      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Feb 19 2020, 10:40 am

      court except for the purpose of establishing                                 CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Amy E. Karozos                                           Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General of Indiana
      Meggan Smith                                             Caroline G. Templeton
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Anthony Wampler,                                         February 19, 2020
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-PC-1686
              v.                                               Appeal from the Knox Superior
                                                               Court
      State of Indiana,                                        The Honorable Ryan D.
      Appellee-Respondent.                                     Johanningsmeier, Judge
                                                               Trial Court Cause No.
                                                               42D02-1704-PC-4



      Mathias, Judge.


[1]   Anthony Wampler (“Wampler”) appeals the Knox Superior Court’s order

      denying his petition for post-conviction relief. Wampler argues, and the State


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1686 | February 19, 2020                Page 1 of 6
      agrees, that he is entitled to post-conviction relief because the trial court erred

      when it accepted his guilty plea.


[2]   We reverse and remand for proceedings consistent with this opinion.


                                 Facts and Procedural History
[3]   On May 14, 2014, Wampler pleaded guilty to Class D felony criminal trespass

      for knowingly or intentionally entering the property of North Knox East

      Elementary School after he was denied entry. He was ordered to serve eighteen

      months, with six months executed and twelve months suspended to probation.


[4]   On April 25, 2017, Wampler filed a pro se petition for post-conviction relief.

      His petition was amended by counsel on November 2, 2018. Wampler alleged

      that the trial court committed reversible error when it accepted his guilty plea

      because he maintained his innocence on a material element of the crime.


[5]   The post-conviction court held an evidentiary hearing on May 3, 2019.

      Evidence admitted at the hearing established that Wampler did not admit his

      guilt to whether he knew that he was forbidden to enter the property of the

      elementary school. At his guilty plea hearing, Wampler testified that he knew

      he was not allowed on the high school property but did not know he was barred

      from the elementary school property. Tr. pp. 8–9.


[6]   On June 24, 2019, the post-conviction court issued its order denying Wampler

      post-conviction relief. The court concluded that the trial court should not have

      accepted Wampler’s guilty plea because he did not admit guilt to an element of


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1686 | February 19, 2020   Page 2 of 6
      the crime of criminal trespass. But the court found that Wampler was not

      entitled to post-conviction relief because his claim was available for direct

      appeal, and therefore, Wampler could not raise it for the first time in a post-

      conviction proceeding. Wampler now appeals.


                                     Discussion and Decision
[7]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Davidson

      v. State, 763 N.E.2d 441, 443 (Ind. 2002). The post-conviction petitioner bears

      the burden of establishing grounds for relief by a preponderance of the

      evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Thus, on appeal

      from the denial of a petition for post-conviction relief, the petitioner stands in

      the position of one appealing from a negative judgment. Id. To prevail on

      appeal from the denial of post-conviction relief, the petitioner must show that

      the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id. at 643–44.


[8]   Because the post-conviction court made specific findings of fact and conclusions

      of law in accordance with Indiana Post-Conviction Rule 1(6), we must

      determine on review whether the post-conviction court’s findings are sufficient

      to support its judgment. McDowell v. State, 102 N.E.3d 924, 929 (Ind. Ct. App.

      2018) (citation omitted), trans. denied. Although we do not defer to the post-

      conviction court’s legal conclusions, we review the post-conviction court's

      factual findings for clear error. Id. Accordingly, we will not reweigh the


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1686 | February 19, 2020   Page 3 of 6
       evidence or judge the credibility of witnesses and will consider only the

       probative evidence and reasonable inferences flowing therefrom that support

       the post-conviction court’s decision. Id.


[9]    Wampler argues, and the State agrees, that protestation of innocence claims

       must be raised in petitions for post-conviction relief. Therefore, he claims that

       the post-conviction court erred when it concluded that his claim could have

       been raised on direct appeal and the court should have granted his petition for

       post-conviction relief.


[10]   A trial court commits reversible error by accepting a guilty plea where a

       defendant both pleads guilty and maintains his innocence at the same time. Ellis

       v. State, 67 N.E.3d 643, 646 (Ind. 2017); Harshman v. State, 232 Ind. 618, 115

       N.E.2d 501, 502 (1953) (holding “a plea of guilty tendered by one who in the

       same breath protests his innocence, or declares he actually does not know

       whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea

       upon which to base a judgment of conviction.”). The defendant’s protestation

       of innocence must have been both consistent and unequivocal. Carter v. State,

       739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v. State, 960 N.E.2d 844, 849

       (Ind. Ct. App. 2012) (defendant was entitled to relief because he consistently

       maintained innocence at the guilty plea hearing and clearly denied committing

       the crime charged).


[11]   The State concedes that Wampler protested his innocence during his guilty plea

       hearing. Appellee’s Br. at 8. The State acknowledges that “Wampler denied


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1686 | February 19, 2020   Page 4 of 6
       that he had been told he was not permitted to enter the elementary school’s

       property and the State provided no evidence that Wampler was denied entry by

       some other means.” Appellee’s Br. at 8; see also Ind. Code § 35-43-2-2 (“A

       person who . . . not having a contractual interest in the property, knowingly or

       intentionally enters the real property of another person after having been denied

       entry by the other person or that person’s agent . . . commits criminal

       trespass[.]”). Under these circumstances, the trial court should not have

       accepted Wampler’s guilty plea.


[12]   The State also agrees that Wampler’s claim could not have been raised on direct

       appeal. “[O]nce judgment is entered, a defendant may not subsequently

       challenge his guilty plea on direct appeal.” Brightman v. State, 758 N.E.2d 41, 44

       (Ind. 2001) (citing Tumulty v. State, 666 N.E.2d 394, 395–96 (Ind. 1996)). The

       correct avenue for such claims is post-conviction relief. Id. The post-conviction

       court erred when it concluded that Wampler could have raised his claim on

       direct appeal.


                                                 Conclusion
[13]   Because Wampler did not admit his guilt to each element of criminal trespass,

       the trial court erred when it accepted his guilty plea. Therefore, the post-

       conviction court erred when it denied Wampler’s petition for post-conviction

       relief.


[14]   We reverse and remand this case to the post-conviction court with instructions

       to order that the plea agreement be vacated in its entirety. This may result in the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1686 | February 19, 2020   Page 5 of 6
       State reinstating all the dismissed charges against Wampler, which is a

       necessary consequence of vacating the plea agreement. Should Wampler again

       be convicted—whether by virtue of a trial or a guilty plea—sentencing will still

       be subject to the limits imposed by Post–Conviction Rule 1(10). See Williams-

       Bey v. State, 51 N.E.3d 1261, 1267 (Ind. Ct. App. 2016).


[15]   Reversed and remanded for proceedings consistent with this opinion.


       Kirsch, J., and Bailey, J., concur.




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