      MEMORANDUM DECISION
                                                                                Jul 30 2015, 5:28 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Walker Whatley                                            Gregory F. Zoeller
      Pendleton Correctional Facility                           Attorney General of Indiana
      Pendleton, Indiana
                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Walker Whatley,                                           July 30, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A02-1411-PC-781
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,
                                                                The Honorable David Seiter, Master
      Appellee-Respondent                                       Commissioner

                                                                Case No. 49G20-0111-PC-22293



      Crone, Judge.


                                               Case Summary
[1]   Walker Whatley appeals the denial of his petition for postconviction relief

      (“PCR”). He argues that the postconviction court erred in denying his petition


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015              Page 1 of 7
      because there is no record of his guilty plea hearing to show that he was advised

      of certain constitutional rights and waived them. Because Whatley cannot rely

      solely on the missing record to carry his burden to show that he was not advised

      of his constitutional rights, we affirm.


                                  Facts and Procedural History
[2]   In November 2001, the State charged Whatley with class C felony possession of

      cocaine and a firearm, class D felony possession of cocaine, and class A

      misdemeanor possession of marijuana. In February 2002, the State and

      Whatley, who was represented by counsel, entered into a plea agreement,

      wherein Whatley agreed to plead guilty to class C felony possession of cocaine

      and a firearm and the State agreed to dismiss the remaining charges. The plea

      agreement informed Whatley that by pleading guilty he was waiving certain

      rights, including the rights to a public and speedy trial by jury, to confront and

      cross-examine the witnesses against him, and to remain silent and not to be

      compelled to testify against himself.


[3]   A guilty plea hearing was held. The court reporter was later unable to locate

      the audio recording of the hearing. However, the chronological case summary

      (“CCS”) contains an entry for the guilty plea hearing stating that Whatley was

      advised of his rights and potential penalties and the factual basis for the offense

      was given and that the trial court found that Whatley understood his rights and

      knowingly and voluntarily waived them. The trial court accepted the plea

      agreement. The trial court later held a sentencing hearing and sentenced

      Whatley in accordance with the terms of his plea agreement.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015   Page 2 of 7
[4]   In March 2011, Whatley filed a motion for transcripts of his guilty plea and

      sentencing hearings. In November 2011, the court reporter filed an affidavit

      stating that she had exercised due diligence in attempting to locate the audio

      recordings of those hearings but had been unable to locate them.


[5]   In 2012, Whatley filed a PCR petition, alleging that the trial court violated the

      Indiana Rules of Criminal Procedure by failing to maintain the recording of his

      guilty plea hearing, he asserted his innocence at the guilty plea hearing, his plea

      was not voluntary, and he was not advised of his federal constitutional rights as

      required by Boykin v. Alabama, 395 U.S. 238 (1969). 1 Subsequently, he filed an

      amended PCR petition, alleging that his counsel provided ineffective assistance

      in failing to communicate with him prior to the guilty plea hearing and in

      coercing him to sign the plea agreement. He also alleged that the factual basis

      for the charge was not established. In 2014, Whatley filed a motion to

      withdraw guilty plea, 2 which contained the same allegations that he made in his

      PCR petitions.


[6]   A hearing was held, at which the postconviction court admitted the court

      reporter’s affidavit. Initially, Whatley testified that at his guilty plea hearing he




      1
        “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.” Hall v. State,
      849 N.E.2d 466, 469 (Ind. 2006).
      2
       Our appellate courts treat such a motion as a PCR petition. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013).
      See also Ind. Code § 35-35-1-4(c) (providing that a motion to withdraw guilty plea that is filed after the
      convicted person is sentenced “shall be treated by the court” as a PCR petition).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015                   Page 3 of 7
      maintained his innocence and did not admit to the factual basis underlying the

      charge of class C felony possession of cocaine and a firearm. Subsequently, he

      testified that, after a recess, he admitted to the factual basis for the charge but

      only because his attorney coerced him to do so. No other evidence was

      introduced. The postconviction court issued findings of facts and conclusions

      of law denying Whatley’s petition. Specifically, the postconviction court

      concluded that Whatley failed to carry his burden to show (1) that he received

      ineffective assistance of counsel and (2) that the factual basis for the charge was

      not established. This pro se appeal followed.


                                     Discussion and Decision
[7]   In a postconviction proceeding, the petitioner “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). “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 trial court.” Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied

      (2002). Although Whatley 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).


[8]   The gist of Whatley’s argument appears to be that the postconviction court

      erred in denying his PCR petition because the trial court failed to maintain


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015   Page 4 of 7
      audio recordings of his guilty plea as required by Indiana Criminal Rule 10, 3

      and therefore there is no record to show that he was advised of his Boykin rights.

      The postconviction court’s findings of facts and conclusions of law do not

      contain any specific findings or conclusions relating to this contention although

      Whatley did raise it in his PCR petition. In Allen v. State, 749 N.E.2d 1158

      (Ind. 2001), our supreme court stated,

                A court that hears a post-conviction claim must make findings of fact
               and conclusions of law on all issues presented in the petition. See Ind.
               Post-Conviction Rule 1(6). The findings must be supported by facts
               and the conclusions must be supported by the law. See Bivins v. State,
               735 N.E.2d 1116, 1121 (Ind. 2000), reh’g denied. Our review on appeal
               is limited to these findings and conclusions.

      Id. at 1164. Later in the opinion, the supreme court observed that the

      postconviction court failed to make a specific finding and conclusion as to one

      of Allen’s claims of ineffective assistance, and therefore the court would review

      that issue de novo. Id. at 1170. Accordingly, we will review the issue raised by

      Whatley de novo.


[9]   It is true that “[t]he failure to advise a criminal defendant of his constitutional

      rights in accordance with Boykin prior to accepting a guilty plea will result in




      3
        Indiana Criminal Rule 10 requires that the trial court create an electronic recording of all proceedings
      whenever a defendant pleads guilty to a felony or misdemeanor charge and is sentenced upon that plea. It
      also requires that if a transcription of the recorded matter is not prepared, certified, and filed in the criminal
      proceeding, the electronic recording must be maintained as a court record for ten years in all misdemeanors
      or fifty-five years in all felony cases.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015                     Page 5 of 7
       reversal of the conviction.” Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014).

       However, our supreme court has held that

                [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.

       Hall v. State, 849 N.E.2d 466, 473 (Ind. 2006). In Hall, our supreme court

       concluded that Hall failed to carry his burden because at his PCR hearing, he

       relied solely on the fact that there was no record of his guilty plea hearing and

       did not present any evidence regarding whether he had been advised of his

       Boykin rights. Id. at 472-73.


[10]   Likewise, Whatley did not present any evidence at his PCR hearing regarding

       whether he was advised of his Boykin rights. He cannot carry his burden by

       simply relying on the fact that the record of the guilty plea hearing is missing.

       The plea agreement, which Whatley signed, specifically contains an

       enunciation of and waiver of rights. In addition, the CCS indicates that the trial

       court advised him of his rights and that he waived them. Accordingly, we

       conclude that Whatley failed to carry his burden to show that he did not receive

       his Boykin advisements. 4 Therefore, we affirm the denial of his PCR petition.




       4
         Whatley does not challenge the postconviction court’s conclusion that he failed to carry his burden to show
       that he received ineffective assistance of counsel. To the extent that Whatley argues that without a record of
       the guilty plea hearing, the postconviction court cannot confirm or deny whether he maintained his
       innocence or whether he admitted the factual basis to support his conviction, that argument is waived for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015                Page 6 of 7
[11]   Affirmed.


       May, J., and Bradford, J., concur.




       failure to present a cogent argument. See Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006) (“Failure
       to put forth a cogent argument acts as a waiver of the issue on appeal.”); Ind. Appellate Rule 46(A)(8)(a)
       (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent
       reasoning.”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-PC-781 | July 30, 2015                Page 7 of 7
