                                                            FILED
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                                                          May 23 2012, 8:44 am
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

G. ALLEN LIDY                                   GREGORY F. ZOELLER
Roscoe Stovall, Jr., & Associates               Attorney General of Indiana
Mooresville, Indiana

                                                IAN MCLEAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DIONNE HARRIS,                                  )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 34A04-1111-PC-593
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE HOWARD SUPERIOR COURT
                      The Honorable George A. Hopkins, Special Judge
                             Cause No. 34D01-0703-PC-176


                                       May 23, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

      Dionne Harris appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                          Issues

      Harris raises three issues, which we restate as:

             I.     whether the post-conviction court special judge should
                    have held a new evidentiary hearing before issuing his
                    findings of fact and conclusions thereon;

             II.    whether Harris’s guilty plea was voluntary; and

             III.   whether Harris received ineffective assistance of trial
                    counsel.

                                          Facts

      In March 2005, the State charged Harris with Class A felony dealing in cocaine,

Class C felony possession of cocaine, and Class C misdemeanor operating a motor

vehicle without having received a license, and alleged that Harris was an habitual

offender. In a separate cause, Harris was also charged with two counts of Class D felony

theft. Harris filed a motion to suppress, and on January 5, 2007, the trial court denied

Harris’s motion. After the motion was denied, Harris and his attorney agreed that they

should appeal the denial. However, they did not discuss filing an interlocutory appeal.

      During the next week, the State offered Harris a plea agreement. Under the plea

agreement, if Harris pled guilty to Class A felony dealing in cocaine, the State agreed to

dismiss the remaining charges, including the theft charges and the habitual offender


                                            2
allegation. Harris’s attorney discussed the proposed plea agreement with him. His

attorney recalled advising Harris that, by entering into the plea agreement, he was

waiving his right to appeal his conviction. However, they did not specifically discuss the

appeal of the denial of the motion to suppress at that time.

       Harris decided to accept the plea agreement, and a guilty plea hearing was held on

February 7, 2007.     At the guilty plea hearing, the trial court advised Harris of his rights,

including the following advisement: “If you were to have a trial and you were to be found

guilty you would have the right to appeal your conviction to the Indiana Supreme Court

or the Court of Appeals, but by pleading guilty you’re giving up that right.” Petitioner’s

Exhibit 2 p. 3. Harris indicated that he understood his rights and did not have any

questions. The trial court accepted Harris’s guilty plea and sentenced him to thirty years

with ten years suspended to probation for the Class A felony dealing in cocaine

conviction. A few days after sentencing, Harris asked his attorney about the appeal of the

denial of the motion to suppress, and his attorney said an appeal of the denial was not

possible after the guilty plea.

       In 2007, Harris filed a petition for post-conviction relief, which was subsequently

amended several times. Ultimately, Harris argued that: (1) his credit time was calculated

incorrectly; (2) his guilty plea was involuntary; and (3) he received ineffective assistance

of counsel. The post-conviction court held an evidentiary hearing on September 17,

2010. In July 2011, Harris filed a motion for appointment of a special judge, and the

Indiana Supreme Court appointed Judge George Hopkins as the special judge. After

Judge Hopkins was appointed, Harris filed a pro se appearance, and his attorney filed a

                                              3
motion to withdraw, which Judge Hopkins granted. Harris also filed a request for a copy

of the chronological case summary and a copy of the post-conviction transcripts. On

October 4, 2011, Judge Hopkins entered findings of fact and conclusions thereon denying

Harris’s petition for post-conviction relief regarding his ineffective assistance of counsel

and involuntary guilty plea claims and granting Harris’s petition for post-conviction relief

regarding his credit time claim. Harris now appeals.

                                            Analysis

          Harris appeals the post-conviction court’s denial of his petition for post-conviction

relief.    A court that hears a post-conviction claim must make findings of fact and

conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899,

905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). “The findings must be supported

by facts and the conclusions must be supported by the law.” Id. Our review on appeal is

limited to these findings and conclusions. Id. Because the petitioner bears the burden of

proof in the post-conviction court, an unsuccessful petitioner appeals from a negative

judgment. Id. (citing P-C.R. 1(5)). “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 trial court.’” Id. (quoting Allen v. State, 749

N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review, “[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.

                                 I. New Evidentiary Hearing
                                                4
          After Judge Menges held an evidentiary hearing on Harris’s petition for post-

conviction relief, a special judge was appointed pursuant to Indiana Trial Rule 53.2.1

Harris argues that the special judge should have conducted a new evidentiary hearing to

determine the weight and credibility of the testimony.2

          Even assuming Harris could request such a hearing, he concedes that “this due

process right may be waived and/or the parties can stipulate to the validity of the ability

of the successor judge to rule on the evidence presented.” Appellant’s Br. p. 8. Further,

Harris concedes that “the record is silent as to whether there was an objection to the



1
    Indiana Trial Rule 53.2 provides:

                  (A)      Time limitation for holding matter under advisement. Whenever
                           a cause (including for this purpose a petition for post conviction
                           relief) has been tried to the court and taken under advisement by
                           the judge, and the judge fails to determine any issue of law or
                           fact within ninety (90) days, the submission of all the pending
                           issues and the cause may be withdrawn from the trial judge and
                           transferred to the Supreme Court for the appointment of a special
                           judge.

                  (B)      Exceptions. The time limitation for holding an issue under
                           advisement established under Section (A) of this rule shall not
                           apply where:

                           (1)     The parties who have appeared or their counsel stipulate
                                   or agree on record that the time limitation for decision
                                   set forth in this rule shall not apply; or

                           (2)     The time limitation for decision has been extended by
                                   the Supreme Court pursuant to Trial Rule 53.1(D).

                                           *****
2
  Harris argues that Indiana Trial Rule 63(A), which pertains to the disability or unavailability of a judge
after the trial or hearing, should apply. Rule 63(A) provides, in part, that if the special judge “is satisfied
that he cannot perform those [post-trial or post-hearing] duties because he did not preside at the trial or for
any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part.” We need
not address the application of Rule 63(A) because Harris waived this argument.


                                                       5
Special Judge’s ability to rule on the ‘cold record’ and there is no evidence that the

parties stipulated that the Special Judge could so rule.” Id. Our review of the record

reveals that, although Harris filed other motions after the special judge was appointed, he

did not request that the special judge hold a new evidentiary hearing. The right to have a

special judge rehear evidence to make an evaluation of the credibility of witnesses and

weight of the evidence may be waived. Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct.

App. 1985). Harris waived this argument.

                                II. Involuntary Guilty Plea

       Harris argues that the post-conviction court erred by finding that his guilty plea

was voluntary. This claim relates to Harris’s alleged belief that he could appeal the

denial of his motion to suppress despite his guilty plea. However, “[a] trial court lacks

the authority to allow defendants the right to appeal the denial of a motion to suppress

evidence when a defendant enters a guilty plea, even where a plea agreement maintains

that such an appeal is permitted.” Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009).

       Voluntariness in Indiana practice “focuses on whether the defendant knowingly

and freely entered the plea, in contrast to ineffective assistance, which turns on the

performance of counsel and resulting prejudice.” Cornelious v. State, 846 N.E.2d 354,

358 (Ind. Ct. App. 2006), trans. denied. A guilty plea entered after the trial court has

reviewed the various rights that a defendant is waiving and has made the inquiries called

for by statute is unlikely to be found wanting in a collateral attack. Id. at 357 (citing State

v. Moore, 678 N.E.2d 1258, 1265 (Ind. 1997), cert. denied). “However, defendants who

can show that they were coerced or misled into pleading guilty by the judge, prosecutor

                                              6
or defense counsel will present colorable claims for relief.” Id. (quoting Moore, 678

N.E.2d at 1266). In assessing the voluntariness of a plea, we review all of the evidence

before the post-conviction court, including testimony given at the post-conviction

hearing, the transcript of the petitioner’s original sentencing, and any plea agreements or

other exhibits that are a part of the record. Id. at 357-58.

       At the post-conviction hearing, Harris argued that his guilty plea was “not given

voluntarily because he believed he had a right to appeal the denial of the Motion to

suppress after he was sentenced.” Appellant’s App. p. 19. The post-conviction court

noted in its findings that Harris had previously been convicted of several felonies, that his

statement that he believed he could appeal the motion to suppress despite the guilty plea

was “self serving and not corroborated,” that Harris understood the terms of the plea

agreement, that Harris was satisfied with the terms of the plea at the time of sentencing,

and that Harris did not express any dissatisfaction until after sentencing. Id. The post-

conviction court concluded that Harris failed to show by a preponderance of the evidence

that his plea was not voluntary.

       On appeal, Harris relies on Cornelious and Lineberry v. State, 747 N.E.2d 1151

(Ind. Ct. App. 2001), for the proposition that his guilty plea was involuntary. However,

both Cornelious and Lineberry are distinguishable. In both of those cases, the defendants

pled guilty and were specifically advised that they could appeal the denial of a pre-trial

motion.   Cornelius, 846 N.E.2d at 356-57; Lineberry, 747 N.E.2d at 1154.              Here,

although Harris and his counsel briefly talked about appealing the denial of his motion to

suppress, Harris’s counsel never informed him that an appeal was in process. In fact, his

                                              7
counsel had no intention of filing an interlocutory appeal.           Tr. pp. 42-43.     More

importantly, Harris was never advised that he could appeal the denial of his motion to

suppress despite his guilty plea. To the contrary, at the guilty plea hearing, the trial court

advised Harris of his rights, including the following advisement: “If you were to have a

trial and you were to be found guilty you would have the right to appeal your conviction

to the Indiana Supreme Court or the Court of Appeals, but by pleading guilty you’re

giving up that right.” Petitioner’s Exhibit 2 p. 3. Harris indicated that he understood his

rights and did not have any questions. Harris did not raise the issue of appealing the

denial of the motion to suppress until he had already pled guilty and been sentenced.

Further, Harris received a substantial benefit from the plea agreement—including the

dismissal of several other charges and an habitual offender allegation. Even if Harris was

mistaken in his belief that he could still appeal the denial of his motion to suppress, that is

not the same as showing that he was coerced or misled into pleading guilty. Harris has

failed to meet his burden of demonstrating that his guilty plea was involuntary, and the

post-conviction court’s findings and conclusion on this issue are not clearly erroneous.

                          III. Ineffective Assistance of Counsel

       In a related claim, Harris appeals the post-conviction court’s denial of his claim of

ineffective assistance of counsel. Harris contends that his trial counsel was ineffective

for failing to advise him that he could not appeal the denial of the motion to suppress if

he pled guilty. To prevail on a claim of ineffective assistance of counsel, a petitioner

must demonstrate both that his or her counsel’s performance was deficient and that the

petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d

                                              8
102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984)), cert. denied. We need not determine whether Harris’s counsel was

deficient because we conclude that Harris failed to demonstrate prejudice.

       In analyzing prejudice in the context of a guilty plea, we review such ineffective

assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura

created two categories of claims and enunciated different treatments of each respective

category, depending upon whether the ineffective assistance allegation related to (1) an

unutilized defense or failure to mitigate a penalty, or (2) an improper advisement of penal

consequences. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing

Segura, 749 N.E.2d at 507), trans. denied.          Segura further divided the “penal

consequences” category into two subcategories. Id. The first subcategory concerns

claims of promised leniency. Segura, 749 N.E.2d at 504-05. The second subcategory

concerns claims of incorrect advice as to the law regarding the range of penal

consequences. Segura, 749 N.E.2d at 504.

       Harris claims that his argument relates to the second category of Segura claims—

”defense trial counsel’s failure to advise the Appellant that one of the penal consequences

of his guilty plea would be that he could not further appeal his Motion to Suppress.”

Appellant’s Br. p. 15. However, we view Harris’s claim as falling in the first category of

Segura claims, i.e., Harris’s counsel’s alleged error or omission had the effect of

overlooking or impairing a defense. See Helton v. State, 907 N.E.2d 1020, 1023-24 (Ind.

2009) (holding that trial counsel was not ineffective for failing to file a motion to

suppress where the defendant pled guilty and the defendant was required to show “a

                                            9
reasonable probability that he would have succeeded at trial if a motion to suppress had

been made and sustained”). When a post-conviction allegation of ineffective assistance

relates to trial counsel’s failure to raise a defense, Segura requires that the prejudice from

an impaired or omitted defense be measured by evaluating the probability of success of

the impaired or omitted defense at trial. Willoughby, 792 N.E.2d at 563. Harris makes

no argument regarding the probability of success if he had appealed the denial of the

motion to suppress, and he failed to meet his burden of demonstrating prejudice. The

post-conviction court’s conclusion on this claim is not clearly erroneous.

                                        Conclusion

       Harris waived his claim that the special judge should have held a second

evidentiary hearing, and the post-conviction court’s denial of Harris’s petition for post-

conviction relief is not clearly erroneous. We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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