MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Mar 02 2018, 9:56 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Sobin,                                           March 2, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1710-PC-2357
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49G01-9910-PC-187949



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018            Page 1 of 11
                                              Case Summary
[1]   Gregory Sobin appeals the denial of his petition for post-conviction relief. We

      affirm.


                                                      Issue
[2]   The sole issue before us is whether the post-conviction court properly

      determined that Sobin did not receive ineffective assistance of trial counsel.


                                                      Facts
[3]   In October 1999, the State charged Sobin with two counts of Class B felony

      arson and one count of Class D felony arson. On April 17, 2000, the State filed

      an additional information alleging that Sobin was an habitual offender. In

      September 2000, the trial court appointed Daniel Mohler to represent Sobin. In

      November 2001, Mohler withdrew, and Carolyn Rader became Sobin’s new

      counsel. The State amended the habitual offender information on February 9,

      20011 to remedy a purported defect. Sobin maintains that he was never notified

      that the defect had been remedied.


[4]   Sobin’s jury trial was slated for February 25, 2002. Rader and Attorney Steven

      Poore represented him at trial. In open court before the trial commenced, the

      State made a plea offer of a fixed term of sixteen years with six years



      1
       Both the State and the post-conviction court state that the habitual offender information was amended on
      February 26, 2002. Sobin disputes this date and maintains that the habitual enhancement information was
      amended on February 9, 2001. We agree. The chronological case summary shows that the State filed a new
      habitual offender charging information on February 9, 2001. App. Vol. II p. 14.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018          Page 2 of 11
      suspended; Sobin refused the offer, maintaining his innocence and identifying a

      different perpetrator. The jury trial was conducted on February 25-26, 2002,

      and the jury returned guilty verdicts on all counts. The trial court entered a

      judgment of conviction for one count of class B felony arson, merged the

      remaining counts, and vacated their judgments of conviction. The jury

      subsequently determined that Sobin was also an habitual offender. On May 1,

      2002, he was sentenced to serve ten years in the Department of Correction; his

      sentence was enhanced by thirty years because he was an habitual offender, for

      an aggregate sentence of forty years.


[5]   Sobin filed a direct appeal arguing that the trial court abused its discretion in

      finding him competent to stand trial. A panel of this court affirmed his

      conviction. See Sobin v. State, No. 49A02-0205-CR-424 (Ind. Ct. App. April 14,

      2003). On May 12, 2010, Sobin filed a petition for post-conviction relief,

      alleging that he had received ineffective assistance of counsel. Following a

      hearing on May 2, 2017, the post-conviction court denied his petition, finding

      that Sobin did not suffer prejudice by counsel’s failure to inform him of the

      amended charge because he had rejected the plea offer based on his claim of

      innocence, not because he believed the habitual offender information was

      defective. Sobin now appeals.


                                                  Analysis
[6]   A petitioner in a post-conviction proceeding bears the burden of proof, and an

      unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903

      N.E.2d 899, 905 (Ind. 2009). A petitioner appealing from a negative judgment
      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 3 of 11
      must show that the evidence as a whole leads unerringly and unmistakably to a

      conclusion opposite to that reached by the post-conviction court. Id. We will

      disturb a post-conviction court’s decision as being contrary to law only where

      the evidence is without conflict and leads to but one conclusion and the post-

      conviction court has reached the opposite conclusion. Id.


[7]   Sobin argues that his trial counsel rendered ineffective assistance by failing to

      advise him that a defect in the initial habitual offender charging information

      had been corrected. He maintains that counsel’s omission led him to reject a

      favorable plea offer under the mistaken belief that he could not be convicted

      under the initial defective information.


[8]   “To prevail on a claim of ineffective assistance of counsel, a petitioner must

      demonstrate both that his counsel’s performance was deficient and that the

      petitioner was prejudiced by the deficient performance.” McCullough v. State,

      987 N.E.2d 1173, 1176 (Ind. Ct. App. 2013) (citing Strickland v. Washington, 466

      U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), trans. denied. The failure to satisfy

      either prong will cause the claim to fail. Id. “Counsel’s performance is

      deficient if it falls below an objective standard of reasonableness based on

      prevailing professional norms.” Id. To show prejudice from ineffective

      assistance of counsel where a plea offer has been rejected or lapsed because of

      counsel’s deficient performance, Sobin must demonstrate a “reasonable

      probability [that he] would have accepted the earlier plea offer had [he] been

      afforded effective assistance of counsel.” Missouri v. Frye, 132 S. Ct. 1399, 1409

      (2012).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 4 of 11
[9]   Here, the post-conviction court entered the following relevant findings and

      conclusions:


                                         FINDINGS OF FACT


                                                   *****


              5. Concomitantly with his most recent PCR petition, [Sobin]
              also filed a motion for sentence modification. Although the State
              maintained its objection to the modification, the Court agreed to
              allow [Sobin] to present evidence on the motion as part of his
              case at the PCR evidentiary hearing.


              6. The Court held an evidentiary hearing on May 2, 2017. [A]t
              the hearing [Sobin] testified in his own behalf. He also submitted
              affidavit testimony from the many attorneys who had represented
              him in this case at one time or another. These include attorneys
              Dan Mohler, Steven Poore, Eric Koselke, Carolyn Rader, and
              Kay Beeler. Additionally, he submitted the affidavit of Linda
              Davidson, his fiancée, as a character statement. [Sobin] also
              submitted the appellate record of proceedings as a documentary
              exhibit. At the State’s request, the Court took judicial notice of
              its file in this matter.


              7. Much of [Sobin]’s testimony at the evidentiary hearing was
              directed to his modification motion. He did testify that he did
              not believe that the State could prove the habitual offender
              allegation, because one of the alleged prior convictions from
              Illinois, did not qualify under that Indiana habitual statute. He
              also stated that none of his trial counsels ever informed him
              about the amended habitual enhancement information that was




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 5 of 11
           filed on February 26, 2002[2]. On cross-examination, [Sobin]
           acknowledged that his belief regarding the habitual enhancement
           information did not come from any advice he was given by his
           attorneys, rather this belief entirely came from his own
           understanding of Illinois and Indiana law, based on his
           substantial involvement with the criminal justice system.


           8. A review of the transcript of the proceedings shows that prior
           to trial, the following exchange occurred between the parties:


           MS. C. RADER [DEFENSE COUNSEL]: I have authority
           from [Sobin], as of yesterday, to try to negotiate a plea. . . . .


                                                 *****


           THE COURT: . . . . And, Miss Rader, are we going to trial, or
           is Mr. Sobin going to accept the State’s offer?


           MS. C. RADER: Mr. Sobin, at this point, has – has rejected the
           State’s offer. That offer was 16 years with six suspended, doing
           ten executed, which would be five if there is two for one, and I
           believe that the credit time is in the mid-500 days.


           THE COURT: So, two-and-a-half years you’d have to do? You
           don’t want to take that, Mr. Sobin?


           MR. G. SOBIN: No, ma’am.




2
    According to the record, the habitual offender information was amended on February 9, 2001.


Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018              Page 6 of 11
        THE COURT: Do you understand that if you go to trial, and
        you’re found guilty, the minimum the Court could give you
        would be 16 years?


        MR. G. SOBIN: Yes, ma’am.


        THE COURT: And the maximum would be 50?


        MR. G. SOBIN: Yes, ma’am.


        THE COURT: And with your criminal history, you’d be looking
        at the presumptive, or above; do you understand that?


        MR. G. SOBIN: Yes, ma’am.


        THE COURT: And, even considering all of that, you don’t want
        to plead guilty?


        MR. G. SOBIN: Like I said, I didn’t do it.


        (Trial Tr. pp. 24-27).


        9. Based on a review of its file in this matter, the Court further
        notes that in the pre-sentence investigation, [Sobin] adamantly
        maintained his innocence of the crime, and claimed the fire was
        started by “Luis Maldonnado.” (Presentence Report, filed April
        3, 2002).


        10. For the reasons discussed below, the Court find that the facts
        are with the State and against [Sobin].




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 7 of 11
                                CONCLUSIONS OF LAW


                                             *****


        2.      Ineffective Assistance of Counsel:


                                             *****


               A review of the record and a review of the evidence
        adduced at the post-conviction evidentiary hearing leads to the
        conclusion that [Sobin] has failed to meet his burden of proof.
        The record unequivocally establishes that [Sobin] rejected a very
        favorable plea offer, made by the State, on the record in open
        court, not because of any misadvice or because he was
        misinformed about the state of the pleadings, but instead he
        rejected the State’s offer because, “Like, I said, I didn’t do it.”
        (Trial transcript, p. 27).


               Despite his self-serving statements at the evidentiary
        hearing, there is no reason to believe that [Sobin]’s decision to
        not plead guilty was predicated on his attorney’s advice, or for
        that matter, even on his own understanding of the law. Instead,
        his decision was based on his protestation of innocence. It is
        well-settled in Indiana that when an accused protests his
        innocence no guilty plea may be entered. Harshman v. State, 232
        Ind. 618, 115 N.E.2d 501, (1953); Ross v. State, 456 N.E.2d 420,
        (Ind. 1983); Carter v. State, 739 N.E.2d 126, (Ind. 2000).
        Consequently, having failed to establish that he relied on the
        misadvice of counsel and having failed to establish that he would
        have pleaded guilty at all, the Court finds that [Sobin] has failed
        to meet his burden of proof.


App. Vol. III pp. 95-97, 100-101.



Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 8 of 11
[10]   The record does not establish that Sobin was misadvised by his trial counsel.

       To the contrary, by Sobin’s own admission, the theory that he could not be

       convicted under the initial habitual offender information originated with him

       alone, as evidenced by the following:


               Q [STATE]: Mr. Sobin, as I understand it, you’ve been in and
               out of the system both in Indiana and Illinois a lot, haven’t you?


               A [SOBIN]: Yes, sir.


                                                    *****


               Q: And the information regarding your – the habitual offender
               filing in this case, the first habitual offender filing and that you
               believed it was defective, that came from your knowledge and
               understanding of the law; is that correct?


               A: In Illinois particularly, yes, sir.


               Q: Right, okay. The – so that was not something that the – your
               attorneys didn’t tell you that it was defective or anything. You
               told your attorneys it was defective right? . . . .


               A: Honest, yes, sir. Yes, sir.


       PCR Tr. pp. 26-27. Elsewhere in his testimony, Sobin added, “I’m quite

       familiar with the Illinois statutes and I figured it out on my own[.]”). Id. at 9.


[11]   Nor does the record support Sobin’s claim that he would have accepted the

       State’s plea offer but for counsel’s alleged omission. Presented with the State’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 9 of 11
       very favorable plea offer, Sobin rejected the deal flatly—not only professing his

       innocence but also identifying a different perpetrator. On these issues, the post-

       conviction court concluded that Sobin failed to meet his burden stating,


               Despite his self-serving statements at the evidentiary hearing,
               there is no reason to believe that [Sobin]’s decision to not plead
               guilty was predicated on his attorney’s advice, or for that matter,
               even on his own understanding of the law. Instead his decision
               was based on his protestation of innocence. It is well-settled in
               Indiana that when an accused protests his innocence no guilty
               plea may be entered. . . . . Consequently, having failed to
               establish that he relied on the misadvice of counsel and having
               failed to establish that he would have pleaded guilty at all, the
               Court finds that [Sobin] has failed to meet his burden of proof.


       App. Vol. II pp. 100-101.


[12]   In light of the foregoing, Sobin cannot establish either deficient performance of

       counsel or a reasonable probability that he would have accepted the State’s plea

       offer had he received effective assistance of counsel. Based on our review of the

       post-conviction relief hearing testimony and the transcript of the underlying

       proceedings, Sobin has failed to establish that the evidence as a whole leads

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

       post-conviction court.


                                                 Conclusion
[13]   Sobin has not established that he received ineffective assistance of trial counsel.

       We affirm.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 10 of 11
[14]   Affirmed.


[15]   Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2357 | March 2, 2018   Page 11 of 11
