 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be                              FILED
 regarded as precedent or cited before any                       Aug 21 2012, 9:25 am
 court except for the purpose of
 establishing the defense of res judicata,                               CLERK
 collateral estoppel, or the law of the case.                          of the supreme court,
                                                                       court of appeals and
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ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

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

JOHN PINNOW                                           ANDREW K. FALK
Deputy Public Defender                                Deputy Attorney General
Indianapolis, Indiana                                 Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

LEONARD DEWITT,                                       )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 15A01-1202-PC-63
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE DEARBORN CIRCUIT COURT
                           The Honorable James D. Humphrey, Judge
                        The Honorable Kimberly A. Schmaltz, Magistrate
                                Cause No. 15C01-1006-PC-1


                                           August 21, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Leonard Dewitt appeals from the denial of his petition for post-conviction relief.

Dewitt presents one issue for our review: Did the post-conviction court (the PCR court)

properly deny Dewitt’s petition for post-conviction relief?

       We affirm.

       On February 12, 2004, Dewitt was charged with Count I, dealing in

methamphetamine, a class B felony; Count II, conspiracy to commit dealing in

methamphetamine, a class B felony; Count III, possession of precursors, a class D felony;

Count IV, maintaining a common nuisance, a class D felony; and Count V, possession of

methamphetamine under three grams, a class D felony. On April 2, 2004, the State filed an

habitual offender allegation, asserting that Dewitt had accumulated at least two prior,

unrelated felony convictions. The State specifically identified such convictions as being a

1995 felony conviction for trafficking in a controlled substance within 1000 yards of a

school; a 1993 felony conviction for cultivating marijuana for sale in an amount of five plants

or more; and a 1981 felony conviction for burglary.1

       On January 30, 2006, Dewitt filed a motion to dismiss the habitual offender allegation,

asserting that his prior, unrelated felony convictions did not meet the statutory requirements

to support such an allegation. On February 3, 2006, the State sought to amend the charging

information to add an habitual substance offender allegation. That same day, Dewitt’s trial

counsel hand-delivered a letter to Dewitt in which trial counsel expressed his belief that

because Dewitt’s witnesses would likely refuse to testify it would be “futile” to go to trial.

Exhibit Volume at 67. Trial counsel further informed Dewitt that the trial court was not likely



                                              2
to grant his motion to dismiss the habitual offender allegation and thus, Dewitt’s “exposure

from going to trial, in terms of jail time, [was] essentially a life sentence . . . .”2 Id.

        Three days later, on February 6, 2006, before the trial court ruled upon Dewitt’s

motion to dismiss or the State’s motion to amend, Dewitt entered into a plea agreement with

the State. Under the terms of the plea agreement, Dewitt agreed to plead guilty to Count II,

class B felony conspiracy to commit dealing in methamphetamine, and the State agreed to

dismiss the remaining charges, including the habitual offender allegation.                        The plea

agreement set forth the sentence to be imposed as twenty years, with ten years suspended to

probation.3

        At a sentencing hearing on March 3, 2006, the trial court accepted the plea agreement

and sentenced Dewitt according to its terms. On February 5, 2009, the State filed a request

for a probation violation hearing. At a hearing on September 2, 2009, Dewitt admitted that

he violated his probation. The court ordered Dewitt to serve his ten-year suspended sentence

in the Department of Correction.

        On June 18, 2010, Dewitt, pro se, filed a petition for post-conviction relief. A public

defender was ultimately appointed to represent Dewitt throughout the post-conviction

proceedings. The State filed its response to Dewitt’s petition for post-conviction relief as

well as a motion for summary disposition on September 15, 2011. The PCR court denied the

State’s motion for summary disposition and held an evidentiary hearing on December 15,


1
  All prior felony convictions were in the State of Kentucky.
2
  Dewitt was forty-four years old at the time.
3
  Dewitt had rejected prior plea offers to plead guilty to a single class B felony because sentencing was left
open to the trial court’s discretion.

                                                      3
2011. Dewitt’s trial counsel testified at the post-conviction hearing. On January 25, 2012,

the PCR court denied Dewitt’s petition for post-conviction relief. Dewitt now appeals.

       Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable

at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253

(Ind. 2000), cert. denied (2002); Wieland v. State, 848 N.E.2d 679 (Ind. Ct. App. 2006). The

proceedings do not substitute for a direct appeal and provide only a narrow remedy for

subsequent collateral challenges to convictions. Ben-Yisrayl v. State, 738 N.E.2d 253. The

petitioner for post-conviction relief bears the burden of proving the grounds by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

       When a petitioner appeals a denial of post-conviction relief, he appeals from a

negative judgment. Fisher v. State, 878 N.E.2d 457 (Ind. Ct. App. 2007). The petitioner

must establish that the evidence as a whole unmistakably and unerringly leads to a

conclusion contrary to that of the PCR court. Id. We will disturb a PCR court’s decision as

being contrary to law only where the evidence is without conflict and leads to but one

conclusion, and the PCR court has reached the opposite conclusion. Wright v. State, 881

N.E.2d 1018 (Ind. Ct. App. 2008). The PCR court is the sole judge of the weight of the

evidence and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319 (Ind. Ct. App.

2008). We accept the PCR court’s findings of fact unless they are clearly erroneous, and no

deference is given to its conclusions of law. Fisher v. State, 878 N.E.2d 457.

       Dewitt argues that his guilty plea was not knowingly, voluntarily, and intelligently

made. Specifically, he maintains that he was “coerced and intimidated” into pleading guilty

                                             4
by the filing of an invalid habitual offender charge. Appellant’s Brief at 8. Dewitt notes that

he rejected prior offers to plead guilty to a single class B felony with open sentencing. He

asserts that he ultimately agreed to plead guilty to a class B felony and a fixed twenty-year

sentence with ten years suspended after his attorney advised him that he would be making “a

great mistake” if he took the matter to trial and that he risked “essentially a life sentence”.

Exhibit Volume at 67. Dewitt’s trial counsel believed Dewitt faced a minimum fifty-year

sentence, i.e., twenty years for a class B felony enhanced by thirty years for a habitual

offender determination. In his petition for post-conviction relief, Dewitt maintains that he

would not have pleaded guilty but for the fact that he believed he was facing a possible fifty-

year sentence for an underlying class B felony conviction plus an habitual offender

determination.

       It is well settled that

       [a] plea bargain motivated by an improper threat is deemed illusory and a
       denial of substantive rights. Champion v. State, 478 N.E.2d 681, 683 (Ind.
       1985) (citing Gibson v. State, 456 N.E.2d 1006, 1009 (Ind. 1983)). The State
       must possess, at the moment a guilty plea is entered, the power to carry out any
       threat that was a factor in obtaining the plea agreement. Daniels v. State, 531
       N.E.2d 1173, 1174 (Ind. 1988). “‘[A] threat by a prosecutor to do what the
       law will not permit, if it motivates a defendant ignorant of the impossibility,
       renders the plea involuntary.’” Munger v. State, 420 N.E.2d 1380, 1387 (Ind.
       Ct. App. 1981) (quoting Lassiter v. Turner, 423 F.2d 897, 900 (4th Cir. 1970),
       cert. denied).

Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct. App. 2011), trans. denied.

       In Nash v. State, 429 N.E.2d 666, 672 (Ind. Ct. App. 1981), this court held that if the

improper threat of an habitual offender sentence enhancement “played a significant part in

the plea negotiations,” then any resulting plea is illusory, even if that threat was not the


                                              5
“main” motivation for the plea. Our Supreme Court later placed a higher burden upon

defendants who are claiming that an improper punitive threat compelled their guilty plea

before that plea may be set aside.

       In Segura v. State, 749 N.E.2d 496 (Ind. 2001), the defendant pleaded guilty to

dealing in cocaine and, in a subsequent post-conviction proceeding, sought to set aside that

plea on the basis that his trial attorney had been ineffective for failing to advise him of the

possibility of deportation if he pleaded guilty. With respect to a claim that a defendant has

received incorrect advice as to penal consequences of a plea, the court stated:

       Whether viewed as ineffective assistance of counsel or an involuntary plea, the
       post-conviction court must resolve the factual issue of the materiality of the
       bad advice in the decision to plead, and post-conviction relief may be granted
       if the plea can be shown to have been influenced by counsel’s error. However,
       if the post-conviction court finds that the petitioner would have pleaded guilty
       even if competently advised as to the penal consequences, the error in advice is
       immaterial to the decision to plead and there is no prejudice.

Id. at 504-05. The Court further held:

       We believe a showing of prejudice from incorrect advice as to the penal
       consequences is to be judged by an objective standard, i.e., there must be a
       showing of facts that support a reasonable probability that the hypothetical
       reasonable defendant would have elected to go to trial if properly advised . . . .
        [A] petitioner may be entitled to relief if there is an objectively credible
       factual and legal basis from which it may be concluded that “there is a
       reasonable probability that, but for counsel’s errors, he would not have pleaded
       guilty and would have insisted on going to trial.”
                                             ***
       [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.


                                               6
Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

        The PCR court concluded that “if there was an improper threat regarding the habitual

offender charge, it was not material to Dewitt’s decision to plead guilty . . . and that Dewitt

has suffered no prejudice as he would have plead guilty even if he had been ‘competently

advised as to the penal consequences.’” Appellant’s Appendix at 286. We agree.

        Here, Dewitt’s trial counsel testified at the PCR hearing that he was fully aware the

trial court had not yet ruled on the motion to dismiss the habitual offender allegation when he

recommended that Dewitt enter into a plea agreement with the State. Dewitt’s trial counsel

further testified that, regardless of the validity of the habitual offender allegation,4 he would

have recommended that Dewitt accept the plea deal because of Dewitt’s “horrible criminal

history.”5 PCR Transcript at 16. Dewitt’s trial counsel noted that it was a close question

whether Count I and Count II could be ordered consecutive to one another. Further, counsel

explained that given his professional experience before Judge Humphrey, had Dewitt opted

for a trial on the charges and lost, Dewitt “would have been lucky not to get twenty, suspend

zero,” especially given his criminal history. Id.

        First, Dewitt made the decision to plead guilty prior to the trial court ruling on his

motion to dismiss the habitual offender allegation. Further, in his argument, Dewitt fails to

consider the impact of the State’s request to file an habitual substance offender allegation,

which, if proved, would have added an additional three to eight years to any sentence

4
  A cursory review of the habitual offender statute strongly indicates that Dewitt’s prior felony convictions did
not satisfy the requirements for a habitual offender determination.
5
  Indeed, the trial court was “reluctant” to accept Dewitt’s guilty plea because of his “substantial” criminal
history, which includes twenty-one adult convictions (three of which are for felony offenses). Sentencing
Hearing Transcript, Exhibit Volume at 21.

                                                       7
imposed for a felony conviction. As noted by Dewitt’s trial counsel, Dewitt was subject to

possible consecutive sentences on Counts I and II. Also figuring into the calculus on whether

to plead guilty was that Dewitt was offered a significantly reduced sentence. In trial

counsel’s experience before the trial court judge, Dewitt, if convicted after a trial, would

have faced at least a fully executed twenty-year sentence. The plea agreement called for half

that executed time. Thus, while the habitual offender allegation was part of the calculus,

Dewitt has not established that but for being misinformed as to the validity of the habitual

offender allegation and the possible enhancement, he would not have pleaded guilty. The

plea agreement was highly beneficial to Dewitt, notwithstanding the possible invalidity of the

habitual offender allegation.

       Judgment affirmed.

BROWN, J., and DARDEN, Senior Judge, concur.




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