. I am satisfied the Record shows Petitioner knowingly waived
              his Boykin rights. He executed a Plea Agreement, with counsel
              also signing off on the Agreement. The Plea Agreement recited
              all the constitutional rights which the trial court must include in a
              Boykin advisement.


              12. It is clear from the record that Petitioner knew he was
              waiving the constitutional rights discussed in Boykin. Petitioner’s
              Plea Agreement specifically indicated that by pleading guilty,
              Petitioner was waiving the constitutional rights specified by the
              United States Supreme Court in Boykin. Petitioner has also
              acknowledged that he signed the plea agreement and that he
              understood its terms.


              13. Petitioner was adequately notified of his Boykin rights. . . .


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 6 of 10
      Id. at 48.


[6]   Harris now appeals.



                                   Discussion and Decision
[7]   Harris contends that the post-conviction court erred in denying relief. A person

      who files a petition for post-conviction relief has the burden of establishing the

      grounds for relief by a preponderance of the evidence. Hollowell v. State, 19

      N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies relief, and

      the petitioner appeals, the petitioner must show that the evidence leads

      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court. Id. at 269.


[8]   Harris argues that his guilty plea was not knowing, intelligent, and voluntary

      because the trial court failed to make an “independent determination” that he

      understood the constitutional rights he was waiving by pleading guilty.

      Appellant’s Br. p. 10.1 According to Boykin, a trial court must be satisfied that a

      defendant is aware of his right against self-incrimination, his right to trial by

      jury, and his right to confront his accusers before accepting a guilty plea. Dewitt




      1
        In support, Harris cites Hunt v. State, 487 N.E.2d 1330 (Ind. Ct. App. 1986), where we held that a trial
      court’s failure to make an independent determination of a defendant’s understanding of the rights he
      was waiving was automatically grounds for post-conviction relief. However, that part of Hunt is no
      longer good law. Maloney v. State, 684 N.E.2d 488, 490-91 (Ind. 1997) (noting a split in the Court of
      Appeals on the issue and concluding that the Hunt view was no longer good law); White v. State, 497
      N.E.2d 893, 905 (Ind. 1986).



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018                  Page 7 of 10
      v. State, 755 N.E.2d 167, 171 (Ind. 2001); see also Ind. Code § 35-35-1-2 (noting

      that the trial court shall not accept a plea of guilty without first determining that

      the defendant has been informed that he is waiving certain rights). However,

      Boykin does not require that the record of the guilty-plea proceeding show that

      the defendant was formally advised that entry of his guilty plea waives certain

      constitutional rights, nor does Boykin require that the record contain a formal

      waiver of these rights by the accused. Dewitt, 755 N.E.2d at 171. Boykin does

      not require a conviction to be vacated if the defendant knows or is advised at

      the time of his plea that he is waiving his Boykin rights. Davis v. State, 675

      N.E.2d 1097, 1103 (Ind. 1996).


[9]   In other words, a petitioner who claims that his plea was involuntary and

      unintelligent but can only establish that the trial judge failed to advise him of

      his Boykin rights has not met his burden of proof. White v. State, 497 N.E.2d

      893, 905 (Ind. 1986) (explaining that the previous rule, which required strict

      compliance with the list of advisements, “led to reversal in instances where the

      trial judge’s omission [could not] genuinely be said to have worked an injustice

      or, indeed, . . . made any difference at all”). Rather, the petitioner must present

      evidence from which the post-conviction court could conclude by a

      preponderance of the evidence that the trial judge’s failure to advise him that he

      was waiving his Boykin rights by pleading guilty rendered his decision

      involuntary or unintelligent. Id. The only petitioners entitled to relief are those

      “who can prove that they were actually misled by the judge, the prosecutor, or

      defense counsel about the choices before them.” Id. at 905-06.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 8 of 10
[10]   Here, it appears to us that the trial court made an independent determination

       that Harris understood he was waiving his Boykin rights by pleading guilty.

       The court said that before it could accept Harris’s guilty plea, it had “to be

       satisfied that [Harris] fully underst[ood] his constitutional rights.” Def.’s Ex. 1,

       p. 3. The court then referenced Harris’s plea agreement, which sets forth his

       Boykin rights and provides that, by pleading guilty, he will be waiving those

       rights. The court told Harris that the plea agreement, which Harris admitted

       signing, contained the constitutional rights that he was waiving. See id. at 4

       (“It’s already placed in your plea agreement, the legal and constitutional rights

       that you’ll be giving up by entering into this plea.”). The court asked Harris if

       he understood that he would be giving up those rights, and Harris said yes. At

       the end of the hearing, the court concluded that Harris’s guilty plea was freely

       and voluntarily made.


[11]   But even if the court did not make a sufficient independent determination,

       Harris is still not entitled to post-conviction relief. That is because our Supreme

       Court has held that Boykin does not require a conviction to be vacated if the

       defendant knows or is advised at the time of his plea that he is waiving his

       Boykin rights. Davis, 675 N.E.2d at 1103. Harris did not present any evidence

       that he did not know about his Boykin rights when he pled guilty, such as that

       he did not actually read his plea agreement or that he could not read. Indeed,

       Harris did not testify at the post-conviction hearing or present any evidence

       other than the guilty-plea transcript. As our Supreme Court has reiterated, a

       “petitioner for post-conviction relief has the burden of establishing his grounds


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 9 of 10
       for relief by a preponderance of the evidence.” Hall v. State, 849 N.E.2d 466,

       472 (Ind. 2006). Harris did not meet that burden here. We therefore affirm the

       post-conviction court.


[12]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018   Page 10 of 10
