Phillip Gonzalez v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 02 2018, 10:26 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Tyler G. Banks
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Phillip Gonzalez, March 2, 2018
Appellant-Petitioner, Court of Appeals Case No.
02A03-1711-PC-2659
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Respondent Jr., Judge
Trial Court Cause No.
02D05-1509-PC-102
Baker, Judge.
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[1] Phillip Gonzalez appeals from the denial of his petition for post-conviction
relief, arguing that the post-conviction court erroneously determined that (1) he
did not simultaneously plead guilty and maintain his innocence; and (2) there is
a sufficient factual basis underlying the guilty plea. Finding no error, we affirm.
Facts
[2] On May 10, 2012, Gonzalez pleaded guilty to Class B felony robbery in cause
number 02D06-1202-FB-31 (“FB-31”)1 and to Class B felony attempted robbery
in cause number 02D06-1203-FB-45 (“FB-45”) pursuant to a plea agreement.
At the May 10, 2012, guilty plea hearing, the trial court explained the charge to
which Gonzalez was pleading guilty:
Court: In the FB-45 cause you’re pleading guilty to
Attempt[ed] Robbery, a class B felony. That reads:
On or about January 15, 2012, in Allen County,
Indiana, said defendant did, while armed with a
deadly weapon, to wit: a firearm, attempt to
commit the crime of robbery, to wit: with intent to
take property from the person or presence of
another person, to wit: John Frontz, by using or
threatening the use of force or by putting said John
Frontz in fear, said defendant engaged in conduct
constituting a substantial step toward the
commission of the crime of robbery, to wit: by
pointing said firearm at John Frontz while
demanding that said John Frontz give the defendant
1
Gonzalez did not challenge his guilty plea in FB-31 in the post-conviction proceedings.
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United States currency. Do you understand the
charge to which you’re pleading in that cause?
Gonzalez: Yes sir.
Appellant’s App. Vol. II p. 54.2 The following colloquy then occurred between
Gonzalez and his attorney:
Q: Mr. Gonzalez, let me give you help. In both cases you
robbed, or attempted to rob, people, correct?
A: Yes sir.
Q: And both of those robberies took place in Allen County,
Indiana?
A: Yes sir.
Q: And both of them involved either you or someone you
were with having a handgun, using that handgun so as to
threat[en] and frighten the victim, correct?
A: Yes sir.
***
Q: In [FB-]45, we have the same thing, robbery, in Allen
County, with a gun. You went to Broadway Joes on
Broadway Street, correct?
A: Yes sir.
2
Gonzalez has not provided the transcripts or other materials from the underlying criminal proceedings as
separate documents in the appellate record; instead, portions of the transcript and records are included in his
appendix.
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Q: You were with some other guys, right?
A: Yes sir.
Q: And were you armed or was one of the other fellows
armed?
A: I was not armed.
Q: You were unarmed?
A: Yes sir.
Q: Somebody else was armed, though, correct?
A: Yes sir.
Q: And there was a confrontation involving you and Mr.
Frontz, is that correct, John Frontz?
A: Yes sir.
Q: He was the bartender?
A: Yes sir.
Q: Is that correct?
A: Yes sir.
Q: And there was an attempt to rob him of property, correct?
A: Yes sir.
Q: And did you participate in that robbery?
A: Yes sir.
Q: And did you take the property or did you—you say you
did not have the weapon, correct?
A: Yes sir.
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Q: But you assisted in taking the property or doing something
to make the robbery go down?
A: Yes sir.
Q: What did you do?
A: I didn’t do nothing.
Q: You were there, right?
A: Yeah, I was there.
Q: And you were with your friend who had a gun?
A: Yes sir.
Q: You left the place with your friend . . . . ?
A: Yes sir.
Q: You participated in an attempt to rob Mr. Frontz of
property, correct?
A: Yes sir.
Id. at 58-61. The trial court accepted Gonzalez’s guilty plea and later imposed a
total sentence of sixteen years, with four years suspended to probation.
[3] On September 23, 2015, Gonzalez filed a petition for post-conviction relief,
arguing that there was an improper factual basis underlying his guilty plea in
FB-45 and that the guilty plea in that cause is invalid because he simultaneously
admitted guilt and protested his innocence. Gonzalez and the State eventually
filed competing motions for summary judgment on his petition. On October
23, 2017, the post-conviction court granted the State’s motion, finding, in
pertinent part, as follows:
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7. Even on the supposition that Mr. Gonzalez’s single
statement that he “didn’t do nothing” amounted to an
unambiguous denial of guilt, . . . he would not be entitled
to post-conviction relief . . . because he repeatedly and
specifically contradicted that supposed denial of guilt . . . .
Both before and after his alleged denial of participation,
Mr. Gonzalez specifically admitted that he did participate
in the attempted robbery. Even if his claimed denial of
guilt was unambiguous, it was not also consistent, as needed
to obtain relief . . . .
8. Furthermore, it does not appear that Mr. Gonzalez did
unambiguously deny participation in the attempted
robbery as an accomplice. In this regard, it should be
noted that a person who does not actively do anything to
carry out a crime, such as a lookout, may nevertheless be
convicted of the crime as an accomplice. Mr. Gonzalez
acknowledged that he went to Broadway Joe’s with the
armed person or persons who actually attempted to carry
out the crime, he participated (somehow) in the attempt,
and he left together with the same persons he came with.
These admissions are consistent with the theory that he
accompanied the co-perpetrators in order to provide
assistance in case of need (just as a lookout might do) even
though he “didn’t do nothing” because it turned out that
there was no occasion for him to provide active assistance.
His assertion that he “didn’t do nothing” is, at most,
ambiguous as to whether he participated in the attempted
robbery as an accomplice . . . .
***
10. . . . Mr. Gonzalez did admit that he understood the nature
of the crime and understood that his guilty plea was an
admission that he committed the crime. . . . [T]he court
did not abuse its discretion in finding that an adequate
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factual basis had been established, even without regard to
any further admissions from Mr. Gonzalez.
11. . . . Mr. Gonzalez’s [further] admissions, however,
amounted at the very least to the relatively minimal
evidence needed for a factual basis establishing that he was
a participant in the crime and not a mere bystander. Mr.
Gonzalez admitted that, in both cases, he robbed or
attempted to rob people; both cases involved a handgun
wielded by himself or a co-perpetrator to threaten or
frighten people; in FB-45, he went to Broadway Joe’s with
some other people, at least one of whom was armed; he
participated in the attempted robbery by “assist[ing] in
taking the property or doing something to make the
robbery go down”; and he left with his co-perpetrators
after “participat[ing] in an attempt to rob Mr. Frontz of
property.” . . . No authority suggests that the Court abused
its discretion in finding a factual basis despite Mr.
Gonzalez’s ambiguous statement that he “didn’t do
nothing.”
12. . . . Mr. Gonzalez acknowledged his understanding that he
was admitting that he had acted “with intent to take
property from the person or presence of another person, to
wit: John Frontz, by using or threatening the use of force
or by putting said John Frontz in fear.”
Appealed Order p. 10-13 (internal citations omitted) (emphases original).
Gonzalez now appeals.
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Discussion and Decision
I. Standard of Review
[4] Gonzalez argues that the post-conviction court should not have granted
summary judgment in favor of the State on his petition for post-conviction
relief. The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“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).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
conviction relief, a petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[5] Here, the post-conviction court granted summary judgment under the
procedure outlined in Section 1(4)(g) of the post-conviction rules. Under this
provision, the post-conviction court may grant a motion for summary
disposition of a petition when no genuine issue of material fact appears in the
record and a party is entitled to judgment as a matter of law. Ind. Post-
Conviction Rule 1(4)(g). Where, as here, there are no genuine issues of
material fact, we are considering pure issues of law on appeal to which we
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apply a de novo standard of review. Hughley v. State, 15 N.E.3d 1000, 1003
(Ind. 2014).
II. Protestation of Innocence
[6] Gonzalez argues that the plea was invalid because he simultaneously pleaded
guilty and maintained his innocence. It is well established that accepting a
guilty plea when a defendant both pleads guilty and maintains his innocence at
the same time is reversible error. E.g., Ellis v. State, 67 N.E.3d 643, 646 (Ind.
2017). This rule is designed to heighten the reliability of the guilty plea.
Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992). For this rule to apply, the
defendant’s protestation of innocence must have been both consistent and
unequivocal. Carter v. State, 739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v.
State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (defendant was entitled to relief
because he consistently maintained innocence at the guilty plea hearing and
clearly denied committing the crime charged).
[7] Gonzalez focuses on the point in his testimony at which he was asked “What
did you do?” and replied, “I didn’t do nothing.” Appellant’s App. Vol. II p. 61.
We disagree that this response amounts to a protestation of innocence. This
exchange occurred in the context of the establishment of a factual basis for
Gonzalez’s guilt as an accomplice to attempted robbery. It is apparent that
when Gonzalez said, “I didn’t do nothing,” he was simply explaining that he
did not take an active part in the attempted robbery—which he was not
required to admit to plead guilty as an accomplice. See Pugh v. State, 52 N.E.3d
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955, 967 (Ind. Ct. App. 2016) (four factors determine sufficiency of evidence for
accomplice liability: (1) presence at scene of crime; (2) companionship with
another at scene of crime; (3) failure to oppose commission of crime; and
(4) course of conduct before, during, and after commission of crime), trans.
denied. And even as he made that explanation, he also repeatedly admitted that
he participated in the robbery and came and left the scene with the individual(s)
who actively committed the robbery. Appellant’s App. Vol. II p. 58-61. Under
these circumstances, we do not find that Gonzalez’s statement that “I didn’t do
nothing” amounts to a consistent and unequivocal protestation of innocence.
Therefore, the post-conviction court did not err by granting judgment in favor
of the State on this issue.
III. Factual Basis
[8] Gonzalez also argues that the guilty plea cannot stand because an adequate
factual basis for the plea was not established. A trial court cannot accept a
defendant’s guilty plea unless there is an adequate factual basis for the plea.
State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010). As explained by our Supreme
Court, “[t]he purpose of the factual basis requirement is to ensure that a person
who pleads guilty is truly guilty.” Id. Moreover, “a finding of factual basis is a
subjective determination that permits a court wide discretion—discretion that is
essential due to the varying degrees and kinds of inquiries required by different
circumstances.” Butler v. State, 658 N.E.2d 72, 76-77 (Ind. 1995). A factual
basis exists “when there is evidence about the elements of the crime from which
a court could reasonably conclude that the defendant is guilty. Relatively
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minimal evidence has sometimes been held adequate.” Id. at 77 (internal
footnote omitted).
[9] Claims about omissions in the factual basis “have been unavailing when the
omissions do not seem to demonstrate doubt about actual guilt.” Cooper, 935
N.E.2d at 150. Even if a defendant fails to admit the existence of an element,
“other evidence produced at the plea hearing and/or the defendant’s advised
acknowledgement that by pleading guilty he understands that he is admitting all
the elements of the charged offense may supply an adequate factual basis.”
Wingham v. State, 780 N.E.2d 1164, 1165 (Ind. Ct. App. 2002).
[10] In this case, Gonzalez argues that there is no evidence in the factual basis that
he acted with the requisite mens rea for accomplice liability—that is, that he
knowingly or intentionally aided the principal actor. Ind. Code § 35-41-2-4. He
emphasizes the well-accepted principle that for accomplice liability, “mere
presence, coupled with knowledge that a crime is being committed is not
sufficient to establish guilt.” Green v. State, 937 N.E.2d 923, 930 (Ind. Ct. App.
2010).
[11] Gonzalez explicitly admitted to the following:
• He “robbed, or attempted to rob, people[.]” Appellant’s App. Vol. II p.
58.
• Gonzalez went with a group of people to Broadway Joe’s. At least one
of the other people was armed with a handgun to threaten and frighten
the victim. Id. at 59, 60.
• There was a confrontation between Gonzalez and the victim. Id. at 60.
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• There was an attempt to rob the bartender of property. Gonzalez
“participate[d] in that robbery,” “assisted in taking the property or doing
something to make the robbery go down” and “participated in an
attempt to rob [the victim] or property[.]” Id. at 61.
• Afterwards, Gonzalez left the bar with the same group of people. Id.
Additionally, Gonzalez acknowledged that by pleading guilty, he was admitting
that he acted “with intent to take property from the person or presence of
another person[.]” Id. at 54.
[12] It does appear to be true that the element of Gonzalez’s mens rea was omitted
from the factual basis. But as noted above, a defendant’s advised
acknowledgement that by pleading guilty he is admitting to all the elements of
the charged offense may supply an adequate factual basis as to an element that
is omitted during his testimony. Wingham, 780 N.E.2d at 1165. Here, not only
did Gonzalez make such an acknowledgement about all the elements—
including mens rea—he went on to admit specifically that he participated with
and assisted in the attempted robbery. We note that the Wingham Court
distinguished between a scenario in which (as here) an element is omitted and a
scenario in which the defendant actually denies guilt as to some necessary
element of the offense. Id. Here, as we have already found above, Gonzalez
did not deny his guilt as to a necessary element of the offense. As such, the trial
court’s advisement and Gonzalez’s acknowledgement thereof supplement his
testimony to provide sufficient evidence regarding his mens rea.
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[13] We find that this evidence suffices to establish a factual basis. Consequently,
the post-conviction court did not err by granting judgment in the State’s favor
on this issue.
[14] The judgment of the post-conviction court is affirmed.
Riley, J., and Brown, J., concur.
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