OPINION

BROWN, Judge.

William T. Springer appeals the post-conviction court's denial of his petition for post-conviction relief. Springer raises two issues, which we consolidate and restate as whether the post-conviction court erred in denying Springer's petition for relief. We reverse.

The relevant facts follow. On November 2, 2005, Springer broke and entered the business of Ed Tackett with the intent to commit theft. Springer then exerted unauthorized control over Tackett's property with the intent to deprive Tackett of the value and use of the property. That same day, Springer broke and entered a recreational vehicle belonging to Sam Hall and damaged the vehicle. Springer also broke into the residential dwelling of Ray Walker by throwing a brick through a window with the intent to commit theft.

On January 6, 2006, Springer was arrested and incarcerated in the Whitley County Jail. Springer attempted to murder his cellmate by "striking, kicking, and/or choking [his cellmate, and] striking solid surfaces with his head and/or twisting his neck...." Petitioner's Exhibit 1 at 10.

On November 4, 2005, the State charged Springer under cause number 92C01-0511-FB-189 ("Cause No. 189") with attempted burglary as a class B felony, burglary as a class C felony, theft as a class D felony, criminal mischief as a class B misdemeanor, and being an habitual offender. On January 12, 2006, the State charged Springer with attempted murder under cause number 92C01-0601-FA-6 ("Cause No. 6").

On March 20, 2006, twenty-six-year-old Springer pled guilty as charged1 under both cause numbers. The plea agreement stated that "the punishment which the law provides for the charge to which [Springer is] pleading guilty is: 36 years—141 years"2 and capped Springer's sentence at 100 years. Petitioner's Exhibit 6. The plea agreement stated that all sentences under Cause No. 189 would be served concurrent with one another and that the sentence under Cause No. 6 would be served consecutive to the sentence under Cause No. 189. The plea agreement also provided that the State agreed not to file an habitual offender charge under Cause No. 6.

The court held a hearing that day regarding Springer's guilty plea under both cause numbers. At the hearing, Springer's attorney requested a psychiatric evaluation of Springer, and the court granted the request. Two psychiatrists or psychologists examined Springer and did not believe that Springer suffered from a mental disease or defect or insanity.

On May 30, 2006, the court held a consolidated sentencing hearing. Under Cause No. 189, the court found the following aggravators: (1) Springer's criminal history; (2) Springer's history of violating probation; (3) that Springer was on probation at the time of the offenses; (4) that Springer was in need of correctional or rehabilitative treatment; and (5) that Springer was a risk to commit future crimes. The court found the following mitigators: (1) Springer had his G.E.D.; (2) Springer's history of mental illness as a juvenile; (3) Springer's mental health issues; and (4) Springer's acceptance of responsibility by pleading guilty. The court found that the aggravators outweighed the mitigators and sentenced Springer to sixteen years for Count I, attempted burglary as a class B felony. The court ordered that the sentences for Counts II, III, and IV be served concurrent with Count I. The court enhanced the sentence for attempted burglary as a class B felony by twenty years due to his status as an habitual felony offender, for an aggregate sentence under Cause No. 189 of thirty-six years.

Under Cause No. 6, the court found the same mitigators and the same aggravators and also found the fact that "the victim did absolutely nothing to provoke the attack" as an additional aggravator. Petitioner's Exhibit 1 at 24. The court sentenced Springer to fifty years for attempted murder to be served consecutive to the sentences under Cause No. 189 for a total aggregate sentence of eighty-six years.3

On March 19, 2007, Springer filed petitions for post-conviction relief under Cause No. 189 and Cause No. 6 alleging that he was denied effective assistance of trial counsel and that he did not knowingly, intelligently, or voluntarily enter into his plea agreement. On June 1, 2010, Springer filed an amendment to his petition for post-conviction relief. Springer cited Breaston v. State, 907 N.E.2d 992 (Ind. 2009), for the proposition that a trial court could not order consecutive habitual offender sentences.

On August 31, 2010, the court held a hearing on Springer's petitions. At the hearing, Springer's trial counsel testified that he informed Springer that the penal consequences were "anywhere from thirty-six to one hundred forty-one years." Transcript at 6. Springer's counsel stated that he was not aware of the Breaston case because it was handed down in 2009, but that he "did read through the cases and [he became] aware the [sic] Sarks [Starks] case, the Smith case and the Ingham [Ingram] case. Each of which was decided before Mr. Springer's case and each of which decided on separate grounds that habitual offender enhancements could not be sentenced consecutively." Id. at 14. Springer's counsel also indicated that the maximum sentence Springer could have received under the plea agreement was one hundred years.

During direct examination of Springer, the following exchange occurred:

Id. at 15-16.

On September 28, 2010, Springer filed his proposed findings of fact and conclusions of law and cited Starks v. State, 523 N.E.2d 735 (Ind.1988), Ingram v. State, 761 N.E.2d 883 (Ind.Ct.App.2002), and Smith v. State, 774 N.E.2d 1021 (Ind.Ct. App.2002), trans. denied, in support of his argument that consecutive habitual offender enhancements were improper. On September 30, 2010, the State filed its proposed findings of fact and conclusions of law and noted that Breaston v. State, 907 N.E.2d 992 (Ind.2009), was decided after Springer's guilty plea.

On December 20, 2010, the court denied Springer's petition, stating in its order:

Appellant's Appendix at 72-73.

Before discussing Springer'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). Id. "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.

The issue is whether the post-conviction court erred in denying Springer's petition for relief. Springer argues that "[i]n 2006, when Springer pled guilty, the law was clearly established that . . . there was no express statutory authorization for imposing consecutive habitual offender enhancements and that they were therefore prohibited." Appellant's Brief at 8 (citing Smith, 774 N.E.2d at 1024). Springer argues that the Court of Appeals decision in Breaston "represented a departure from established precedent. . . ." Id. at 8-9. Springer argues that "[t]he facts presented to the post conviction court show that Springer was threatened with consecutive habitual offender enhancements and thus threatened with an inaccurate maximum sentencing exposure of 141 years." Id. at 6. Springer also argues his trial counsel was ineffective for misadvising him and that his guilty plea was based on an illusory threat and was therefore unknowing, unintelligent, and involuntary. Lastly, Springer argues that the "actual benefit [he] received by pleading guilty was minimal considering the amount of time he faced" and that he received "only 11 years off of a potential 111 year sentence" as a maximum under the plea agreement. Id. at 11.

The State argues that Springer's primary concern was "keeping open the possibility that he would live long enough to get out of prison." Appellee's Brief at 8. The State points out that Springer was twenty-six years old at the time of his plea and argues that "[v]iewed from that perspective, there was a significant difference between a possible 111.5-year sentence and a maximum 100-year sentence." Id. The State argues that "[a]ssuming good time credit, it is the difference between being released at age seventy-six and not being released until the age of eighty-one." Id. The State argues that "[i]t seems fairly clear from the record that [Springer] did not have a realistic chance of being acquitted if he went to trial." Id. at 9. The State also argues that "[b]y pleading guilty, [Springer] could—and did—argue his acceptance of responsibility and admission of guilt as a mitigating factor, and the trial court did find this to be a significant mitigating factor." Id. at 9-10 (internal citations omitted).

The State does not appear to challenge Springer's argument that consecutive habitual offender enhancements were prohibited at the time of his guilty plea. Rather, the State notes: "Prior to [Springer's] plea, Indiana courts had held that, absent express statutory authority, which had not been found to exist, consecutive habitual offender enhancements were not allowed." Id. at 8 (citing Starks, 523 N.E.2d at 737; Smith, 774 N.E.2d at 1024; and Ingram, 761 N.E.2d at 885-886).

In Smith, which was handed down prior to Springer's guilty plea, Robert Smith was charged with a number of offenses including being an habitual offender. 774 N.E.2d at 1022. While released on bond pending trial on these charges, Smith committed additional crimes and was charged with a number of offenses including being an habitual offender. Id. Smith argued that the post-conviction court erred when it determined consecutive habitual offender enhancements were properly imposed. Id. On appeal, the State cited Ind.Code § 35-50-1-2(d) and argued that the trial court was obliged to require that Smith's sentences, including both enhancements, be served consecutively. Id. at 1023-1024. We noted the absence of express statutory authorization for imposing multiple habitual offender sentences, whether in a single proceeding or in multiple proceedings. Id. at 1024. We concluded that the court "erred when it ordered Smith's habitual offender sentences to run consecutively." Id.

In Breaston v. State, 893 N.E.2d 6, 15 (Ind.Ct.App.2008), vacated in relevant part by 907 N.E.2d 992 (Ind.2009), a panel of this court held that the rationale employed in Smith was unable to be reconciled with Ind.Code § 35-50-1-2(d). In its decision in Breaston, the Indiana Supreme Court agreed with Smith and held that "[u]nder Indiana law, a trial court cannot order consecutive habitual offender sentences." 907 N.E.2d at 995. The Court also observed that Ind.Code § 35-50-1-2(d) was enacted by the Legislature in 1987, that the statute "was in its present form" when the Court wrote Starks in 1988,4 and that the statute does not expressly authorize multiple habitual offender enhancements to be imposed consecutively. Id. Based upon Smith, we conclude that Springer was improperly advised that the maximum sentence he faced was 141 years.

Generally, "a bargained plea, motivated by an improper threat, is to be 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 (Ind.1983)). "At the moment the plea is entered, the State must possess the power to carry out any threat which was a factor in obtaining the plea agreement which was accepted." Daniels v. State, 531 N.E.2d 1173, 1174 (Ind.1988). "The lack of that real power is what makes the threat illusory and causes the representation to take on the characteristics of a trick." Id. See also Nash v. State, 429 N.E.2d 666, 671 (Ind.Ct.App.1981) (stating that a threat by a prosecutor to do what the law will not permit, if it motivates a defendant ignorant of the impossibility, renders the plea involuntary).

Because Springer was convicted pursuant to a guilty plea, we must analyze his claims under Segura v. State, 749 N.E.2d 496 (Ind.2001). In Segura, the Indiana Supreme Court held:

749 N.E.2d at 504-505. Thus, it is immaterial whether Springer's claim is characterized as an involuntary plea or ineffective assistance of counsel. See Willoughby v. State, 792 N.E.2d 560, 563 (Ind.Ct.App. 2003) (citing Segura and holding that it was immaterial whether the petitioner's claim was characterized as an involuntary plea or ineffective assistance of counsel because, under either standard, the petitioner must demonstrate that the intimidation resulting from his trial counsel's failure to inform him of the single larceny rule was material to his decision to plead guilty), trans. denied.

Segura categorizes two main types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). The first category relates to "an unutilized defense or failure to mitigate a penalty." Willoughby, 792 N.E.2d at 563 (citing Segura, 749 N.E.2d at 507). 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. (citing Segura, 749 N.E.2d at 504-505, 507).

Springer's claims fall under the second category of an improper advisement of penal consequences. In Segura, the Court concluded:

Segura, 749 N.E.2d at 507.

At the post-conviction hearing, Springer did not merely allege that he would not have entered the plea agreement. Rather, Springer indicated that he pled guilty because he believed he would die in prison if he did not plead. Springer, who was twenty-six years old at the time he pled guilty, was advised that he faced the choice of accepting a plea agreement which carried a maximum sentence of 100 years or going to trial with the prospect of receiving sentences totaling 141 years which included the improper consecutive habitual offender sentences. Springer faced a proper maximum sentence of approximately 111 years and thus received a benefit by accepting the plea agreement of approximately eleven years.7 Under the circumstances, we conclude that Springer demonstrated at least a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised. See Reeves v. State, 564 N.E.2d 550, 553 (Ind.Ct.App.1991) (holding that petitioner's plea was involuntary where petitioner was twenty-eight years old at the time he pled guilty and was advised he faced the choice of accepting a plea agreement with a maximum of fifteen years or going to trial with the prospect of receiving a maximum of sixty years when he faced a proper maximum sentence of only thirty years).

For the foregoing reasons, we reverse the post-conviction court's denial of Springer's petition for post-conviction relief.

Reversed.

FRIEDLANDER, J., and BAILEY, J., concur.