MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Dec 28 2017, 7:05 am
the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
David Earl Ison                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Earl Ison,                                         December 28, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         24A05-1706-PC-1510
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable J. Steven Cox,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         24C01-1407-PC-630



Bailey, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017        Page 1 of 14
[1]   Following an order of remand by this Court1 for additional findings by the post-

      conviction court, pro-se Appellant David Earl Ison (“Ison”) appeals the denial

      of his amended petition for post-conviction relief, which challenged his

      convictions for five counts of Murder.2 We affirm.



                                                          Issues
[2]   Ison presents two issues for review:


                 I.       Whether he entered his pleas involuntarily due to a lack of
                          waiver of his Boykin3 rights; and


                 II.      Whether his trial counsel was ineffective for engaging in
                          deception to secure a plea agreement and for failing to
                          ensure that Ison affirmatively waived his Boykin rights.


                                   Facts and Procedural History
[3]   The facts underlying Ison’s guilty pleas, together with the procedural history,

      were set out in the prior appeal from the denial of Ison’s petition for post-

      conviction relief:




      1
          See Ison v. State, 71 N.E.3d 1174 (Ind. Ct. App. 2017).
      2
          Ind. Code § 35-42-1-1.
      3
        See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (holding that it was reversible error for the trial court to
      accept a guilty plea without an affirmative showing that it was an intelligent and voluntary plea). Boykin
      requires that an accused be made aware of his right against self-incrimination, his right to trial by jury, and
      his right to confront his accusers. Id. at 243. Waiver cannot be presumed from a silent record. Id.

      Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017             Page 2 of 14
        On September 25, 2011, Roy Napier, Angela Napier, Melissa
        Napier, Jacob Napier, and Henry Smith were murdered in
        Franklin County. Shortly thereafter, Ison became a suspect and
        blood and DNA evidence were recovered from his home, as well
        as two firearms that had been used in the shootings. At the time
        of the killings, Ison was on probation for unrelated convictions
        on ten counts of burglary. In sum, Ison had twenty prior felony
        convictions.


        The State charged Ison with five counts of murder (Counts I
        through V) on October 7, 2011. Franklin County Prosecutor
        Melvin Wilhelm (Prosecutor Wilhelm) struggled with whether to
        seek the death penalty and eventually consulted with the Indiana
        Prosecuting Attorneys Council’s capital litigation committee,
        which advised him to seek the death penalty. Thereafter,
        Prosecutor Wilhelm spoke with Ison’s trial counsel, Hubert
        Branstetter (Attorney Branstetter), regarding the possibility of a
        plea agreement in which Ison would plead guilty to life
        imprisonment without parole (LWOP) to avoid the death
        penalty. A document was prepared by prosecutor Wilhelm and
        presented to Ison by Attorney Branstetter. Ison signed the
        document, agreeing to LWOP. This document, which Ison
        believed to be a plea agreement, was never filed with the trial
        court.


        On February 3, 2012, the State filed an amended information
        adding an LWOP count (Count VI). The trial court held an
        initial hearing regarding Count VI on March 1, 2012, which
        transformed into a guilty plea hearing when Ison pled guilty to
        Count VI and changed his plea to guilty with regard to Counts I
        though [sic] V. The trial court advised Ison that this would
        necessarily require him to be in prison for the rest of his natural
        life. After briefly inquiring into Ison’s mental state and ability to
        understand the proceedings, the trial court engaged Ison in the
        following discussion:


Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 3 of 14
        COURT: The guilty plea that you’re offering is your own free
        choice and decision?


        DEFENDANT: Yes, sir.


        COURT: No one has offered you any promises or anything of
        value to get you to plead guilty?


        DEFENDANT: No, sir.


        COURT: Forced, threaten[ed], place in you [sic] in fear, anyone
        else you know been forced, threaten[ed], or placed in fear to get
        you to plead guilty?


        DEFENDANT: No, sir.


        COURT: Still your intention to plead guilty?


        DEFENDANT: Yes, sir.


        Petitioner’s Exhibit A. at 6-7. Prosecutor Wilhelm then detailed
        the factual basis for each of the counts, which Ison admitted. At
        no point during the hearing did Ison expressly waive his Boykin
        rights. In accepting the pleas, however, the court stated: “The
        Court will find you’re forty-six years of age. You understood the
        nature of the charge [to] which you plead guilty, the possible
        sentence you could receive. That your plea of guilty is freely and
        voluntarily made and there’s a factual basis for your plea of
        guilty.” Petitioner’s Exhibit A at 9-10. At the sentencing hearing
        on March 14, 2012, the trial court sentenced Ison to LWOP.


        Ison, pro se, filed his original PCR petition on June 26, 2014.
        Thereafter, on October 19, 2015, Ison filed a motion to amend

Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 4 of 14
        his PCR petition, alleging for the first time that his trial counsel
        was ineffective and that his plea was not made knowingly,
        intelligently, and voluntarily. Ison made a number of additional
        pro-se filings and even filed an improper interlocutory appeal,
        which this court dismissed on March 4, 2016. This was followed
        by Ison’s filing a flurry of additional documents.4 Though there
        is some ambiguity in the record, it appears that Ison filed a
        “Supplemental Motion and Verified Amended PCR” in April
        2016, which asserted a number of claims including ineffective
        assistance of counsel and involuntariness of his plea.


        Ison’s post-conviction hearing commenced on June 29, 2016.
        The post-conviction court sua sponte appointed standby counsel
        for Ison during the hearing. Ison testified at the hearing and
        detailed his claims. He emphasized that his primary claims were
        ineffective assistance of counsel and involuntariness of his plea.
        He asserted several arguments associated with these two related
        claims. At the conclusion of his case, Ison briefly addressed three
        additional claims.


        On July 1, 2016, the post-conviction court issued its order
        denying Ison’s PCR petition. In the order, the court expressly
        considered only the three grounds for relief raised in Ison’s
        original petition filed in 2014. These grounds did not include
        ineffective assistance of counsel or the related claim regarding his
        guilty plea. Appendix at 21.


Ison, 71 N.E.3d at 1175-76.




4
  Ison also filed an original action with our Supreme Court, which was promptly dismissed as improper by
the Court on May 9, 2016.

Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017       Page 5 of 14
[4]   Contrary to the post-conviction court’s conclusion, this Court found that Ison’s

      ineffectiveness claim and related claim had been timely filed:


              Pursuant to Indiana Post-Conviction Rule 1(4)(c), a “petitioner
              shall be given leave to amend the petition as a matter of right no
              later than sixty [60] days prior to the date the petition has been
              set for trial.” Ison filed the 2015 Amendment before a trial date
              was even set, and, thus, well within the period in which he could
              amend his PCR petition as a matter of right. Accordingly, the
              2015 Amendment was properly before the trial court, as well as
              possibly other subsequent amendments.


              At the post-conviction hearing held on June 29, 2016, Ison
              presented his case and focused on the issues of ineffective
              assistance of trial counsel and involuntariness of his guilty plea,
              which were first alleged in the 2015 Amendment. In addition to
              the 2015 Amendment, the court acknowledged at the hearing
              that it had a lengthy document filed by Ison on April 14, 2016,
              which Ison claimed was another amendment raising additional
              issues.


              In its brief order issued two days after the post-conviction
              hearing, the court indicated for the first time that it would not
              consider any of Ison’s claims raised in filings made after the
              original PCR petition filed in 2014. Without any explanation,
              the court concluded that the only petition properly before it was
              the original petition. This was erroneous.


      Ison, 71 N.E.3d at 1177. On March 14, 2017, we remanded the case, directing

      the post-conviction court “to make specific findings of fact and conclusions of

      law with respect to Ison’s claims of ineffective assistance of trial counsel and

      involuntariness of his guilty plea. Id. at 1178.


      Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 6 of 14
[5]   On June 9, 2017, the post-conviction court issued its Order on Remand. The

      post-conviction court entered findings of fact, conclusions thereon, and an order

      denying Ison post-conviction relief. This appeal ensued.



                                  Discussion and Decision
                                       Standard of Review
[6]   Our standard of review in post-conviction proceedings is well-settled:


                 A petitioner seeking post-conviction relief bears the burden of
                 establishing grounds for relief by a preponderance of the
                 evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is
                 denied post-conviction relief appeals from a negative judgment,
                 which may be reversed only if “the evidence as a whole leads
                 unerringly and unmistakably to a decision opposite that reached
                 by the post-conviction court.” Stevens v. State, 770 N.E.2d 739,
                 745 (Ind. 2002), cert. denied, 540 U.S. 830, 124 S.Ct 69, 157
                 (2003). We defer to the post-conviction court’s factual findings,
                 unless they are clearly erroneous. Id. at 746.


      Collins v. State, 14 N.E.3d 80, 83 (Ind. Ct. App. 2014).


                                    Involuntariness of Pleas
[7]   Ison argues that his guilty pleas were involuntary because he did not understand

      that he was waiving his Boykin rights and he did not understand that he could

      potentially have received a minimum, forty-five-year sentence for Murder,5 after




      5
          See I.C. § 35-50-2-3.


      Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 7 of 14
      weighing of aggravators and mitigators, had he gone to trial. A post-conviction

      proceeding is a proper vehicle for challenging a guilty plea, and we look at the

      evidence before the post-conviction court that supports its determination that a

      guilty plea was voluntary, knowing, and intelligent. Moffitt v. State, 817 N.E.2d

      239, 248-49 (Ind. Ct. App. 2004), trans. denied.


[8]   On remand, the post-conviction court made factual findings that Ison had, at

      the initial hearing on Amended Count VI, been advised by the trial court of his

      rights and potential penal consequences. Second, the post-conviction court

      concluded that Ison, having entered numerous guilty pleas in the past, must

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


[9]   Ison now contends, “If I would have been given my Boykin rights before I pled

      guilty to counts I II III IV V, I argue I would have never plead [sic] guilty”;

      “Also the way the hearings were done mislead [sic] me: making me think that I

      did not have the Boykins [sic] for counts I II III IV V, only for Count VI they

      gave them to me in the context of count VI I didn’t even know I had them for

      counts I II III IV V”; and “If I knew I had the Boykin rights for Counts I II III

      IV V, I would have insisted on a jury trial.” Appellant’s Brief at 13, 14, 17. As

      best we can discern Ison’s contentions, he does not deny that he was given

      appropriate advisements at the initial hearing on Count VI; rather, he bifurcates

      counts, notes that the record does not reveal an explicit waiver on his part, and

      claims that his impairments from alcohol and drug use and psychiatric

      medications affected his ability to understand the proceedings.



      Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 8 of 14
[10]   “In considering the voluntariness of a guilty plea we start with the standard that

       the record of the guilty plea proceeding must demonstrate that the defendant

       was advised of his constitutional rights and knowingly and voluntarily waived

       them.” Turman v. State, 271 Ind. 332, 392 N.E.2d 483, 484 (1979) (citing

       Boykin, 395 U.S. at 242). Boykin requires that a trial court accepting a guilty

       plea “must be satisfied that an accused is aware of his right against self-

       incrimination, his right to trial by jury, and his right to confront his accusers.”

       Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001) (citing Boykin, 395 U.S. at 243).

       The failure to advise a criminal defendant of his constitutional rights in

       accordance with Boykin prior to accepting a guilty plea will result in the reversal

       of the conviction. Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014) (citing

       Youngblood v. State, 542 N.E.2d 188, 188 (Ind. 1989)).


[11]   A defendant who demonstrates that the trial court failed to properly give a

       Boykin advisement during the guilty plea hearing has met his threshold burden

       for obtaining post-conviction relief. Id. However, the State may prove “that the

       petitioner nonetheless knew that he was waiving such rights.” Id. at 1273.

       “And where the record of the guilty plea hearing itself does not establish that a

       defendant was properly advised of and waived his rights, evidence outside of

       that record may be used to establish a defendant’s understanding.” Id.


[12]   Ison insists that nothing short of his formal waiver after count-specific

       advisements in successive hearings is sufficient; however, “a formal advisement

       and waiver are not required.” Dewitt, 755 N.E.2d at 171. Rather, the defendant

       “must have only known that he was waiving his Boykin rights by pleading

       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 9 of 14
       guilty.” Id.6 Here, before the entry of Ison’s guilty pleas, he had been expressly

       informed of his Boykin rights. Later, at the sentencing hearing, Ison expressed

       his “understanding of the record to date,” that is, he had been advised “by

       pleading guilty to those Counts you would be waiving those rights.” (Sent. Tr.

       at 14.)


[13]   At the post-conviction hearing, Ison testified in narrative form and, in relevant

       part, stated: “I didn’t understand what exactly it was. All I knew is I was

       coming over here to plead guilty.” (P-C.R. Tr. at 43.) However, Ison had been

       convicted of twenty prior felonies, primarily in guilty plea proceedings. As for

       Ison’s claim that his substance use had rendered him unable to comprehend and

       remember prior advisements, it is belied by his assertions at the guilty plea

       hearing. The post-conviction court did not find Ison’s claim of

       misunderstanding to be credible. We will not reweigh the evidence or

       determine credibility. “The post-conviction court is the sole judge of the

       evidence and the credibility of the witnesses.” Hall v. State, 849 N.E.2d 466,

       468-69 (Ind. 2006). We cannot say that the evidence as a whole leads

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

       conviction court.




       6
         A panel of this Court has observed, “[a] signed plea agreement reciting that the defendant waives the right
       to a jury trial, the right to confront witnesses and the right against self-incrimination, is an adequate
       advisement to establish a knowing and voluntary waiver of rights.” Spencer v. State, 634 N.E.2d 500, 501
       (Ind. Ct. App. 1993). Here, however, there is no signed plea agreement of record.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017         Page 10 of 14
                        Ineffective Assistance of Trial Counsel
[14]   Ison also contends that his trial counsel was ineffective. Specifically, Ison

       claims that his counsel conspired with the prosecutor and the trial court judge

       to withhold information as to the minimum sentence available and to

       manipulate Ison into agreeing to a LWOP sentence. According to Ison, his

       attorney affirmatively misled him into thinking that a death penalty allegation

       had been formally filed, failed to properly pursue Ison’s desire to withdraw his

       guilty pleas, and failed to ensure that Ison understood his right to appeal.

[15]   “When a defendant contests his guilty plea based on claims of ineffective

       assistance of counsel, we apply the … two-part test from Strickland [v.

       Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)].” Collins, 14 N.E.3d at 87.

       That is:


               To establish a claim of ineffective assistance of counsel, a
               convicted defendant must show (1) that counsel’s performance
               was deficient such that it fell below an objective standard of
               reasonableness based on prevailing professional norms and (2)
               the defendant was prejudiced by counsel’s deficient performance.
               [Strickland, 466 U.S. at 687]. When considering whether
               counsel’s performance was deficient, the reviewing court begins
               with a “strong presumption” that counsel’s performance was
               reasonable. Id. at 689. A defendant is prejudiced if “there is a
               reasonable probability that, but for counsel’s unprofessional
               errors, the result of the proceeding would have been different.”
               Id. at 694. “A reasonable probability is a probability sufficient to
               undermine confidence in the outcome.” Id.


       Id. at 86.


       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 11 of 14
[16]   Where a guilty plea is contested, our application of the first part, regarding

       counsel’s performance, is largely the same. Hill v. Lockhart, 474 U.S. 52, 58-59

       (1985). The prejudice requirement, however, “focuses on whether counsel’s

       constitutionally ineffective performance affected the outcome of the plea

       process. In other words, … the defendant must show 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.” Id. at 59.


[17]   We will not second-guess trial counsel’s strategy and tactics unless they are so

       unreasonable that they fall outside objective standards. See, e.g., Benefield v.

       State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). Isolated mistakes, poor

       strategy, inexperience, and instances of bad judgment do not necessarily render

       representation ineffective. Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002).

       And if we can dispose of a claim of ineffective assistance of counsel by

       analyzing the prejudice prong alone, we will do so. Benefield, 935 N.E.2d at 797

       (citing Wentz, 766 N.E.2d at 360).


[18]   Initially, we observe that Ison did not call his trial counsel as a witness at post-

       conviction proceedings. Thus, the post-conviction court was permitted to infer

       that Ison’s counsel would not have corroborated Ison’s allegations of deception,

       collusion, and intentional withholding of pertinent information. See Dickson v.

       State, 533 N.E.2d 586, 589 (Ind. 1989) (when trial counsel does not testify in

       post-conviction proceedings, the post-conviction court may infer that counsel

       would not corroborate petitioner’s allegations). So, too, could the post-

       conviction court infer that trial counsel would not corroborate Ison’s testimony

       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 12 of 14
       that he demanded that counsel attempt withdrawal of the guilty pleas and

       counsel reported back to Ison that he attempted withdrawal, but the judge flatly

       refused and said that Ison was fortunate to escape death.


[19]   Without trial counsel’s testimony or other witnesses, we are left with Ison’s

       testimony that he would have insisted upon going to trial had he known that a

       death penalty request had not been formally filed and that a person convicted of

       murder could potentially receive a minimum sentence of forty-five years. A

       petitioner’s subjective assertion that he would have declined to plead guilty does

       not establish a reasonable probability of a different outcome; there must be

       objective facts to show that a hypothetical reasonable defendant would have

       made a different decision. Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001)

       (citing Hill, 474 U.S. at 59)).


[20]   Ison was charged with five counts of murder. The circumstance of multiple

       murders made Ison eligible for the death penalty or LWOP, upon conviction.

       I.C. § 35-50-2-9(b)(8). The State appeared to have overwhelming evidence

       against Ison, including physical evidence, DNA evidence, and a statement from

       Ison’s girlfriend, who claimed that she had been outside the residence at the

       time of the murders. Ison’s purported motivation was his desire to obtain

       prescription drugs. He was on probation at the time of the murders. He had at

       least twenty prior felony convictions. Any expectation of leniency at sentencing

       would not have been objectively reasonable. The post-conviction court did not

       err in concluding that an objectively reasonable person would not have insisted

       upon going to trial.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 13 of 14
[21]   As for Ison’s claim that his counsel allowed Ison to plead guilty without advice

       and waiver of his Boykin rights, we have already concluded otherwise.

       Ultimately, counsel was instrumental in Ison’s avoidance of the death penalty

       despite his clear eligibility. Ison has not established that counsel performed

       deficiently or that he was prejudiced.



                                               Conclusion
[22]   Ison has not demonstrated his entitlement to post-conviction relief on grounds

       of involuntariness of his pleas or the ineffective assistance of counsel. The post-

       conviction court did not erroneously deny Ison post-conviction relief.


[23]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1706-PC-1510 | December 28, 2017   Page 14 of 14
