MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Nov 10 2015, 8:35 am
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen T. Owens                                        Gregory F. Zoeller
Public Defender of Indiana                              Attorney General of Indiana
Jay M. Lee                                              Ellen H. Meilaender
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Donald S. Adcock,                                       November 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1504-PC-147
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        20D03-1308-PC-50



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 1 of 19
                               Case Summary and Issues
[1]   On August 20, 2009, Donald Adcock entered a plea of guilty to two counts of

      child molesting as Class C felonies. The trial court accepted Adcock’s plea,

      entered a judgment of conviction on both counts, and sentenced him to sixteen

      years in the Indiana Department of Correction. Thereafter, Adcock filed a

      petition for post-conviction relief wherein he alleged his counsel was ineffective

      and his guilty plea was involuntary. The post-conviction court denied Adcock’s

      petition. Adcock appeals the denial of post-conviction relief, raising two issues

      for our review, which we restate as: 1) whether the post-conviction court erred

      in concluding trial counsel was not ineffective, and 2) whether the post-

      conviction court erred in concluding his guilty plea was not made involuntarily.

      Concluding counsel was not ineffective and that his guilty plea was not made

      involuntarily, we affirm.



                            Facts and Procedural History
[2]   On January 7, 2009, twelve-year-old C.S. complained to authorities her step-

      father, Adcock, had touched her vagina multiple times over a two-year period

      when she was around the age of nine or ten. When interviewed by a forensic

      interviewer, C.S. stated Adcock would come into her room and touch her

      vagina under her clothes and on the skin. When interviewed by police, Adcock

      admitted to rubbing C.S.’s vagina multiple times.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 2 of 19
[3]   On April 9, the State charged Adcock with two counts of Class C felony child

      molesting. On May 19, Susan Snyder, the deputy prosecuting attorney,

      tendered a plea offer to Adcock’s counsel, Fay Schwartz:


               My review of Mr. Adcock’s criminal history shows that he has
               two prior class D felonies for possession of marijuana. My initial
               thought, after reading the sentencing enhancement statutes, is
               that Mr. Adcock is habitual eligible. In an effort to dispose of
               this case in a manner other than trial, the State is willing to
               extend the following plea agreement in exchange for your client’s
               guilty plea: Any sentence authorized by law but no more than 35
               years to be executed.


      Appellant’s Exhibit D. After Schwartz expressed concern as to whether

      Adcock was, in fact, habitual eligible, Snyder discovered Adcock was indeed

      not habitual eligible. As negotiations continued, Snyder indicated to Schwartz

      the State may consider amending the charges to add either, or both, Class A

      felony child molesting and Class A attempted child molesting, but did not do so

      originally because Adcock confessed.


[4]   On June 11, Snyder tendered a final plea offer. According to Schwartz’s notes, 1

      the State’s final offer was for sixteen years, and the offer was to remain open for

      one week. Per the note, if the parties could not reach an agreement, Snyder

      would file an “‘A’ and felony enhancement.” Appellant’s Ex. H. Despite the

      note’s ambiguity, Schwartz acted under the impression that, in exchange for a



      1
       Unlike the first plea offer, there is nothing in the record indicating the precise language of the State’s final
      offer aside from the signed written plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015                Page 3 of 19
      guilty plea, the State would not charge Adcock with a Class A felony.

      Schwartz relayed the State’s offer to Adcock. Adcock accepted the State’s offer.


[5]   On June 18, the trial court convened under the premise an agreement had been

      reached for Adcock to plead guilty and, in exchange, the State would forego the

      Class A felony charge. When the trial court asked Adcock whether he

      understood he would be entering a plea of guilty in exchange for the State not

      filing a Class A felony, Adcock responded affirmatively. Due to confusion as to

      whether the sentence was to be capped or fixed at sixteen years, however, the

      trial court found there was no agreement between the parties. The trial court

      continued the hearing for one week.


[6]   On June 25, the trial court reconvened, and the parties proposed the same plea

      agreement they attempted to enter a week prior. In exchange for the State

      forgoing the filing of a Class A felony, Adcock entered a plea of guilty on both

      counts of child molesting as Class C felonies and agreed to a fixed sixteen-year

      sentence in the Indiana Department of Correction. Per the agreement, the trial

      court entered a judgment of conviction on both counts and sentenced Adcock to

      eight years on each count, to be served consecutively for a total of sixteen years.


[7]   On August 5, 2013 Adcock filed a pro se petition for post-conviction relief.

      Adcock’s petition was later amended by counsel. In his second amended

      petition, Adcock claimed his trial counsel was ineffective and his guilty plea

      was involuntary. Specifically, he argued his guilty plea had been induced by

      the State’s threats to add an habitual offender enhancement and/or a Class A


      Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 4 of 19
       felony child molesting charge, threats which were illusory because he could not

       be convicted of either. Therefore, he claimed, counsel was deficient in relaying

       the illusory threats to him as viable threats.


[8]    On January 6, 2015, the post-conviction court held an evidentiary hearing, and

       on April 22, the court issued its findings of fact and conclusions of law denying

       Adcock’s petition for post-conviction relief. This appeal ensued.



                                 Discussion and Decision
                       I. Post-Conviction Standard of Review
[9]    Post-conviction procedures create a narrow remedy for subsequent collateral

       challenges to convictions, and those challenges must be based on the grounds

       enumerated in post-conviction rules. Parish v. State, 838 N.E.2d 495, 499 (Ind.

       Ct. App. 2005). A post-conviction proceeding is a civil proceeding, and the

       defendant must establish his claims by a preponderance of the evidence. Id.


[10]   A petitioner who has been denied post-conviction relief “faces a rigorous

       standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

       In reviewing the judgment of a post-conviction court, we consider only the

       evidence and reasonable inferences supporting the judgement. Hall v. State, 849

       N.E.2d 466, 468 (Ind. 2006). “On appeal, we may not reweigh the evidence or

       reassess the credibility of the witnesses.” Rowe v. State, 915 N.E.2d 561, 563

       (Ind. Ct. App. 2009), trans. denied. The post-conviction court’s denial of post-

       conviction relief will be affirmed unless the evidence leads “unerringly and

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 5 of 19
       unmistakably to a decision opposite that reached by the post-conviction court.”

       McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is

       without conflict and leads to but one conclusion, and the post-conviction court

       reached the opposite conclusion, will the court’s findings or conclusions be

       disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do not

       defer to the post-conviction court’s legal conclusions, but do accept its factual

       findings unless they are clearly erroneous. Stevens v. State, 770 N.E.2d 739, 746

       (Ind. 2002) (citations omitted), cert. denied, 540 U.S. 830 (2003).


                                     II. Ineffective Counsel
                                       A. Standard of Review
[11]   We review claims of ineffective assistance of counsel under the two-prong test

       set forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690

       N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). To prevail on a

       claim of ineffective assistance of counsel, the petitioner must show 1) his

       counsel’s performance was deficient, and 2) the lack of reasonable

       representation prejudiced him. Randolph v. State, 802 N.E.2d 1008, 1013 (Ind.

       Ct. App. 2004), trans. denied. To satisfy the first prong, the petitioner must show

       counsel’s representation fell below an objective standard of reasonableness and

       counsel committed errors so serious petitioner did not have the “counsel”

       guaranteed by the Sixth Amendment of the United States Constitution. Reed v.

       State, 856 N.E.2d 1189, 1195 (Ind. 2006). To satisfy the second prong, the

       petitioner must show a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. Id. “A reasonable
       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 6 of 19
       probability is a probability sufficient to undermine confidence in the outcome.”

       Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at 694).


[12]   The standard for prejudice in a guilty plea setting, however, is stated slightly

       different. When a defendant contests his guilty plea based on ineffective

       assistance of counsel, we apply the same two-part test from Strickland discussed

       above. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The first part, regarding

       counsel’s performance, is largely the same. Id. The prejudice requirement,

       however, “focuses on whether counsel’s constitutionally ineffective

       performance affected the outcome of the plea process. In other words . . . the

       defendant must show that there is a reasonable probability that, but for

       counsel’s errors, he would not have pleaded guilty and would have insisted on

       going to trial.” Id. at 59.


[13]   Under this standard, “[c]ounsel is afforded considerable discretion in choosing

       strategy and tactics, and we will accord those decisions deference.” Timberlake

       v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002).

       When reviewing ineffective assistance of counsel claims, we presume counsel

       rendered adequate legal assistance. Stevens, 770 N.E.2d at 746. To overcome

       this presumption, the defendant must offer strong and convincing evidence.

       Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.


                              B. Counsel’s Alleged Deficiencies
[14]   Adcock contends trial counsel rendered deficient performance when she

       advised him to enter a guilty plea in response to the State’s illusory threats of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 7 of 19
       adding an habitual offender enhancement and filing a Class A felony charge.

       Thus, in order to determine whether counsel was deficient, we must determine

       first whether an habitual offender enhancement and the filing of a Class A

       felony charge were threats, and if so, whether they were illusory.


                                   1. Habitual Offender Enhancement

[15]   Adcock argues the State’s threat of adding an habitual offender enhancement

       was illusory because he was not habitual offender eligible. In support of his

       argument, Adcock raises three points. First, he cites the State’s first plea offer,

       which included an illusory threat of adding an habitual offender enhancement.

       Second, he cites his testimony at the post-conviction evidentiary hearing, during

       which he stated he was led to believe if he did not plead guilty, the State would

       add an habitual offender allegation. Third, he cites Schwartz’s note, made one

       week prior to the June 18 plea hearing, which included the phrase “‘A’ and

       felony enhancement.” Petitioners’ Ex. H. This note, he claims, shows the

       illusory threat existed at least one week prior to the June 18 plea hearing.


[16]   At the outset, we note the threat was illusory when first stated to Schwartz

       because Adcock indeed was not habitual eligible. But, as the post-conviction

       court found,

               26. Ms. Schwartz testified that she recalled receiving a letter
               dated May 19, 2009 from Deputy Prosecuting Attorney Susan
               Snyder, and also acknowledged a note in her file dated June 11,
               2009 that contained some reference to a felony enhancement.
               Ms. Schwartz went on to testify that she did not think that the
               Habitual Offender Enhancement was a real consideration; and

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 8 of 19
        that she recognized a problem with the sentence initially
        proposed by Ms. Snyder when she received the May 19, 2000
        letter. However, Ms. Schwartz said that she had an obligation to
        tell [Adcock] everything the State proposed even though she
        knew the Habitual Offender Enhancement could not be a
        significant item in the plea negotiations.


        27. Ms. Snyder testified that soon after she sent the May 19,
        2009, letter to Ms. Schwartz, and well before the plea of guilty
        was entered, she and Ms. Schwartz realized that the Habitual
        Offender Enhancement was not viable. Ms. Snyder said the
        Habitual Offender Enhancement was not a factor after she re-
        assessed the case, and she changed the offered sentence term
        from thirty-five (35) to sixteen (16) years as soon as she realized
        there was no basis for a sentencing enhancement.


        28. Even if Ms. Schwartz did initially convey to [Adcock] that
        the State might file a sentencing enhancement in this case, thereby
        causing [Adcock] to originally form the belief that he was eligible for
        Habitual Offender Enhancement, the testimony of both Ms. Schwartz
        and Ms. Snyder establishes that this possibility as originally
        contemplated was caught early on by counsel as error, and the attendant
        thirty-five (35) year sentence term was withdrawn and was never a part
        of the plea agreement. Nothing about the erroneous Habitual
        Offender Enhancement was ever pursued and was not an issue at
        the time the final written Plea Agreement was tendered to the
        court at the plea hearing. Therefore, the plea was not improperly
        influenced by error on the part of counsel and [Adcock] was
        competently advised as to his penal consequences.


Appellant’s Appendix at 170-71 (emphasis added). Therefore, the post-

conviction court was presented with the testimony of Adcock, Snyder, and

Schwartz, and based off their testimony, concluded the threat of an habitual

offender enhancement ceased to exist by the time Adcock entered his guilty

Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 9 of 19
       plea. We will not reassess the credibility of witnesses. Rowe, 915 N.E.2d at

       563.


[17]   We note the post-conviction court’s conclusions are supported by at least one

       additional point. At the June 18 plea hearing, neither the State, Schwartz, nor

       Adcock noted a threat of an habitual offender enhancement:

               [Court:] So the consideration flowing to Mr. Adcock for his plea
               or pleas, is that the state is undertaking not to file those
               additional charges; is that correct?
               [Schwartz:] That’s correct.
               [Court:] Is that your understanding, Ms. Snyder?
               [Snyder:] It is, your Honor.
               [Court:] Are those felony charges?
               [Snyder:] It would have been – gone up to a Class A, your
               Honor, so, yes.
               [Court:] Very well. And that is your understanding of the
               consideration as well, Mr. Adcock?
               [Adcock:] Yes, sir, it is.


       June 18, 2009, Guilty Plea Hearing Transcript at 5. The plea agreement did not

       change between the June 18 and June 25 hearings.


[18]   We conclude the evidence does not lead “unerringly and unmistakably to a

       decision opposite that reached by the post-conviction court.” McCary, 761

       N.E.2d at 391. Because there was no threat at the time Adcock entered his

       guilty plea, we conclude Schwartz’s representation was not deficient.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 10 of 19
                                              2. Class A Felony

[19]   At the outset, we note the State concedes “[t]he only ‘threat’ that existed at the

       time [Adcock] pled guilty was the State’s intent to file Class A felony charges if

       [Adcock] did not plead guilty.” State’s Brief of Appellee at 10. Adcock argues

       the threat is illusory because the State could not legally support a Class A felony

       allegation—specifically the State could not prove Adcock did, or attempted to,

       penetrate C.S.’s sexual organs—and therefore Schwartz was deficient in failing

       to recognize the illusory nature of the threat. The State argues the facts and

       circumstances create probable cause to support the threat.


[20]   “Generally, ‘a bargained plea, motivated by an improper threat, is to be deemed

       illusory and a denial of substantive rights.’” Springer v. State, 952 N.E.2d 799,

       805 (Ind. Ct. App. 2011) (quoting Champion v. State, 478 N.E.2d 681, 683 (Ind.

       1985)), trans. denied. “At the moment the plea is entered, the State must possess

       the power to carry out any threat which was a factor in obtaining the plea

       agreement which was accepted.” Id. (citation omitted). “The lack of that real

       power is what makes the threat illusory and causes the representation to take on

       the characteristics of a trick.” Id. (citations omitted).


[21]   As relevant to this case, Class A felony child molesting is defined as engaging in

       sexual intercourse or deviate sexual conduct with a child when the child is

       under the age of fourteen and the perpetrator is over the age of twenty-one.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 11 of 19
       Ind. Code § 35-42-4-3(a)(1) (2007).2 In addition, a defendant can be convicted

       of a Class A felony for attempted child molesting. See Ind. Code § 35-41-5-1(a)

       (1977). At the time of Adcock’s crime, “deviate sexual conduct” was defined,

       in relevant part, as an act involving the penetration of the sex organ of a person

       by an object. Ind. Code § 35-41-1-9 (1984). We have held a finger is an object

       for purposes of this statute. See Gasper v. State, 833 N.E.2d 1036, 1044 (Ind. Ct.

       App. 2005), trans. denied. The female sex organ not only encompasses the

       vaginal canal, but also includes external genitalia, such as the vulva or labia.

       Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991).


[22]   Charging decisions are based on probable cause, and Indiana law has “never

       required the State to be able to demonstrate evidence on every element of an

       offense in order to file a charge or utilize a potential charge in plea

       negotiations.” Smith v. State, 770 N.E.2d 290, 297 (Ind. 2002). A prosecutor

       may properly file any charge supported by probable cause, and threatening to

       file such a charge to induce a plea is constitutionally legitimate. See

       Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). “Probable cause exists when

       the facts and circumstances within an officer’s knowledge, which are based

       upon reasonably trustworthy information, are sufficient to warrant a reasonable

       man’s belief that a crime has been or is being committed.” Stosnider v. State, 422




       2
        Indiana has since amended the statute to replace “deviate sexual conduct” with “other sexual conduct.” See
       Ind. Code § 35-42-4-3(a) (2014).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015      Page 12 of 19
       N.E.2d 1325, 1328 (Ind. Ct. App. 1981). Probable cause to charge requires

       more than mere suspicion. Id.


[23]   Adcock’s sole contention on this issue is there was no evidence of penetration,

       and therefore the threat to file a Class A felony charge was illusory.

       Specifically, he cites Spurlock v. State, 675 N.E.2d 312 (Ind. 1996), where our

       supreme court held proof of the slightest degree of penetration of a sex organ is

       sufficient to prove penetration, but a showing of mere contact—by itself—

       between an object and sex organ is not sufficient to support a conviction. Id. at

       315. As we recently explained,


               [Spurlock] clearly establishes that mere contact between a male
               and female sex organ is not by itself sufficient evidence of
               penetration. There, the twelve-year-old victim testified that the
               defendant’s penis touched her vagina. She also said that the
               defendant “tried” to have intercourse with her but she did not
               know whether he had penetrated her vagina, and there was no
               medical evidence of penetration. The court reversed the
               defendant’s conviction for Class A felony child molesting
               because there was insufficient evidence of penetration. The court
               specifically noted . . . it was confronted with a situation where
               the victim herself, who was of an age to understand and respond
               to the questions, did not state that penetration occurred and there
               was no medical or physical evidence of penetration.


       Adcock v. State, 22 N.E.3d 720, 728-29 (Ind. Ct. App. 2014) (citations and some

       internal quotation marks omitted). Similar to Spurlock, Adcock first asserts C.S.

       never stated to the forensic interviewer that penetration occurred. Second, there

       was no physical evidence of penetration. Third, C.S. was of an age to


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 13 of 19
       understand and respond to the forensic interviewer’s questions. We, however,

       find this case distinguishable from Spurlock.


[24]   The defendant in Spurlock challenged the sufficiency of the evidence after being

       convicted of child molesting. The jury concluded the State had met its high

       burden of proving beyond a reasonable doubt that Spurlock had penetrated the

       victim’s sexual organ. Here, the State never charged Adcock with a Class A

       felony; the State merely relayed its belief it could add the charge. Thus, the

       State did not need to prove the elements of Class A felony child molesting

       beyond a reasonable doubt before relaying its belief it could add the charge. In

       fact, the State never needs “to demonstrate evidence on every element of an

       offense in order to file a charge or utilize a potential charge in plea

       negotiations.” Smith, 770 N.E.2d at 297. Rather, the State need only have

       probable cause to threaten a defendant with an additional charge to induce a

       plea. Bordenkircher, 434 U.S. at 364.


[25]   We conclude the post-conviction court did not err in determining the State’s

       threat to file a Class A felony charge was viable. C.S. claimed Adcock would

       often touch her on her vagina under her clothes and on the skin. C.S. told

       Adcock to stop because it made her feel uncomfortable. Although he denied

       ever penetrating C.S., Adcock did admit to rubbing her vagina.


[26]   Additionally, at the post-conviction evidentiary hearing, Snyder testified she

       had originally contemplated filing a Class A felony because she felt there was

       more than enough probable cause:


       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 14 of 19
        [Snyder:] Based upon the Probable Cause Affidavit, I had been
        considering amending it to, probably I would have gone to the
        completed offense of Class A Child Molest, and then I would
        have the inherently included Attempt, or sometimes if I think my
        Attempt is a stronger case, I will do the completed case of a Class
        A and then do a second count of Attempted to make everybody
        aware of it.
        [Adcock’s Counsel:] What in particular in the Probable Cause
        Affidavit led you to suspect that you had an A felony on your
        hands?
        [Snyder:] Slight penetration.
        [Adcock’s Counsel:] Where does that say that there was slight
        penetration?
        [Snyder:] Well, slight penetration is based upon the facts. That
        would be a legal definition. Slight penetration would be any
        penetration of the female sexual organ.
        [Adcock’s Counsel:] Okay.
        [Snyder:] In my experience . . . with the Child Molest
        prosecution case, slight penetration oftentimes in the rubbing of
        the female sexual organ, which is stimulation of the clitoris,
        which would be the breaching of the labia.
        ***
        Basically, Scotty Adcock would come in the room, reach under
        her pants, and pat her private. And then went on to say that he
        indicated that he would rub C.S.’s vaginal area. And that right
        there could be sufficient to get you started on the slight
        penetration or an attempt of slight penetration.
        [Adcock’s Counsel:] Okay. So it’s a start there?
        [Snyder:] Well, I think that that would more than give you the
        probable cause to go ahead and amend with the rest because you
        are rubbing the vaginal area.


Post-Conviction Evidentiary Hearing Transcript at 55-57. Further, Snyder

testified she originally undercharged Adcock because he had confessed and



Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 15 of 19
       took responsibility for his conduct, but she was prepared to file a Class felony A

       if a plea agreement could not be reached.


[27]   Similar to Snyder, Schwartz testified her sole concern in the plea negotiations

       was the State amending the charges to include a Class A felony child molesting

       or attempted child molesting charge. Schwartz testified she based this concern

       off her conversations with Snyder and because:


               In this particular case . . . he had given a confession as to
               touching the child under her clothes on her bare skin in her
               private area. And I know there was case law that indicated that
               penetration of the vaginal area was not required to prove the A
               [felony]. Deviate sexual conduct could be proved by penetration
               of the outer portions of the female sex organ which would be the
               lips.


       Transcript of Evidence at 41. Moreover, Schwartz testified “if Snyder could

       show that he was grooming the child, that he then touched her under the

       clothes multiple times on her genitalia, my concern was that a jury might

       believe that there was that attempt to the deviate sexual conduct.” Id. at 43

       (emphasis added). This concern rings especially true considering C.S. requested

       Adcock stop touching her.


[28]   Based on the above facts and testimony, the post-conviction court concluded,

       “the State’s threat to amend the C felony charges to A felony charges was not

       illusory. The threat [Adcock] faced at the time of the plea was solidly based on

       the law, and the State was positioned to execute the threat had the case gone to

       trial.” Appellant’s App. at 168-69. We agree; the State had probable cause and

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 16 of 19
       its threat of charging Adcock with a Class A felony was not illusory. Because

       of the State’s viable threat, Schwartz acted appropriately in relaying the threat

       to Adcock. Therefore, we conclude the evidence does not lead “unerringly and

       unmistakably to a decision opposite that reached by the post-conviction court.”

       McCary, 761 N.E.2d at 391.


[29]   Because we are not persuaded there were any illusory threats, we conclude

       Adcock’s counsel was not deficient. Thus, because Adcock does not succeed

       under the first prong of the Strickland test, we need not examine whether

       Adcock suffered any prejudice.


                                         III. Involuntary Plea
                                       A. Standard of Review
[30]   When reviewing the voluntariness of a guilty plea, we look at all the evidence

       before the post-conviction court. Moffitt v. State, 817 N.E.2d 239, 249 (Ind. Ct.

       App. 2004), trans. denied. If the evidence supports the post-conviction court’s

       determination the guilty plea was voluntary, intelligent, and knowing, we will

       not reverse. Id.


               When a guilty plea is attacked because of alleged misinformation
               concerning sentencing, the issue of the validity of such plea is
               determined by the following two-part test: (1) whether the
               defendant was aware of actual sentencing possibilities; and (2)
               whether the accurate information would have made any
               difference in his decision to enter the plea.


       Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1504-PC-147 | November 10, 2015   Page 17 of 19
                                             B. Adcock’s Plea
[31]   In arguing his plea was involuntary, Adcock incorporates the same arguments

       noted above. Specifically, he claims the State’s illusory threats had the effect of

       rendering his plea involuntary.

               Whether viewed as ineffective assistance of counsel or an
               involuntary plea, the postconviction court must resolve the
               factual issue of the materiality of the bad advice in the decision to
               plead, and postconviction relief may be granted if the plea can be
               shown to have been influenced by counsel’s error.


       Segura v. State, 749 N.E.2d 496, 504-05 (Ind. 2001). The post-conviction court

       found Adcock was not faced with an illusory threat at the time he entered a plea

       of guilty and Adcock’s counsel did not provide bad advice. Therefore, the court

       found Adcock’s plea was voluntary. As noted above, the post-conviction court

       did not err in finding there was no illusory threat by the State and Adcock’s

       counsel was not deficient. Accordingly, we find Adcock’s guilty plea was

       voluntary.




                                               Conclusion
[32]   Because Adcock did not face an illusory threat at the time he entered a guilty

       plea, we conclude Adcock’s counsel was not deficient and Adcock’s plea was




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       not involuntary. Accordingly, we affirm the denial of post-conviction relief.


[33]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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