                                                                         Aug 07 2015, 10:17 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Gregory F. Zoeller
      Public Defender of Indiana                                 Attorney General of Indiana
      Deidre R. Eltzroth                                         J.T. Whitehead
      Deputy Public Defender                                     Deputy Attorney General
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Willie D. Williams,                                       August 7, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                35A02-1412-PC-864
              v.                                                Appeal from the Huntington Superior
                                                                Court
      State of Indiana,                                         The Honorable Jeffrey Heffelfinger,
                                                                Judge
      Appellee-Plaintiff.
                                                                Case No. 35D01-1107-PC-14




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Willie D. Williams pled guilty to a Class C felony, a Class D felony, a Class A

      misdemeanor, and being a habitual substance offender; in exchange, the State

      dismissed a Class B felony and a Class D felony. Although sentencing was left

      to the discretion of the trial court, the maximum sentence Williams faced under

      Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                   Page 1 of 13
      the plea agreement was twenty years; in contrast, he faced a maximum sentence

      of thirty-two years under the original charges. The trial court ultimately

      sentenced Williams to an aggregate term of sixteen years.


[2]   Williams later filed a petition for post-conviction relief alleging that his plea was

      not knowing, voluntary, and intelligent because defense counsel misadvised

      him about whether he was actually eligible for the habitual-substance-offender

      enhancement. But even assuming that Williams was ineligible for the habitual-

      substance-offender enhancement, because Williams benefited from his plea

      agreement and the specific facts do not establish an objective reasonable

      probability that competent representation would have caused him not to enter a

      plea, we conclude that Williams is not entitled to relief on his claim that his

      guilty plea was not knowing, voluntary, and intelligent. We therefore affirm

      the post-conviction court.



                             Facts and Procedural History
[3]   On September 1, 2009, Williams exited I-69 in Huntington County at the

      Markle exit. Ex. D (factual basis contained in plea agreement). When

      Williams failed to stop at a stop sign at US 224, a police officer pulled him over.

      The officer approached Williams’ van and asked for his driver’s license and

      registration; Williams, however, drove off. As Williams continued driving on

      US 224, he threw a plastic bag containing pills out his van window. Williams

      eventually stopped his van again. When the officer ordered Williams out of his

      van, he refused to get out. The officer therefore unlocked the van door through

      Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015   Page 2 of 13
      the window, removed Williams from the van, and handcuffed him. Williams

      told the officer that he did not have a driver’s license. The police found $150 in

      cash inside Williams’ van and 504 pills—including methadone and

      alprazolam—packaged for sale inside the bag that Williams had thrown out his

      van window.


[4]   The State charged Williams with five counts: Count I: Class B felony dealing in

      a schedule I, II, or III controlled substance; Count II: Class C felony dealing in

      a schedule IV controlled substance; Count III: Class D felony possession of a

      controlled substance; Count IV: Class D felony resisting law enforcement; and

      Count V: Class A misdemeanor driving while suspended. Ex. A.


[5]   In October 2009 the State extended to Williams the following offer: Williams

      would plead guilty to Counts I, IV, and V; in exchange, the State would dismiss

      Counts II and III and “not file a habitual substance offender enhancement.”

      Ex. 1. In addition, the State agreed to a sentence of eighteen years with no

      probation. Id. Williams, however, rejected this offer because he believed that

      the State could not prove Count I: Class B felony dealing in a schedule I, II, or

      III controlled substance. P-C Tr. p. 18. The matter was set for a jury trial.


[6]   Based on Williams’ rejection of the offer, in December 2009 the State added a

      new count alleging that Williams was a habitual substance offender because he

      had committed two prior unrelated substance offenses. Ex. B. The State

      amended this count in May 2010 to add a third prior unrelated substance

      offense. Ex. C. Specifically, the State alleged that Williams was a habitual


      Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015   Page 3 of 13
      substance offender because he had accumulated the following prior unrelated

      substance offenses:

               1. Possession of Paraphernalia as a class A misdemeanor, committed
               on October 29, 2005, conviction entered on October 31, 2005, in the
               Allen Superior Court under Cause No. 02D04-0510-CM-007929.
               2. Possession of Cocaine as a class C felony, committed on April 4,
               1995, conviction entered on October 27, 1995, in the Marion Superior
               Court under Cause No. 49G02-9504-CF-046076.
               3. Possession of Cocaine as a felony, committed on February 21, 1992,
               conviction entered on November 15, 1999, in the 16th Judicial District
               Court, in the Parish of St. Martin, in the State of Louisiana under
               docket no. 127,610.
      Id. Williams filed an objection to this amendment, see Appellant’s App. p. 7

      (CCS entry dated May 10, 2010), but the record does not reveal the grounds for

      the objection. 1


[7]   On May 13, 2010, the day Williams’ jury trial was scheduled to start, Williams

      and the State entered a plea agreement in which Williams pled guilty to Count

      II: Class C felony dealing in a schedule IV controlled substance, Count IV:

      Class D felony resisting law enforcement, Count V: Class A misdemeanor

      driving while suspended, and being a habitual substance offender. Ex. D. In

      exchange, the State agreed to dismiss Count I (a Class B felony) and Count III

      (a Class D felony). Id. Although sentencing was left to the discretion of the




      1
        Defense counsel wrote a letter to Williams in June 2010 in which counsel opined that Williams would
      receive “8 to 12 years” at sentencing but that had he gone to trial, a jury would have convicted him on all
      counts and he would have faced “well beyond 20 years up to over 30 years.” Ex. E. Defense counsel also
      told Williams that he had “preserved our objection to the amendment on the habitual substance offender.”
      Id. But again, the letter does not reveal the grounds for the objection.

      Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                         Page 4 of 13
      trial court, see id., the maximum sentence Williams faced under the plea

      agreement was twenty years. 2


[8]   At the sentencing hearing, the trial court commented as follows:

               Mr. Williams your record is one of the worst ones that I’ve seen in
               quite a while. This makes your ninth and tenth (9th and 10th) felony
               offenses. By the Probation’s count you have a[t] least eleven (11) prior
               misdemeanor offenses[,] you have three (3) Petitions to Revoke[,]
               you’ve committed a Battery offense while you [were] awaiting
               sentencing for these offenses[,] your record shows that you have at
               least two (2) prior Batter[ies] and one (1) prior Strangulation.
      Ex. G, p. 39. The court sentenced Williams to eight years for Count II,

      enhanced by eight years for being a habitual substance offender; one and one-

      half years for Count IV; and one year for Count V. The court ordered the

      sentences to run concurrently, for an aggregate term of sixteen years.


[9]   In July 2011 Williams, pro se, filed a petition for post-conviction relief, which

      was amended by counsel in February 2014. Specifically, Williams alleged that

      his guilty plea was not knowing, voluntary, and intelligent and that his trial

      counsel was ineffective because the three convictions the State used to support

      his habitual-substance-offender enhancement were improper. At the hearing on

      his petition for post-conviction relief, Williams testified that he was never

      advised that he was ineligible for the habitual-substance-offender enhancement




      2
       Because Williams pled guilty to one crime of violence—Class D felony resisting law enforcement—the
      consecutive-sentencing limitation in Indiana Code section 35-50-1-2 did not apply. See Johnson v. State, 749
      N.E.2d 1103, 1110 (Ind. 2001) (“However, the limitations the statute imposes on consecutive sentencing do
      not apply between crimes of violence and those that are not crimes of violence.”).

      Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                         Page 5 of 13
       and that had he known he was ineligible, “I wouldn’t have pled guilty. I would

       have insisted on going to trial.” P-C Tr. p. 16. When asked why he would

       have chosen to go to trial, Williams explained:

               I feel the State couldn’t prove intent to deliver a controlled substance
               without a reasonable doubt. The State could only prove uh, a
               possession of a controlled substance which is a lesser included offense
               and knowing that without the habitual I would have insisted on going
               to trial and asked my attorney to negotiate a better plea bargain.
       Id.


[10]   Following the hearing, the post-conviction court denied relief. See Appellant’s

       App. p. 99-104 (post-conviction court’s order).


[11]   Williams now appeals.



                                   Discussion and Decision
[12]   Williams contends that the post-conviction court erred in denying him relief. In

       post-conviction proceedings, the petitioner bears the burden of proof by a

       preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State,

       881 N.E.2d 639, 643 (Ind. 2008). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment, and the standard of review is rigorous. Fisher v. State, 810

       N.E.2d 674, 679 (Ind. 2004); see also Trujillo v. State, 962 N.E.2d 110, 113 (Ind.

       2011). “To prevail on appeal from the denial of post-conviction relief, a

       petitioner must show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015           Page 6 of 13
       court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010), reh’g denied. Here,

       the post-conviction court made findings of fact and conclusions of law in

       accordance with Indiana Post-Conviction Rule 1(6). “A post-conviction court’s

       findings and judgment will be reversed only upon a showing of clear error—that

       which leaves us with a definite and firm conviction that a mistake has been

       made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation

       omitted), reh’g denied. “The post-conviction court is the sole judge of the weight

       of the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d

       1208, 1210 (Ind. 1998), reh’g denied. Accordingly, we accept the post-conviction

       court’s findings of fact unless they are clearly erroneous, but we do not defer to

       the post-conviction court’s conclusions of law. Wilson v. State, 799 N.E.2d 51,

       53 (Ind. Ct. App. 2003).


[13]   Williams first contends that the three convictions the State used to support his

       habitual-substance-offender enhancement were improper. Specifically, he

       alleges that his conviction for possession of paraphernalia does not qualify as a

       “substance offense” under the habitual-substance-offender statute and that the

       other two convictions—both for possession of cocaine—“are not in the proper

       sequence.” Appellant’s Br. p. 6.


[14]   On appeal, the State does not challenge Williams’ assertion that his two

       possession-of-cocaine convictions are not in the proper sequence. See Ind. Code

       Ann. § 35-50-2-10 (West 2012) (“After a person has been convicted and

       sentenced for a substance offense committed after sentencing for a prior

       unrelated substance offense conviction, the person has accumulated two (2)

       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015   Page 7 of 13
       prior unrelated substance offense convictions.”). 3 Instead, the State argues that

       Williams’ conviction for possession of paraphernalia indeed qualifies as a

       “substance offense” under the habitual-substance-offender statute, and when

       that conviction is combined with one of Williams’ possession-of-cocaine

       convictions, “the State had the necessary number of prior convictions, namely

       two.” Appellee’s Br. p. 14.


[15]   At the time of the offenses, Indiana’s habitual-substance-offender statute

       provided, in part:

               (a) As used in this section:
                        (1) “Drug” means a drug or a controlled substance (as defined
                        in IC 35-48-1).
                        (2) “Substance offense” means a Class A misdemeanor or a felony in
                        which the possession, use, abuse, delivery, transportation, or
                        manufacture of alcohol or drugs is a material element of the crime. The
                        term includes an offense under IC 9-30-5 and an offense under IC 9-11-
                        2 (before its repeal).
               (b) The state may seek to have a person sentenced as a habitual
               substance offender for any substance offense by alleging, on a page
               separate from the rest of the charging instrument, that the person has
               accumulated two (2) prior unrelated substance offense convictions.
               (c) After a person has been convicted and sentenced for a substance
               offense committed after sentencing for a prior unrelated substance




       3
         Indeed, the dates contained in the habitual-substance-offender charging information confirm that Williams’
       two possession-of-cocaine convictions are not in the proper sequence. That is, Williams committed the
       possession offense in the Louisiana case in 1992 but was not sentenced until 1999. Williams committed the
       possession offense in the Indiana case in 1995 and was sentenced that same year. Because Williams was not
       sentenced in the Louisiana case before he committed the possession offense in the Indiana case, the Louisiana
       conviction cannot be used to support Williams’ habitual-substance-offender enhancement.

       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                         Page 8 of 13
                offense conviction, the person has accumulated two (2) prior unrelated
                substance offense convictions. . . .
                                                        *****
                (f) The court shall sentence a person found to be a habitual substance
                offender to an additional fixed term of at least three (3) years but not
                more than eight (8) years imprisonment, to be added to the term of
                imprisonment imposed under IC 35-50-2 or IC 35-50-3. . . .


       Ind. Code Ann. § 35-50-2-10 (West 2012) (emphasis added). Both parties

       concede that there are no appellate cases directly addressing whether possession

       of paraphernalia qualifies as a “substance offense” under the habitual-

       substance-offender statute. See Appellant’s Br. p. 7 (“No appellate cases address

       this issue directly.”); Appellee’s Br. p. 14 (“Unsurprisingly, although case law

       on the specific issue is lacking . . . .”). 4


[16]   Indiana, however, made significant changes to its criminal code effective July 1,

       2014. One of those changes was to repeal the habitual-substance-offender

       statute effective July 1, 2014. See P.L. 158-2013. Now, drug felonies are

       included under the general habitual-offender statute. See Peoples v. State, 929

       N.E.2d 750, 751-52 (Ind. 2010) (explaining that in 2001 the legislature limited

       when drug offenses could be counted under the general habitual-offender

       statute); compare Ind. Code Ann. § 35-50-2-8(b)(3)(C), (d)(3)(C) (West 2012)




       4
         In Aslinger v. State, another panel of this Court noted in a footnote that the defendant’s possession-of-
       paraphernalia conviction “would merit the HSO enhancement.” 2 N.E.3d 84, 92 n.4 (Ind. Ct. App. 2014),
       clarified on reh’g, Aslinger v. State, No. 35A02-1303-CR-296 (Ind. Ct. App. May 7, 2014), trans. not sought.
       However, the Court did not directly address whether possession of paraphernalia satisfied the statutory
       definition of “substance offense.”

       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                          Page 9 of 13
       (limiting the number of drug offenses that could be used to support the general

       habitual-offender enhancement) with Ind. Code Ann. § 35-50-2-8 (West 2014

       Supp.) (new statute containing no such limits). Accordingly, whether

       possession of paraphernalia qualifies as a “substance offense” under the now-

       repealed habitual-substance-offender statute is not a pressing issue in light of the

       recent changes to our criminal code.


[17]   But even assuming that Williams’ possession-of-paraphernalia conviction did

       not qualify as a “substance offense” under the now-repealed habitual-substance-

       offender statute and therefore Williams did not have two prior unrelated

       substance-offense convictions, we find that Williams is still not entitled to relief

       on his claim that his guilty plea was not knowing, voluntary, and intelligent.

       “The long-standing test for the validity of a guilty plea is ‘whether the plea

       represents a voluntary and intelligent choice among the alternative courses of

       action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)

       (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this

       objective, the Indiana Code provides that the court accepting the guilty plea

       must determine that the defendant, among other things: (1) understands the

       nature of the charges; (2) has been informed that a guilty plea effectively waives

       several constitutional rights—including trial by jury, confrontation and cross-

       examination of witnesses, compulsory process, and proof of guilt beyond a

       reasonable doubt without self-incrimination; and (3) has been informed of the

       maximum and minimum sentences for the crimes charged. Id.; see also Ind.

       Code § 35-35-1-2. In assessing the voluntariness of the plea, we review all the


       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015   Page 10 of 13
       evidence before the post-conviction court, including testimony given at the post-

       conviction trial, the transcript of the petitioner’s original sentencing, and any

       plea agreements or other exhibits that are part of the record. Diaz, 934 N.E.2d

       at 1094.


[18]   However, a defendant may not enter a plea agreement calling for an illegal

       sentence, benefit from that sentence, and then later complain that it was an

       illegal sentence. Russell v. State, --- N.E.3d ---, --- (Ind. June 29, 2015); see also

       Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987). This is because defendants

       who plead guilty to achieve favorable outcomes in the process of bargaining

       give up a plethora of substantive claims and procedural rights. Lee v. State, 816

       N.E.2d 35, 40 (Ind. 2004); Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001).

       Therefore, where a defendant “knowingly, intelligently, and voluntarily enters a

       plea agreement, there is no compelling reason to set aside the conviction on the

       grounds that the sentence is later determined to be invalid or to have contained

       a mistake of law.” Russell, --- N.E.3d at --- (emphasis and quotation omitted).


[19]   Williams asserts that he was “misadvised” about the penal consequences of his

       plea and “[h]ad he known he was actually ineligible [for the habitual-substance-

       offender enhancement], he would not have pled to it and would have insisted

       on trial.” Appellant’s Br. p. 10. With respect to a claim that a defendant has

       received incorrect advice as to the penal consequences of a plea:

               Whether viewed as ineffective assistance of counsel or an involuntary plea, the
               post-conviction court must resolve the factual issue of the materiality
               of the bad advice in the decision to plead, and post-conviction relief
               may be granted if the plea can be shown to have been influenced by
       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015              Page 11 of 13
               counsel’s error. However, if the post-conviction court finds that the
               petitioner would have pleaded guilty even if competently advised as to
               the penal consequences, the error in advice is immaterial to the
               decision to plead and there is no prejudice.
       Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct. App. 2011) (emphasis added)

       (quoting Segura v. State, 749 N.E.2d 496, 504-05 (Ind. 2001)), trans. denied. That

       is, a petitioner must establish, by objective facts, circumstances that support the

       conclusion that counsel’s errors in advice as to penal consequences were

       material to the decision to plead. Id. “‘Merely alleging that the petitioner

       would not have pleaded is insufficient. Rather, specific facts, in addition to the

       petitioner’s conclusory allegation, must establish an objective reasonable

       probability that competent representation would have caused the petitioner not

       to enter a plea.’” Id. at 563-64 (quoting Segura, 749 N.E.2d at 507).


[20]   Although Williams said that had he known he was ineligible for the habitual-

       substance-offender enhancement he would not have pled guilty and would have

       gone to trial, the objective facts show otherwise. Williams initially faced a

       Class B felony, a Class C felony, a Class D felony, 5 and a Class A

       misdemeanor, for a maximum possible sentence of thirty-two years. Williams

       eventually pled guilty to a Class C felony, a Class D felony, a Class A

       misdemeanor, and being a habitual substance offender, for a maximum possible

       sentence of twenty years. In addition, defense counsel, a very experienced




       5
        Williams was actually charged with two Class D felonies, including Class D felony possession of a
       controlled substance. However, as the post-conviction court found, the possession and dealing charges
       would have merged for sentencing. See Appellant’s App. p. 103 n.1.

       Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015                      Page 12 of 13
       criminal lawyer, objected to the State’s motion to amend the habitual-

       substance-offender enhancement and advised Williams that “the jury would

       have convicted [him] on all counts as charged.” Ex. E. Finally, although

       Williams claimed that the State could not prove Count I: Class B felony dealing

       in a schedule I, II, or III controlled substance, there is no evidence in the record

       that this charge was weak. These objective facts do not support the conclusion

       that Williams’ decision to plead guilty was driven by defense counsel’s alleged

       erroneous advice about Williams’ eligibility for the habitual-substance-offender

       enhancement. Accordingly, because Williams benefited from his plea

       agreement and the specific facts do not establish an objective reasonable

       probability that competent representation would have caused him not to enter a

       plea, we conclude that Williams is not entitled to relief on his claim that his

       guilty plea was not knowing, voluntary, and intelligent. 6


[21]   Affirmed.


       May, J., and Mathias, J., concur.




       6
         Williams also raises this issue under ineffective assistance of counsel. See Appellant’s Br. p. 11 (“[C]ounsel
       misadvised Williams regarding his eligibility for [the] habitual substance offender enhancement . . . .”).
       However, for the same reasons discussed above, Williams’ ineffective-assistance-of-counsel claim also fails.
       See Segura, 749 N.E.2d at 504-05 (noting that the test for evaluating an attorney’s incorrect advice as to penal
       consequences is the same “[w]hether viewed as ineffective assistance of counsel or an involuntary plea . . .
       .”).

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