James A. Briley, Jr. v. State of Indiana (mem. dec.) ( 2017 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                  FILED
    regarded as precedent or cited before any                         Jun 20 2017, 8:59 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                            Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                       and Tax Court
    ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Stephen T. Owens                                         Curtis T. Hill, Jr.
    Public Defender of Indiana                               Attorney General
    Deidre R. Eltzroth                                       J.T. Whitehead
    Deputy Public Defender                                   Deputy Attorney General
    Indianapolis, Indiana                                    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    James A. Briley, Jr.,                                    June 20, 2017
    Appellant-Petitioner,                                    Court of Appeals Case No.
    58A01-1611-PC-2587
    v.                                               Appeal from the
    Ohio Circuit Court
    State of Indiana,                                        The Honorable
    Appellee-Respondent.                                     James D. Humphrey, Judge
    Trial Court Cause No.
    58C01-1310-PC-3
    Kirsch, Judge.
    [1]   Through plea agreements in two counties, James A. Briley (“Briley”) pleaded
    guilty to two Class B felony burglaries and six Class C felony burglaries. He
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    filed a petition for post-conviction relief, challenging his plea to the two Class B
    felony convictions.1 The post-conviction court denied relief. He appeals the
    denial of his petition raising the following restated issues:
    I. Whether Briley received ineffective assistance of trial counsel;
    and
    II. Whether Briley’s guilty plea was knowing, intelligent, and
    voluntary.
    [2]   We affirm.
    Facts and Procedural History
    [3]   Following investigation into a string of burglaries occurring in Ohio, Dearborn,
    and Switzerland counties, the State charged Briley, in October and November
    2009, with sixteen felonies, eight in Ohio county and eight in Dearborn County.
    The Ohio charges consisted of: Count I, Class B felony burglary; Count II,
    Class B felony conspiracy to commit burglary; Count III, Class C felony
    burglary; Count IV, Class C felony conspiracy to commit burglary; Count V,
    Class C felony burglary; Count VI, Class C felony conspiracy to commit
    burglary; Count VII, Class B felony burglary; Count VIII, Class B felony
    conspiracy to commit burglary. Pet’r’s Ex. 4. The burglaries were committed at
    various bars and restaurants. The two Class B felony burglary charges, Counts
    I and VII, occurred at the River House III (“the River House”) and Hong Kong
    1
    Briley does not appeal the six Class C felony convictions.
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    Kitchen, respectively, and were elevated to a Class B felony because each was
    alleged to have been committed at a business with an attached dwelling. Briley
    was similarly charged in Dearborn County with having committed eight
    Class C felony burglary offenses. See Pet’r’s Ex. 1 at 10-12 (guilty plea
    transcript referring to Dearborn charges).
    [4]   On April 23, 2010, Briley entered into a Negotiated Plea Agreement
    (“Agreement”) in which he agreed to plead guilty to the following four counts
    of burglary in Ohio County: Count I and VII, Class B felonies (for burglaries
    committed at Hong Kong Kitchen and River House, respectively) and Counts
    III and V, Class C felonies; Counts II, IV, VI, and VIII were dismissed, and
    sentencing was left open to trial court discretion. Around the same time, Briley
    entered into a similar plea agreement resolving the pending Class C felony
    burglaries in Dearborn County, pleading guilty to four counts of Class C
    felony burglary, Counts I, III, V, and VII; the remaining four counts were
    dismissed. In total, Briley pleaded guilty to two Class B felony burglary
    charges and six Class C felony burglary charges, and eight felony charges,
    consisting of burglary and conspiracy to commit burglary, were dismissed.
    [5]   The trial court held a hearing on the two pleas on April 23, 2010.2 At the
    guilty plea hearing, the trial court specifically addressed the fact that Briley was
    pleading guilty to, not only Class C felonies, but also to Class B felonies: “I
    2
    By agreement of the parties, the trial court conducted the guilty plea hearing on both the Ohio County
    and the Dearborn County cases.
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    want to make sure you understand that you have two Class B felonies here.”
    
    Id. at 18.
    After that, Briley admitted the factual basis for the eight burglary
    charges to which he was pleading guilty, including, as is relevant here, “Count
    I, that on or about between October 17, 2009, and October 20, 2009, in Ohio
    County, State of Indiana, James A. Briley did break and enter the building or
    structure of another person, that being the River House III business and
    attached dwelling owned by [William] Sherman, located at 143 Main Street,
    Rising Sun, Ohio County, State of Indiana, with the intent to commit the felony
    of theft therein” and “Count VII, on or about November 7, 2009, in Ohio
    County, State of Indiana, James A. Briley did break and enter the building or
    structure of another person, to-wit: Hong Kong Kitchen business and attached
    dwelling, owned by Min [Qui], located at 206 Main Street, Ohio County, State
    of Indiana, with the intent to commit the felony of theft therein.” 
    Id. at 19-20.
    The trial court advised Briley that a Class B felony is punishable by a sentence
    of six to twenty years, with an advisory sentence of ten, and a Class C felony is
    punishable by a sentence of two to eight years, with an advisory of four years,
    and it reminded Briley that sentencing was left to the discretion of the trial
    court. 
    Id. at 15.
    [6]   At the subsequent sentencing hearing, Briley presented character and
    conduct witnesses and testified on his own behalf. Among other things,
    Briley testified that he was breaking into the buildings to steal money to
    support his drug habit, but that he did not intend to encounter people or
    hurt anyone. He utilized his electrician skills to plan and methodically
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    carry out the burglaries. He used a GPS, mask, gloves, and walkie talkies to
    converse with one or more other individuals that he had persuaded or
    “buffaloed” into assisting him. 
    Id. at 68.
    Briley admitted that he had two
    prior felony convictions, one in 2008 for being a convicted felon in
    possession of a firearm, and one in 1999 for “carrying a weapon where
    alcohol was served.”3 
    Id. at 57.
    Briley also admitted that he had a
    significant drug problem at the time of his arrest, was committing the
    burglaries to steal money to “feed [his] drug habit,” and was on probation at
    the time of the current offenses. 
    Id. at 66.
    The State presented the
    testimony of Detective Normal Rimstidt (“Detective Rimstidt”), who stated
    that, after investigation and surveillance, investigators believed one
    individual was behind the string of burglaries and that, when Briley was
    apprehended and interviewed, he was, at first, not forthcoming, but
    thereafter was very cooperative.
    [7]   The hearing was concluded and, when it resumed at a later date, the trial
    court addressed what it found to be aggravators and mitigators. It found as
    aggravating: Briley’s criminal history of twelve prior convictions, including
    two prior felonies; the fact that he was on probation in Kentucky at the time
    of the current offenses; and the level of planning and calculation that went
    into the crimes. It found as mitigating that jail officers testified that he was
    3
    We note that at the hearing on Briley’s petition for post-conviction relief, Briley stated that the two felonies
    were for (1) possession of a firearm by a convicted felon and (2) possession of a controlled substance. Tr. at
    14-15.
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    a good inmate, he was in a committed relationship, and he pleaded guilty;
    however, the trial court found that “none . . . [rose] to the level of a
    significant mitigating factor.” 
    Id. at 92.
    [8]   On August 13, 2010, the trial court issued its written Judgment and
    Pronouncement of Sentence (“Sentencing Order”). For the four Ohio County
    burglary convictions, the trial court sentenced Briley to twenty years on each of
    the two Class B felony convictions and six years on each of the two Class C
    felony convictions, to run concurrent with each other, for a total of twenty
    years. On each of the four Dearborn County Class C felony burglary
    convictions, the trial court sentenced Briley to six years, to be served
    concurrently. The trial court ordered the Dearborn County sentences to be
    served consecutive to the Ohio County sentences, for a twenty-six-year
    aggregate sentence in the Indiana Department of Correction. The trial court’s
    Sentencing Order addressed the aggravating and mitigating circumstances that
    were discussed at the prior hearing, as well as “the number of burglary offenses
    . . . indicating Defendant’s level of dangerousness to the community.” Pet’r’s
    Ex. 6. The trial court also found that each of the eight offenses occurred at a
    separate date, at separate locations, and involved separate victims. 
    Id. [9] On
    October 31, 2013, Briley filed his pro se Petition for Post-Conviction Relief
    in which he challenged his conviction to the elevated burglary charges.
    Appellant’s App. at 13. The petition was later amended by counsel to allege
    claims that Briley received ineffective assistance of counsel because he was
    misled about the choices before him, the State lacked sufficient evidence to
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    support the Class B felony burglary charges, and his plea was not knowing,
    voluntary, and intelligent. 
    Id. at 36-38.
    Briley’s petition asserted that counsel
    failed to properly investigate and “[h]ad he done so, Briley would have refused
    the plea, insisted on taking the case to trial, and would have succeeded in
    defending himself against the elevated [] charge[s].” 
    Id. at 37.
    [10]   On October 28, 2016, the post-conviction court held a hearing on Briley’s
    petition for post-conviction relief. Briley presented evidence consisting of the
    deposition testimony of the owner of Hong Kong Kitchen, Min Qui (“Qui”),
    and an affidavit of the manager of the River House, William Sherman
    (“Sherman”). Qui stated that he and his family lived in an apartment above
    Hong Kong Kitchen and that he had not used the restaurant for any family
    purpose after closing hours. Pet’r’s Ex. 8. Sherman stated that at the time of the
    burglary, he lived above the River House, he kept all personal effects in his
    apartment, and that after the bar would close for the night, he would go upstairs
    and not return to the bar until the following day. Pet’r’s Ex. 9. Qui’s deposition
    and Sherman’s affidavit each stated that the entrance to the residential
    apartment, which was located above each of those restaurants, was from the
    exterior of the building and was separate from the entrance to the restaurant.
    [11]   Briley also presented the testimony of his trial attorney, Gary Sorge (“Sorge”).
    Briley’s post-conviction counsel asked Sorge about “the elevated Class B felony
    charges, those pertaining, specifically, to the River House and the Hong Kong
    Kitchen[,] and Sorge replied, “I felt like the State could easily prove that he had
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    actually broken into them and committed a felony.” Tr. at 8-9. Counsel further
    inquired:
    Q. And how about the additional element of Burglary of a
    Dwelling in those two charges?
    A. My memory is that we discussed whether or not the State
    could actually prove a B felony versus a C felony, but I cannot
    remember why that wasn’t further looked into.
    
    Id. Briley also
    testified at the hearing, stating that he and Sorge had discussed
    whether Briley “could defend [himself] against the elevated burglary charges[,]”
    and Sorge told him that the State “had [him] by the reading of the law, that the
    law read a dwelling attached[.]” 
    Id. at 13.
    Briley’s counsel asked, “Had you
    been advised that you could defend yourself against the B felony charges, would
    you have pled guilty?” 
    Id. Briley replied
    “No” and said he would have taken
    the case to trial. 
    Id. Upon cross-examination,
    Briley conceded that the eight
    burglaries were each separate incidents and that he had two prior felony
    convictions in Kentucky.
    [12]   The State presented the testimony of Detective Rimstidt. He stated that when
    on patrol during daytime hours, he regularly observed the Qui family, including
    their minor children, gathered in the restaurant, with the children playing or
    doing homework. 
    Id. at 16-17.
    Detective Rimstidt testified that, when he was
    on patrol for the 6:00 p.m. to 6:00 a.m. shift, he sometimes observed the owners
    in the business after it was closed, doing such activities as food preparation or
    repairs. 
    Id. at 17-19,
    21.
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    [13]   On November 18, 2016, the post-conviction court issued a written order
    denying Briley’s petition. Its order included the following:
    10. On cross examination of trial counsel, Gary Sorge stated that
    the Petitioner received a sentence significantly less than the
    maximum sentence he could have received in this matter. In
    addition the Court finds that Mr. Sorge discussed the issue of
    proof of Burglary of a Dwelling or Business, with the Petitioner,
    in making the decision to accept the proposed plea.
    11. The Court also finds that relevant legal authorities regarding
    the issues of “dwelling” were not sufficiently settled or clear to
    allow the Court to find that counsel for the Petitioner was
    incompetent in his representation.
    The Court, therefore, finds that the Petitioner has failed to show
    that trial counsel’s performance was deficient, or that any
    possible deficient representation prejudiced the Petitioner and
    altered the outcome of the proceedings.
    Appellant’s App. at 78. Concluding that Briley failed to carry his burden of
    proof, the post-conviction court denied his petition for post-conviction relief.
    Briley now appeals.
    Discussion and Decision
    [14]   Briley appeals the post-conviction court’s denial of his 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.”
    Ind. Post-Conviction Rule 1(5); Passwater v. State, 
    989 N.E.2d 766
    , 770 (Ind.
    2013). When issuing its decision to grant or deny relief, the post-conviction
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    court must make findings of fact and conclusions of law. P-C.R. 1(6). A
    petitioner who appeals the denial of his post-conviction petition faces a rigorous
    standard of review. Massey v. State, 
    955 N.E.2d 247
    , 253 (Ind. 2011). In
    conducting our review, we neither reweigh evidence nor judge witness
    credibility; rather, we consider only the evidence and reasonable inferences
    most favorable to the judgment. McKnight v. State, 
    1 N.E.3d 193
    , 199 (Ind. Ct.
    App. 2013), trans. denied. “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.” 
    Passwater, 989 N.E.2d at 770
    (citation and quotation marks omitted). In other words, if a post-
    conviction petitioner was denied relief in the proceedings below, he must show
    that the evidence as a whole leads unerringly and unmistakably to a conclusion
    opposite the one reached by the post-conviction court. 
    Massey, 955 N.E.2d at 253
    .
    [15]   In this appeal, Briley contends that the post-conviction court erred in denying
    his petition for post-conviction relief, asserting that his trial counsel was
    ineffective and that his guilty plea was not knowing, voluntary, and intelligent.
    Both claims stem from whether the Hong Kong Kitchen and the River House
    burglaries could be considered as having occurred in a dwelling under Indiana’s
    burglary statute.
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    I. Assistance of Trial Counsel
    [16]   Briley maintains that he was denied his constitutional right to effective
    assistance of trial counsel. To prevail on an ineffective assistance claim, Briley
    must satisfy two components: he must demonstrate both deficient performance
    and prejudice resulting from it. Carrillo v. State, 
    982 N.E.2d 461
    , 464 (Ind. Ct.
    App. 2013) (citing Ben-Yisrayl v. State, 
    729 N.E.2d 102
    , 106 (Ind. 2000) and
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984)). Deficient performance is
    “representation [that] fell below an objective standard of reasonableness,
    [where] counsel made errors so serious that counsel was not functioning as
    ‘counsel’ guaranteed by the Sixth Amendment.” 
    Passwater, 989 N.E.2d at 770
    .
    We assess counsel’s performance based on facts that are known at the time and
    not through hindsight. Shanabarger v. State, 
    846 N.E.2d 702
    , 709 (Ind. Ct. App.
    2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad
    tactics will not support an ineffective assistance claim; instead, we evaluate
    counsel’s performance as a whole. Flanders v. State, 
    955 N.E.2d 732
    , 739 (Ind.
    Ct. App. 2011), trans. denied. “[C]ounsel’s performance is presumed effective,
    and a defendant must offer strong and convincing evidence to overcome this
    presumption.” Ritchie v. State, 
    875 N.E.2d 706
    , 714 (Ind. 2007). “Strickland
    does not guarantee perfect representation, only a reasonably competent
    attorney.” Hinesley v. State, 
    999 N.E.2d 975
    , 983 (Ind. Ct. App. 2013), trans.
    denied.
    [17]   Prejudice results where there is “a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceedings would have been different.”
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    Carrillo, 982 N.E.2d at 464
    . “A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.” Perez v. State, 
    748 N.E.2d 853
    , 854
    (Ind. 2001). “Failure to satisfy either prong will cause the claim to fail.” French
    v. State, 
    778 N.E.2d 816
    , 824 (Ind. 2002). Thus, if the petitioner cannot
    establish prejudice, we need not evaluate counsel’s performance. Bryant v. State,
    
    959 N.E.2d 315
    , 319 (Ind. Ct. App. 2011). Where, as here, the defendant has
    entered a guilty plea, he is entitled to relief only if he proves that (1) he would
    not have pleaded guilty absent the ineffective assistance of counsel; and (2)
    there is a reasonable probability that he would have received a more favorable
    result in a trial.4 Segura v. State, 
    749 N.E.2d 496
    , 507 (Ind. 2001); Jeffries v. State,
    
    966 N.E.2d 773
    , 779 (Ind. Ct. App. 2012), trans. denied.
    [18]   Briley claims that Sorge was ineffective for failing to inform him that “[t]he
    State lacked sufficient evidence to elevate Briley’s Class B felony charges in
    reliance on dwellings adjacent to both the River House and the Hong Kong
    Kitchen,” Appellant’s Br. at 10, and that had he been accurately advised, he
    would have refused the plea, insisted on taking the case to trial, and would
    have succeeded in defending himself against the elevated version of the charge;
    alternatively, he states that he would have entered a guilty plea to the lesser
    Class C felony charges for those burglaries and been sentenced to less time.
    4
    As this court has recognized, a defendant’s self-serving testimony that he would not have pleaded guilty is
    by itself insufficient to establish prejudice. Carrillo v. State, 
    982 N.E.2d 461
    , 465 (Ind. Ct. App. 2013).
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017            Page 12 of 20
    See 
    id. at 16
    (asserting that he would have entered guilty plea to lesser Class
    C felony charges and had decreased sentence exposure).
    [19]   Briley’s position assumes the premise that the State lacked sufficient evidence to
    convict Briley of burglary as a Class B felony. At the time of the crimes,
    Indiana law provided that burglary was a Class C felony, but was a Class B
    felony if “the building or structure is a . . . dwelling.” Ind. Code § 35-43-2-1.
    Dwelling was defined as “a building, structure, or other enclosed space,
    permanent or temporary, movable or fixed, that is a person’s home or place of
    lodging.” Ind. Code § 35-41-1-10.5 Our courts have said that burglary of a
    dwelling is not so much an offense against property as it is an offense against
    the sanctity and security of habitation. Howell v. State, 
    53 N.E.3d 546
    , 549 (Ind.
    Ct. App. 2016), trans. denied. “To that end, the legislature has provided an
    increased penalty for burglarizing a dwelling ‘because of the potential danger to
    the probable occupants.’” 
    Id. (quoting Byers
    v. State, 
    521 N.E.2d 318
    , 319 (Ind.
    1988)).
    [20]   Briley presented evidence at the post-conviction hearing that the businesses
    were on the first floor and the apartments were on the second floor in their
    respective buildings, that the entrances to the apartments were from the exterior
    of the buildings, and that personal effects were not kept in the businesses. Thus,
    he argues, “the adjacent apartments were physically and meaningfully separate
    5
    This definition was moved in 2012 to Indiana Code section 35-31.5-2-107.
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 13 of 20
    from the businesses Briley burgled.” Appellant’s Br. at 8-9. His evidence
    indicates that, had he not pleaded guilty and proceeded to trial, Briley could
    have presented argument and evidence in defense of the Class B felony charges.
    However, the State presented evidence at the post-conviction hearing in support
    of its contrary position. For instance, Detective Rimstidt testified that he
    regularly saw the Qui family use the Hong Kong Kitchen for personal purposes
    during the day and sometimes saw the adults there after hours. Briley urges
    that “[t]he post-conviction court erred in finding any credibility or
    relevance to Detective Rimstidt’s testimony.” 
    Id. at 12.
    However, we
    neither reweigh evidence nor judge witness credibility, and we consider only the
    evidence and reasonable inferences most favorable to the judgment. 
    McKnight, 1 N.E.3d at 199
    . Furthermore, at any trial, the factfinder would have been
    assigned the task of assessing Detective Rimstidt’s credibility and
    weighing the evidence, as well as that of any other witnesses that the
    State may have called on the issue, against that of witnesses that Briley
    called to testify.
    [21]   In sum, the record before us indicates that a factual dispute existed, such that
    evidence would have been presented at trial as to if, how, and when the
    restaurants/bars were used for personal use, such as cooking, dining, or
    studying and whether or to what extent the businesses, or either of them,
    fulfilled a purpose connected with residential living. We agree with the State
    that “[g]iven the case law regarding structures that contained both dwellings
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    and businesses,6 the facts of the crimes, and the evidence that would have been
    presented at trial, it was not unsound nor deficient for counsel to advise that the
    State could prevail on the elevated counts.” Appellee’s Br. at 11. Briley has not
    established that Sorge should have advised him that the State lacked sufficient
    evidence to convict him of the Class B felony charges.
    [22]   Nevertheless, assuming without deciding that, as Briley claims, there
    was insufficient evidence to prove that the burglaries committed at the
    Hong Kong Kitchen and at the River House constituted burglaries of a
    dwelling and that they should have been charged as Class C felonies –
    and that counsel Sorge performed deficiently for failing to so advise
    Briley – we still find no error. To succeed in obtaining post-conviction
    relief, Briley was required to prove that not only was Sorge’s
    representation deficient, but that Briley was prejudiced thereby. 
    Carrillo, 982 N.E.2d at 464
    . He has failed to prove such prejudice.
    [23]   Briley concedes that “the State only had sufficient evidence to support
    eight Class C felonies[.]” Appellant’s Br. at 15. The sentencing range for
    6
    The State argues that “[t]he lack of direct access between the business section and home section of a
    structure” is not necessarily “fatal to the [Class B] elevation.” Appellee’s Br. at 19. In support, the State refers
    us to Shepard v. State, 
    839 N.E.2d 1268
    , 1270 (Ind. Ct. App. 2005), where this court held that a garage
    attached to a home was a “dwelling” for purposes of burglary, even though there was not a point of access
    connecting the garage to the home and the garage was primarily used for storage. He also cites to Minneman
    v. State, 
    466 N.E.2d 438
    , 439 (Ind. 1984), cert. denied, 
    470 U.S. 1030
    (1985), where a defendant broke into a
    store that was adjoined by a garage and living quarters and connected by interior doors. The defendant
    argued that the owner intended that the middle area be a commercial space, and that because he did not enter
    the living quarters, he had not broken into a dwelling, but the Minneman Court found that it was
    “immaterial” that the designated living quarters were not 
    entered. 466 N.E.2d at 440
    .
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    Class C felony is two to eight years, with the advisory being four. Ind.
    Code § 35-50-2-6. Thus, if convicted of eight Class C felonies Briley
    faced a maximum of sixty-four years, if the four sentences in each
    county were ordered to be served consecutive to each other, as well as
    consecutive to those in the other county. Here, for each of the six Class
    C felonies to which Briley pleaded guilty, the trial court sentenced him
    to six years of imprisonment; there is nothing in the record to suggest
    that if the two Class B felonies were, instead, Class C felonies, the trial
    court would have imposed anything less than six years per conviction.
    Assuming for the moment that he received that same six-year term for
    each of eight Class C felony convictions, his aggregate sentence, if
    entirely consecutive, would be forty-eight years, which is twenty-two
    years more than the twenty-six-year sentence that he received in the
    Sentencing Order.
    [24]   Briley contends that the record suggests that, if he had been convicted of
    eight Class C felonies (instead of two Class B felonies and six Class C
    felonies), the trial court would have imposed “a similar sentence,”
    whereby four six-year Ohio County convictions would run concurrent
    with each other, and four six-year Dearborn County convictions would
    run concurrent with each other and consecutive to those in Ohio county,
    such that “Briley would have received a sentence of twelve years
    aggregate between the two counties.” Appellant’s Br. at 15. Given the
    record before us, this assertion not only is speculative, but also assumes far too
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    much in terms of what the trial court would or would not do had it imposed
    sentence on eight Class C felonies. Specifically, the trial court’s Sentencing
    Order recognized that Briley was on probation at the time of his offense,
    he had twelve prior convictions, two of which were prior felonies, which
    might have exposed him to an habitual offender charge. The trial court
    also stated that it considered each of the burglaries in each of the
    counties as separate offenses because they occurred on different dates,
    were in different locations, and had different victims and, further, that
    the number of burglaries reflected a “level of dangerousness to the
    community.” Pet’r’s Ex. 6. The trial court specifically recognized the
    degree of skill and planning that Briley used to conduct the crimes,
    including Briley’s use of his skills as an electrician, a GPS, mask, gloves,
    and walkies-talkies to communicate with one or more accomplices that
    he had persuaded or tricked into assisting him. Based on the record
    before us, we reject Briley’s suggestion that, if all eight of the convictions
    would have been entered as Class C felonies, it is likely that he would have
    received a lesser sentence. Under Segura, Briley was required to show that
    “there is a reasonable probability that he would have received a more favorable
    result in a competently run 
    trial.” 749 N.E.2d at 507
    . We find that he has not
    done so. Briley has failed to show that he was prejudiced by the
    performance of his trial counsel, and, accordingly, the post-conviction
    court did not err when it denied his petition for post-conviction relief.
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 17 of 20
    II. Guilty Plea
    [25]   Briley claims that his guilty plea to two Class B felonies was not
    knowing, intelligent and voluntary pursuant to the Fifth, Sixth and
    Fourteenth Amendments to the United States Constitution and Article
    One, Sections Twelve and Thirteen of the Indiana Constitution. “The
    long-standing test for the validity of a guilty plea is ‘whether the plea
    represents a voluntary and intelligent choice among the alternative
    courses of action open to the defendant.’” Diaz v. State, 
    934 N.E.2d 1089
    , 1094 (Ind. 2010) (quoting North Carolina v. Alford, 
    400 U.S. 24
    , 31
    (1970)).
    [26]   Before accepting a guilty plea, a trial court judge is required to take steps
    to ensure that a defendant’s plea is voluntary. See Ind. Code §§ 35-35-1-
    2, -3. Here, at the guilty plea hearing, the trial court informed Briley of his
    rights were he to go to trial, confirmed that Briley understood those rights, that
    he had read his advisement, and informed Briley of the State’s burden of proof
    if he went to trial. The trial court reviewed the charges with Briley and
    confirmed that he understood the nature of the charges to which he would be
    pleading guilty, including two Class B felonies, if the trial court accepted the
    agreement, and it advised Briley of the potential penalties. Generally
    speaking, if a trial court undertakes these steps, a post-conviction
    petitioner will have a difficult time overturning his guilty plea on
    collateral attack. Lineberry v. State, 
    747 N.E.2d 1151
    , 1156 (Ind. Ct.
    App. 2001). However, a defendant who can show that he was coerced
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 18 of 20
    or misled into pleading guilty by the judge, prosecutor, or defense
    counsel will present a colorable claim for relief. 
    Id. In assessing
    the
    voluntariness of the plea, appellate courts review all the evidence before
    the post-conviction court, including testimony given at the post-
    conviction trial, the transcript of the petitioner’s original sentencing, and
    any plea agreements or other exhibits which are part of the record. 
    Diaz, 934 N.E.2d at 1094
    . Here, Briley’s claim is that he was “misadvised of
    his penal consequences when he was told he faced Class B felonies
    rather than lesser Class C felony charges[,]” and “had he known he
    faced only Class C felonies, he would not have pled to B felonies[.]”
    Appellant’s Br. at 17.
    [27]   Contrary to his argument, Briley did, in fact, “face[]” Class B felonies. 
    Id. He was
    charged with having committed two, and as we determined above, the
    post-conviction court heard evidence that if trial had occurred each party would
    have presented evidence as to whether the locations Briley burglarized served
    some residential purpose or would otherwise constitute a dwelling under
    Indiana law. According to the testimony of both Sorge and Briley, Sorge
    discussed the elevated Class B felony charges with Briley, and Sorge believed
    that the facts and law were against the defense. Tr. at 13. At the guilty plea
    hearing, the trial court expressly confirmed with Briley his understanding that
    he was pleading guilty to two Class B felonies, it confirmed his understanding
    of possible penalties, and Briley admitted the factual basis as alleged for the
    charges. Pet’r’s Ex. 1 at 18-20.
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 19 of 20
    [28]   Briley has not shown that the evidence as a whole leads unerringly and
    unmistakably to a conclusion opposite the one reached by the post-conviction
    court. Accordingly, we find that the post-conviction court did not err when it
    denied Briley’s petition for post-conviction relief.
    Affirmed.
    Mathias, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017   Page 20 of 20