MEMORANDUM DECISION
                                                                  Feb 20 2015, 9:40 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
Charles M. Woolsey                                        Gregory F. Zoeller
Terre Haute, Indiana                                      Attorney General of Indiana

                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Charles M. Woolsey,                                      February 20, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         19A01-1407-CR-301
        v.
                                                         Appeal from the Dubois Superior
                                                         Court
State of Indiana,                                        Cause No. 19D01-9611-DF-1081
Appellee-Plaintiff.
                                                         The Honorable Mark McConnell,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015   Page 1 of 7
                                             Case Summary
[1]   Charles Woolsey appeals the post-conviction court’s summary disposition of his

      petition for post-conviction relief. We reverse and remand.


                                                     Issue
[2]   Woolsey raises one issue, which we restate as whether the post-conviction court

      erred by summarily disposing of his petition for post-conviction relief.


                                                     Facts
[3]   In 1996, Woolsey was charged with Class D felony possession of a controlled

      substance. Woolsey apparently had other pending charges for a Class D felony

      and several misdemeanor charges in other cases. In 1997, Woolsey entered into

      a plea agreement that resulted in him pleading guilty to several charges and the

      dismissal of several other charges. In this cause number, Woolsey pled guilty to

      Class D felony possession of a controlled substance. The trial court sentenced

      him to one and one-half years at the Dubois County Security Center to be

      served consecutively with a sentence imposed in another cause, suspended on

      the condition that Woolsey serve nine months in home detention.


[4]   In 2014, Woolsey filed a petition for post-conviction relief. Woolsey alleged

      that his guilty plea was “not knowingly or intelligently entered, as he did not

      receive effective assistance of counsel.” App. p. 66. According to Woolsey, the

      deputy claimed that he had observed Woolsey discard a “placidyl pill from his

      pants pocket, thusly abandoning same.” Id. at 59. Woolsey claims that the pill

      was actually seized from between the vehicle seats during an illegal search.
      Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015   Page 2 of 7
      According to Woolsey, he advised his trial counsel of the allegedly false report

      and his trial counsel “advised petitioner to plead, irrespective of the false

      statements and illegal search, as to do so would allow him to retain his Driving

      privileges.” Id.


[5]   The State filed an answer alleging that Woolsey’s petition “fails to create any

      genuine issue of material fact, because it does not allege specific facts which, if

      proved, would suffice to establish any grounds for post-conviction relief.” Id. at

      51. Specifically, the State argued that Woolsey failed to show there was a

      reasonable probability that he would have prevailed at trial if his trial counsel

      had filed a motion to suppress. The State also alleged that Woolsey had

      “unreasonably delayed in petitioning for relief and such delay” had prejudiced

      the State. Id. Woolsey responded, arguing that summary disposition was

      inappropriate, that his petition was timely, and that he was entitled to an

      evidentiary hearing on his claim.


[6]   The post-conviction court summarily denied Woolsey’s petition for post-

      conviction relief. The post-conviction court concluded:

                     2.        The record herein reveals that Defendant entered a
                               guilty plea after being advised of the charge, the statute
                               he allegedly violated, the possible penalties upon
                               conviction and his rights. A guilty plea under such
                               circumstances constitutes a waiver of Defendant’s rights
                               and an admission of guilt. This record establishes that
                               Defendant’s guilty plea was knowingly, voluntarily and
                               intelligently entered into; directly contradicts any
                               allegation of ineffective assistance of counsel; and



      Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015   Page 3 of 7
                               precludes setting aside his conviction entered pursuant
                               to the guilty plea.


                     3.        There is no genuine issue of fact raised by Defendant’s
                               Petition for Post-Conviction Relief and the State is
                               entitled to judgment on said petition as a matter of law
                               pursuant to Rule PC 1, Section 4(g).


      App. pp. 20-21. Woolsey now appeals.


                                                  Analysis
[7]   The petitioner in a post-conviction proceeding bears the burden of proof, and an

      unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903

      N.E.2d 899, 905 (Ind. 2009). A petitioner appealing from a negative judgment

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

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

      disturb a post-conviction court’s decision as being contrary to law only where

      the evidence is without conflict and leads to but one conclusion and the post-

      conviction court has reached the opposite conclusion. Id.


[8]   The post-conviction court granted summary disposition based on Indiana Post-

      Conviction Rule 1(4)(g), which allows a post-conviction court to grant a motion

      by either party:

              when it appears from the pleadings, depositions, answers to
              interrogatories, admissions, stipulations of fact, and any affidavits
              submitted, that there is no genuine issue of material fact and the
              moving party is entitled to judgment as a matter of law.




      Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015   Page 4 of 7
       Under Rule 1(4)(g), we would review the ruling in the same manner as a

       motion for summary judgment. See Allen v. State, 791 N.E.2d 748, 753 (Ind. Ct.

       App. 2003), trans. denied. However, because no depositions, answers to

       interrogatories, admissions, stipulations of fact, or affidavits were submitted, we

       believe the summary disposition was entered pursuant to Post-Conviction Rule

       1(4)(f), which provides: “If the pleadings conclusively show that petitioner is

       entitled to no relief, the court may deny the petition without further

       proceedings.”


[9]    “When a court disposes of a petition under subsection f, we essentially review

       the lower court’s decision as we would a motion for judgment on the

       pleadings.” Id. “The court errs in disposing of a petition in this manner unless

       ‘the pleadings conclusively show that petitioner is entitled to no relief.’” Id. at

       752-53 (quoting P-C.R. 1(4)(f)). If the petition alleges only errors of law, the

       court may determine without a hearing whether the petitioner is entitled to

       relief on those questions. Id. at 753. When a petitioner alleges ineffective

       assistance of counsel, and the facts pled raise an issue of possible merit, the

       petition should not be summarily denied. Kelly v. State, 952 N.E.2d 297, 300

       (Ind. Ct. App. 2011).


[10]   The post-conviction court found that Woolsey’s guilty plea precluded a finding

       of ineffective assistance of counsel. However, our supreme court has held that,

       where a petitioner has pled guilty, claims of ineffective assistance of counsel are

       analyzed under a methodology set out in Segura v. State, 749 N.E.2d 496 (Ind.

       2001). “[I]n order to establish that the guilty plea would not have been entered

       Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015   Page 5 of 7
       if counsel had performed adequately, the petitioner must show that a defense

       was overlooked or impaired and that the defense would likely have changed the

       outcome of the proceeding.” Segura, 749 N.E.2d at 499. “When a post-

       conviction allegation of ineffective assistance relates to trial counsel’s failure to

       raise a defense . . . Segura requires that the prejudice from the omitted defense . .

       . be measured by . . . evaluating the probability of success of the omitted defense

       at trial.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind.Ct.App.2003), trans.

       denied. Consequently, Woolsey must demonstrate a reasonable probability that

       he would have succeeded at trial if a motion to suppress had been made and

       sustained. See Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009).


[11]   The State argues that the facts alleged by Woolsey “could not support a finding

       of ineffective assistance of counsel, as they aver that Petitioners and the

       arresting officer were the only persons present when the pill was found and they

       offered conflicting accounts of how the drugs were discovered.” 1 Appellee’s Br.

       p. 11. According to the State, “Such would not have supported a successful

       motion to suppress the controlled substance, and trial counsel’s advice to enter

       into the plea agreement was the most professionally supportable representation

       he could offer under these averred circumstances.” Id. However, we cannot

       say that, as a matter of law, the trial court would have believed the police officer

       instead of Woolsey. The petition and State’s answer provide minimal




       1
        The State also argues that Woolsey’s argument is waived for failure to cite appropriate authorities.
       However, we are able to discern Woolsey’s argument, and we conclude it is not waived.

       Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015             Page 6 of 7
       information regarding Woolsey’s conviction. It is not possible to say

       conclusively, based merely on the pleadings, that Woolsey’s petition could not

       be successful. We emphasize that, if the facts pled raise an issue of possible

       merit, then the petition should not be summarily disposed of even though the

       petitioner has only a remote chance of establishing his or her claim. 2 Allen, 791

       N.E.2d at 753.


                                                    Conclusion
[12]   Because Woolsey pled sufficient facts to raise an issue of possible merit, we find

       that the post-conviction court erred in summarily denying his post-conviction

       relief petition. As a result, we reverse and remand for further proceedings on

       Woolsey’s ineffective assistance of counsel claim.


[13]   Reversed and remanded.


       May, J., and Pyle, J., concur.




       2
         The State did not address its laches affirmative defense on appeal. We note that there is also not enough
       information in the pleadings regarding this issue to conclusively make a determination. That issue would
       also be more appropriately addressed in an evidentiary hearing or through the submission of evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A01-1407-CR-301 |February 20, 2015             Page 7 of 7
