Opinion
No. 34A02-1103-PC-284
08-29-2011
TERRY L. HOLMES, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT : WILLIAM POLANSKY Acting State Public Defender CORY J. LIGHTNER Deputy Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this 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.
ATTORNEYS FOR APPELLANT:
WILLIAM POLANSKY
Acting State Public Defender
CORY J. LIGHTNER
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
JAMES E. PORTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Julian Ridlen, Judge
Cause No. 34D02-0704-PC-105
FRIEDLANDER , Judge
Terry L. Holmes pleaded guilty to two counts of Child Molesting as class C felonies. Following his guilty plea, the trial court sentenced Holmes to sixteen years imprisonment, the statutory maximum. The sole issue presented on appeal is whether the post-conviction court properly denied Holmes's petition for post-conviction relief upon its determination that Holmes's guilty plea was knowingly, intelligently, and voluntarily entered.
Ind. Code Ann. § 35-42-4-3(b) (West, Westlaw through 2011 Pubs. Laws approved & effective through 06/28/2011).
We affirm.
On September 8, 2005, Holmes was charged with three counts of class C felony child molesting and one count of class A felony child molesting. After waiving his initial hearing, Holmes pleaded guilty to two counts of class C felony child molesting on May 15, 2006. At the guilty plea hearing the trial court had the following dialogue with Holmes:
Judge Jessup: Have you been over the rights you will give up with Mr. Hamilton [defense counsel]?Transcript at 2. At the conclusion of the hearing, the trial court accepted Holmes's guilty plea. On June 12, 2006, the trial court sentenced Holmes to eight years on each count, to be served consecutively.
Defendant: Yes, sir.
Judge Jessup: Do you want— like me to repeat those?
Defendant: No, sir.
Judge Jessup: You thoroughly understand them?
Defendant: Yes, sir.
Judge Jessup: You understand that if you plead guilty, you'd be admitting that you committed each of these acts and that you will be sentenced without any trial?
Defendant: Yes, sir.
Holmes filed a post-conviction relief petition claiming that his guilty plea was not knowing, intelligent, and voluntary because he was not advised of two of his Boykin rights. At the post-conviction hearing, Holmes acknowledged that prior to the instant conviction he had pleaded guilty in other matters. Holmes admitted that in each of those proceedings he was informed of his Boykin rights, specifically his right to a jury trial, his right to confront witnesses, and his right against self-incrimination. At the post-conviction hearing, Holmes testified that he did not remember Hamilton (Holmes's attorney) going over any rights with him.
Hamilton, however, recalled visiting Holmes in jail to discuss the term of the State's plea offer. Hamilton testified that it was his practice to notify clients in Holmes's position of their Boykin rights. Hamilton also indicated that it was his policy to address the consequences that go along with guilty pleas. Hamilton, however, had no specific recollection of whether he discussed those rights with Holmes. The post-conviction court determined that Holmes had failed to establish by a preponderance of the evidence any ground for relief, and therefore denied Holmes's petition for post-conviction relief. Holmes now appeals.
In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ritchie v. State, 875 N.E.2d 706 (Ind. 2007). A petitioner who has been denied post-conviction relief is in the position of appealing from a negative judgment. Id. The standard of review for a petitioner denied post-conviction relief is rigorous. For this court to reverse, the petitioner must prove that the evidence unerringly and unmistakably leads to the opposite conclusion. Id.
A petitioner who claims that his plea was involuntary and unintelligent but can only establish that the trial court failed to give an advisement in accordance with Ind. Code Ann. § 35-35-1-2 (West, Westlaw through 2011 Pubs. Laws approved & effective through 06/28/2011) has not met the burden of proof. White v. State, 497 N.E.2d 893 (Ind. 1986). The petitioner must plead specific facts from which a fact-finder could conclude that the trial court's failure to make a full inquiry in accordance with I.C. § 35-35-1-2(a) rendered the petitioner's decision involuntary or unintelligent. Id. The petitioner must prove that any erroneous or omitted advisements, if corrected, would have changed his or her decision to enter the plea. State v. Lime, 619 N.E.2d 601 (Ind. Ct. App. 1993) (citing Followell v. State, 578 N.E.2d 646 (Ind. 1991)).
The facts before the post-conviction court showed that Holmes's attorney would routinely go over the Boykin rights with clients in Holmes's position; Holmes's attorney indicated that it was his policy to address the consequences of guilty pleas with clients; and that Holmes was visited in jail by his attorney to discuss the State's plea offer. In addition, at the guilty plea hearing Holmes declared that he had been informed of his rights and the record reflects that he was aware of at least one of the Boykins rights: the right to a trial.
Based on the record, we agree with the post-conviction court that Holmes failed to prove by a preponderance of the evidence that his guilty plea was not knowing, intelligent, or voluntary. At the post-conviction relief hearing, Holmes proved only that the record showed the trial court failed to give an advisement. Holmes's statement that his attorney failed to advise him of any of his rights directly contradicts his previous statements before the trial court. Furthermore, Holmes did not prove prejudice and did not claim he would have done anything differently if the trial court had advised him of his other Boykin rights. See State v. Eiland, 723 N.E.2d 863 (Ind. 2000).
Under the circumstances, Holmes has not established that the evidence unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court.
Judgment affirmed. DARDEN, J., and VAIDIK, J., concur.