MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Sep 24 2018, 5:27 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Mark F. Johnson                                          Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General
                                                         Angela N. Sanchez
                                                         Assistant Section Chief,
                                                         Criminal Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark F. Johnson,                                         September 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1709-PC-2265
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D06-1501-PC-20



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018         Page 1 of 8
                                          Case Summary
[1]   Mark F. Johnson appeals the denial of his petition for post-conviction relief

      following his conviction and forty-five-year sentence for Class A felony

      burglary. Finding no error, we affirm.



                            Facts and Procedural History
[2]   We detailed the events underlying this case in our opinion on Johnson’s direct

      appeal of his sentence:


              On October 13, 2012, the Fort Wayne Police Department
              dispatched officers to the home of Elizabeth Fugate and Dorrion
              Jefferson in reference to a robbery. When the officers arrived,
              they found the home in disarray and discovered Elizabeth,
              Dorrion, and Leon Smith, who were tied up with duct tape and
              plastic zip ties. Elizabeth testified that she had awoken to find
              Johnson holding a gun to her head while her five-year-old child
              was next to her in the bed and stated that he then put the gun
              into her mouth and grabbed her by her hair. She also testified
              that Johnson said that if she screamed, he would kill her and her
              children. Johnson duct taped her eyes, nose, and mouth, and
              restrained her arms with zip ties. Elizabeth stated that Johnson
              was in her room for hours while she lay restrained with her child
              next to her. Elizabeth’s stepson was across the hall in his
              bedroom, too terrified to come out.


              Dorrion testified that he returned home at around 5:00 in the
              morning with his friend Leon. When they entered the home,
              they were ambushed by Johnson and another man, pushed down
              to the floor, and restrained with duct tape and zip ties. Dorrion
              also testified that he was beaten, tased, kicked in the face, stabbed
              in the back, and left to lie on the ground for an hour and one half

      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 2 of 8
              while he wondered if his family was okay. He saw a thin man,
              whom he later identified as Johnson, armed with a small
              handgun and giving orders. Leon, who was able to break free
              from his zip ties, called the police and alerted them to the
              situation.


              Elizabeth told officers that she was missing $400 from her purse,
              the laptop she used for her classes, and that her 2007 black
              Dodge Charger had been stolen. In addition, Leon told the
              officers that his Dell laptop, handbag, and flash drive were taken.


      Johnson v. State, No. 02A03-1305-CR-182, slip op. at 2-3 (Ind. Ct. App. Jan. 29,

      2014). Johnson was quickly apprehended, and the State filed ten criminal

      charges against him: burglary as a Class A felony; three counts of robbery as a

      Class B felony; three counts of criminal confinement as a Class B felony; auto

      theft as a Class D felony; resisting law enforcement as a Class D felony; and

      carrying a handgun without a license as a Class A misdemeanor.


[3]   In November 2012, the trial court set a trial date of March 26, 2013, with a

      pretrial conference to be held on February 26. On December 17, 2012, the

      attorney who had been appointed to represent Johnson sent him a written plea

      offer the State had made: if Johnson would plead guilty on the burglary charge

      and accept the advisory sentence of thirty years, the State would dismiss the

      other charges. At the pretrial conference on February 26, at which Johnson

      was present, the State made a better offer: Johnson would plead guilty on the

      burglary charge, and sentencing would be left to the discretion of the trial court,

      but with the executed portion capped at thirty years. The State said that its

      offer would expire one week before trial (i.e., on March 19), and the judge

      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 3 of 8
      repeated that information. Appellant’s App. Vol. II pp. 113-114. On February

      27, the day after the pretrial conference, Johnson’s attorney sent him the State’s

      new offer in writing. In an accompanying letter, the attorney explained that the

      offer “would give us the opportunity to argue for a sentence less than 30 years”

      and stated that “I suggest you accept it by signing it and returning it to me.” Id.

      at 73.


[4]   On March 13, a change-of-plea hearing was scheduled for March 14. Johnson

      and his attorney were present for the hearing, but the attorney told the court

      that “there’ll be no action on this case.” Id. at 55. The prosecutor said that the

      State was ready for trial and would not be making any other offers.


[5]   However, on March 26, the day set for trial, Johnson indicated that he did not

      want to go to trial. He acknowledged that he “didn’t accept” the plea offer the

      State made on February 26, Guilty Plea Tr. p. 15, but said that he wanted to

      plead guilty to the burglary charge and the three robbery charges. The State

      said that if Johnson did so, it would dismiss the other charges. There was no

      agreement as to sentencing. The court allowed Johnson to plead guilty as

      proposed and accepted his guilty pleas. At a subsequent sentencing hearing, the

      trial court merged the three robbery counts into the burglary count and imposed

      a sentence of forty-five years for the burglary. Johnson appealed his sentence,

      and we affirmed. Johnson, No. 02A03-1305-CR-182.


[6]   Johnson then filed a petition for post-conviction relief. Johnson claimed,

      among other things, that (1) his attorney should have provided better advice


      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 4 of 8
      about the State’s plea offers, (2) his attorney should have tried, on the day set

      for trial, to convince the State and the trial court to let Johnson accept the “30-

      year cap plea” offer, and (3) the trial court “abused its discretion” when it

      accepted Johnson’s guilty pleas on the day set for trial because an Allen County

      local rule says that a plea agreement must be finalized at least one business day

      before trial. Appellant’s App. Vol. II pp. 69, 80-81. The post-conviction court

      rejected these arguments and denied Johnson’s petition.


[7]   Johnson now appeals.



                                 Discussion and Decision
[8]   A person who files a petition for post-conviction relief has the burden of

      establishing the grounds for relief by a preponderance of the evidence. Hollowell

      v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

      relief, and the petitioner appeals, the petitioner must show that the evidence

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

      post-conviction court. Id. at 269.


[9]   Johnson first contends that the post-conviction court should have found that he

      received ineffective assistance of counsel. When evaluating such a claim,

      Indiana courts apply the two-part test set forth in Strickland v. Washington, 466

      U.S. 668 (1984): whether counsel performed deficiently and whether that

      deficient performance prejudiced the defendant. Humphrey v. State, 73 N.E.3d

      677, 682 (Ind. 2017). An attorney’s performance is deficient if it falls below an


      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 5 of 8
       objective standard of reasonableness—if the attorney committed errors so

       serious that it cannot be said that the defendant had “counsel” as guaranteed by

       the Sixth Amendment. Id. A defendant has been prejudiced if there is a

       reasonable probability that the case would have turned out differently but for

       counsel’s errors. Id.


[10]   Johnson argues that the post-conviction court should have found that his

       attorney was ineffective in two respects with regard to the State’s “30-year cap

       plea” offer. First, he asserts that his attorney should have given him additional

       advice regarding the offer before it expired. Appellant’s Br. pp. 8-10. Had his

       attorney done so, Johnson contends, he would have accepted the offer. Second,

       he argues that, on the day of trial, his attorney should have tried to convince the

       State and the trial court to allow Johnson to accept that offer. Id. at 11-13.

       Johnson has not persuaded us that the post-conviction court erred by denying

       these two claims.


[11]   Regarding the first claim, it is undisputed that Johnson’s attorney advised him

       to accept the State’s offer in his February 27 letter, and Johnson does not

       specify the additional advice he believes his attorney should have given him.

       He does assert that his attorney did not tell him that the State’s offer “had an

       expiration date.” Id. at 10. Johnson’s attorney might dispute that assertion—

       we do not know because Johnson did not present any evidence from his

       attorney to the post-conviction court. But even if we accept Johnson’s

       allegation as true, we know that Johnson was present for the pretrial conference

       on February 26, 2013, when both the prosecutor and the judge made

       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 6 of 8
       abundantly clear that the offer would expire one week before trial. Johnson

       does not tell us why the failure of his attorney to separately advise him of the

       expiration date would constitute deficient performance or how he was

       prejudiced by not being separately advised. We cannot say that the post-

       conviction court erred by denying this claim of ineffectiveness.


[12]   As for the second claim, even if we accept as true Johnson’s allegation that his

       attorney “failed to advocate” for the State’s “30-year cap plea” offer on the day

       of trial, Johnson has given us no reason to believe that the State and the trial

       court would have been receptive to such an argument. He suggests that they

       might have shown some leniency because the expiration date was not included

       in the State’s written offer or in his attorney’s February 27 letter regarding that

       offer. As we just discussed, however, Johnson was informed of the expiration

       date by both the prosecutor and the judge at the pretrial conference on February

       26. Having so advised Johnson, we are confident that the State and the trial

       court would have rejected any attempt to revive the expired offer. Johnson also

       asserts that his attorney should have pushed to bring back the offer on the basis

       that “the Court failed to set a pretrial conference hearing a week before trial to

       finalize the 30-year cap because the Judge was on a teaching assignment.” Id.

       at 11. He says nothing more about this theory, and we fail to see how another

       pretrial hearing was necessary, especially since Johnson had already declined to

       accept the offer at a change-of-plea hearing on March 14, 2013. We affirm the

       post-conviction court’s denial of this claim.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 7 of 8
[13]   In addition to his ineffectiveness claims, Johnson argues that the post-

       conviction court erred by denying his claim that the trial court “abused its

       discretion” by accepting the parties’ plea agreement on the day set for trial.

       Appellant’s Br. p. 13. He relies on Allen County Local Criminal Rule LR02-

       CR10-1, which provides that “[a]ll guilty pleas with a plea agreement must be

       finalized and a plea entered not later than 1:30 p.m. of the last business day

       prior to the jury trial date” and that “[n]o plea agreement will be considered by

       the court after that date.” Read in isolation, this rule arguably supports

       Johnson’s argument that the trial court should not have accepted a plea

       agreement on the day of trial. We need not reach that issue, however, because

       Johnson’s prayer for relief is fatal to his claim. Specifically, Johnson does not

       ask us to set aside the parties’ agreement based on the local rule and order a

       trial on all ten charges Johnson originally faced. Instead, he asserts that he “is

       entitled to receive the 30-year cap plea[.]” Appellant’s Br. p. 15. But if we were

       to hold that the trial court was prohibited from accepting a plea agreement on

       the day of trial, we could not also hold that the trial court should have accepted

       the (expired) thirty-year-cap agreement on the day of trial. Because Johnson

       has made it clear that he does not want a trial on all ten charges, the post-

       conviction court did not err by rejecting his local-rule claim.


[14]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-PC-2265 | September 24, 2018   Page 8 of 8
