MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 06 2017, 10:36 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Curt Lowder                                               Curtis T. Hill, Jr.
Wabash Valley Correctional Facility                       Attorney General of Indiana
Carlisle, Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Curt Lowder,                                              April 6, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A04-1606-PC-1518
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Respondent                                       Judge
                                                          The Honorable Anne Flannelly,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G04-0006-PC-89141



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017              Page 1 of 13
                                             Case Summary
[1]   Curt Lowder appeals the denial of his amended petition for postconviction

      relief (“PCR”) after he pled guilty to class D felony resisting law enforcement

      while using a vehicle. First, he challenges the postconviction court’s denial of

      his motion to amend his amended PCR petition, which he did not file until

      after the evidentiary hearing, arguing that the new claims he sought to add were

      tried by the parties’ express consent. Second, he argues that the postconviction

      court clearly erred in finding that he failed to carry his burden to show that

      there was no factual basis to support his guilty plea.


[2]   We conclude that the parties did not try the claims Lowder sought to add by

      express or implied consent, and therefore the postconviction court did not abuse

      its discretion in denying his motion to amend his amended PCR petition. We

      also conclude that the evidence does not unerringly and unmistakably show

      that Lowder’s guilty plea had no factual basis. Accordingly, we affirm.


[3]   We note that Lowder argues that the postconviction court clearly erred in

      finding that the State carried its burden to establish its laches defense and

      presents additional arguments related to the State’s laches defense. However,

      because we address Lowder’s claim on the merits, we need not address those

      arguments.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 2 of 13
                                   Facts and Procedural History1
[4]   At Lowder’s guilty plea hearing, the following factual basis was established.

      Sometime after midnight one evening in May 2000, Marion County Sheriff’s

      Department Deputy Daniel Herrick was in his patrol car on East Washington

      Street in Indianapolis. He was flagged down by two individuals who told him

      that they were having trouble with two people in a white pickup truck. As he

      was speaking with them, the white pickup truck passed by. Deputy Herrick

      activated his emergency equipment and attempted to stop the truck. The truck

      turned into Irvington Plaza and accelerated through the parking lot, attempting

      to get away. The truck continued through the parking lot at a high rate of

      speed, exited onto the street, did a U-turn, and struck another vehicle. Deputy

      Herrick saw two males jump from the truck. Deputy Herrick yelled for both

      subjects to stop, but they continued running. Deputy Herrick saw Lowder hide

      behind a bush, where Lowder was apprehended by a canine unit.


[5]   In June 2000, the State charged Lowder with class D felony resisting law

      enforcement and class A misdemeanor resisting law enforcement. According to

      the probable cause affidavit, Deputy Herrick believed that Lowder was the



      1
        Lowder’s filings with this Court violate our appellate rules in several ways. The table of contents for his
      appellant’s appendix indicates that “[a]ll PCR Motions and Filings Records” begin on page number 130 and
      fails to provide the specific page number for each individual pleading, motion, and order in contravention of
      Indiana Appellate Rule 50(C). Appellant’s App. Vol. 1 at 2. Also, although his appellant’s appendix
      includes the chronological case summary (“CCS”) from the underlying criminal case, it does not include the
      CCS from the postconviction proceedings in contravention of Indiana Appellate Rule 50(B)(1)(a). In
      addition, in his appellant’s brief, Lowder fails to provide any citations to the page numbers in his appendix in
      contravention of Appellate Rule 46(A)(6)(a) and 46(A)(8)(a). Lowder’s noncompliance with our appellate
      rules has substantially hindered our review. However, given our preference for deciding cases on their
      merits, we have not found Lowder’s arguments waived.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017               Page 3 of 13
      driver of the truck. The charging information for class D felony resisting law

      enforcement alleged that Lowder did knowingly flee from Deputy Herrick after

      the officer had identified himself and ordered Lowder to stop and while

      committing the offense Lowder “did operate a motor vehicle.” Appellant’s App.

      Vol. 2 at 14 (emphasis added).


[6]   In March 2001, Lowder entered into a plea agreement, in which he agreed to

      plead guilty to class D felony resisting law enforcement, and the State agreed to

      dismiss the remaining charge. The State also agreed to dismiss all counts in

      cause number 49G14-0008-DF-151462 (class D felony possession of cocaine

      and class A misdemeanor driving while suspended) and not to file a charge of

      class D felony auto theft, which the State believed was linked to the conduct

      that gave rise to the resisting law enforcement charges. The plea agreement

      called for open sentencing.


[7]   At the guilty plea hearing, the prosecutor read the probable cause affidavit to

      establish the factual basis for class D felony resisting law enforcement. Id. at

      92-94. The trial court asked Lowder whether the affidavit accurately stated

      what had occurred. Lowder answered that everything was correct except that

      he was not driving the vehicle. Id. at 94-95. The trial court observed that it did

      not “sound like a factual basis for resisting by operating a motor vehicle.” Id. at

      95. Lowder’s defense counsel stated that the relevant statute included conduct

      in which a person “uses” a vehicle to commit the offense but that was

      inconsistent with the charging information. Id. The trial court responded that

      the charging information could be amended and that it was “a fair statement to

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 4 of 13
      say that Mr. Lowder was using the vehicle, although albeit not operating it, to

      flee.” Id. at 96. Lowder’s defense counsel then cited Jones v. State, 536 N.E.2d

      267 (Ind. 1989), in which Jones’s conviction for class D felony resisting law

      enforcement was upheld even though he had been a backseat passenger in the

      vehicle. Appellant’s App. Vol. 2 at 96. The trial court asked the prosecutor

      whether the State wished to amend the charging information, and the

      prosecutor said it did. Id. The trial court asked whether there was any

      objection from the defendant, and defense counsel said there was not. Id. The

      trial court then declared, “So we’ll show that the word ‘operate’ in the

      information of Count One is stricken and in lieu thereof the word ‘use’ is

      inserted. And based on the information I received, I now find that there [is] a

      factual basis for the plea agreement.” Id. The trial court then accepted the plea

      agreement. In April 2001, the trial court sentenced Lowder to 545 days with

      180 days executed through community corrections home detention and 365

      days suspended to probation.


[8]   In June 2013, Lowder filed a pro se PCR petition. Appellant’s App. Vol. 2 at

      122.2 The postconviction court appointed a public defender to represent

      Lowder. It also issued a scheduling order, in which it advised Lowder that

      “[a]ny amendment to the Petition shall be filed at least sixty (60) days before

      the evidentiary hearing except under extraordinary circumstances.” Id. at 133.



      2
        Page 3 of Lowder’s PCR petition, which is the page that would contain the facts which support each of the
      grounds for vacating, setting aside, or correcting the conviction and sentence, is missing from the appellant’s
      appendix.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017               Page 5 of 13
       After Lowder’s public defender withdrew her appearance, the postconviction

       court issued an amended scheduling order that again advised Lowder that

       “[a]ny amendment to the petition shall be filed at least sixty (60) days before the

       Evidentiary Hearing date except under extraordinary circumstances.” Id. at

       154.


[9]    In August 2014, Lowder, pro se, filed an amended PCR petition, replacing the

       allegations in the original petition with the following: “Trial court errored [sic]

       when [it] entered judgment upon a plea of guilty due to the fact there was no

       factual basis to support [his] guilt.” Id. at 156.


[10]   In November 2014, the postconviction court held an evidentiary hearing on

       Lowder’s amended PCR petition. Lowder called defense counsel as a witness.

       Lowder asked defense counsel if he had researched whether the police had

       reasonable suspicion or probable cause to stop the truck. Tr. at 41. The State

       objected to the question, arguing that Lowder’s amended PCR petition did not

       state a claim based on lack of reasonable suspicion or probable cause. Id. The

       postconviction court sustained the State’s objection. During cross-examination,

       the State asked Lowder’s defense counsel whether he “would have done

       anything to coerce Mr. Lowder to plead guilty even though he wasn’t admitting

       that he was guilty.” Id. at 48. Lowder’s defense counsel answered that he did

       not coerce Lowder, and then continued, “The question always lingered in my

       mind … that he was not the driver of the car and whether or not the police

       officer had the authority or the probable cause … to stop them in the first

       place.” Id. The State unsuccessfully attempted to interrupt defense counsel, but

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 6 of 13
       he went on to state, “I didn’t research that part of the case. I was focused on

       the driver aspect of the whole thing.” Id.


[11]   In January 2015, Lowder filed a “Motion To Amend The Pleadings To Cause

       Them To Conform To The Evidence” presented at the PCR hearing (“motion

       to amend”). Appellant’s App. at 175. The postconviction court took the

       motion under advisement and directed the State to file its response by March 2,

       2015. On March 3, 2015, the State filed an objection to Lowder’s motion to

       amend. Id. at 180. In March 2015, the postconviction court issued an order

       denying Lowder’s motion to amend. Id. at 182. Lowder filed a request for

       reconsideration, which the postconviction court denied. Id. at 189.


[12]   In June 2016, the postconviction court entered its findings of fact and

       conclusions of law, finding that Lowder failed to carry his burden to show that

       there was no factual basis supporting his guilty plea to class D felony resisting

       law enforcement and denying his amended PCR petition. Id. at 231-44. This

       appeal ensued.


                                      Discussion and Decision

              Section 1 – The postconviction court did not abuse its
                discretion in denying Lowder’s motion to amend.
[13]   Lowder challenges the postconviction court’s denial of his motion to amend.

       Indiana Post-Conviction Rule 1(4)(c) provides,

               At any time prior to entry of judgment the court may grant leave
               to withdraw the petition. The petitioner shall be given leave to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 7 of 13
               amend the petition as a matter of right no later than sixty [60]
               days prior to the date the petition has been set for trial. Any later
               amendment of the petition shall be by leave of the court.


       “[W]e review the post-conviction court’s refusal to amend a petition for abuse

       of discretion because the Post-Conviction Rules state that any motion to amend

       made within 60 days of an evidentiary hearing may be granted only ‘by leave of

       the court.’” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001) (quoting Ind. Post-

       Conviction Rule 1(4)(c)).


[14]   To support his argument that the postconviction court abused its discretion in

       denying his motion to amend, Lowder relies on Indiana Trial Rule 15(B),

       which provides,

               When issues not raised by the pleadings are tried by express or
               implied consent of the parties, they shall be treated in all respects
               as if they had been raised in the pleadings. Such amendment of
               the pleadings as may be necessary to cause them to conform to
               the evidence and to raise these issues may be made upon motion
               of any party at any time, even after judgment, but failure so to
               amend does not affect the result of the trial of these issues.


[15]   We note that the Indiana Trial Rules “generally only govern procedure and

       practice in civil cases.” Corcoran v. State, 845 N.E.2d 1019, 1021 (Ind. 2006).

       However, we consider their applicability in postconviction proceedings “on a

       case-by-case basis where the Indiana Rules of Procedure for Post-Conviction

       Remedies are silent.” Id. In Harrington v. State, 466 N.E.2d 1379 (Ind. Ct. App.

       1984), another panel of this Court cited Trial Rule 15(B) in concluding that

       although the State did not plead laches as an affirmative defense in
       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 8 of 13
       postconviction proceedings, the issue was tried by consent and the State’s

       answer was deemed amended to raise the laches issue. Id. at 1381.


[16]   Assuming, without deciding, that Trial Rule 15(B) applies to the postconviction

       court’s ruling on Lowder’s motion to amend, his argument is without merit.

       The claims he sought to add were based on the premise that the police lacked

       reasonable suspicion or probable cause to stop the vehicle. He argues that these

       claims were tried by express consent because his defense counsel testified at the

       evidentiary hearing that he did not research reasonable suspicion or probable

       cause. Tr. at 48. Lowder ignores that the State objected when he attempted to

       question defense counsel as to whether he had investigated reasonable suspicion

       or probable cause, and the postconviction court sustained the objection. Id. at

       41. On cross-examination, the State asked defense counsel whether he “would

       have done anything to try to coerce Mr. Lowder to plead guilty even though he

       wasn’t admitting that he was guilty.” Id. at 48. In answering, defense counsel

       stated that he had not researched reasonable suspicion. However, the State’s

       question clearly was not an attempt to solicit that information. We conclude

       that the claims Lowder sought to add were not tried by express or implied

       consent. Therefore, the postconviction court did not abuse its discretion in

       denying Lowder’s motion to amend.3




       3
         Because it was within the postconviction court’s discretion to permit Lowder to amend his PCR petition
       and we have concluded that the postconviction court did not abuse its discretion, we need not address
       Lowder’s argument that the postconviction court erred in sustaining the State’s objection to his motion to
       amend.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017             Page 9 of 13
           Section 2 – The postconviction court did not clearly err in
          finding that Lowder failed to carry his burden to show that
              there was no factual basis to support his guilty plea.
[17]   Lowder claims that the postconviction court erred in finding that he failed to

       show that there was no factual basis to support his guilty plea. We observe that

       the postconviction court entered findings of fact and conclusions of law as

       required by Indiana Post-Conviction Rule 1(6). Our review is limited to

       whether the findings are supported by the facts and the conclusions are

       supported by the law. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). The

       petitioner seeking postconviction relief “bears the burden of establishing

       grounds for relief by a preponderance of the evidence.” Ritchie v. State, 875

       N.E.2d 706, 713 (Ind. 2007). A judgment entered against a party bearing the

       burden of proof is a negative judgment. Burnell v. State, 56 N.E.3d 1146, 1149-

       50 (Ind. 2016). When a petitioner appeals from a negative judgment, he or she

       must convince the appeals court that “the evidence as a whole leads unerringly

       and unmistakably to a decision opposite that reached by the post-conviction

       court.” Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Although Lowder

       is “proceeding pro se and lacks legal training, such litigants are held to the same

       standard as trained counsel and are required to follow procedural rules.” Ross v.

       State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied (2008).


[18]   Regarding a trial court’s acceptance of a guilty plea, our supreme court has

       stated,




       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 10 of 13
                 An Indiana court cannot accept a guilty plea unless there is an
                 adequate factual basis for the plea. Ind. Code § 35-35-1-3(b)
                 (2008). The purpose of the factual basis requirement is to ensure
                 that a person who pleads guilty is truly guilty. As the ABA
                 standards put it, the court should satisfy itself that “the defendant
                 could be convicted if he or she elected to stand trial.” ABA
                 Standards for Criminal Justice Pleas of Guilty 65 (3d. ed. 1999). A
                 factual basis exists when there is evidence about the elements of
                 the crime from which a court could conclude that the defendant
                 is guilty. The presentation about facts need not prove guilt
                 beyond a reasonable doubt. The original trial court’s
                 determination that the factual basis was adequate is clothed with
                 the presumption of correctness. We will only set aside the trial
                 court’s acceptance of a guilty plea for an abuse of discretion.


       State v. Cooper, 935 N.E.2d 146, 150 (Ind. 2010) (citations, quotation marks, and

       brackets omitted) (emphasis added).


[19]   Here, Lowder pled guilty to class D felony resisting law enforcement. A person

       who knowingly or intentionally flees from a law enforcement officer after the

       officer has identified himself or herself and ordered the person to stop commits

       class A misdemeanor resisting law enforcement. Ind. Code § 35-44-3-3(a)(3).4

       The offense is elevated to a class D felony if “the person uses a vehicle to

       commit the offense.” Ind. Code § 35-44-3-3(b)(1)(A) (emphasis added). We

       note that although Lowder was initially charged with operating the vehicle, the

       charging information was amended to replace “operate” with “use.”

       Appellant’s App. at 96. Nevertheless, Lowder argues that “[t]he facts are




       4
           In 2012, the statute was recodified at Indiana Code Section 35-44.1-3-1 and has since been amended.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017            Page 11 of 13
       Lowder never had control over the vehicle or over the person that was driving,

       so to use the vehicle to flee Lowder would have had to put the vehicle into

       action which he never did, nor did Lowder ever admit to this action of ‘use’ the

       vehicle to flee.” Appellant’s Br. at 20.


[20]   In Jones, 536 N.E.2d 267, the PCR petitioner argued that his conviction for

       class D felony resisting law enforcement was unsupported by sufficient evidence

       because “he had no control over the fleeing vehicle, and once the vehicle

       stopped, he did not try to escape police.” Id. at 271. Although Jones was

       sitting in the back seat of the vehicle as it fled police and had no control over the

       vehicle, our supreme court concluded that his conviction was supported by

       sufficient evidence because the acts of Jones’s accomplices in furtherance of the

       crimes were imputed to him. Id. Additionally, the court noted that Jones

       testified that he told the driver not to stop. Id.


[21]   At the guilty plea hearing, Lowder, under oath, admitted to all the facts in the

       probable cause affidavit other than that he was driving the vehicle. Even if

       Lowder was not the driver, he admitted to the following facts. When Deputy

       Herrick activated his emergency equipment and attempted to stop the truck in

       which Lowder was a passenger, the truck sped away, accelerated through a

       parking lot, proceeded back out on the street at a high rate of speed, did a U-

       turn, and crashed into another vehicle. After the vehicle crashed, Lowder

       continued to flee from the police by jumping out of the vehicle, running away,

       and hiding behind a bush. We will not reverse unless the evidence leads

       unerringly and unmistakably to the conclusion that Lowder carried his burden

       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 12 of 13
       to show that his guilty plea had no factual basis. Based on this record, we

       conclude that the postconviction court did not clearly err in finding that Lowder

       failed to carry his burden. Accordingly, we affirm the postconviction court’s

       denial of his amended PCR petition.


[22]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1606-PC-1518 | April 6, 2017   Page 13 of 13
