MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               Feb 13 2019, 10:04 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Servadio Montel Boyd                                     Curtis T. Hill, Jr.
Branchville, Indiana                                     Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Servadio Montel Boyd,                                    February 13, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A05-1703-PC-715
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli E. Fink,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1509-PC-4844



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019           Page 1 of 16
                                             Case Summary
[1]   Servadio Montel Boyd, pro se, appeals the denial of his petition for post-

      conviction relief (“PCR”). We affirm.


                                                    Issues
[2]   Boyd raises three issues on appeal, which we restate as follows:


              I.       Whether the trial court erred in denying Boyd’s motion to
                       withdraw his guilty plea.


              II.      Whether Boyd received ineffective assistance of trial
                       counsel.


              III.     Whether Boyd received ineffective assistance of post-
                       conviction (“PC”) counsel.


                                                     Facts
[3]   On July 18, 2014, Boyd delivered a quantity of cocaine, in excess of ten grams,

      to a person in Vanderburgh County, Indiana. Also, in agreement with one or

      two other men, Boyd agreed to deliver a quantity of cocaine, exceeding ten

      grams, to another person. Boyd obtained and concealed the cocaine in a

      specifically-engineered secret compartment inside a vehicle, transported,

      delivered, and sold the cocaine to another person.


[4]   On July 22, 2014, and January 26, 2015, respectively, the State charged Boyd

      with dealing in cocaine and conspiracy to commit dealing in cocaine, as Level 2



      Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 2 of 16
      felonies. The trial court appointed Attorney John Brinson to represent Boyd. 1

      Boyd’s jury trial was slated for February 17, 2015. On that date, before voir

      dire commenced, Boyd and the State advised the trial court that they had

      reached a plea agreement. Boyd pleaded guilty to both charged offenses that

      day. 2


[5]   Shortly after Boyd entered his guilty plea, Boyd consulted with his family and

      retained Attorney Barry Blackard. Attorney Brinson withdrew his appearance.

      On March 19, 2015, Boyd moved to withdraw his guilty plea. On May 1, 2015,

      which was Boyd’s intended sentencing date, the trial court heard argument on

      Boyd’s motion to withdraw his guilty plea. In support, Attorney Blackard

      argued:


                 Mr. Boyd and I are both aware of the Court’s policy on accepting
                 plea agreements and it is frowned upon very heavily to enter into
                 a plea agreement after a jury has been called and seated, and then
                 when the Court allows that person to enter into a plea agreement,
                 and then make the request that they withdraw from that plea
                 agreement, we’re aware of that and we understand that position,
                 but Judge there’s significant distinction here . . . and it’s very
                 unorthodox and it’s something that I’ve not seen very often and
                 that's the fact that the State is joining in the motion to allow Mr.
                 Boyd to withdraw from his plea agreement. Due to the
                 circumstances which I feel are (inaudible) . . . , I’d ask that Mr.
                 Boyd be permitted to withdraw from the plea agreement. I




      1
          The trial court appointed Attorney Brinson on July 24, 2014.
      2
          The trial court scheduled Boyd’s sentencing for May 1, 2015.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 3 of 16
        understand the fact that the Court will not accept any other plea
        agreements in this case, and this be set for a firm trial date and
        we’d be ready to proceed.


        THE COURT: Alright, [State].


        THE STATE: Your Honor, very briefly, State is joining in the
        motion . . . .


        THE COURT: I understand the position of both defense and the
        State in this case, however Mr. Boyd I took your plea, I did your
        plea hearing, I did it on the morning of a jury trial when we had
        40 to 50 jurors called in here, and I was very specific with you
        and very careful in giving you the advisement during the plea. I
        specifically asked you if you understood the proceeding and if
        you knew everything that was going on. I went over the terms of
        the agreement with you. You indicated to me that you
        understood the terms of the agreement and that that was your
        agreement with the State of Indiana. I asked you if you
        understood that if you admitted and plead [sic] guilty the Court
        could proceed with judgment and sentence. I also specifically
        asked you if anyone had made any threats to you and if this was
        voluntarily made by you. You indicated you were entering the
        plea voluntarily and I was very specific with you and because of
        that I’m not going to grant your Motion to Withdraw your Plea.
        So, the Court denies that motion at this time, and I’m ready to
        proceed with sentencing, but I'll let you talk to your client for a
        minute.


        MR. BLACKARD: Mr. Boyd, do you understand what the
        Court’s ruling is?


        [BOYD]: Yes.

Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 4 of 16
        MR. BLACKARD: And is there anything that you want to make
        part of the record as far as any conversations that you and Mr.
        Brinson had as far as plea negotiations and explain to the Court
        when you entered into this plea agreement why you did, when
        you did and why you did it that way, it’s important for you to
        make that clear for the record.


        [BOYD]: When I received the new count on the thing and you
        was [sic] reading it I didn’t know what that meant, I mean you
        was reading all the counts and I didn’t even know what it was
        and I never received the actual file to even see with my own eyes
        what was read.


        THE COURT: Go ahead, I want you to, I want to allow you to
        finish making your record and your comments, Mr. Boyd. Do
        you have anything else you want to say? I would have
        specifically read to you the charges and ask if you understood
        them and then asked if you were pleading guilty to them and
        then I would have gone over the elements of those offenses with
        you to make sure that you were admitting that you committed
        the offenses and that you were pleading guilty and understood
        the consequences, so I want to make sure you make your record,
        but that’s a brief explanation of the basis of my decision. Any
        other record, Mr. Blackard?


        MR. BLACKARD: Just briefly Your Honor. Mr. Boyd, is it your
        contention as you sit here today that the charges that you plead
        [sic] guilty to you are not guilty of those charges, is that your
        contention?


        [BOYD]: Yes.




Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 5 of 16
              MR. BLACKARD: Why did you plead guilty to something that
              you’re not guilty of?


              [BOYD]: Because the day of trial, I mean they come [sic] with a
              plea bargain that I never even had, my family wasn’t here, I
              never got to talk to them about this plea bargain or nothing, so I
              feel like I was forced into taking it.


              MR. BLACKARD: There’s a question the Judge asked you in
              your advisement, has anybody promised you, threatened you,
              and most importantly, forced you to accept the plea and I assume
              that your answer at the time of the advisement was nobody was
              forcing you, do you feel differently about that today?


              [BOYD]: Yes.


      Tr. Vol. II pp. 20-24. After denying Boyd’s motion to withdraw his guilty plea,

      the trial court sentenced Boyd to two concurrent, thirteen-year terms in the

      Department of Correction. Boyd did not file a direct appeal.


[6]   On September 10, 2015, Boyd, by Attorney Blackard, filed a petition for PCR.

      The PC court conducted an evidentiary hearing on Boyd’s petition for PCR on

      May 26, 2016. At the hearing, Boyd testified that: (1) he felt forced into

      accepting the plea offer; (2) he did not understand the conspiracy to commit

      dealing charge when he pleaded guilty; (3) he did not have adequate time to




      Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 6 of 16
      discuss his case with Attorney Brinson; and (4) he would not have entered the

      plea agreement if he had seen the State’s body cam footage beforehand. 3


[7]   Next, Attorney Brinson testified that: (1) the State made its ultimate plea offer

      shortly before Boyd’s trial commenced; (2) he explained the State’s “take it or

      leave it” offer to Boyd “the best [Brinson] could” and under “a great deal of

      time pressure,” id. at 46, 47; (3) Boyd wanted to confer with his father, who

      was unavailable, about the offer; and (4) “there wasn’t going to be a

      continuance,” with potential jurors onsite and awaiting voir dire. Id. at 47.

      Also, Attorney Brinson denied Boyd’s claim that Brinson failed to properly and

      timely advise Boyd of ongoing plea negotiations. Brinson testified further that,

      in his view, the State did not oppose Boyd’s motion to withdraw his guilty plea

      because deputy prosecutor Brandt felt he (Brandt) had made a bad deal with

      Boyd and preferred, instead, to proceed to trial. Lastly, although the parties

      agreed to submit Brandt’s testimony by affidavit, the PC court never received

      the affidavit. 4




      3
       The State’s body cam footage was at issue in three motions to suppress filed by Attorney Brinson on Boyd’s
      behalf.
      4
       The affidavit was intended to establish “whether or not the State of Indiana by Mr. Brandt joined in the
      motion to withdraw the plea agreement.” Tr. Vol. II pp. 56-57. Neither party disputes this fact.




      Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019          Page 7 of 16
[8]   On July 7, 2016, the PC court entered its findings of fact and conclusions of

      law, wherein it denied Boyd’s petition for PCR. Boyd now appeals.


                                                   Analysis

[9]   Boyd appeals the denial of his petition for PCR. Our supreme court has stated:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. When appealing from the denial of post-conviction
              relief, the petitioner stands in the position of one appealing from
              a negative judgment. 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. [Where, as
              here, a post-conviction court has made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6), we] do not defer to the post-conviction court’s legal
              conclusions[.] 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.


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

      citations omitted). As the clearly erroneous standard “is a review for

      sufficiency of evidence, we neither reweigh the evidence nor determine the

      credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

      “Rather, we ‘consider only the evidence that supports that judgment and the

      reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

      v. State, 738 N.E.2d 253, 258-59 (Ind. 2000).

      Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 8 of 16
                            I.       Denial of Motion to Withdraw Guilty Plea

[10]   Boyd argues that the trial court erred in denying his motion to withdraw his

       guilty plea. Specifically, Boyd contends that he felt forced into accepting the

       State’s plea offer, which was tendered on the morning of his jury trial.


[11]   On this issue, the PC court found:


               21. In addition, the trial court’s denial of [Boyd]’s motion to
               withdraw his plea of guilty was an order that could have been
               appealed by [Boyd] and his counsel.


               22. Post-conviction relief is not a substitute for a direct appeal.
               Holt v. State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995). Rather,
               post-conviction relief is reserved for those issues not known at the
               time of trial and direct appeal or for some reason not available to
               the defendant at that time. Id. A petitioner seeking post-
               conviction relief must show that the issues raised were
               unascertainable at the time of trial and direct appeal or the
               allegations arising from them are waived. Id.


               23. [Boyd] has waived his right to challenge the trial court’s
               denial of his motion to withdraw guilty plea because he failed to
               pursue a direct appeal of the denial as allowed under Indiana
               Code 35-35-1-4[(e)].


               24. [Boyd] has failed to prove by a preponderance of the evidence
               that he is entitled to relief for the claims in his Petition for Post-
               Conviction Relief.


       App. Vol. II pp. 19-22.



       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 9 of 16
[12]   Indiana Code § 35-35-1-4 permits an individual to move to withdraw a guilty

       plea before sentencing. If a motion to withdraw a guilty plea is denied and the

       individual wishes to contest the trial court’s decision, a direct appeal is the

       proper appellate procedure. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001).

       If the individual fails to raise the issue on direct appeal, it is waived and may

       not be raised in a Post-Conviction Rule 1 proceeding. See Collins v. State, 817

       N.E.2d 230, 232 (Ind. 2004) (“It is . . . well-settled that, because a post-

       conviction relief proceeding is not a substitute for direct appeal but rather a

       process for raising issues unknown or not available at trial, an issue known and

       available but not raised on direct appeal may not be raised in post-conviction

       proceedings.”); see Mills v. State, 868 N.E.2d 446 (Ind. 2007).


[13]   Here, Boyd pleaded guilty on February 17, 2015. On March 19, 2015, Boyd

       moved to withdraw his guilty plea on the ground that he felt coerced into

       accepting the State’s plea offer. After a hearing on May 1, 2015, the trial court

       denied Boyd’s motion. Boyd did not pursue a direct appeal; rather, Boyd filed a

       petition for PCR on September 10, 2015. Boyd cannot now use Post-

       Conviction Rule 1 proceedings to assert claim(s) that he should have appealed

       directly. See Mills, 868 N.E.2d at 452. We cannot say that the PC court’s

       findings on this issue are clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 10 of 16
                               II.      Ineffective Assistance of Trial Counsel

[14]   Boyd appeals the PC court’s denial of his claim of ineffective assistance of trial

       counsel. Specifically, Boyd argues that Attorney Brinson failed to apprise him

       of ongoing plea negotiations with the State in a timely and proper manner.


[15]   To prevail on a claim of ineffective assistance of counsel, a petitioner must

       demonstrate both that: (1) his or her counsel’s performance was deficient, and

       (2) the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v.

       State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S.

       668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830,

       122 S. Ct. 73 (2001). The failure to satisfy either prong will cause the claim to

       fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective

       assistance of counsel claims, thus, can be resolved by a prejudice analysis alone.

       Id.


[16]   An attorney’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Woodson v. State, 961

       N.E.2d 1035, 1041 (Ind. 2012). A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74

       (Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and

       convincing evidence to overcome this presumption.” Id. Isolated poor strategy,

       inexperience, or bad tactics does not necessarily constitute ineffective assistance

       of counsel. Id.
       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 11 of 16
[17]   In analyzing prejudice in the context of a guilty plea, we review such ineffective

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

       Segura created two categories of claims and enunciated different treatments of

       each respective category, depending upon whether the ineffective assistance

       allegation related to (1) an unutilized defense or failure to mitigate a penalty, or

       (2) an improper advisement of penal consequences. Willoughby v. State, 792

       N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans.

       denied.


[18]   The PC court rejected Boyd’s argument and found, in part:


                 10. The testimony of [Boyd] was that there was an offer of 22
                 years made to him prior to the trial date. Mr. Brinson could not
                 recall any offer prior to the trial date, but did not dispute that
                 there might have been a 22-year offer made to [Boyd].


                 11. However, there is no additional evidence of any other offers
                 being made to Mr. Brinson, which were not conveyed to [Boyd].
                 Mr. Brinson conveyed the offer of 13 years to [Boyd] on the
                 morning of trial, which is when Mr. Brinson received the offer
                 from the State.


                 12. Therefore, [Boyd] has failed to prove his first claim by a
                 preponderance of the evidence.


       App. Vol. II pp. 17-19.


[19]   Attorney Brinson, an experienced criminal defense attorney and former deputy

       prosecutor, testified that he “d[id]n’t specifically recall all the plea negotiations

       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 12 of 16
       that took place before [Boyd’s] trial”; however, he stated, “[i]f they say that I

       submitted him a plea offer of 22 years, then I must have, but I don’t recall that.”

       Tr. Vol. II pp. 44, 50. Asked whether he “failed to properly or timely advise the

       defendant of the plea negotiations between trial counsel and the State of

       Indiana,” Attorney Brinson responded, “I don’t think I failed to do that.” Id. at

       55.

[20]   Boyd testified that, after the State initially charged him, Attorney Brinson

       brought him a written plea offer from the State “that said something about 22

       years.” Id. at 33. Boyd testified that he conferred with Attorney Brinson

       regarding the initial plea offer and that they agreed to reject it. Boyd testified

       that he did not receive another plea offer until the date of his trial, which offer

       Boyd accepted and wherein Boyd agreed to serve concurrent thirteen-year

       sentences.

[21]   From our reading of the record, Boyd presented no evidence to support a

       finding that Attorney Brinson’s representation fell below an objective standard

       of reasonableness or to rebut the strong presumption that Brinson rendered

       adequate assistance and exercised reasonable professional judgment in keeping

       Boyd apprised of plea negotiations with the State. All told, Boyd testified that,

       on two occasions, the State presented Attorney Brinson with plea offers for

       Boyd’s consideration and that, on both occasions, Attorney Brinson relayed the

       plea offers to Boyd, discussed the plea offers with Boyd, and then relayed

       Boyd’s decisions thereon to the State. Nor can Boyd establish prejudice where

       the evidence shows that Attorney Brinson counseled him to forgo a twenty-two

       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 13 of 16
       year sentence and that Boyd subsequently agreed, after conferring with Brinson,

       to accept a lesser, thirteen-year sentence. Accordingly, we agree with the PC

       court that Boyd has failed to demonstrate ineffectiveness of trial counsel. The

       PC court’s finding is not clearly erroneous.


                                 III.    Ineffective Assistance of PC Counsel

[22]   Lastly, Boyd contends that he received ineffective assistance of PC counsel. It

       is well-settled that there is no federal or state constitutional right to counsel in

       post-conviction proceedings. Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012).


               [Our supreme court] declared its approach to claims about
               performance by a post-conviction lawyer in Baum v. State, 533
               N.E.2d 1200 (Ind. 1989). We observed that neither the Sixth
               Amendment of the U.S. Constitution nor article 1, section 13 of
               the Indiana Constitution guarantee[s] the right to counsel in post-
               conviction proceedings, and [we] explicitly declined to apply the
               well-known standard for trial and appellate counsel of Strickland
               v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The Baum
               Court noted that post-conviction pleadings are not regarded as
               criminal actions and need not be conducted under the standards
               followed in them. We held unanimously that a claim of defective
               performance “poses no cognizable grounds for post-conviction
               relief” and that to recognize such a claim would sanction
               avoidance of legitimate defenses and constitute an abuse of the
               post-conviction remedy.


               We therefore adopted a standard based on principles inherent in
               protecting due course of law - one that inquires “if counsel in fact
               appeared and represented the petitioner in a procedurally fair
               setting which resulted in a judgment of the court.” As Justice
               DeBruler explained later, speaking for a majority of us, it is “not
       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 14 of 16
               a ground for post-conviction relief that petitioner’s counsel in a
               prior post-conviction proceeding did not provide adequate legal
               assistance,” but such a contention could provide a prisoner with
               a basis for replying to a state claim of prior adjudication or abuse
               of process.


       Graves v. State, 823 N.E.2d 1193, 1196-97 (Ind. 2005) (citations omitted).

       Accordingly, when tasked with reviewing the performance of post-conviction

       counsel, we look to the actual representation of post-conviction counsel to

       determine whether “[c]ounsel, in essence, abandoned [the] client” by failing to

       present any evidence in support of their client’s claim. Waters v. State, 574

       N.E.2d 911 911-12 (Ind. 1991). Such is not the case here.


[23]   The PC record reveals that Attorney Blackard: (1) appeared, succeeded

       Attorney Brinson, and represented Boyd; (2) argued the motion to withdraw

       Boyd’s guilty plea; (3) prepared and filed Boyd’s petition for PCR; (4) argued

       on Boyd’s behalf and questioned Boyd and Attorney Brinson at the hearing on

       Boyd’s petition for PCR; and (5) prepared and tendered proposed findings of

       fact and conclusion of law regarding Boyd’s petition for PCR.


[24]   Based on the foregoing, we certainly cannot say that Attorney Blackard

       “abandoned” Boyd by failing to present evidence in support of Boyd’s claims.

       See, e.g., Graves, 823 N.E.2d at 1197 (holding that post-conviction counsel did

       not abandon defendant where counsel appeared at the post-conviction relief

       hearing, directly examined defendant, and tendered affidavits).



       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 15 of 16
                                                 Conclusion

[25]   The PC court properly denied Boyd’s petition for PCR. The trial court did not

       err in denying Boyd’s motion to withdraw his guilty plea, and Boyd did not

       receive ineffective assistance of trial or PC counsel. We affirm.


[26]   Affirmed.


[27]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1703-PC-715 | February 13, 2019   Page 16 of 16
