MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Aug 08 2018, 9:58 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Antonio T. Collier                                       Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio T. Collier,                                      August 8, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1710-PC-2325
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Respondent.                                     Rothenberg, Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-9306-PC-79398



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018             Page 1 of 10
                                       Statement of the Case
[1]   Antonio T. Collier appeals the post-conviction court’s denial of his petition for

      post-conviction relief. He raises one issue for our review, namely, whether the

      post-conviction court erred when it denied his petition.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On June 30, 1993, the State charged Collier with robbery and conspiracy to

      commit robbery, both as Class A felonies. On October 4, the trial court held a

      hearing during which Collier pleaded guilty to robbery, as a Class A felony.

      Pursuant to the plea agreement, which encompassed four cases pending against

      Collier, the parties agreed that the trial court would sentence Collier to an

      aggregate sentence of thirty years. The entry in the CCS for that day indicates

      that Collier was present in person and represented by counsel. It further

      indicates: “Defendant advised of rights/potential penalties. . . . Court finds

      Defendant understands and knowingly and voluntarily waives rights.”

      Appellant’s App. Vol. II at 5. The trial court did not accept Collier’s guilty plea

      at that time.


[4]   Thereafter, the parties entered into a revised plea agreement pertaining to the

      robbery offense only. In that revised agreement, the parties agreed that Collier

      would plead guilty to robbery, as a Class A felony, and that the trial court

      would sentence Collier to twenty years. On February 7, 1994, the trial court



      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018   Page 2 of 10
      held another hearing during which Collier pleaded guilty. 1 The trial court

      accepted Collier’s guilty plea and sentenced him to twenty years in the

      Department of Correction. The CCS entry for that date again indicates that

      Collier was present and represented by counsel, that “Defendant [was] advised

      of rights/potential penalties,” and that Collier “understands rights and

      knowingly and voluntarily waives rights.” Id. at 6.


[5]   Between March 29, 1996, and January 15, 2008, Collier filed two petitions for

      post-conviction relief, which he subsequently withdrew. On December 1, 2014,

      Collier filed his third petition for post-conviction relief. Collier also filed a

      motion for copies of the transcripts of the guilty plea and sentencing hearings.

      Subsequently, Collier again withdrew his petition for post-conviction relief.


[6]   On May 12, 2015, in response to Collier’s motion for copies of the transcripts,

      the court reporter filed an affidavit in which she stated that she could not locate

      the audio recordings of the hearings and, therefore, could not provide Collier

      with transcripts of the hearings. Collier then filed a fourth petition for post-

      conviction relief, which he amended on May 13, 2016. In that petition, Collier

      alleged that he had received ineffective assistance of counsel, that he had

      entered his guilty plea without a knowing and voluntary waiver of his rights,

      and that the judicial officer had been invalidly appointed. Collier then filed a

      motion to make the certified transcripts of the guilty plea and sentencing




      1
          Collier has not provided a copy of either plea agreement in his appendix.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018   Page 3 of 10
      hearings part of the record. The trial court denied that motion and found that

      the court reporter had twice advised Collier that the records of the proceedings

      could not be located.2 Accordingly, the trial court did not have the transcripts

      and could not make them a part of the record. Because the audio recordings of

      the hearings were missing, Collier submitted an affidavit as evidence in support

      of his petition for post-conviction relief. In the affidavit, Collier stated that he

      had not been advised of his rights to a speedy trial, to confront and cross-

      examine witnesses against him, to procure witnesses in his favor, to have the

      State prove his guilt beyond a reasonable doubt, and to not testify against

      himself. He further asserts that, had he been properly advised, he would not

      have entered into the plea agreement.


[7]   The trial court denied Collier’s petition for post-conviction relief on September

      8, 2017. In its order, the trial court entered findings of facts and conclusions of

      law, including the following:


                                                  Findings of Fact


                                                          * * *


               2. A plea agreement was filed on 10/4/93 encompassing four
               cases pending against the Petitioner, calling for an aggregate
               sentence of thirty (30) years. The plea agreement set out all of
               the Constitutional rights to which the Petitioner was entitled and
               his handwritten initials appear beside each right. His signature



      2
        The trial court also advised Collier that his prior counsel had requested and received copies of all requested
      transcripts in 1999 and, as such, the transcripts may be available from the State Public Defender’s office.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018               Page 4 of 10
        also appears at the end of the plea agreement. . . . The Court’s
        minute entry states, “Defendant advised of rights and potential
        penalties. . . . Court finds Defendant understand rights and
        knowingly and voluntarily waives rights.”


        3. On 2/7/94, after several delays by defense and the filing of a
        new plea agreement, the Petitioner was sentenced. The new plea
        agreement called for pleading only to the instant cause, for a set
        term of twenty (20) years. . . .


        4. Again, the Court’s minute entry for 2/7/94 says “Defendant
        advised of rights and potential penalties. . . . Court finds
        Defendant understands and knowingly and voluntarily waives
        rights.”


                                               * * *


                                      Conclusions of Law


                                               * * *


        First, the record is not entirely silent as to whether or not he was
        properly advised. The Petitioner actually had two guilty plea
        advisements and the Court’s official file record shows he was
        advised on both occasions. Both of his plea agreements contain a
        list of his Constitutional rights, with his initials and signature on
        both documents. . . .


Appellant’s App. Vol. II at 20-26. The post-conviction court found in relevant

part that Collier had failed to show by a preponderance of the evidence that he




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018   Page 5 of 10
      had not been advised of his rights. Accordingly, the trial court denied Collier’s

      petition for post-conviction relief. 3 This appeal ensued.


                                        Discussion and Decision
[8]   Collier appeals the post-conviction court’s denial of his petition for post-

      conviction relief. As our Supreme Court has stated:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. at 274. In order to prevail on an appeal from the
               denial of post-conviction relief, a petitioner must show that the
               evidence leads unerringly and unmistakably to a conclusion
               opposite that reached by the post-conviction court. Weatherford v.
               State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
               conviction court in this case entered findings of fact and
               conclusions of law in accordance with Indiana Post-Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (internal quotation omitted).




      3
        In its order denying Collier’s petition for post-conviction relief, the court concluded that it need not address
      Collier’s allegation of ineffective assistance of counsel because that claim was based on Collier’s assertion
      that he had not been properly advised of rights and the trial court found that he had not met his burden on
      that allegation. The trial court also found that Collier had presented no evidence to support his allegation
      that the judicial officer had been invalidly appointed. Collier does not raise either of those issues on appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018                Page 6 of 10
       Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


[9]    Collier contends that the post-conviction court erred when it denied his petition

       for post-conviction relief because the audio recordings and transcripts of his

       guilty plea hearings are not available and, therefore, there is no record to show

       that he was advised of his Boykin rights during his guilty plea hearings.


[10]   As our Supreme Court has stated:


               In Boykin [v. Alabama, 395 U.S. 238 (1969)], the United States
               Supreme Court held that it was reversible error for the trial judge
               to accept petitioner’s guilty plea without an affirmative showing
               that it was intelligent and voluntary. Id. at 242, 89 S.Ct. 1709.
               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. Id. at 243, 89 S.Ct. 1709. The Court made clear,
               “[w]e cannot presume a waiver of these three important federal
               rights from a silent record.” Id.


       Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006).


[11]   Collier contends that because the audio records and transcripts are missing,

       “the record is absolutely silent as to any determination by the trial judge that

       there was a knowing and intelligent waiver of constitutional rights” and, thus,

       that the post-conviction court erred “in concluding that the record is not silent.”

       Appellant’s Br. at 15. Collier specifically contends that, because the record is




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018   Page 7 of 10
       silent, the record “does not affirmatively show that [he] was advised of the

       Boykin rights prior to the entry of his plea.” Id. at 11.


[12]   But our Supreme Court has clarified that a lost or missing record is not the

       same as a silent record. See Hall, 849 N.E.2d at 469. Further, “[t]he fact that

       the record of a guilty plea hearing can neither be found nor reconstructed does

       not of itself require granting post-conviction relief.” Id. at 470.


                A petitioner cannot obtain post-conviction relief on the ground of
                the lack of Boykin advisements simply by proving that the guilty
                plea record is lost and cannot be reconstructed. Rather, as with
                any claim, the petitioner has the burden of demonstrating by a
                preponderance of the evidence that he is entitled to post-
                conviction relief.


       Id. at 473.


[13]   Indeed, here, while the transcripts of the guilty plea hearings cannot be located,

       Collier’s plea agreements were before the trial court. The post-conviction court

       found that “[t]he plea agreement set out all of the Constitutional rights to which

       the Petitioner is entitled and his handwritten initials appear beside each right.

       His signature also appears at the end of the plea agreement.” 4 Appellant’s App.

       Vol. II at 20. Collier does not dispute that finding of fact, and he makes no



       4
         This finding of fact by the post-conviction court specifically references the plea agreement filed on October
       4, 1993. The court did not explicitly make a similar finding of fact in regards to the plea agreement filed on
       February 7, 1994. However, the post-conviction court’s order includes the following conclusion of law:
       “Both of his plea agreements contain a list of his Constitutional rights, with his initials and signature on both
       documents.” Appellant’s App. Vol. II at 25. And Collier does not contend that he did not sign the second
       plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018                Page 8 of 10
       contention that he did not understand those rights when he initialed and signed

       his plea agreements.5 And Collier has not provided us with a copy of either

       plea agreement. Accordingly, we cannot say that the trial court erred when it

       found that the record was not silent as to whether Collier had been properly

       advised of his rights. 6


[14]   In sum, the only evidence Collier presented to support his petition for post-

       conviction relief was an affidavit in which he asserted that the trial court had

       not properly advised him of his rights. But that affidavit is not the only

       evidence in the record. Collier does not dispute the trial court’s finding and

       conclusion that he had initialed and signed two plea agreements, which

       included an advisement of his rights. Collier’s affidavit does not lead unerringly

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

       the post-conviction court. See Humphrey, 73 N.E.3d at 681-82. Accordingly,

       Collier has not met his burden on appeal, and we will not disturb the post-




       5
         It is well-settled that “when a defendant claims that his guilty plea was not voluntary or intelligent despite
       signing an advisement of rights, the defendant bears the burden of showing that he could not read the
       advisements or that the signature was produced by coercion or misapprehension.” Belmares-Bautista v. State,
       938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010). Here, Collier does not dispute that he signed the agreement.
       Collier also does not make any contention that he was unable to read the rights outlined in the agreements or
       that he was coerced into signing the agreements. Accordingly, Collier has not presented any evidence to
       suggest that he did not understand the advisements in the plea agreements.
       6
          Collier mentions Indiana Criminal Rule 10 several times throughout his briefs on appeal. While his
       argument on this issue is not clear, he appears to assert that the trial court should have granted his petition for
       post-conviction relief because the trial court did not comply with Criminal Rule 10, which requires a trial
       court to maintain an electronic recording of the guilty plea proceedings for fifty-five years in felony cases.
       But this court has previously held that a trial court’s contravention of Criminal Rule 10 does not, alone,
       equate to governmental misconduct or render a record silent for purposes of Boykin. See Damron v. State, 915
       N.E.2d 189, 192 (Ind. Ct. App. 2009). And there is no evidence here to demonstrate that the missing record
       is a result of misconduct by the State.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018                 Page 9 of 10
       conviction court’s decision. We affirm the judgment of the post-conviction

       court.


[15]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2325 | August 8, 2018   Page 10 of 10
