OPINION
Case Summary
Ricky 1 Graham appeals the denial of his petition for post-conviction relief ("PCR petition"), which challenged his conviction for Class B felony dealing in'a narcotic drug. We affirm in part and remand in part. f
Issues
The issues before us are:.
I. whether there was a sufficient factual basis for Graham's guilty plea;
II. whether Graham received effective assistance of appellate counsel; and . .
III whether the PCR court's conclusion that Graham's guilty plea was not illusory or involuntary is supported by its findings.
Facts
We related the underlying facts in this case in Graham's direct appeal as follows:
On July 13, 2006, officers with the New Albany Police Department, acting on a "narcotics tip," arrived at 711 West Market Street in New Albany and spoke with Mark Leone, who was an occupant of the residence. The officers had observed a truck owned by Michael Land-rum parked behind the house, and they asked Leone whether Landrum was inside. Leone stated that there were three others inside, but he did not identify the other cccupants. The officers asked Leone to bring the other occupants to the front door to talk, but Leone only brought Landrum back with him. Landrum stated that he did not know who else was in the house.
When the officers asked Leone whether Graham was inside the house, he said "no," but became "extremely nervous." Leone then went inside the house and came back to the front door with Jessica Hill, who was a known girlfriend of Graham's. The officers knew that there was an outstanding warrant for Graham's arrest. The officers then received consent to enter the house, and they found Graham lying in a bathtub at the back of the house. They arrested Graham on the warrant. And after they obtained written consent from Leone to search the house, officers found "a glass jar of what [was] believed to be part of a methamphetamine lab." Officers then obtained a search warrant to conduct a more thorough search of the house, and they found more evidence that methamphetamine was being manufactured in the house.
The State charged Graham with dealing in a narcotic drug, as a Class B felony, and being an habitual offender. After the first day of trial, Graham pleaded guilty to the dealing charge, and, in exchange for that plea, the State dismissed the habitual offender charge. The plea agreement left sentencing open to the trial court's discretion. At sentencing, the trial court identified the following aggravators: Graham's criminal history; the risk that he will commit another crime; the nature and cireum-stances of the crime, namely, that Graham participated in manufacturing methamphetamine in a crowded neighborhood; a warrant in 2005 for a probation violation; and that Graham is in need of correctional or rehabilitative treatment that can best be provided by "commitment to a penal facility. In addition, the trial court found aggravating © that this was not the first time Graham had been arrested "for methamphetamine labs," 'and that Graham had not taken advantage of previous opportunities for drug treatment. 'The trial court did not identify any mitigators and sentenced Graham to twenty years..
Graham v. State, No. 22A04-0612-CR-757, slip op. at 2-3,
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 Gra
Analysis
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,
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,
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.
2
Douglas v. State,
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 hot 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,
I. Factual Basis
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,
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, ie. methamphetamine.
3
See I.C. § 35-48-4-1. Furthermore, under accessory liability theory, "A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense...." 1.C. § 85-41-24. Factors to consider in determining liability as an accomplice include "(1) presence at the seene of the crime; (2) companionship with another engaged in a crime; (3) failure to oppose the commission of the crime; and (4) the course of conduct before, during, and after the occurrence of the crime." Stokes v. State,
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.
4
When reviewing claims of ineffective assistance of appellate counsel, we apply the same standard applicable to claims of trial counsel ineffectiveness. Fisher v. State,
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 35-85-1-4(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,
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 inno
In support of his argument, Graham cites a case in which this court stated:
If, before sentencing, guilt is denied or there is an apparent protestation of innocence, the court is obliged to enter into a meaningful dialogue with the accused to clearly establish the validity of the plea. Should the court resolve any inconsistency and receive from the defendant his renewed admission of guilt, the acceptance of the plea and judgment of conviction may stand and sentence be imposed. However, if the inconsistency is not resolved, the court must reject the plea and set the course for trial or further proceedings.
Cross v. State,
However, our supreme court effectively overruled Cross by the issuance of two opinions that directly conflict with Cross. See Mayberry v. State,
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.
III. Illusory Guilty Plea
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,
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 3548-4, if the offense is not listed in Indiana Code Section 35-50-2-2(b)(4) (ie., "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)(8). 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. 5 Thus, there appears.to be no question that the State's threat of a general habitual offender enhancement of Graham's sentence was not capable of being fulfilled.
The issue, therefore, is the impact of that improper threat on the validity of Graham's guilty plea. In Nash v. State,
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:
Whether viewed as ineffective assistance of counsel or an involuntary plea, the postconviction court must resolve the factual issue of the materiality of the bad advice in the decision to plead, and postconviction relief may be granted if the plea can be shown to have beeninfluenced by counsel's error. However, if the postconviction court finds that the petitioner would have pleaded guilty even if competently advised as to the penal consequences, the error in advice is immaterial to the decision to plead and there is no prejudice.
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:
We believe a showing of prejudice from incorrect advice as to the penal consequences is to be judged by an objective standard, i.e., there must be a showing of facts that support a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised.... [A] petitioner may be entitled to relief if there is an objectively credible factual and legal basis from which it may be concluded that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
.... [Fljor claims relating to penal consequences, a petitioner must establish, by objective facts, cireumstances that support the conclusion that counsel's errors in advice as to penal consequences were material to the decision to plead. Meérely alleging that the petitioner would not have pleaded is insufficient. Rather, specific facts, in addition to the petitioner's conclusory ailegation, must establish an objective reasonable probability that competent répresentation would have caused the petitioner not to enter a plea.
Segura v. State,
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,
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,
Conclusion
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 ree-ords part of the current PCR record as well.
Affirmed in part and remanded in part.
Notes
. Our docket lists Graham's first name as "Rickey." Graham, who is representing himself, spells his name "Ricky.".
. It remains to be seen whether this will still be the rule following an amendment to Indiana Evidence Rule 201, effective January 1, 2010, which permits a court to take judicial . notice of "records of a court of this state." Ind. Evidence Rule 201(b)(5); see also In the Matter of the Paternity of P.R.,
. Twelve days before Graham was arrested, a new statute went into effect specifically criminalizing dealing in methamphetamine. See I.C. § 35-48-4-1.1. The State chose to charge Graham under the preexisting statute regarding cocaine and narcotic drugs.
. Such a claim could have been raised on direct appeal, despite Graham's guilty plea. See Brightman v. State,
. It does appear Graham's sentence could have been enhanced under the habitual substance offender statute, Indiana Code Section 35-50-2-10, had the State filed such a charge. The maximum enhancement under that statute would have been eight years, as opposed to thirty years under the general habitual offender statute.