MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
court except for the purpose of establishing                             Dec 19 2017, 6:10 am

the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen T. Owens                                        Curtis T. Hill, Jr.
Public Defender of Indiana                              Attorney General of Indiana
Victoria Christ                                         George P. Sherman
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Leonard A. Taylor, Jr.,                                 December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A04-1705-PC-1149
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff.                                     Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1604-PC-22



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017           Page 1 of 11
[1]   Leonard A. Taylor, Jr. (“Taylor”) appeals the Elkhart Circuit Court’s denial of

      his petition for post-conviction relief arguing that he received ineffective

      assistance of counsel and that his guilty plea was illusory.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On July 5, 2014, Taylor and a second man attempted to rob a clerk at Saleh’s

      Supermarket in Elkhart, Indiana. During the attempted robbery, Taylor fired a

      shot through the pay window. He was charged four days later with Level 3

      felony attempted robbery and Level 6 felony criminal recklessness. Taylor

      agreed to plead guilty to attempted robbery, and the State agreed to dismiss the

      criminal recklessness charge. The closed plea called for a sentence of fourteen

      years, with ten years executed in the Indiana Department of Correction and

      four years suspended to probation.


[4]   On November 24, 2014, LaPorte County dismissed a separate pending felony

      charge against Taylor for receiving stolen property.1 At Taylor’s guilty plea

      hearing on March 19, 2015, Taylor was asked if he was currently “[u]nder a

      withheld or suspended sentence or on bond for any other offense.” Ex. Vol.,

      Petitioner’s Ex. 1 p. 13. He responded, “Yes, sir,” and referenced the already




      1
       Taylor was charged with Class D felony receiving stolen property on October 16, 2013. In that case, the
      court decided to conditionally withhold judgment for one year. The case was dismissed on November 24,
      2014. Taylor was being held in the Elkhart County Jail from July 2014 to March 2015.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017         Page 2 of 11
      dismissed receiving stolen property charge. Subsequently, the following

      exchange took place between the court and Taylor’s trial counsel:


              [Court]:         [Counselor], are there situations here that would
                               give rise to consecutive or nonsuspendible
                               sentencing?

              [Counsel]:       Yes, Judge. It would be consecutive to the La[P]orte
                               County case and because of that case the plea
                               agreement it would be nonsuspendible.

      Id. at 14. The court accepted Taylor’s plea, and sentenced Taylor to the terms of

      it on April 16.


[5]   Taylor filed a petition for post-conviction relief on April 29. On June 2, counsel

      entered an appearance on Taylor’s behalf, and he filed an amended petition on

      November 17. The post-conviction court held an evidentiary hearing on

      January 19, 2017. The court found that Taylor did not receive ineffective

      assistance of trial counsel and denied his petition for post-conviction relief.

      Taylor now appeals.


                                     Discussion and Decision
[6]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

      nor judge the credibility of witness; therefore, to prevail, the petitioner must


      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 3 of 11
      show that the evidence as a whole leads unerringly and unmistakably to a

      conclusion opposite that reached by the post-conviction court. Id.


[7]   Where here, the post-conviction court makes specific findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings for clear

      error. Id. Accordingly, we will consider only the probative evidence and

      reasonable inferences flowing therefrom that support the post-conviction court’s

      decision. Id.


                             I. Ineffective Assistance of Trial Counsel

[8]   Taylor contends that the post-conviction court clearly erred when it denied his

      claim of ineffective assistance of trial counsel. Here, Taylor pleaded guilty;

      therefore, to prevail on a claim of ineffective assistance of counsel, Taylor must

      satisfy a two-pronged test: (1) that trial counsel’s performance fell below an

      objective standard of professional reasonableness, and (2) that there is a

      reasonable probability that, but for trial counsel’s errors, Taylor would not have

      pleaded guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59

      (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984).


[9]   There are two types of ineffective assistance of trial counsel claims generally

      made in the context of guilty pleas: (1) the failure to advise the defendant on an


      Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 4 of 11
       issue that impairs or overlooks a defense, and (2) an incorrect advisement of

       penal consequences. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014),

       trans. denied (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)). Taylor

       contends that his trial counsel’s performance was deficient because he failed to

       advise Taylor that his sentence could be suspended, and that he would have

       proceeded to trial had he received accurate sentencing advice. Thus, Taylor’s

       claim falls under Segura’s second category. In Segura, our supreme court

       explained:


               [F]or claims relating to penal consequences, a petitioner must
               establish, by objective facts, circumstances that support the
               conclusion that counsel’s errors in advice as to penal
               consequences were material to the decision to plead. Merely
               alleging that the petitioner would not have pleaded is insufficient.
               Rather, specific facts, in addition to the petitioner’s conclusory
               allegation, must establish an objective reasonable probability that
               competent representation would have caused the petitioner not to
               enter a plea.


       749 N.E.2d at 507. Put another way, the petitioner must allege: (1) that he

       would not have pleaded guilty, and (2) that a reasonable defendant would have

       rejected the plea had the petitioner’s trial counsel performed adequately.

       Willoughby, 792 N.E.2d at 564.


[10]   Taylor analogizes his trial counsel’s performance here to that of counsel in

       Reeves v. State, 564 N.E.2d 550 (Ind. Ct. App. 1991), trans. denied. In that case,

       this court found that counsel’s performance was deficient because he advised

       Reeves that the State would file a habitual offender charge against him—even

       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 5 of 11
       though Reeves was not eligible—if he refused to accept the plea bargain. Id. at

       552. Counsel’s misinformation induced Reeves to believe that his choice was

       between a plea agreement with a maximum or fifteen years or going to trial

       with the prospect of a sixty-year sentence due to the improper habitual offender

       charge. We held that the thirty-year difference in potential sentencing played a

       significant part in Reeves’s plea negotiations and thus rendered the plea

       involuntary. Id. at 553.


[11]   At the guilty plea hearing, the court asked Taylor’s counsel if there were any

       situations “that would give rise to consecutive or nonsuspendible sentencing?”

       Ex. Vol., Petitioner’s Ex. 1 p. 14. Taylor’s counsel responded, “Yes, Judge. It

       would be consecutive to the La[P]orte County case and because of that case the

       plea agreement it would be nonsuspendible.” Id. (emphasis added). The “case”

       to which trial counsel refers was a pending felony against Taylor that was

       dismissed over four months prior to the guilty plea hearing. Thus, “that case”

       did not exist, and there was no felony that would have disqualified Taylor from

       the possibility of receiving a fully suspended sentence.


[12]   Taylor’s trial counsel’s failure to review Taylor’s criminal history to discover

       that he had no prior felony conviction constituted deficient performance. Had

       trial counsel made this finding, he could have adequately advised Taylor that a

       conviction at trial could have resulted in an entirely suspended sentence,

       however unlikely. See Black v. State, 54 N.E.3d 414, 427 (Ind. Ct. App. 2016)

       (holding that a failure to advise a client of the maximum sentence he would face



       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 6 of 11
       at trial constitutes deficient performance), trans. denied. He also could have

       negotiated Taylor’s plea from an entirely different and more favorable position.


[13]   However, while we find that Taylor’s trial counsel’s performance was deficient,

       Taylor must also establish prejudice: that a reasonable defendant in his position

       would have rejected the plea had his counsel performed adequately. Willoughby,

       792 N.E.2d at 564.


[14]   Taylor contends that “[a] reasonable hypothetical defendant would have elected

       to go to trial if the judge could impose a suspended sentence.” Appellant’s Br. at

       19. In support, he cites to this court’s decision in Springer v. State, 952 N.E.2d

       799 (Ind. Ct. App. 2011), trans. denied. In that case, trial counsel improperly

       advised Springer that he had the choice of accepting a plea agreement with a

       maximum possible sentence of 100 years, or going to trial with the prospect of

       receiving sentences totaling 141 years due to consecutive habitual offender

       enhancements. The actual maximum sentence Springer faced at trial was 111

       years. A panel of this court reversed the post-conviction court and explained

       “that Springer demonstrated at least a reasonable probability that the

       hypothetical reasonable defendant would have elected to go to trial if properly

       advised.” Id. at 807.


[15]   Springer differs in at least two important aspects from case before us. First,

       Springer indicated during his post-conviction hearing that he pleaded guilty

       because he felt he would die in prison if he chose not to. And second, Springer

       was incorrectly told by counsel that he faced an additional thirty-year sentence


       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 7 of 11
       due to a consecutive habitual offender enhancement that he was not eligible for.

       Here, Taylor was not incorrectly advised that he faced additional time, but

       rather his counsel failed to recognize that had Taylor proceeded to trial, he could

       have received a fully suspended sentence. There is a significant difference

       between a defendant being led to believe that he faces significant additional jail

       time such that he may likely die in jail by choosing not to plead, and being

       misadvised as to whether or not a defendant’s sentence is eligible to be fully

       suspended. And here, Taylor was never told by trial counsel that that he faced

       an erroneous amount of additional jail time. Cf. Reeves, 564 N.E.2d at 553

       (finding ineffective assistance of counsel where Reeves was improperly advised

       that he faced a sentence of sixty years when in reality the maximum would only

       have been thirty years).


[16]   Additionally, when considering whether Taylor was prejudiced by his trial

       counsel’s deficient performance, it is appropriate to consider both the strength

       of the State’s case and the benefit Taylor received by choosing to plead guilty.

       Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), trans. denied.


[17]   The State’s evidence against Taylor was overwhelming. Taylor admitted to

       police that he fired the gun in the convenience store. Appellant’s App. Vol. II,

       p. 15. Taylor admitted that he pointed the gun at the clerk and demanded

       money. Id. Taylor identified himself as the suspect in the convenience store’s

       surveillance video. Id. And Taylor identified the gun found in his vehicle as the

       same one he used in the commission of the crime. Id. For these reasons, we



       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 8 of 11
       conclude that Taylor’s prospect of success at trial was low. See Clarke v. State,

       974 N.E.2d 562, 569 (Ind. Ct. App. 2012).


[18]   Moreover, Taylor received a meaningful benefit by virtue of his decision to

       plead guilty. Taylor faced maximum sentences of sixteen years for attempted

       robbery and two and one-half years for criminal recklessness. Ind. Code §§ 35-

       50-2-5(b); 35-50-2-7(b) (2014). Because Taylor’s crimes occurred during a single

       episode of criminal conduct, and neither charge constituted a crime of violence,

       any consecutive term could not exceed seventeen and one-half years. Ind. Code

       § 35-50-1-2(c) (2014). At the time Taylor pleaded guilty, he had no prior felony

       convictions and his juvenile criminal history did not include any crimes that

       would have been felonies if committed by an adult. Therefore, under Indiana

       Code section 35-50-2-2.2 (2014), Taylor’s sentence theoretically could have

       been entirely suspended.


[19]   Taylor’s guilty plea resulted in fourteen years, with ten years executed in the

       Department of Correction and four years suspended to probation. Thus, Taylor

       received three and one-half years less that the maximum sentence he could have

       received had he proceeded to trial. Additionally, as part of the plea the State

       dropped the Level 6 felony criminal recklessness charge—which likely would

       have resulted in a second felony conviction, and a sentence ranging between

       one-half and one and one-half additional years, had Taylor proceeded to trial.

       Therefore, Taylor received a favorable benefit by choosing to plead guilty.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 9 of 11
[20]   Based on these facts and circumstances, we find that Taylor has failed to show

       that there was an objectively reasonable probability that he would have decided

       not to plead guilty but for his counsel’s failure to advise him that he could have

       received a fully suspended sentence. See Black, 54 N.E.3d at 428 (finding no

       prejudice where the State’s evidence against the defendant was great and the

       defendant’s guilty plea reduced his potential sentence from fifty-three years to

       fifty years).


                                          II. Illusory Guilty Plea

[21]   Taylor also argues that his plea was illusory “because he was misadvised that

       his sentence was non-suspendible.” Appellant’s Br. at 21. A plea bargain that is

       motivated by an improper threat is deemed illusory and is a denial of a

       defendant’s substantive rights. Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct.

       App. 2011), trans. denied. The moment the defendant enters into the guilty plea,

       the State must possess the power to carry out any threat that was a factor in

       obtaining the plea. Id. The Segura standard discussed above applies equally to

       claims of involuntary or illusory plea claims. Id. at 564.


[22]   Taylor contends that his guilty plea resulted from an illusory threat that he had

       to serve an executed sentence. However, there was no improper threat in this

       case. Even though Taylor was eligible for a fully suspended sentence, there is

       no guarantee he would have received one. In fact, because Taylor’s deal was for

       fourteen years and he faced a maximum of sixteen years on the Level 3 felony

       alone, Taylor could have received additional executed time in the Department

       of Correction on the Level 6 felony had he decided to go to trial.
       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 10 of 11
[23]   Taylor was not in a situation similar to the defendants in Reeves and Springer

       where each pleaded guilty primarily because they were erroneously threatened

       with significant additional jail time. See also Nash v. State, 429 N.E.2d 666, 672

       (Nash’s plea was illusory because he pleaded guilty based on the “possibility of

       a substantial amount of time being tacked on to his sentence by virtue of []

       improper habitual offender counts.”). Indeed, Taylor risked additional time

       without his guilty plea. In sum, Taylor has failed to prove that his guilty plea

       was illusory.


                                                Conclusion
[24]   Because Taylor was not subjected to ineffective assistance of counsel, and his

       guilty plea was not illusory, we affirm the post-conviction court’s denial of his

       petition for post-conviction relief.


[25]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1705-PC-1149| December 19, 2017   Page 11 of 11
