FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

CASSANDRA J. WRIGHT                             RYAN D. JOHANNINGSMEIER
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana

                                                                                 FILED
                              IN THE                                          Oct 18 2012, 9:09 am

                    COURT OF APPEALS OF INDIANA
                                                                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court



JOHN A. DUGAN,                                  )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 49A05-1202-PC-50
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Kurt M. Eisgruber, Judge
                       The Honorable Steven J. Rubick, Magistrate
                           Cause No. 49G01-0507-PC-118098


                                     October 18, 2012

                               OPINION - FOR PUBLICATION

BARNES, Judge
                                     Case Summary

      John Dugan appeals the post-conviction court’s denial of his petition for post-

conviction relief. We reverse and remand.

                                          Issues

      Dugan raises two issues, which we restate as:

             I.     whether the post-conviction court properly rejected
                    Dugan’s freestanding claim regarding his habitual
                    offender enhancement; and

             II.    whether the post-conviction court properly rejected
                    Dugan’s claim of ineffective assistance of appellate
                    counsel.

                                          Facts

      In 2005, the State charged Dugan with Class B felony possession of a firearm by a

serious violent felon (“SVF”), Class D felony criminal recklessness, Class D felony

pointing a firearm, and Class A misdemeanor carrying a handgun without a license. The

State alleged that Dugan was a SVF because he had been convicted of Class C felony

battery in 1994. The State also later alleged that Dugan was an habitual offender based

on the 1994 battery conviction and an attempted burglary conviction.

      At his February 2006 jury trial, the State dismissed all charges except the

possession of a firearm by a SVF allegation and the habitual offender allegation. The

jury found Dugan guilty of the possession of a firearm by a SVF charge, and Dugan pled

guilty to the habitual offender allegation in exchange for the minimum ten-year sentence

for the habitual offender enhancement. The trial court sentenced Dugan to fifteen years

for the SVF conviction enhanced by ten years for his status as an habitual offender.

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       On direct appeal, Dugan argued that the trial court abused its discretion by

denying Dugan’s motion to bifurcate the possession of a handgun from the SVF

determination. In February 2007, this court affirmed, and our supreme court denied

transfer. See Dugan v. State, 860 N.E.2d 1288 (Ind. Ct. App. 2007), trans. denied.

       In 2008, Dugan filed a petition for post-conviction relief, which he amended in

2011. Based on Mills v. State, 868 N.E.2d 446 (Ind. 2007), Dugan argued that his

sentence was improper because defendants convicted of unlawful possession of a firearm

by a SVF cannot have their sentences enhanced under the habitual offender statute by

proof of the same felony used to establish that the defendant was a SVF. Dugan also

argued that his appellate counsel was ineffective for failing to raise that issue on direct

appeal.

       After a hearing, the post-conviction court issued findings of fact and conclusions

thereon denying Dugan’s petition.       The post-conviction court found that Dugan’s

sentence was proper at the time of his sentencing based on Townsend v. State, 793

N.E.2d 1092 (Ind. Ct. App. 2003), trans. denied.          The post-conviction court also

concluded that Dugan did not receive ineffective assistance of appellate counsel. The

post-conviction court found that the issue was not clearly stronger than the issue raised by

appellate counsel on direct appeal, that appellate counsel could not have anticipated our

supreme court’s interpretation of the issue in Mills, and that Dugan waived his right to

challenge the habitual offender enhancement by pleading guilty. Dugan now appeals.




                                             3
                                        Analysis

       Dugan appeals the post-conviction court’s denial of his petition for post-

conviction relief. 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.

                                 I. Freestanding Claim

       Dugan argues that his habitual offender enhancement is an illegal sentence. He

contends that, at the time of his sentencing and direct appeal, opinions from this court

were in conflict on the issue. In Conrad v. State, 747 N.E.2d 575, 595 (Ind. Ct. App.

2001), trans. denied, this court held that “a defendant convicted of unlawful possession of

a firearm by a serious violent felon may not have his or her sentence enhanced under the

general habitual offender statute by proof of the same felony used to establish that the

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defendant was a serious violent felon.” Based on amendments to the relevant habitual

offender statute that took effect after Conrad, this court reached a different result in

Townsend. There, this court held that a trial court could properly use a “same prior

felony to create the underlying felony of unlawful possession of a firearm by a serious

violent felon and support the habitual offender enhancement . . . .” Townsend, 793

N.E.2d at 1097. Then, in 2007, after Dugan’s direct appeal was final, our supreme court

decided Mills. In Mills, our supreme court held that the amendments to the habitual

offender statute did not clarify the issue and that “a person convicted of unlawful

possession of a firearm by a serious violent felon may not have his or her sentence

enhanced under the general habitual offender statute by proof of the same felony used to

establish that the person was a serious violent felon.” Mills, 868 N.E.2d at 447. Dugan

asks that we apply Mills retroactively to invalidate his habitual offender sentence

enhancement.

       “The purpose of post-conviction relief proceedings is to afford petitioners a forum

in which ‘to raise issues unknown or unavailable to a defendant at the time of the original

trial and appeal.’” State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005) (quoting Williams

v. State, 748 N.E.2d 887, 890 (Ind. Ct. App. 2001)). As Mills had not been decided, it

was not known or available to Dugan at the time of his trial or direct appeal and is

available in post-conviction proceedings. See id. (“Surely, at the time of this trial and

initial appeal, Jones could not have known about, nor had available to him, a case not yet

decided.”).



                                            5
       Dugan asks that we apply Mills retroactively based on our supreme court’s

holding in Jones, where the court applied retroactively an opinion holding that it was

improper to apply an habitual offender enhancement to a handgun possession charge that

was enhanced to a felony in the same proceeding.       See id. at 1003 (relying on Ross v.

State, 729 N.E.2d 113 (Ind. 2000)). Jones applied Ross retroactively on collateral review

to cases that were final at the time of Ross’s announcement. Id. Ross was a primary

basis for the holdings in Conrad and Mills.

       The State argues that, because Dugan pled guilty, he is not entitled to relief even if

we apply Mills retroactively.     In Mills, our supreme court ultimately held that the

petitioner was not entitled to relief even though his sentence for a conviction of unlawful

possession of a firearm by a SVF was improperly enhanced under the habitual offender

statute. The petitioner was not entitled to relief because the double enhancement was

imposed pursuant to a plea agreement.         “[D]efendants who plead guilty to achieve

favorable outcomes give up a plethora of substantive claims and procedural rights, such

as challenges to convictions that would otherwise constitute double jeopardy.” Mills, 868

N.E.2d at 453 (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004)). “Among the

favorable outcomes Mills achieved were resolution of other charges pending against him

and a sentence on those charges concurrent with that on the charges discussed in this

opinion. Mills relinquished the right to challenge his sentence as an impermissible

double enhancement when he pled guilty.” Id.

       Our supreme court reached a different result in Jones. There, a jury found the

defendant guilty of several charges, and the defendant then pled guilty to an elevated

                                              6
handgun charge and being an habitual offender. There is no indication in Jones that the

defendant received a benefit for pleading guilty. Despite the defendant’s guilty plea, our

supreme court found that Ross applied retroactively, vacated the habitual offender

sentence, and remanded for resentencing. Jones, 835 N.E.2d at 1004. The court noted

that it could not “conclude, as the State argues, that a voluntary guilty plea automatically

precludes relief in a post-conviction setting when there has been a change in substantive

law.”1 Id.

       We conclude that the circumstances here are more like those in Jones than in

Mills. Dugan pled guilty to being an habitual offender, but unlike in Mills, Dugan did

not receive a favorable outcome as a result of his guilty plea. The only benefit that

Dugan received was a guaranteed minimum sentence on the habitual offender

enhancement, which was the illegal sentence at issue. This is not a case where other

charges were dropped or reduced as a result of the guilty plea. As a result, we conclude

that, pursuant to Jones, Dugan’s guilty plea does not preclude relief in this case. Because

Dugan’s direct appeal was final at the time Mills was announced, Dugan is entitled to its

retroactive application. Dugan was entitled to post-conviction relief on this freestanding

claim, and the post-conviction court erred by denying the claim. Because Dugan is




1
  Our supreme court also granted relief to the defendant based on Conrad and Mills in Dye v. State, 972
N.E.2d 853 (Ind. 2012). However, in Dye, the defendant had pled guilty to the unlawful possession of a
firearm by a SVF charge but had a trial on the habitual offender allegation. The defendant was
challenging the habitual offender enhancement on direct appeal. Thus, the defendant was not attempting
to challenge a guilty plea. Here, Dugan had a trial on the unlawful possession of a firearm by a SVF
charge but pled guilty to the habitual offender allegation. He is now challenging the habitual offender
enhancement in post-conviction proceedings.
                                                  7
entitled to relief on this claim, we need not address his claim of ineffective assistance of

appellate counsel.

                                       Conclusion

       The post-conviction court erred when it denied Dugan’s claim that Mills applied

retroactively to his habitual offender enhancement. Accordingly, we reverse and remand

for the post-conviction court to vacate Dugan’s habitual offender enhancement.

       Reversed and remanded.

VAIDIK, J., and MATHIAS, J., concur.




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