MEMORANDUM DECISION
                                                                      Mar 15 2016, 8:59 am
Pursuant to Ind. Appellate Rule 65(D),
this 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Joanna Green                                             George P. Sherman
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Theodore T. Schwartz,                                    March 15, 2016
Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         01A02-1507-PC-872
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad E. Kukelhan,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         01C01-1109-PC-4



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016         Page 1 of 19
                                                   Case Summary
[1]   Theodore Schwartz appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                       Issues
[2]   Schwartz raises four issues, which we restate as:


                        I.       whether Schwartz was denied his right to
                                 counsel at the initial hearing;

                        II.      whether he was denied the right to a fair and
                                 impartial judge;

                        III.     whether he was denied the effective assistance
                                 of trial counsel; and

                        IV.      whether his guilty plea was knowing,
                                 voluntary, and intelligent.

                                                        Facts
[3]   On August 11, 2009, Schwartz was arrested in Adams County for possession of

      methamphetamine within 1,000 feet of school property. After being taken to

      the police station, Schwartz escaped and went on a crime spree that included

      additional offenses in Allen County and Wells County.1 He was eventually



      1
        In Allen County, the State charged Schwartz with Class A felony rape, two counts of Class A felony
      criminal deviate conduct, Class A felony burglary, Class A felony robbery, Class B felony criminal
      confinement, Class C felony battery, Class C felony forgery, Class D felony strangulation, Class D felony
      auto theft, Class D felony receiving stolen auto parts, Class B felony dealing in methamphetamine, Class D
      felony possession of methamphetamine, Class D felony possession of reagents with intent to manufacture,
      and Class D felony possession of a controlled substance. Schwartz v. State, 02A05-1010-CR-714, slip op. at 3
      (Ind. Ct. App. Mar. 31, 2011), trans. denied. On August 20, 2010, Schwartz pled guilty to rape, two counts of
      criminal deviate conduct, burglary, robbery, criminal confinement, battery, strangulation, and auto theft.
      The trial court sentenced Schwartz to 100 years in the Department of Correction.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016             Page 2 of 19
      apprehended in Wells County. In Adams County, the State charged him with

      Class A felony dealing in methamphetamine, Class B felony possession of

      methamphetamine, Class C felony escape, and Class D felony escape.


[4]   Schwartz’s initial hearing was held on August 28, 2009, and the trial court

      appointed a public defender, Thomas Sheets, for Schwartz. At the initial

      hearing, the trial court informed Schwartz that he and the prosecutor owned a

      building together and that Schwartz had twenty days to file a motion for change

      of judge based on that relationship. In the order on the initial hearing, which

      was served on Sheets, the trial court noted that he and the prosecutor were

      previous law partners and were co-owners of a building in which other

      attorneys practiced. Attorney Stanley Campbell entered his appearance for

      Schwartz in November 2009.


[5]   On January 20, 2010, Schwartz’s Wells County attorney, Larry Mock, filed a

      petition in the Wells County proceeding for appointment of medical experts to

      determine Schwartz’s ability to assist in his defense. In the petition, Mock

      alleged that Schwartz “relates that he is in contact with demons and frequently

      talks to God who apparently is giving legal advice to Defendant.” Ex. 9 p. 1.




      In Wells County, the State charged Schwartz with Class B felony burglary, two counts of Class C felony
      robbery, Class D felony residential entry, Class D felony auto theft, and Class D felony resisting law
      enforcement. Schwartz v. State, No. 90A04-1102-CR-109, slip op. at 2 (Ind. Ct. App. Aug. 19, 2011), trans.
      denied. On October 14, 2010, Schwartz pled guilty as charged, and the trial court sentenced him to an
      aggregate sentence of fifteen years to be served consecutive to the Allen County and Adams County
      sentences.



      Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016             Page 3 of 19
      The Wells County trial court appointed medical experts to examine Schwartz

      and determine whether he had sufficient comprehension to understand the

      nature of the criminal action pending against him and to assist in his own

      defense. However, in October 2010, Mock withdrew the petition for

      appointment of medical experts, and Schwartz pled guilty in Wells County.


[6]   On February 14, 2011, Schwartz pled guilty in Adams County to Class B felony

      possession of methamphetamine and Class C felony escape and admitted to

      being an habitual substance offender. The State dismissed the remaining

      charges. Schwartz agreed that “[a]ll terms of [the] sentence shall be in the

      Court’s discretion.” Ex. 3 p. 2. Further, Schwartz waived his right to appeal

      the sentence imposed by the trial court, including the right to appeal under

      Indiana Appellate Rule 7 and the right to appeal “the trial court’s finding and

      balancing of mitigating and aggravating factors or to challenge the sentence

      imposed . . . .” Id. The trial court sentenced Schwartz to fifteen years for the

      methamphetamine conviction enhanced by eight years for his status as an

      habitual substance offender and consecutive to a six-year sentence for the

      escape conviction for an aggregate sentence of twenty-nine years in the

      Department of Correction. The trial court ordered that the sentence also be

      consecutive to the sentence imposed for the Allen County convictions.


[7]   In September 2011, Schwartz filed a pro se petition for post-conviction relief,

      which was amended in November 2014. Schwartz argued that his due process

      rights were violated when he was denied his right to a fair and impartial judge,

      that he was denied his right to counsel when he was informed of the business

      Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 4 of 19
      relationship between the judge and the prosecutor at the initial hearing, that his

      guilty plea was not knowing, voluntary, and intelligent, and that he was denied

      the effective assistance of trial counsel. At the evidentiary hearing, Schwartz

      called Mock and Campbell as witnesses. After the evidentiary hearing, the

      post-conviction court entered findings of fact and conclusions of law denying

      Schwartz’s petition. Schwartz now appeals.


                                                  Analysis
[8]   Schwartz argues that the post-conviction court’s denial of his petition is clearly

      erroneous. A court that hears a post-conviction claim must make findings of

      fact and conclusions of law on all issues presented in the petition. Pruitt v. State,

      903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The

      findings must be supported by facts and the conclusions must be supported by

      the law.” Id. Our review on appeal is limited to these findings and

      conclusions. Id. Because the petitioner bears the burden of proof in the post-

      conviction court, an unsuccessful petitioner appeals from a negative

      judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative

      judgment must show that the evidence as a whole ‘leads unerringly and

      unmistakably to a conclusion opposite to that reached by the trial court.’” Id.

      (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under

      this standard of review, “[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.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 5 of 19
                                                 I. Right to Counsel2

[9]    Schwartz argued in his petition for post-conviction relief that, although the

       relationship between the judge and the prosecutor was disclosed to him at his

       initial hearing, he was unrepresented at the time. According to Schwartz, the

       “disclosure of the relationship made the initial hearing a critical stage of the

       proceedings. . . .” App. p. 58.


[10]   Schwartz first notes that the post-conviction court failed to enter findings of fact

       or conclusions of law on this particular issue. Indiana Post-Conviction Rule

       1(6) provides: “The court shall make specific findings of fact, and conclusions

       of law on all issues presented, whether or not a hearing is held.” However, a

       post-conviction court’s failure to enter specific findings of fact and conclusions

       of law in ruling on a post-conviction petition is not reversible error when the

       issues are sufficiently presented for review and addressed by the parties. Adcock

       v. State, 22 N.E.3d 720, 724 (Ind. Ct. App. 2014). If the facts underlying a

       claim are not in dispute, the issues are sufficiently clear, and both parties

       address the merits in their briefs, remand for specific findings by the post-

       conviction court is not necessary. Id. The underlying facts here are not in




       2
         Although not raised by the State, we note that “Defendants who plead guilty to achieve favorable outcomes
       forfeit a plethora of substantive claims and procedural rights.” Alvey v. State, 911 N.E.2d 1248, 1250-51 (Ind.
       2009). Further, our supreme court has repeatedly emphasized that in “post-conviction proceedings,
       complaints that something went awry at trial are generally cognizable only when they show deprivation of
       the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Sanders
       v. State, 765 N.E.2d 591, 592 (Ind. 2002). However, because both parties address Issue I and Issue II on the
       merits and the State does not raise waiver, we do not address whether the issues are properly raised. Instead,
       we will address the issues on the merits.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016                Page 6 of 19
       dispute, the issue is sufficiently clear, and both parties address the merits in

       their briefs. Consequently, we will address the issue rather than remanding to

       the post-conviction court.


[11]   Our supreme court has held that a defendant’s right to counsel arises at any

       point during a criminal proceeding in which the absence of counsel would

       erode the defendant’s right to a fair trial. Hopper v. State, 957 N.E.2d 613, 616

       (Ind. 2011). This includes any critical stage in which “(1) incrimination may

       occur or (2) where the opportunity for effective defense must be seized or be

       foregone.” Id. (internal quotations omitted). “An initial hearing conducted

       under Indiana’s statutory scheme is not a critical stage of the criminal

       proceeding requiring the presence of counsel.” Id. at 616-17.


[12]   Schwartz argues that the initial hearing was, in fact, a critical stage of the

       proceeding because the trial court informed him of the judge’s business

       relationship with the prosecutor. Schwartz was, however, appointed an

       attorney at the initial hearing, and that attorney was served with the order

       regarding the initial hearing, which detailed the business relationship.

       Schwartz’s attorney was presumably aware of the alleged conflict3 and had the

       opportunity to file a motion for change of judge. Schwartz has not




       3
        At that time, Schwartz was represented by Thomas Sheets. However, Schwartz did not call Sheets to testify
       at his post-conviction hearing.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016          Page 7 of 19
       demonstrated that he was denied his right to counsel at a critical stage of the

       proceedings.


                                        II. Right to Unbiased Judge

[13]   Schwartz argued in his petition for post-conviction relief that he was denied the

       right to a fair and impartial judge as a result of the business relationship

       between the judge and the prosecutor. The post-conviction court rejected this

       argument and found “the Petitioner was adequately informed of the

       relationship between the judge and the prosecutor and [had] the opportunity to

       exercise his right to a different judge. Furthermore, the Petitioner presented no

       evidence of prejudice or harm he suffered as a result of his failure to seek a

       different judge.” App. pp. 94-95.


[14]   In general, a motion for a change of judge is governed by Indiana Criminal

       Rule 12(B), which provides:

               In felony and misdemeanor cases, the state or defendant may
               request a change of judge for bias or prejudice. The party shall
               timely file an affidavit that the judge has a personal bias or
               prejudice against the state or defendant. The affidavit shall state
               the facts and the reasons for the belief that such bias or prejudice
               exists, and shall be accompanied by a certificate from the
               attorney of record that the attorney in good faith believes that the
               historical facts recited in the affidavit are true. The request shall
               be granted if the historical facts recited in the affidavit support a
               rational inference of bias or prejudice.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 8 of 19
       Schwartz presented no rational inference that the judge had a personal bias or

       prejudice against him. Consequently, there is little likelihood that a motion for

       change of judge under Rule 12(B) would have been granted.


[15]   Schwartz argues, however, that the judge’s business relationship violated

       Indiana Judicial Conduct Canon 3.11 and that the judge would have been

       required under the Judicial Conduct Canons to recuse. Canon 3.11 provides:


               A judge shall not engage in any business, financial, or other
               remunerative activity if engaging in the activity would:


               (1)     interfere with the proper performance of judicial duties;


               (2)     lead to frequent disqualification of the judge;


               (3)     involve the judge in frequent transactions or continuing
                       business relationships with lawyers or other persons likely
                       to come before the court on which the judge serves; or


               (4)     result in violations of other provisions of this Code.


[16]   Our court has previously clarified that “because the Indiana Supreme Court has

       exclusive jurisdiction over alleged violations of the Code of Judicial Conduct,

       we cannot determine whether a trial court judge violated a Judicial Canon.” In

       re Guardianship of Hickman, 805 N.E.2d 808, 814-15 (Ind. Ct. App. 2004), trans.

       denied. However, Schwartz cites Voss v. State, 856 N.E.2d 1211, 1221 (Ind.

       2006), where our supreme court held that “the Judicial Canons may provide an




       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 9 of 19
       independent basis requiring disqualification even if the analysis required for

       determination under Criminal Rule 12(B) would not require a change of judge.”


[17]   We note that, despite the language of Canon 3.11, disqualification of a judge is

       governed by Canon 2.11(A), which provides that “A judge shall disqualify

       himself . . . in any proceeding in which the judge’s impartiality might

       reasonably be questioned, including but not limited to the following

       circumstances . . . (3) The judge knows that he . . . has an economic interest in

       the subject matter in controversy or in a party to the proceeding that could be

       substantially affected by the proceeding.” Thus, “the true question is whether

       an objective person, knowledgeable of all the circumstances, would have a

       reasonable basis for doubting the judge’s impartiality.” Sisson v. State, 985

       N.E.2d 1, 19 (Ind. Ct. App. 2012), trans. denied.


[18]   In support of his argument, Schwartz relies on Patterson v. State, 926 N.E.2d 90

       (Ind. Ct. App. 2010), which we find readily distinguishable from this case. In

       Patterson, the trial judge had previously served as prosecutor in the same

       criminal matter for which the defendant stood trial. Patterson, 926 N.E.2d at 92.

       Canon 2.11(A)(6) requires disqualification under such circumstances. See Ind.

       Judicial Conduct Canon 2.11(A)(6)(a) (noting that a judge shall disqualify

       himself where the judge “served as a lawyer in the matter in controversy”).


[19]   Here, there is no indication that the judge’s business interest could have been

       substantially affected by Schwartz’s criminal proceeding. We cannot say that

       an objective person, knowledgeable of all the circumstances, would have a


       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 10 of 19
       reasonable basis for doubting the judge’s impartiality in Schwartz’s proceeding.

       The post-conviction court did not err by denying Schwartz’s claim.


                              III. Ineffective Assistance of Trial Counsel

[20]   Schwartz next argues that his trial counsel was ineffective. To prevail on a

       claim of ineffective assistance of counsel, a petitioner must demonstrate both

       that his or her counsel’s performance was deficient and that the petitioner was

       prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

       2052, 2064 (1984)), cert. denied. A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. Id. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Strickland, 466

       U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the

       claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most

       ineffective assistance of counsel claims can be resolved by a prejudice inquiry

       alone. Id.


[21]   Schwartz’s conviction was pursuant to a guilty plea. A post-conviction claim

       challenging a conviction pursuant to a guilty plea is examined under Segura v.

       State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main types of

       ineffective assistance of counsel cases: (1) failure to advise the defendant on an
       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 11 of 19
       issue that impairs or overlooks a defense, and (2) an incorrect advisement of

       penal consequences. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). In order

       to set aside a conviction because of an attorney’s failure to raise a defense, a

       petitioner who has pled guilty must establish that a defense was overlooked or

       impaired and that the defense would likely have changed the outcome of the

       proceeding. Segura, 749 N.E.2d at 499. “[I]f counsel’s shortcomings are

       claimed to have resulted in a lost opportunity to mitigate the penalty, in order

       to obtain a new sentencing hearing, the petitioner must show a reasonable

       probability that the oversight would have affected the sentence.” Id.


                                                A. Competency

[22]   Schwartz argues that his trial counsel should have requested a competency

       evaluation and ensured that he was competent to plead guilty. The post-

       conviction court found:


               [T]he Petitioner at no point in the underlying case asked for a
               competency evaluation. He did seek a competency evaluation in
               another pending case in the Wells Circuit Court, Cause No.
               90C01-0908-FB-0022. In that case, Petitioner filed a Petition for
               Appointment of Medical Experts Pursuant to I.C. 35-36-3-1 on
               January 20, 2010. The petition was later withdrawn by the
               Petitioner in that cause on October 19, 2010. There was not a
               competency evaluation pending when the Petitioner pleaded
               guilty in the underlying cause in this court on February 14, 2011.
               Furthermore, both attorneys who represented the Petitioner in
               the cases in Wells and Adams Counties testified during the
               hearing on May 7, 2015 that they believed the Petitioner clearly
               understood the proceedings and they had no concerns about his
               ability to participate in the preparation of any defense. During
               the change of plea hearing, the court asked the Petitioner if he
       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 12 of 19
               suffered from any mental or emotional disability. The Petitioner
               stated he was medicated for depression but otherwise said, “I
               don’t have anything else.” Therefore, the court finds this claim
               to also be without merit.


       App. pp. 93-94.


[23]   Under Segura, Schwartz was required to prove that his trial counsel overlooked

       or impaired the defense and that the defense would likely have changed the

       outcome of the proceeding. Schwartz’s counsel in the Wells County

       proceedings requested a competency evaluation on January 20, 2010.

       However, on October 19, 2010, Schwartz’s Wells County attorney withdrew his

       petition for appointment of medical experts. Schwartz’s Wells County attorney

       testified that he withdrew the petition because he was comfortable that

       Schwartz “understood what was going on.” Tr. p. 13. Schwartz then pled

       guilty in Adams County on February 14, 2011. Schwartz’s Adams County

       attorney testified that they “were able to discuss facts of the case, defenses,

       strategies, possibilities, and [Schwartz] understood [their] conversations.” Id. at

       15. Schwartz presented no evidence concerning his mental health at the time of

       the Adams County proceedings and no evidence that a competency defense

       would have been successful. Schwartz had the burden of presenting evidence to

       support his allegations, and he did not meet his burden. We cannot say that the

       post-conviction court’s order is clearly erroneous




       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 13 of 19
                     B. Habitual Substance Offender Sentencing Enhancement

[24]   According to Schwartz, under Indiana Code Section 35-50-2-10(f)(1), his

       counsel should have argued for an habitual substance offender enhancement of

       only one year and failed to do so. At the time of Schwartz’s sentencing, the

       habitual substance offender enhancement statute provided:


               The court shall sentence a person found to be a habitual
               substance offender to an additional fixed term of at least three (3)
               years but not more than eight (8) years imprisonment, to be
               added to the term of imprisonment imposed under IC 35-50-2 or
               IC 35-50-3. If the court finds that:


               (1)     three (3) years or more have elapsed since the date the
                       person was discharged from probation, imprisonment, or
                       parole (whichever is later) for the last prior unrelated
                       substance offense conviction and the date the person
                       committed the substance offense for which the person is
                       being sentenced as a habitual substance offender;


                                                    *****


               then the court may reduce the additional fixed term. However,
               the court may not reduce the additional fixed term to less than
               one (1) year.


       Ind. Code § 35-50-2-10(f) (repealed by P.L. 158-2013, § 664 (eff. July 1, 2014)).


[25]   The trial court here imposed the maximum eight-year term for the habitual

       substance offender enhancement. Schwartz argues that his trial counsel was

       ineffective for failing to argue that Indiana Code Section 35-50-2-10(f)(1)


       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 14 of 19
       applied and requesting a one-year enhancement. The post-conviction court

       disagreed and found:


               [A]ll terms of the sentence were left to the court’s discretion. The
               court was not obligated to limit the sentence to a term of one
               year. There is absolutely no evidence to indicate the court
               abused its discretion when it sentenced the Petitioner to serve 8
               additional years as a result of being a habitual substance offender.


       App. p. 93.


[26]   Schwartz was required to show a reasonable probability that the alleged

       oversight would have affected his sentence. Perhaps if the trial court had

       imposed the regular minimum sentence of three years, Schwartz’s argument

       would be more persuasive. However, the trial court here imposed the

       maximum, eight-year sentence even after his trial counsel pointed out that one

       of the prior offenses was eighteen years old. Under these circumstances, the

       post-conviction court’s conclusion is not clearly erroneous. Schwartz failed to

       demonstrate a reasonable probability that the trial court would have imposed a

       one-year habitual substance offender enhancement.


                                             C. Change of Judge

[27]   Schwartz contends that trial counsel was ineffective for failing to ask the trial

       court to recuse himself due to his business relationship with the prosecutor.

       The post-conviction court rejected this argument and found “the Petitioner was

       adequately informed of the relationship between the judge and the prosecutor

       and [had] the opportunity to exercise his right to a different judge.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 15 of 19
       Furthermore, the Petitioner presented no evidence of prejudice or harm he

       suffered as a result of his failure to seek a different judge.” App. pp. 94-95.


[28]   Given our discussion in Issue II, we cannot say that Schwartz’s counsel was

       deficient for failing to file a motion for change of judge or that Schwartz was

       prejudiced by the alleged deficiency.4 The record is devoid of any evidence that

       would suggest the trial court acted with bias toward Schwartz or that the

       eventual outcome of his sentencing hearing would have been any different had

       a motion for a change of judge been granted. Likewise, the record is devoid of

       any evidence that would suggest the length of the sentence imposed would have

       been any different had a timely motion for a change of judge been granted. As

       such, Schwartz’s claim fails.


                                                    IV. Guilty Plea

[29]   According to Schwartz, his guilty plea was not knowingly, voluntarily, and

       intelligently entered. Post-conviction relief is a proper vehicle for challenging a

       guilty plea, and we look at all evidence before the post-conviction court that

       supports its determination that a guilty plea was voluntary, knowing, and

       intelligent. Collins v. State, 14 N.E.3d 80, 85 (Ind. Ct. App. 2014). “A post-




       4
         At the time a motion for change of judge would have been filed, Schwartz was represented by Sheets.
       However, Schwartz did not call Sheets to testify at his post-conviction hearing. “When counsel is not called
       as a witness to testify in support of a petitioner’s arguments, the post-conviction court may infer that counsel
       would not have corroborated the petitioner’s allegations.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct.
       App. 2010), trans. denied. Campbell entered his appearance in November 2009. Campbell testified that he
       had other cases in Adams County at that time and that he did not recall ever having filed a motion for the
       judge to recuse based on the judge’s business relationship with the prosecutor.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016               Page 16 of 19
       conviction petitioner must be allowed to withdraw his previous guilty plea

       whenever the withdrawal ‘is necessary to correct manifest injustice’ that

       occurred because ‘the plea was not knowingly and voluntarily made.’”

       Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003) (quoting Lineberry

       v. State, 747 N.E.2d 1151, 1156 (Ind. Ct. App. 2001)), trans. denied. Before

       accepting a guilty plea, a trial court is required to take steps to insure that a

       defendant’s plea is voluntary. Id.; see Ind. Code §§ 35-35-1-2; 35-35-1-3.

       Generally speaking, if a trial court undertakes these steps, a post-conviction

       petitioner will have a difficult time overturning his guilty plea on collateral

       attack. Id.


[30]   Schwartz argued that his guilty plea was involuntary because he “did not

       understand that he was giving up his right to challenge an erroneous sentence.”

       App. p. 58. The post-conviction court concluded:


               The court notes the plea agreement, sections 4 (f), (g), and (h), all
               informed the Petitioner that by entering into the plea agreement,
               he was waiving his right to appeal his sentence. He waived his
               right to a trial with respect to any aggravating or mitigating
               factors. He waived his right to appeal the sentence pursuant to
               Rule 7 of the Indiana Rules of Appellate Procedure and
               specifically waived his right to challenge the sentence imposed by
               the trial court on the basis that the sentence is erroneous. The
               Petitioner’s initials were placed by him at the beginning of each
               section 4 (f), (g), and (h) of the plea agreement. Therefore, the
               court now finds he was sufficiently advised of his waiver of
               appeal rights regarding the sentence imposed. Also, the
               Petitioner has not presented evidence of an erroneous sentence.
               Even if he could appeal the sentence, there is no evidence that
               the sentence imposed was erroneous.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 17 of 19
       Id. at 95.


[31]   A defendant may waive the right to appellate review of his sentence as part of a

       written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Here,

       Schwartz expressly waived his right to appellate review of his sentence as part

       of his plea agreement. In the plea agreement, Schwartz waived his right to

       appeal the sentence imposed by the trial court, including the right to appeal

       under Indiana Appellate Rule 7 and the right to appeal “the trial court’s finding

       and balancing of mitigating and aggravating factors or to challenge the sentence

       imposed . . . .” Ex. 3 p. 2. Schwartz initialed each provision of the plea

       agreement and signed the agreement. At the sentencing hearing, the trial court

       did not advise Schwartz of his rights under Indiana Criminal Rule 11, which

       include a right to appeal the sentence, due to the plea agreement provisions. See

       Ex. 1 p. 29. Schwartz did not testify at the post-conviction hearing. In support

       of his argument, Schwartz points only to the fact that he attempted to appeal his

       sentence. However, the post-conviction court found that Schwartz validly

       waived his right to appeal his sentence, and under these circumstances, we

       cannot say that the post-conviction court’s finding is clearly erroneous. See e.g.,

       Creech, 887 N.E.2d at 77 (holding that a petitioner’s waiver of his right to appeal

       his sentence was valid despite the trial court’s erroneous advisement at the

       sentencing hearing that he could appeal his sentence).




       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 18 of 19
                                                 Conclusion
[32]   The post-conviction court’s denial of Schwartz’s petition for post-conviction

       relief is not clearly erroneous. We affirm.


[33]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016   Page 19 of 19
