                                                                       FILED
                                                                   Mar 14 2017, 7:49 am

                                                                       CLERK
                                                                   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
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David Earl Ison,                                          March 14, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                24A04-1607-PC-1618
              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



      Altice, Judge.


                                                Case Summary


[1]   David Earl Ison, pro se, appeals the denial of his post-conviction relief (PCR)

      petition. We find the following issue dispositive: Did the post-conviction court



      Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017             Page 1 of 8
      err in declining to address Ison’s claim of ineffective assistance of trial counsel,

      which incorporated a challenge to the voluntariness of his plea?


[2]   We remand.


                                        Facts & Procedural History


[3]   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.


[4]   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.

      Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017   Page 2 of 8
[5]   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 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:    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, place in you [sic] in fear, anyone
                  else you know been forced, threaten, or placed in fear to
                  get you to plead guilty?


              DEFENDANT:                No, sir.


              COURT:            Still your intention to plead guilty?


              DEFENDANT:                Yes, sir.



      Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017     Page 3 of 8
      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.1 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 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.


[6]   Ison, pro se, filed his original PCR petition on June 26, 2014. Thereafter, on

      October 19, 2015, Ison filed a motion to amend 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.2 Though there is some ambiguity in the record,

      it appears that Ison filed a “Supplemental Motion and Verified Amended PCR”




      1
        In Boykin v. Alabama, 395 U.S. 238, 242 (1969), the Supreme Court held that it was reversible error for the
      trial court to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. “More
      particularly, Boykin requires that the record must show, or there must be an allegation and evidence which
      show, that the defendant was informed of, and waived, three specific federal constitutional rights: the
      privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s
      accusers.” Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). Although a defective guilty plea transcript may be
      rehabilitated, it is up to the State to affirmatively demonstrate in a post-conviction hearing that the plea was
      voluntary and intelligent when made. See Youngblood v. State, 542 N.E.2d 188, 189 (Ind. 1989).
      2
        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 | Opinion 24A04-1607-PC-1618 | March 14, 2017                            Page 4 of 8
      in April 2016, which asserted a number of claims including ineffective

      assistance of counsel and involuntariness of his plea.


[7]   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.


[8]   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. The court explained:

              At the evidentiary hearing on Petitioner’s Verified Petition for
              Post Conviction Relief, Petitioner made many other arguments
              as grounds for relief, (i.e.) ineffective assistance of counsel, and
              offered exhibits relating to the definition of infamous and
              whether the Indiana State Constitution required that his charges
              be brought by Grand Jury Indictment as opposed to a charging
              information as an example. To the extent that these other issues
              are not raised by the only Petition properly before the Court, the
              Court deems them waived and declines to address them further.


      Appendix at 21. Ison now appeals.



      Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017      Page 5 of 8
                                               Discussion & Decision


[9]    Ison has abandoned several dubious claims that he asserted below and focuses

       his appeal on his interconnected claims of ineffective assistance of counsel and

       involuntariness of his guilty plea. In general, Ison asserts that he never waived

       his Boykin rights, the plea agreement that he signed was not presented to the

       court, his trial counsel misled him and did not properly advise him regarding

       the plea,3 and counsel did not file a written request to withdraw the plea upon

       Ison’s request. Although some of his arguments might have teeth, we do not

       address their merits because the trial court did not reach these issues.


[10]   The record establishes and the State acknowledges that Ison filed an

       amendment to his PCR petition on October 19, 2015 (the 2015 Amendment),

       asserting new claims of error (that is, ineffective assistance of counsel and




       3
         Ison claims that counsel made him feel as though he was automatically eligible for the death penalty and
       LWOP. According to Ison, he was not aware that Ind. Code § 35-50-2-9 sets out aggravators and mitigators
       to be considered by the judge or jury when determining whether to impose such sentences. Ison asserts that
       he was under the influence of drugs at the time of the murders and has a history of mental illness, both of
       which are potential mitigating circumstances.
       Additionally, Ison makes a novel argument that he was not eligible for the death penalty or LWOP because
       the aggravators alleged by the State did not fall under I.C. § 35-50-2-9(b)(1). Indeed, the alleged aggravators
       were that Ison committed multiple murders and did so while he was on probation for a prior felony. I.C. §
       35-50-2-9(b)(8) and (9)(C). Ison’s argument takes advantage of a clear error in the statute. In subsections (d),
       (e), and (g), the statute indicates that the judge or jury (whichever is applicable) must find at least one of the
       aggravators “described in subsection (1).” The reference should be to subsection (b), as subsection (1) is only
       one of the statute’s many listed aggravators. This is an obvious technical error in the statute. See Woerner v.
       City of Indianapolis, 177 N.E.2d 34, 37 (Ind. 1961) (“Legislative enactments are not more than any other
       writings to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature
       can be collected from the whole statute.”). The General Assembly should promptly address this.

       Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017                             Page 6 of 8
       involuntariness of plea).4 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.


[11]   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, 5

       which Ison claimed was another amendment raising additional issues.


[12]   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.




       4
         Several of his subsequent filings, though not as obviously designated as amendments, continued to assert
       these claims in addition to other claims.
       5
           This document is not file stamped in the record before us or noted on the CCS.


       Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017                         Page 7 of 8
[13]   On remand, we direct 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. See State v. Cozart, 897

       N.E.2d 478, 484 (Ind. 2008) (remanding for findings and conclusions on claims

       not addressed by the post-conviction court).


[14]   Remanded with instructions.


[15]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017   Page 8 of 8
