BARNES, Judge.
Ricky
The issues before us are:
We related the underlying facts in this case in Graham's direct appeal as follows:
Graham v. State, No. 22A04-0612-CR-757, slip op. at 2-3, 2007 WL 2811089 (Ind.Ct.App. Sept. 28, 2007) (citations omitted).
Graham's trial attorney made an oral motion to withdraw the guilty plea at Graham's sentencing hearing, which the trial court denied. On direct appeal, Graham's appellate attorney challenged only the appropriateness of his sentence under Indiana Appellate Rule 7(B). We affirmed. Id. at 6.
On November 15, 2007, Graham, acting pro se, filed a PCR petition. The petition alleged, among other matters, that Graham
Post-conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind.2007), cert. denied. "In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence." Id. We review factual findings of a post-conviction court under a "clearly erroneous" standard but do not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Id. Additionally, the PCR court here entered findings of fact and conclusions thereon, as required by Indiana Post-Conviction Rule 1(6). We cannot affirm the judgment on any legal basis, but rather, must determine if the court's findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind.Ct.App. 1996).
Before turning to the merits, we address some procedural issues. First, as noted, Graham alleges in part that he received ineffective assistance of trial counsel. He specifically alleges that trial counsel failed to adequately prepare for trial, provided incorrect advice as to the validity of the habitual offender allegation filed by the State, and acted improperly in allegedly advising Graham in the middle of his trial that "the jury has you already convicted." Appellant's Br. p. 7. Repeatedly throughout the PCR court's findings and the State's brief on appeal, it is stated that Graham failed to support his ineffective assistance of trial counsel claim because he did not attempt to procure his trial attorney's attendance at the PCR hearing. See Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989) (holding that, where a PCR petitioner fails to procure the testimony of trial counsel at PCR hearing, PCR court may infer that trial counsel would not have corroborated claims of ineffective assistance).
Those statements by the PCR court and State are not supported by the record. The record before us indicates that Graham did expressly request the PCR court to issue a subpoena to secure his trial attorney's presence at the PCR hearing. As a pro se PCR petitioner, Graham was required to request the PCR court to issue any subpoenas on his behalf. See Ind. Post-Conviction R. 1(9)(b). If a PCR court does not believe a proposed witness's expected testimony would be relevant and probative, it must make a finding on the record to that effect before refusing to issue a subpoena. Id. Otherwise, the PCR court "shall order that the subpoena be issued." Id. It is unclear why the PCR court did not act upon Graham's request to subpoena his trial attorney. It appears that the failure of Graham's trial attorney to testify at the PCR hearing was not Graham's fault. Because, ultimately, we will be remanding for further proceedings in this action, we will not at this time address Graham's claim of ineffective assistance of trial counsel. Instead, that claim may be considered anew
We also observe that the State faults Graham for not introducing evidence at the PCR hearing in support of his claims, including the record related to his trial and guilty plea. It is true that there is longstanding precedent holding that the record of proceedings from the original trial must be admitted into evidence at a PCR hearing, just like any other exhibit, and a PCR court may not take judicial notice of that record.
Unfortunately, precisely what Graham brought to the PCR hearing is unclear, and it was not introduced into evidence and it has not been transmitted to this court in this appeal, nor were any superior court records made part of the record in the PCR proceeding. The PCR court seemed to indicate that, essentially, it could take judicial notice of the trial court record, but as we have indicated that was an improper course of action. It is true that Graham did not insist that the materials he brought to the hearing be introduced into evidence. Still, if a party in a PCR proceeding provides the original trial record (or a part thereof) to the PCR court, the PCR court should proactively ensure that the record is officially entered into evidence as an exhibit, so that the trial record is transmitted to this court in the event of an appeal and to avoid claims of waiver for failing to submit the trial record to the PCR court. Otherwise, there is the danger of converting a procedural technicality into a trap for unsuspecting litigants, which we emphatically discourage. In the present case, we believe we have sufficient information in the record, and in the PCR court's findings, to resolve the issues regarding the factual basis for the guilty plea, Graham's motion to withdraw that plea, and whether that plea was illusory or involuntary.
We will not address Graham's claims of fundamental error with respect to the timing of the addition of the habitual offender charging information or in the denial of his motion to withdraw his guilty plea. Freestanding claims of fundamental error are not available on post-conviction review. See Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). Because Graham separately raises the withdrawal issue as a claim of ineffective assistance of appellate
We first address whether there was a sufficient factual basis for Graham's guilty plea to Class B felony dealing in a narcotic drug. A court may not accept a guilty plea unless the court determines that a sufficient factual basis exists to support the plea. Rhoades v. State, 675 N.E.2d 698, 700 (Ind.1996) (citing Ind.Code § 35-35-1-3). A factual basis may be established by relatively minimal evidence about the elements of the crime from which the court could reasonably conclude that the defendant is guilty. Id. A trial court's finding of an adequate factual basis is presumptively correct. Id. Additionally, the standard for a sufficient factual basis to support a guilty plea is less rigorous than that required to support a conviction. Id. at 702. "Reasonably concluding" that a defendant is guilty for purposes of a factual basis is not the same as concluding guilt beyond a reasonable doubt. Id.
On this issue, it would have been preferable if we had the trial and guilty plea record before us. However, the PCR court made a finding as to what Graham stated at the guilty plea hearing in support of a factual basis, and he does not dispute that finding. Specifically, Graham admitted that he was present at the 711 West Market Street house in New Albany on July 13, 2006, that he knew Leone was manufacturing methamphetamine there, and that he loaned Leone his truck so that he could go purchase more pills needed in the manufacturing process.
Though this factual basis was not overwhelming evidence of Graham's guilt, it did not need to be in order to support his guilty plea. There being no evidence that Graham possessed methamphetamine, the factual basis was required to establish that he knowingly or intentionally manufactured, financed the manufacture of, delivered, or financed the delivery of a narcotic drug, i.e. methamphetamine.
Keeping in mind that we need not determine whether Graham's factual basis would have supported a conviction beyond a reasonable doubt, there is sufficient evidence from which the trial court reasonably could have concluded that he committed dealing in a narcotic drug as an accomplice to Leone's manufacturing of methamphetamine. Graham knowingly was present at a house where methamphetamine was being manufactured by Leone, a companion of his. He did nothing to oppose the manufacturing, but rather assisted in the process by permitting Leone to use his truck to go purchase a necessary ingredient. This was a sufficient factual basis to permit the trial court to accept Graham's plea of guilty to Class B felony dealing in a narcotic drug.
Next, we consider whether Graham received ineffective assistance of appellate counsel. Specifically, Graham contends appellate counsel was ineffective for not raising to this court on direct appeal whether the trial court erred in denying permission to withdraw his guilty plea at the sentencing hearing.
We are highly deferential to appellate counsel's decisions in deciding what issues to raise on direct appeal. See id. In evaluating those decisions, we must determine (1) whether an unraised issue was significant and obvious from the face of the record; and (2) whether an unraised issue was "clearly stronger" than the raised issue or issues. Id. Counsel is deficient only if he or she failed to present a significant and obvious issue for reasons that cannot be explained by any strategic decision. Id.
In evaluating Graham's ineffective assistance claim, we will assess what the strength of his appellate argument regarding withdrawal of his guilty plea would have been on direct appeal. Indiana Code Section 35-35-1-4(b) permits a defendant, after pleading guilty but before imposition of sentence, to move to withdraw his or her guilty plea. Such a motion "shall be in writing and verified." I.C. § 35-35-1-4(b). A trial court must grant a motion to withdraw a guilty plea if the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice. Bland v. State, 708 N.E.2d 880, 882 (Ind.Ct.App.1999). If the defendant does not prove a manifest injustice by a preponderance of the evidence, the trial court has discretion to grant or deny the motion to withdraw. Id. Appellate review of a trial court's denial of a motion to withdraw a guilty plea is for an abuse of discretion. Id.
The first difficulty Graham would have had on direct appeal is that he did not file a written, verified motion to withdraw his guilty plea. Rather, he orally moved at his sentencing hearing to withdraw the plea. Such a motion does not comply with the mandates of Indiana Code Section 35-35-1-4(b); that fact alone may have been sufficient for this court to have rejected Graham's claim on direct appeal, had it been raised at that time. See id.
Moreover, even if a written motion had been filed, an appellate claim regarding that motion is unlikely to have been successful. Graham contends that he protested his innocence at his sentencing hearing. It is true that "[a] judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time." Id. This rule applies, however, only to defendants who actually plead guilty and maintain their innocence simultaneously. Id. It does not apply to defendants who plead guilty, and then later, during a presentence interview and/or at sentencing, protest their innocence.
In support of his argument, Graham cites a case in which this court stated:
Cross v. State, 521 N.E.2d 360, 362 (Ind. Ct.App.1988) (citations omitted). Graham contends that he falls under the rule announced in Cross, in that he pled guilty, then protested his innocence before he was sentenced, and the trial court did not resolve the inconsistency between his earlier guilty plea and later statement of innocence.
However, our supreme court effectively overruled Cross by the issuance of two opinions that directly conflict with Cross. See Mayberry v. State, 542 N.E.2d 1359, 1360-61 (Ind.Ct.App.1989) (citing Hatcher v. State, 540 N.E.2d 1241 (Ind. 1989), and Moredock v. State, 540 N.E.2d 1230 (1989)), trans. denied. The current state of the law is that, at least in non-death penalty cases, a trial court in its discretion may refuse to set aside a guilty plea when a defendant maintains his innocence in a hearing held after the guilty plea hearing but before sentence is imposed. Bewley v. State, 572 N.E.2d 541, 544 (Ind.Ct.App.1991); see also Ford v. State, 618 N.E.2d 36, 39 (Ind.Ct.App.1993).
Here, in fact, it is not even clear that Graham ever has truly maintained his innocence in this case. That is, he did not, prior to sentencing, deny the truth of what he admitted to at the guilty plea hearing; namely, that he was knowingly present in a home where methamphetamine was being manufactured and allowed Leone to use his truck to drive to buy more pills to manufacture more methamphetamine. To the extent Graham told the probation officer compiling the presentence investigation report that he was "not guilty," he did not explain why he was not guilty. App. p. 45. Rather, it appears that he merely was challenging the sufficiency of his admissions at the guilty plea hearing as a factual basis to support his conviction for Class B felony dealing in a narcotic drug. We have already rejected that argument.
We cannot conclude that Graham's motion to withdraw his guilty plea presented a situation in which it had to be granted. The trial court, instead, had the discretion to deny it, and we would have reviewed that decision for an abuse of discretion, which is a challenging standard for an appellant to meet. That being the case, we cannot say appellate counsel was ineffective for not raising the issue of the motion to withdraw on direct appeal, and instead focusing on the appropriateness of Graham's maximum sentence.
The final issue we address today is whether the PCR court properly rejected Graham's claim that his guilty plea was illusory and involuntary. Graham contends that his guilty plea was motivated by the improper threat of a thirty-year habitual offender enhancement to his sentence if he did not plead guilty. A plea bargain motivated by an improper threat is deemed illusory and a denial of substantive rights. Champion v. State, 478 N.E.2d 681, 683 (Ind.1985) (citing Gibson v. State, 456 N.E.2d 1006, 1009 (Ind.1983)). The State must possess, at the moment a guilty plea is entered, the power to carry
Here, Graham was charged by the State with Class B felony dealing in a narcotic drug under Indiana Code Section 35-48-4-1. The State's general habitual offender charging information alleged that Graham had prior felony convictions for resisting law enforcement and possession of a controlled substance, and two prior felony convictions for possession of marijuana. The State dismissed the habitual offender allegation in exchange for Graham's plea.
The general habitual offender statute prohibits the State from seeking a sentence enhancement for an offense under Indiana Code Chapter 35-48-4, if the offense is not listed in Indiana Code Section 35-50-2-2(b)(4) (i.e., "crimes of violence" for purposes of sentence suspension), and the defendant does not have more than one prior conviction for dealing in cocaine, a legend or narcotic drug, or a schedule I, II, III, IV, or V controlled substance. I.C. § 35-50-2-8(b)(3). On appeal, the State concedes that as charged, Graham's sentence for Class B felony dealing in a narcotic drug could not have been enhanced under the general habitual offender statute.
The issue, therefore, is the impact of that improper threat on the validity of Graham's guilty plea. In Nash v. State, 429 N.E.2d 666, 672 (Ind.Ct.App.1981), this court indicated that if the improper threat of an habitual offender sentence enhancement "played a significant part in the plea negotiations," then any resulting plea is illusory, even if that threat was not the "main" motivation for the plea. More recently, our supreme court, in Segura v. State, 749 N.E.2d 496 (Ind.2001), has seemed to place a higher burden upon defendants who are claiming that an improper punitive threat compelled their guilty plea before that plea may be set aside.
In Segura, a defendant pled guilty to dealing in cocaine and then sought in post-conviction proceedings to set aside that plea on the basis that his trial attorney had been ineffective for failing to advise him of the possibility of deportation if he pled guilty. Our supreme court undertook an exhaustive review of precedents on the subject of the validity of guilty pleas, where a defendant has received incorrect advice as to penal consequences of a plea. As the Segura court noted, such incorrect advice could take the form of either "intimidation by an exaggerated penalty or enticement by an understated maximum exposure...." Id. at 504.
With respect to such claims, the court stated:
Id. at 504-05.
The court went on to hold that a defendant seeking to set aside a guilty plea on the basis of incorrect advice as to penal consequences need not establish his or her actual innocence, or in other words need not establish that the ultimate result of a full trial and sentencing would have been more favorable than the result of the guilty plea. Id. at 507. Rather, the court held:
Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)). Relying upon Segura, this court later held, "when an error in advice supports a claim of intimidation by exaggerated penalty, a petitioner must establish specific facts that lead to the conclusion that a reasonable defendant would not have entered a plea had the error in advice not been committed." Willoughby v. State, 792 N.E.2d 560, 564 (Ind.Ct.App.2003).
Although Segura and Willoughby dealt specifically with ineffective assistance of counsel claims, we believe the standard they set out is equally applicable to straightforward claims of an involuntary or illusory plea. Segura expressly refers to both ineffective assistance and involuntary plea claims. See Segura, 749 N.E.2d at 504; see also Willoughby, 792 N.E.2d at 563 ("it is immaterial whether [a defendant's] claim is of an involuntary plea or ineffective assistance of counsel."). Graham's particular claim on this point seems to be a hybrid of ineffective assistance and an outright involuntary or illusory plea. There is, however, evidence that trial counsel did advise Graham that he did not believe an habitual offender enhancement of his sentence would be upheld on appeal. On the other hand, the trial court denied Graham's attorney's motion to dismiss the habitual offender information, and the State did not dismiss it of its own accord until the dismissal was made part of Graham's plea agreement. Ultimately, there is evidence here that the trial court itself advised Graham at the guilty plea hearing that he was facing a possible maximum fifty-year sentence if he did not plead guilty. Such an advisement arguably would overshadow any advice Graham had received from trial counsel regarding the validity of the habitual offender enhancement.
We reiterate that we cannot affirm the PCR court's ruling on any basis supported by the record, and we are limited to affirming on a basis supported by the PCR court's express findings. See Lile, 671 N.E.2d at 1192. We cannot affirm the PCR court's rejection of Graham's illusory or involuntary guilty plea claim, where the only finding supporting that rejection is clearly erroneous. On the other hand, Graham has not definitively established that he is entitled to relief and the setting aside of his guilty plea. Under the circumstances, we conclude we have no choice but to remand to the PCR court for further proceedings to consider whether there exist facts that meet the Segura standard for setting aside a guilty plea based on the clearly improper threat of an habitual offender sentence enhancement.
Graham failed to meet his burden of establishing that he was entitled to post-conviction relief on his claims of an inadequate factual basis or ineffective assistance of appellate counsel. The PCR court properly rejected those claims. We affirm the rejection of those claims, as well as of Graham's freestanding claims of fundamental error. However, the PCR court's findings do not support its rejection of Graham's claim that his plea was illusory or involuntary. We remand for a new PCR hearing to address that question, as well as the question of the effectiveness of his trial counsel on the grounds raised in Graham's PCR petition, should Graham resubmit his subpoena request for his trial counsel to appear at the new hearing. We additionally reiterate that should the PCR court on remand rely on parts of the original trial record, it should make those records part of the current PCR record as well.
Affirmed in part and remanded in part.
BAKER, J., and VAIDIK, J., concur.
