MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Jan 30 2015, 8:51 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Eric C. Bohnet                                            Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jon Colin Blauvelt,                                       January 30, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          53A04-1407-PC-308
        v.                                                Appeal from the Monroe Circuit
                                                          Court
State of Indiana,                                         The Honorable Marc R. Kellams,
Appellee-Respondent.                                      Judge

                                                          Cause No. 53C02-1103-PC-548




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 1 of 24
[1]   Jon Colin Blauvelt appeals the denial of his petition for post-conviction relief.

      Blauvelt raises four issues, which we consolidate and restate as whether the

      post-conviction court erred in denying his petition for relief. We affirm.


                                      Facts and Procedural History

[2]   On October 22, 2008, Blauvelt attempted to murder Robin Shepherd and

      Marilyn Shepherd by pouring gasoline in and about they dwelling occupied and

      setting the dwelling on fire with the specific intent to kill them. Robin was

      sleeping and pregnant at the time. Blauvelt also knowingly or intentionally

      attempted to commit the crime of feticide by pouring the gasoline and setting

      the gasoline aflame or by setting the dwelling on fire. The fire damaged Robin’s

      dwelling and resulted in bodily injuries to Robin.


[3]   On October 24, 2008, the State charged Blauvelt with Count I, attempted

      murder of Robin as a class A felony; Count II, attempted murder of Marilyn as

      a class A felony; and Count III, arson resulting in bodily injury as a class A

      felony. On March 4, 2009, the State also charged Blauvelt with Count IV,

      attempted feticide as a class C felony.


[4]   On June 26, 2009, Blauvelt’s counsel, Attorney Patrick Schrems, filed a notice

      of intent to offer insanity as a defense. On August 12, 2009, Matt Oliver, PhD,

      HSPP, filed a mental health evaluation of Blauvelt, and on October 14, 2009,

      Dr. Greg Sidell also filed a mental health evaluation.


[5]   On January 13, 2010, Blauvelt signed a plea agreement in which he agreed to

      plead guilty as charged. The agreement specified that the total sentence was not

      Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 2 of 24
      to exceed sixty years and that Blauvelt “waive[d] right to appeal guilty plea and

      sentence.” Appellant’s Appendix at 32. That same day, the court held a

      hearing. Blauvelt’s counsel withdrew the defense of insanity. Upon

      questioning by the court, Blauvelt informed the court that he was taking Zoloft

      and Haldol and indicated that the medications did not in any way affect his

      ability to think. The court informed Blauvelt of his constitutional rights

      including the right to require the State to prove the charges against him beyond

      a reasonable doubt before being convicted. The court reviewed the charging

      information, and Blauvelt indicated that he understood the charges and pled

      guilty. At the end of the hearing, the court found Blauvelt’s plea to be free,

      knowing, and voluntary, found a factual basis, and “continue[d] under

      advisement the entry of judgment and further sentencing pending the

      sentencing hearing.” Id. at 61.


[6]   On March 2, 2010, the court held a sentencing hearing. Blauvelt’s counsel

      called Blauvelt’s mother who testified regarding his mental illness. Blauvelt

      made a statement but the record indicates that the statement is inaudible. His

      counsel asked the court to consider his age and lack of criminal history as

      mitigators. The court stated:

              First of all I want to make note of the fact that [Blauvelt], when
              entering his plea of guilty, went through a long discussion with the
              Court with regard to his mental health issues and waived knowingly
              and intentionally any defenses that they might have raised. That
              doesn’t preclude him from raising that as an issue to be considered in
              the matter of sentencing, but that in light of his actions, knew the
              difference between right and wrong, and intentionally perpetrated the
              actions which resulted in these outrageous crimes. . . . And I’ve

      Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 3 of 24
              looked over the presentence and considered certainly the evidence
              submitted during the sentencing hearing and I concur in large part
              with the State in their analysis of the defendant’s actions, the
              aggravating circumstances, which were set forth. It was a carefully
              planned out and thought set of actions.


      Id. at 142.


[7]   The court sentenced Blauvelt to thirty years each for Counts I, II, and III, and

      six years for Count IV, and ordered that the sentence for Count II be served

      consecutive to Count I, that the sentence for Count III be served concurrent

      with Counts I and IV, and that the sentence for Count IV be served concurrent

      with Counts I and III. The court sentenced Blauvelt to an aggregate sentence of

      sixty years.


[8]   On March 30, 2011, Blauvelt, pro se, filed a petition for post-conviction relief.

      On September 17, 2013, Blauvelt by counsel filed an amended petition for post-

      conviction relief alleging that the trial court improperly accepted his guilty plea

      and that his trial counsel was ineffective.


[9]   On March 5, 2014, the court held an evidentiary hearing at which Blauvelt’s

      counsel requested that the file from the direct criminal proceedings be entered

      into evidence or that judicial notice be taken of the file, and the court stated: “so




      Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 4 of 24
noted.”1 Transcript at 22. Blauvelt testified that he pled guilty because he was

willing to accept responsibility for the arson, he “didn’t want to drag Robin . . .

Shepard through . . . what could have been the trial,” and he “wasn’t trying to

waste any more time or energy or money from the Court.” Id. at 2. He testified

that he did not understand at that time that he was pleading guilty to attempted

murder as well as arson because he was on three different medications: Zoloft,

an antidepressant, Haldol, an antipsychotic, and Cogentin, which he

understood was used to help stabilize the Haldol. He testified that the

medications significantly interfered with his ability to comprehend and

understand things, that he did not understand that he was confessing to having

set the fire with the specific intent to kill anybody, and that a psychologist in the

Monroe County Jail evaluated him a few weeks after his arrest and diagnosed

him with schizophrenia, an unspecific personality disorder, and depression.

When asked to describe the side effects of his medications, Blauvelt stated:

         Significant side effects. Including lethargy, confusion, it crushed my
         emotional capacity to feel things, it made me sleep twenty (20) hours a
         day. It made it largely impossible to be able to express myself, my
         thoughts or my feeling as well as understand what was going on




1
 The transcript of the guilty plea hearing is contained in the appellant’s appendix but is missing pages 4 and
18. The transcript of the sentencing hearing is contained in the appellant’s appendix but is missing pages 51,
52, 53, and 77. The record does not contain a copy of the presentence investigation report or the mental
health evaluations.

Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015            Page 5 of 24
               around – well, what was being asked to me beyond just simple yes or
               no questions.


       Id. at 5-6.


[10]   On June 6, 2014, the court denied Blauvelt’s petition. The order states in part:

               [Blauvelt] cites three reasons to find deficient performance: (1) failure
               of trial counsel to provide effective representation regarding issues
               pertaining to [Blauvelt’s] mental illness and medications, (2) counsel
               advised [Blauvelt] to accept a plea deal for counts for which there was
               insufficient evidence of intent, and (3) failure to make an effective
               defense at sentencing.


               Regarding the first claim, counsel filed a Notice of Intent to offer
               Insanity as a Defense, indicating that [trial counsel] was aware of
               [Blauvelt’s] mental condition. Further, the transcript of the change of
               plea hearing indicates [trial counsel] had not ignored [Blauvelt’s]
               mental state in representing [Blauvelt]. Tr. Proceedings 7. [Blauvelt]
               has not met his burden in overcoming the presumption that he
               received ineffective [sic] assistance in this regard.


               Regarding the second claim, [Blauvelt] asserts that there was
               insufficient evidence to show specific intent, but seeing as there was no
               trial for the prosecution to present evidence of this, the Court cannot
               baldly accept [Blauvelt’s] assertion. Given the presumption of
               effectiveness of counsel and [Blauvelt’s] failure to produce specific
               evidence that would indicate an inability for the state to prove specific
               intent, [Blauvelt] has not met his burden to show ineffective assistance
               for this claim.


               Regarding the third claim, counsel called a witness at the sentencing,
               called [Blauvelt] for an unsworn statement, and suggested mitigating
               factors to the Court. The decision to not cross-examine the State’s
               witnesses is a tactical decision. See Osborne v. State, 481 N.E.2d 376,
               380 (Ind. 1985). Counsel’s tactical decisions and matters of strategy
               are discretionary and receive deferential review. Stephenson v. State,

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 6 of 24
        864 N.E.2d 1022, 1031 (Ind. 2007) (quoting Stevens v. State, 770
        N.E.2d 739, 746 (Ind. 2002)[, reh’g denied, cert. denied, 540 U.S. 830,
        124 S. Ct. 69 (2003)), reh’g denied, cert. denied, 552 U.S. 1314, 128 S. Ct.
        1871 (2008)]. Counsel’s strategy and tactical decisions in presenting
        [Blauvelt’s] defense at sentencing have not fallen below an objective
        standard of performance.


                 B.      Improper Acceptance of Guilty Plea Claim


        In Owens v. State, the defendant pled guilty with “yes” or “no” answers,
        and this was a sufficient factual basis to deny his request to withdraw
        the guilty plea at sentencing. 426 N.E.2d 372, 374 (Ind. 1981).
        [Blauvelt’s] contention that his plea should not have been accepted
        because he did not provide a narrative description is without merit in
        light of Owen[s]. In respect to each charge, the Court asked [Blauvelt]
        if he understood the charge and how he pled to it. [Blauvelt] stated
        that he understood and pled guilty to each charge.


        [Blauvelt] further contends that statements he made maintaining “it
        was not his intent to injure either [victim]” that were reported in his
        Presentence Investigation Report contradict his plea and therefore
        should have led the Court to reject his plea. Presentence Investigation
        Report 7. Unlike in Owen[s], [Blauvelt] never requested to withdraw
        his guilty plea, instead he asserts that statements made to a probation
        officer declaring that he did not intend to hurt anyone should negate
        the factual basis of his plea. Setting aside a guilty pleas [sic] after
        acceptance, but before sentencing in non-capital cases is left to the trial
        court’s discretion. See, e.g., Beech v. State, 702 N.E.2d 1132, 1136 (Ind.
        Ct.[ ]App. 1998); Harris v. State, 671 N.E.2d 864, 869 (Ind. Ct.[ ]App.
        1996)[, trans. denied]. Especially with no formal motion to withdraw
        the plea, the court did not abuse its discretion in accepting [Blauvelt’s]
        guilty plea.


Appellant’s Appendix at 4-5.




Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 7 of 24
                                                    Discussion

[11]   Before discussing Blauvelt’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

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

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. Further, the post-conviction court in this case

       entered findings of fact and conclusions thereon 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.” Id. In this

       review, we accept findings of fact unless clearly erroneous, but we accord no

       deference to conclusions of law. Id. The post-conviction court is the sole judge

       of the weight of the evidence and the credibility of witnesses. Id.


[12]   The issue is whether the post-conviction court erred in denying Blauvelt’s

       petition for relief. Blauvelt argues that: (A) his plea was not made knowingly,

       voluntarily, or intelligently; and (B) his trial counsel was ineffective.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 8 of 24
       A. Guilty Plea


[13]   Blauvelt argues that his guilty plea was not knowingly and intelligently made

       because he did not understand that he was confessing to having acted with

       intent to kill. He contends that the trial court failed to take necessary steps to

       insure that he understood and intended his confession of specific intent.

       Without citation to the record, he asserts that the plea colloquy was severely

       abbreviated and consisted solely of the judge asking a single question for each

       charge which recited all of the elements of the offense along with Blauvelt’s

       answer of yes to the complete charge. He asserts that, “[w]hile such a cursory

       exchange may suffice in a routine case, a more thorough examination should

       have been used in light of the special complexity of the attempted murder

       charge as well as the allegations of mental illness and the knowledge that he

       was taking anti-psychotic drugs.” Appellant’s Brief at 12. He points to his

       statements to the probation officer during the preparation of the presentence

       investigation report in which he alleges he insisted that he was innocent of the

       attempt charges, and argues that his denial of an intent to harm should have

       triggered a re-evaluation of the validity of the guilty plea because Indiana does

       not permit a criminal defendant to plead guilty while also maintaining his

       innocence. He also argues that, to the extent the trial court originally relied on

       the assurances of Blauvelt’s trial counsel, the assurances have been cast in doubt

       by the fact that his trial counsel was then facing disciplinary charges for the

       same sort of neglect described by Blauvelt.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 9 of 24
[14]   The State argues that Blauvelt received notice of the specific intent element of

       attempted murder in the charging information and that Blauvelt acknowledged

       that he acted with specific intent. The State asserts that Blauvelt never moved

       to withdraw his plea and it would have been improper for the trial court to

       assume defense counsel’s role and question Blauvelt whether he wanted to

       withdraw his plea. The State also contends that nothing in the medical records

       suggests that the medications interfered with Blauvelt’s ability to read, follow a

       conversation, or understand legal proceedings.2


[15]   Generally, a guilty plea constitutes a waiver of constitutional rights, and this

       waiver requires a trial court to evaluate the validity of every plea before

       accepting it. Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For the plea to

       be valid, the defendant’s decision to plead guilty must be knowing, voluntary,

       and intelligent. Id. “Prior to the acceptance of a guilty plea, a trial court must

       determine that such plea is voluntarily made.” Curry v. State, 674 N.E.2d 160,

       161 (Ind. 1996), abrogated on other grounds by Hall v. State, 849 N.E.2d 466, 470




       2
        The State does not argue that Blauvelt waived his arguments based upon the provision in the plea
       agreement stating that he “waive[d] right to appeal guilty plea and sentence.” Appellant’s Appendix at 32.
       The Indiana Supreme Court has held that a defendant may waive the right to appellate review of his sentence
       as part of a written plea agreement, but that this holding does not affect the very long-standing policy that a
       defendant who can establish in a post-conviction proceeding that his plea was unintelligent is entitled to have
       his conviction set aside. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Given Blauvelt’s arguments that he
       did not knowingly, voluntarily, and intelligently plead guilty, we address the merits of his arguments
       notwithstanding the waiver provision in the plea agreement.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015           Page 10 of 24
       (Ind. 2006). See also Ind. Code § 35-35-1-3(a) (“The court shall not accept a plea

       of guilty or guilty but mentally ill at the time of the crime without first

       determining that the plea is voluntary.”). “Where the court conducting a guilty

       plea hearing, either from its own knowledge or facts presented to it, has

       reasonable grounds for believing the defendant does not have sufficient

       comprehension to understand the proceedings, it shall immediately hold a

       hearing to determine whether the defendant has that ability.” Patterson v. State,

       500 N.E.2d 1191, 1193 (Ind. 1986), reh’g denied.


[16]            At the guilty plea hearing, the following exchange occurred:

                THE COURT: The Court has before it a plea and sentencing
                agreement in that regard. Mr. Blauvelt, raise your right hand for me
                and swear or affirm to tell the truth, the whole truth and nothing but
                the truth.

                [Blauvelt]: I do.

                THE COURT: All right. Tell me your full name.

                [Blauvelt]: Jon Colin Blauvelt.

                                                       * * * * *[3]




       3
        A portion of the omitted section is found on page 4 of the transcript which is missing from the appellant’s
       appendix.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015           Page 11 of 24
        [THE COURT]: . . . you understand the four charges against you, the
        penalties upon conviction and your constitutional rights.

        [Blauvelt]: Yes.

        THE COURT: In addition to having them read to you in the video,
        you had an opportunity to review your rights also in writing on this
        written acknowledgement form.

        [Blauvelt]: Yes.

        THE COURT: Do you have any questions at this time about the four
        charges against you, the penalties upon conviction of those charges or
        your constitutional rights?

        [Blauvelt]: No.

        THE COURT: Now, counsel, there was, at some point, a motion to
        interpose the defense of insanity raised. [Blauvelt] was evaluated.
        Let’s see? When was that? Well, I don’t see it.

        [Prosecutor]: Our records show the notice of intent to offer insanity as
        defense was filed on June 25, 2009. I think that the evaluations were
        done in August.

        THE COURT: Thank you. Right, I show it file-stamped June 25th.
        Thank you. Consequently there was an evaluation of [Blauvelt] by
        two professionals. Greg Sidell, a medi[c]al doctor, reviewed or
        interviewed [Blauvelt] and filed his report October 14th, 2009. And his
        report concluded that “it is my opinion to a reasonable degree of
        medical certainty that [Blauvelt] was sane at the time of the alleged
        offense.” He then talks about [Blauvelt’s] behaviors and so forth.
        None of which would indicate that [Blauvelt] was incompetent or
        incapable in assisting in his own defense. Would you agree that’s Dr.
        Sidell’s report, [Blauvelt’s counsel]?

        [Blauvelt’s Counsel]: Yes, Your Honor.

        THE COURT: All right. Okay, thank you. We also had a report
        filed from Centerstone from Matt Oliver, PhD, HSPP, and he came to
        similar conclusions. Would you agree with that, too, [Blauvelt’s
        counsel]?

Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 12 of 24
        [Blauvelt’s Counsel]: Yes, Your Honor.

        THE COURT: All right. So with regard to the motion to interpose
        the defense of insanity, [Blauvelt’s counsel]?

        [Blauvelt’s Counsel]: Well, [Blauvelt] is certainly not a model picture
        of health, Your Honor. He certainly has sufficient capacity to
        appreciate and assist in his defense, so we would formally withdraw
        that defense at this time.

        THE COURT: And you’ve been able to talk with him about his case?

        [Blauvelt’s Counsel]: Absolutely.

        THE COURT: And been able to discuss with him the strengths and
        weaknesses and the benefits of going to trial?

        [Blauvelt’s Counsel]: Extensively.

        THE COURT: And you believe that he has sufficiently understood
        and been able to converse with you and make decisions?

        [Blauvelt’s Counsel]: He’s been engaged in the process, asks insightful
        questions, indicating to me that he has insight into what he’s facing
        and the ramifications of his decisions here today.

        THE COURT: Jon, do you agree with that?

        [Blauvelt]: Yes, sir.

        THE COURT: Okay. Are you willing to admit that you were sane as
        the law defines it at the time of the commission of the offense, that you
        knew the difference between right and wrong?

        [Blauvelt]: Yes, sir.

        THE COURT: Okay. And do you believe that you’ve been able to
        comprehend [your counsel’s] discussions with you?

        [Blauvelt]: Yes, sir.

        THE COURT: And have been able to discuss what’s happening and
        so forth?


Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 13 of 24
               [Blauvelt]: Yes, sir.

               THE COURT: All right. And will you promise me that if there’s
               anything that I ask you or say that you don’t understand, you’ll ask me
               to explain it further?

               [Blauvelt]: Yes, sir.

               THE COURT: Okay. Now you’re not today under the influence of
               alcohol.

               [Blauvelt]: No, sir.

               THE COURT: Are you taking medications?

               [Blauvelt]: Yeah, I’m taking medication.

               THE COURT: Okay, do you know what medications you’re taking?

               [Blauvelt]: Zoloft and Haldol.

               THE COURT: All right. And do you believe that those medications
               in any way effect your ability to think?

               [Blauvelt]: No, sir.


       Appellant’s Appendix at 43-48. The court informed Blauvelt of his

       constitutional rights and questioned him regarding the plea agreement, and

       Blauvelt confirmed that he was pleading guilty to all four counts.


[17]   Blauvelt’s statements at the plea hearing were coherent and responsive. We

       cannot say that the trial court from its own knowledge or facts presented to it

       had reasonable grounds for believing that Blauvelt did not have sufficient

       comprehension to understand the proceedings. See Middleton v. State, 567

       N.E.2d 141, 143 (Ind. Ct. App. 1991) (observing that “[w]hile many of [the

       defendant’s] responses during his guilty plea colloquy with the guilty plea court

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 14 of 24
       were ‘yes sirs’, that in and of itself is not unusual given the nature of the

       standard questions propounded to a defendant,” and concluding that the record

       was devoid of anything at the guilty plea hearing which imposed a duty upon

       the guilty plea court to hold a hearing to determine if the defendant had

       sufficient comprehension to understand the proceeding), trans. denied.


[18]   Further, Blauvelt did not call his prior physician as a witness at the post-

       conviction hearing, and, other than Blauvelt’s own testimony, the record does

       not reveal how any prescription drugs Blauvelt may have been taking affected

       his ability to voluntarily, knowingly, and intelligently plead guilty. We

       acknowledge that the Indiana Supreme Court published an order nine days

       after the sentencing hearing in this case which suspended Blauvelt’s trial

       counsel from the practice of law for a period of not less than six months due in

       part to trial counsel’s repeated lack of communication with clients and neglect

       of their cases. See In re Schrems, 922 N.E.2d 618 (Ind. 2010). Nonetheless,

       Blauvelt did not submit any testimony of his trial counsel at the post-conviction

       hearing. “Where trial counsel is not presented in support, the post-conviction

       court may infer that trial counsel would not have corroborated appellant’s

       allegations.” Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989). Because

       Blauvelt did not call his trial counsel as a witness at the post-conviction hearing,

       the court was entitled to infer that counsel would not have corroborated

       Blauvelt’s allegations.


[19]   To the extent that Blauvelt suggests he was not sufficiently informed of the

       requirement that he had to act with specific intent, we observe that the

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 15 of 24
       transcript in the appellant’s appendix is missing page 18, and that page 19

       appears to be a continuation of the court’s description of Count I. Specifically,

       page 19 of the transcript states:

               with specific intent to kill Robin Shepherd, attempt to commit the crime
               of murder by pouring flammable gasoline in and about the dwelling
               occupied by a sleeping Robin Shepherd and, or, by setting the gasoline
               aflame and, or, by setting the dwelling on fire, each act which in its
               own and, or, all of which together constitutes a substantial step toward
               the commission of the crime of murder. So it says essentially that by
               setting fire to the house that she was in, that you attempted to kill her by
               your actions and that you took a substantial step toward the commission
               of the crime of murder even though she did not die as a result of your
               offense. Do you understand the charge as its [sic] alleged in Count I.

               [Blauvelt]: Yes, sir.

               THE COURT: To that charge, how do you plead?

               [Blauvelt]: Guilty.


       Appellant’s Appendix at 57 (emphases added). With respect to Count II, the

       court stated that the charging information alleged that Blauvelt “did with the

       specific intent to kill Marilyn Shepherd, attempt to commit the crime of murder

       . . . .” Id. at 58. The court asked Blauvelt if he understood the charge, and

       Blauvelt answered: “Yes, sir.” Id. The trial court explicitly informed Blauvelt

       of the element of specific intent. Based upon the record, we cannot say that

       reversal is warranted.


[20]   With respect to Blauvelt’s reliance on his statements in the presentence

       investigation report (“PSI”), we observe that the record does not contain a copy

       of the PSI. Even assuming that, as suggested by Blauvelt, he told his probation

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 16 of 24
       officer that he had not intended to hurt either victim, again, we cannot say that

       reversal is warranted. In Ross v. State, which he cites, the Indiana Supreme

       Court held that “a judge may not accept a plea of guilty when the defendant

       both pleads guilty and maintains his innocence at the same time.” 456 N.E.2d

       420, 423 (Ind. 1983). In Moredock v. State, 540 N.E.2d 1230, 1230 (Ind. 1989),

       reh’g denied, the Court addressed whether a trial court may accept a plea from a

       defendant who pleads guilty in open court but tells a probation officer that he

       did not commit the crime. The Court declined to extend the rule of Ross to

       protestations which occur outside the courtroom. 540 N.E.2d at 1231. The

       Court held that the defendant’s statements to his probation officer that he did

       not attack the victim and that he was only trying to help her was not an

       adequate basis for post-conviction relief. Id.


[21]   Based upon our review of the record, we cannot say that the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. See Dewitt v. State, 755 N.E.2d 167, 170-171 (Ind.

       2001) (rejecting the defendant’s argument that the post-conviction court erred

       by concluding that the defendant’s decision to plead guilty was knowing,

       voluntary, and intelligent); Mayberry v. State, 542 N.E.2d 1359, 1360-1361 (Ind.

       Ct. App. 1989) (rejecting the petitioner’s claim that the post-conviction court

       erred in failing to set aside his conviction based upon his guilty plea because he

       asserted his innocence in a presentence investigation interview), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 17 of 24
       B. Ineffective Assistance of Trial Counsel


[22]   Blauvelt asserts that his trial counsel was ineffective because he advised him to

       plead guilty to crimes which were factually unsustainable, failed to evaluate and

       address the consequences of Blauvelt’s mental illnesses, and failed to present

       evidence of those illnesses at sentencing. Without citation to the record, he

       asserts that the evidence of an intent to kill Robin was weak at best, in part

       because she was protected by a closed door, and her injuries did not appear to

       have resulted from being targeted by the fire because they were focused on her

       face and neck, indicating that she was injured while facing the fire. He argues

       that competent counsel would have highlighted evidence of an intent to kill

       Marilyn was non-existent beyond her presence in the apartment, that evidence

       of his mental illness “should have established reasonable doubt regarding the

       purported intent to kill, and would have supported the plausibility of alternative

       motives for setting the fire such as a suicide attempt or simple property

       destruction,” and that, “[u]nfortunately, [his] counsel appears to have viewed

       the mental illnesses only in the context of an insanity defense which was

       inapplicable.” Appellant’s Brief at 21. Lastly, he contends that it was

       ineffective assistance for his trial counsel to lead him to accept an agreement

       with no apparent resulting benefit where “[e]ven if he had been found guilty of

       attempting to kill Robin but not Marilyn, the resulting sentences for the arson

       and attempted murder would likely have run concurrently since they would

       have been essentially the same crime,” that “it appears that one of the two

       would have had to have been vacated as constituting double jeopardy,” and


       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 18 of 24
       that “[t]he attempted feticide charge violated double jeopardy since it was

       necessarily based on the same facts as the attempted murder of the pregnant

       mother.” Id. at 23, 23 n.1.


[23]   The State argues the post-conviction court could infer that Blauvelt’s trial

       counsel would not have corroborated Blauvelt’s allegations because he did not

       call trial counsel as a witness, that Blauvelt did not present any evidence of

       contrary intent that his trial counsel overlooked and presented only his self-

       serving testimony that he did not intend to kill anyone when he set the fire, and

       that he surmises that he set the fire as part of a suicide attempt. The State

       asserts that trial counsel did not overlook any available defense stemming from

       Blauvelt’s mental health and points out that one of the court-appointed doctors

       strongly suspected that Blauvelt was feigning mental illness. 4 The State also

       argues that Blauvelt did not suffer prejudice because there was no reasonable

       probability of acquittal at trial and that trial counsel’s representation at

       sentencing was not ineffective.




       4
         The State cites the prosecutor’s comments in which the prosecutor stated that Blauvelt was “evaluated by
       two mental health evaluators. Matt Oliver stated that, ‘I strongly suspect that [Blauvelt] is malingering with
       respect to his reporting clinical problems in a means to mitigate the legal consequences of his actions.’ Mr.
       Blauvelt was [inaudible] of lying to Mr. Oliver about his mental health status.” Appellant’s Appendix at 136.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015          Page 19 of 24
[24]   Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

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

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Id. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[25]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 20 of 24
       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998).


[26]   Because Blauvelt was convicted pursuant to a guilty plea, we must analyze his

       claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two

       main types of ineffective assistance of counsel cases. The first category relates

       to “an unutilized defense or failure to mitigate a penalty.” Willoughby v. State,

       792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied. The second category

       relates to “an improper advisement of penal consequences,” and this category

       has two subcategories: (1) “claims of intimidation by exaggerated penalty or

       enticement by an understated maximum exposure;” or (2) “claims of incorrect

       advice as to the law.” Id.


[27]   Blauvelt’s claims of ineffective assistance based upon his trial counsel’s failure

       to evaluate and address the consequences of his mental illness and failure to

       present evidence of those illnesses at sentencing fall under the first category.

       Because Blauvelt did not call his trial counsel as a witness at the post-conviction

       hearing, there is no evidence as to why counsel made the decisions he did.

       Thus, the court was entitled to infer that counsel would not have corroborated

       Blauvelt’s allegations. See Owens v. State, 464 N.E.2d 1277, 1280 (Ind. 1984)

       (holding that the court was entitled to infer that counsel would not have

       corroborated petitioner’s allegation of incompetency where petitioner failed to

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 21 of 24
       produce the testimony of trial counsel and that “[w]ithout the benefit of

       counsel’s testimony here, we will conclude that counsel’s decision was a tactical

       judgment and not necessarily indicative of ineffective representation”).


[28]   To the extent Blauvelt argues that his trial counsel failed to argue his mental

       illness as a mitigator, we observe that Blauvelt does not cite to the record to

       support his argument that his mental illness was ignored or downplayed in

       either his initial brief or his reply brief. In his statement of facts, Blauvelt

       alleges that he was eventually diagnosed at the jail with schizophrenia,

       depression, and an unspecified personality disorder. However, he does not

       argue how his mental illness limited his function or explain the nexus between

       the illness and the crime. Moreover, his trial counsel raised mental illness to

       some extent at the sentencing hearing. Trial counsel asked Blauvelt’s mother

       whether she had ever been aware or noticed any mental health issues with

       Blauvelt. At some point, Blauvelt’s mother testified:

               I did take him to a psychologist for several visits when he was about
               fourteen or fifteen, when I sensed that he just seemed so ill at ease. I
               was told there was nothing wrong with him, that he was just [a] typical
               teenager, that [he] didn’t have a good relationship with his father and,
               you know, the typical things. I mean, a professional told me this. If I
               just had any clue what these demons inside that he was fighting
               unsuccessfully, I would have had him committed, to get the treatment
               that he so desperately needs, but I didn’t know and I’m going to pay
               for it for the rest of my life.


       Appellant’s Appendix at 132-133. While Blauvelt’s counsel did not specifically

       mention his mental illness as a mitigator, the prosecutor acknowledged the

       evidence presented by his mother by stating: “There’s been a lot of talk either by
       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 22 of 24
       his mother today and in the presentence report that he does have some mental

       health issues.” Id. at 136. At the sentencing hearing, the court stated Blauvelt

       was not precluded from raising his mental illness as a mitigator but rejected

       such a consideration and concluded that it was a carefully planned set of

       actions. We cannot say that reversal is warranted on this basis.


[29]   Blauvelt’s claim that his trial counsel was ineffective for leading him to accept

       an agreement with no apparent resulting benefit falls under the second category

       in Segura. To prove prejudice due to incorrect advice as to penal consequences,

       the petitioner may not simply allege that he would not have pled guilty. Segura,

       749 N.E.2d at 507. The petitioner must instead “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. “[S]pecific

       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. In analyzing a claim of incorrect

       advice as to the law, the focus must be on whether the petitioner proffered

       specific facts indicating that a reasonable defendant would have rejected the

       petitioner’s plea had the petitioner’s trial counsel performed adequately. See

       Willoughby, 792 N.E.2d at 564.


[30]   To the extent Blauvelt claims that his trial counsel led him to accept an

       agreement with no apparent resulting benefit because of double jeopardy

       considerations, we observe that he does not argue that any statements by his

       trial counsel were erroneous or material to his decision to plead guilty. In the

       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 23 of 24
       argument section of his brief, Blauvelt does not assert that his trial counsel

       failed to discuss double jeopardy implications with him. Again, Blauvelt did

       not present his trial counsel’s testimony at the post-conviction hearing. Thus,

       the court was entitled to infer that counsel would not have corroborated his

       allegations. Once again, we cannot say that reversal is warranted on this basis.


                                                   Conclusion

[31]   For the foregoing reasons, we affirm the post-conviction court’s order.


[32]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015   Page 24 of 24
