Darren Englert v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Aug 26 2019, 7:35 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Darren Englert Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darren Englert, August 26, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-3091
Appeal from the Tippecanoe
v. Superior Court
The Hon. Randy J. Williams,
Judge
State of Indiana,
Trial Court Cause No.
Appellee-Respondent. 79D01-1411-PC-7
Bradford, Judge.
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Case Summary
[1] In June of 2011, Jeremy Gibson and Carolann Clear invited Darren Englert and
Antonio Williams to move in with them. Within a week of moving in, Englert
and Williams attacked, beat, hog-tied, and killed Gibson, one using a hatchet
and the other using a pick axe. The State charged Englert with, inter alia,
murder. Englert pled guilty to murder and was later convicted, after a jury trial,
of several other crimes. The trial court sentenced Englert to an aggregate term
of eighty years of incarceration. Englert’s convictions and sentence were
affirmed on direct appeal.
[2] In April of 2018, Englert filed an amended petition for post-conviction relief
(“PCR”), alleging that his guilty plea to murder had not been knowing,
voluntary, or intelligent and that he had received ineffective assistance of trial
counsel. Following an evidentiary hearing, the post-conviction court denied
Englert’s PCR petition in full. As restated, Englert contends that the post-
conviction court erred in failing to find that his guilty plea to murder had not
been knowing, voluntary, or intelligent and that he had received ineffective
assistance of trial counsel. Because we disagree, we affirm.
Facts and Procedural History
[3] We related the underlying facts of this case in our disposition of Englert’s direct
appeal:
Gibson and Carolann Clear began a romantic relationship in May
2011. Shortly thereafter, Clear and her mother, Joanne, moved
into Gibson’s one bedroom apartment in Lafayette. Gibson, the
father of two young children that did not live with him, was
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employed as a dishwasher at a local restaurant. Neither Clear nor
her mother was employed. In June 2011, Gibson and Clear met
Englert and Antonio Williams at a party. Both men were
unemployed. Shortly thereafter, Gibson invited Englert and
Williams to move into his apartment. The two men accepted
Gibson’s invitation and agreed to help Gibson pay for food and
rent. Problems began immediately. Although Clear apparently
still considered Gibson to be her boyfriend, she and Englert
became involved in a sexual relationship, and Gibson asked
Joanne to move out, which angered Clear.
At approximately 2:00 a.m. on July 6, 2011, less than a week after
they moved into Gibson’s apartment, Englert and Williams
attacked Gibson in the kitchen when he returned home from work.
Williams was apparently angry because he believed Gibson had
“disrespected” Clear. Tr. p. 463. The two men hit Gibson with
their fists and kicked him. Gibson, who was much smaller than
his attackers, was unable to defend himself. After beating Gibson,
Englert and Williams removed Gibson’s clothing, hog-tied his
wrists and ankles with a dog collar and belt, threw him in a cold
shower, and left him there for ten to fifteen minutes to rinse off his
blood.
While Gibson was in the shower, Englert, Williams, and Clear sat
in the living room and discussed what to do with Gibson. Clear
suggested killing him. Englert and Williams dragged Gibson out
of the shower, untied him, and told him to get dressed. Gibson
was in no condition to resist at that point, and Williams
announced that they were all going for a ride in Joanne’s roach-
infested compact-sized car. Williams got into the driver’s seat,
and Gibson was placed in the front seat with a belt around his
neck. Englert sat directly behind Gibson and restrained him with
the belt. Clear sat next to Englert and taunted Gibson while
performing oral sex on Englert.
Williams drove to an acquaintance’s house and took a pick axe, a
hatchet, a shovel, and a gas can out of the acquaintance’s garage.
Englert, Williams, and Clear discussed digging a six foot by six
foot hole, beating Gibson, and burying him. Williams then drove
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out to County Road 500 North in Tippecanoe County. During the
drive, Gibson pleaded for his life. He told Englert and Williams
that he didn’t want to die because he had babies, and that they
could have Clear and his SNAP food stamp benefits card.
At some point, Williams stopped the car on the county road,
removed Gibson from the vehicle, and placed a plastic bag over
his head. Clear removed the tools from the car, and Englert dug a
shallow hole next to a corn field. Williams shoved Gibson into
the hole, and Englert handed Williams the pick axe. Both
Williams and Englert beat Gibson with the tools until he was dead
and then removed his bloody clothing. They left the belt around
Gibson’s neck. Because the hole Englert dug wasn’t deep enough
to bury Gibson, Englert and Williams put Gibson in a fetal
position and covered his body with dirt and corn stalks from a
nearby cornfield. Englert and Williams discussed burning
Gibson’s body, but Clear told them that the nearby trees would
catch fire.
Immediately after leaving the scene, Englert, Williams, and Clear
drove to a bridge and threw the shovel, pick axe, and hatchet into
the Wabash River. They threw Gibson’s shoes into a dumpster,
and returned to Gibson’s apartment to clean up the bloody
kitchen. They hid the bloody clothes that Gibson was wearing
when he died under the stove. About 7:00 a.m., Englert and Clear
used Gibson’s SNAP card to purchase soda and snacks at the
Village Pantry. Clear telephoned the restaurant that employed
Gibson and asked for his paycheck.
Later that day, Englert and Williams drove Joanne’s car to an Ace
Hardware store where Williams stole a large bag of mulch and a
bottle of hydrochloric acid. The two men returned to Gibson’s
gravesite and poured acid on Gibson to destroy evidence. They
also covered Gibson’s body with the mulch. The men left the
mulch bag and acid bottle in Joanne’s car. When they returned to
Gibson’s apartment, Joanne cleaned out her car and threw the
mulch bag and acid bottle in the front yard.
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That night, Clear told a friend that Englert and Williams had
killed Gibson. The friend called the Lafayette Police Department
and reported that Gibson was missing. Lafayette Police
Department Officer Shana Wainscort responded to the call at
approximately 1:00 a.m. on July 7 and spoke with Clear’s friend,
who took the officer to Gibson’s apartment. Officer Wainscort
observed the mulch bag and acid bottle in the front yard. She and
Officer Jacob Daubenmeir knocked on the front door, and Joanne
invited them in to look around the apartment. The officers noticed
Gibson’s wallet on the living room floor and asked Joanne to
contact Clear. Shortly thereafter, the officers noticed Clear,
Williams, and Englert walking down the middle of the street
towards the apartment. Although initially cooperative, they all
became agitated and aggressive when questioned about Gibson.
They eventually refused to answer additional questions and
returned to Gibson’s apartment. As the officers continued their
investigation in the front yard, Englert and Williams came out of
the apartment and taunted the officers about failing to arrest them.
Later that morning, Officer Daubenmeir arrested Englert for
minor consumption of alcohol. Marijuana was found in Englert’s
wallet. When questioned at the police station, Englert gave
several false statements as to where Gibson might be. When asked
about the cuts and other injuries to his hands, arm, and neck,
Englert became agitated and said he injured himself while peeling
potatoes.
Officers at Gibson’s apartment found Gibson’s blood in the
shower and on the kitchen floor. The dog collar used to hog-tie
Gibson was found on the bathroom floor between the toilet and
the shower. Gibson’s blood was also found on the rubber seal on
the trunk of Joanne’s car. Officers were eventually able to locate
Gibson’s burial site with Williams’ help. The officers found a
blood-stained plastic bag at the side of Gibson’s grave. As the
officers slowly excavated the burial site by removing the corn
stalks, mulch, and dirt, their eyes began to burn from the
hydrochloric acid. Williams also directed the officers to the
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Wabash River where they recovered the pick axe, shovel, and
hatchet.
[….]
The evidence at trial revealed that Gibson sustained injuries
consistent with both a hatchet and the pick side of a pick axe. His
body also showed a pour pattern from the hydrochloric acid.
Specifically, the injuries consistent with the hatchet were a five-
inch laceration to the left side of his neck that severed his carotid
artery and jugular vein, and a five-inch laceration to the right side
of his head and neck that cut through his ear, fractured his cervical
vertebra, and severed his spinal cord. The wound to the spinal
cord was fatal. The injuries consistent with the pick side of the
pick axe were circular wounds that fractured his jaw, knocked out
his teeth, entered his brain, and entered the belt that had been
cinched around his neck and pushed it into his neck. Gibson also
sustained a laceration to his upper lip and bruises on the top of his
head, his left ankle, and right thigh.
Englert v. State, No. 79A04-1302-CR-88, slip. op. at *1-3 (October 17, 2013),
trans. denied.
[4] On July 13, 2011, attorneys Earl McCoy and Chad Montgomery appeared on
behalf of Englert, with McCoy as lead counsel. On July 19, 2011, the State
charged Englert with murder and Class A felony conspiracy to commit murder.
On August 26, 2011, the State added charges of Class B felony conspiracy to
commit criminal confinement, Class B felony criminal confinement, Class C
felony conspiracy to commit battery, Class C felony battery, Class D felony
conspiracy to commit fraud, two counts of Class D felony fraud, and Class A
misdemeanor possession of marijuana. Englert’s defense team eventually
learned through numerous conversations with prosecuting attorneys that the
State was considering filing a request for the death penalty or life without parole
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(“LWOP”). McCoy recalled that he and Montgomery also came to believe that
is was likely that Englert would be found guilty of Gibson’s murder.
[5] Although Englert had originally been uninterested in the possibility of pleading
guilty, his opinion changed as the case progressed. McCoy and Montgomery
discussed possible options with Englert, including an open plea to the murder
charge in which Englert would admit to participation in the murder of Gibson
as an accomplice but deny a direct role in inflicting Gibson’s death. McCoy’s
plan was to remove the possibility of the death penalty or LWOP from the case
by a preemptive plea to the murder charge. Moreover, while McCoy had
received no promises or assurances from the State about the result of an open
plea to murder, McCoy hoped that the State would be satisfied with a murder
conviction and dismiss the remaining charges. If the State reacted in that way,
McCoy thought, Englert’s guilty plea would count as a significant mitigating
fact at sentencing.
[6] Englert discussed this idea with his counsel on multiple occasions. Englert
eventually decided to accept McCoy’s idea and was “absolutely on board with
that plan.” PCR Tr. Vol. II p. 13. McCoy’s plan was to enter the plea suddenly
at a routine hearing in order to give the State no time to file a request for the
death penalty or LWOP. At a pretrial hearing on March 14, 2012, McCoy
again confirmed with Englert that he wanted to plead guilty to the murder
charge. McCoy approached the trial court and informed it that Englert wanted
to plead guilty to the murder charge. When the prosecutor objected on the
basis that the State was still considering requesting the death penalty or LWOP,
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the trial court reset the hearing for two days later. As it happened, the State did
not request the death penalty or LWOP in the next two days.
[7] On March 16, 2012, during Englert’s plea hearing, he and the trial court had the
following exchange:
BY THE COURT: And do I understand that Mr. McCoy
and Mr. Montgomery have been representing you throughout this
matter?
BY MR. ENGLERT: Yes, sir.
BY THE COURT: And you are satisfied with their
services?
BY MR. ENGLERT: Yes, sir.
Trial Tr. p. 42. Englert also told the trial court that no one had made any
promises or threats to induce his guilty plea. Englert pled guilty to the murder
charge and explained that he had knowingly helped Williams murder Gibson.
The trial court accepted Englert’s plea and entered a judgment of conviction for
murder. Englert waived sentencing within thirty days, and the sentencing
hearing was later continued until the remaining charges had been tried.
[8] On August 3, 2012, McCoy and Montgomery moved to withdraw, which
motion the trial court heard on August 17, 2012. McCoy told the trial court
that Englert had accused McCoy of “lying to him, misleading him” and that
“we may be headed to a motion to withdraw a plea” in which case McCoy
would become a witness and could not represent Englert. Appellee’s PCR App.
Vol. II p. 6. Englert told the trial court, “I just feel like I am being not truthfully
represented” and “I feel like they wouldn’t help me as much as they can.”
Appellee’s PCR App. Vol. II p. 6. The trial court denied counsel’s motions on
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August 23, 2012, noting that neither Englert nor his attorneys had provided
sufficient grounds for changing Englert’s representation, particularly because
his counsel had represented Englert for thirteen months and trial on the
remaining charges was scheduled to begin on November 18, 2012.
[9] On September 10, 2012, Englert sent the trial court a request to withdraw his
guilty plea, alleging he was not of sound mind when he pled guilty. On
September 27, 2012, the trial court struck the motion. On October 15, 2012,
Englert moved for change of counsel on the basis that there had been a
breakdown in the attorney/client relationship. The trial court heard this
motion on October 19, 2012, and denied it.
[10] On October 27, 2012, Englert filed a complaint with the Indiana Supreme
Court Disciplinary Commission about his attorneys, accusing them of lying to
him about various things. On November 5, 2012, Englert wrote the trial court
to say that he had filed the disciplinary complaint. Englert wrote that “I would
also like to let you know that I know my lawyers are working for me and I
appreciate the work they have done and are doing on my behalf,” but that his
counsel were “not truthful with me and have taken advantage of me.”
Appellee’s PCR App. Vol. II p. 12. Englert complained that “it’s ridiculous and
unprofessional at how my lawyers are acting towards me.” Appellee’s PCR
App. Vol. II p. 13. He concluded, “As you already know I have gone to some
inmates for information and now I know it was not the right thing to do.”
Appellee’s PCR App. Vol. II p. 13.
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[11] Englert’s letter was filed on November 8, 2012, and discussed at a final pretrial
hearing on November 9, 2012. McCoy renewed his motion to withdraw,
saying that he believed Englert’s allegations of lying or misleading conduct “are
tied to him, to the best of my knowledge, entering a plea of guilty to the charge
of murder.” Trial Tr. p. 112. The trial court observed that Englert’s letter
sounded like “cold feet.” Trial Tr. p. 113. The trial court discussed Englert’s
dissatisfaction with his counsel and guilty plea, as follows:
Your attorneys have come before this Court on more than one
occasion, they’ve requested funding, they’ve been running
depositions of all the witnesses that they---that there could be.
This is buyer’s remorse Mr. Englert. Based upon the information
provided to me. We’re not going back in on the guilty plea. I’ve
got a record. I’ve got a transcript of that record. And that’s a
pretty good record in terms of what you knew what you were and
were not doing.
Trial Tr. p. 119.
[12] Englert testified under oath as follows:
Q: First of all, State to the Court, in what manner have you,
well, first of all State to the Court the allegations which you
have raised in your comp---your disciplinary complaint
against your attorneys?
A: The allegations I raised is that my attorneys have not been
truthful with me.
Q: Is that all---is that what you said?
A: Yeah.
Q: Tell me how?
A: Uh, they’ve lied to me about evidence.
Q: Tell me how?
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A: Well, they came to me and told me that, uh, they have this
certain evidence against me and I asked them, uh, I never
seen it, and then they say well maybe you’re reading it
wrong. You don’t know how to read it. So I asked them to
bring it to me to read it to me and then they said something
like, oh maybe, I think we just got it two weeks. They just
kept saying different things.
Trial Tr. p. 121–22. The trial court denied Englert’s request, saying he had
offered only “general statements without specifics” that could not be addressed
by his counsel or dealt with by the trial court. Trial Tr. p. 123. The trial court
also noted that Englert had expressed satisfaction with his counsel at the guilty-
plea hearing.
[13] A jury heard the remaining charges against Englert on November 13–16, 2012.
The jury found Englert guilty of Class A felony conspiracy to commit murder,
Class B felony conspiracy to commit criminal confinement, Class D felony
criminal confinement, Class C felony conspiracy to commit battery, Class A
misdemeanor battery, and Class A misdemeanor possession of marijuana. On
January 29, 2013, the trial court sentenced Englert. When the trial court asked
Englert if he was satisfied with the assistance his trial counsel had given him, he
replied, “Yes sir I am.” Trial Tr. p. 828. The trial court sentenced Englert to an
aggregate sentence of eighty years of incarceration.
[14] On direct appeal, we affirmed Englert’s convictions and sentence in an
unpublished decision. Englert, No. 79A04-1302-CR-88 at *8. On April 6, 2018,
Englert filed an amended PCR petition. Following an evidentiary hearing
conducted on August 13, 2018, the post-conviction court denied Englert’s PCR
petition on November 30, 2018.
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Discussion and Decision
[15] Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads unerringly
and unmistakably to a conclusion opposite to that reached by the
post-conviction court. […] Only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction
court has reached the opposite conclusion, will its findings or
conclusions be disturbed as being contrary to law.
Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006) (internal citations and
quotations omitted).
I. Whether Englert’s Guilty Plea Was
Knowing, Intelligent, and Voluntary
[16] Englert seems to argue that his guilty plea to murder was rendered involuntary
by the alleged threat that the State would seek the death penalty or LWOP if he
did not plead guilty.
A plea of guilty is an admission or confession of guilt made in
court before a judge. It is also a waiver of specific constitutional
rights. Fundamental due process requires that a criminal charge
be proven beyond a reasonable doubt, In Re Winship, (1970) 397
U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, and a defendant’s
waiver of this right must be knowing, intelligent and voluntary,
and appear affirmatively on the record of the guilty plea
proceedings. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct.
1709, 23 L. Ed. 2d 274. In order to uphold a guilty plea as
knowing and voluntary the record must provide a sufficient basis
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for the conclusion that the defendant was meaningfully informed
of the rights and law detailed in Ind. Code § 35-4.1-1-3 (Burns
1979); Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d 483, at
487.
Anderson v. State, 465 N.E.2d 1101, 1102 (Ind. 1984). Moreover,
[a]t 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. The lack of that real power is
what makes the threat illusory and causes the representation to
take on the characteristics of a trick.
Daniels v. State, 531 N.E.2d 1173, 1174 (Ind. 1988).
[17] The record, however, does not indicate that anybody ever threatened Englert
that the State would definitely seek the death penalty or LWOP unless he pled
guilty or that his counsel believed that such a threat had been made. Moreover,
even if such a threat had been made, it would not have been idle. It seems clear
that Englert was, in fact, eligible for the death penalty or LWOP on at least
three grounds. First, Englert had also been charged with Class C felony battery
and Class B felony criminal confinement of Gibson, and convictions for either
or both charges would have qualified Englert for the death penalty or LWOP.
Ind. Code § 35-50-2-9(b)(13)(A). Second, there was ample evidence that
Englert and his accomplices tortured Gibson before killing him. Ind. Code §
35-50-2-9(b)(11). “[T]orture is the gratuitous infliction of substantial pain or
suffering in excess of that associated with the commission of the charged
crime.” Gauvin v. State, 883 N.E.2d 99, 103 (Ind. 2008) (citation omitted).
There was evidence that Englert and his accomplices beat and then hog-tied
Gibson with a belt and dog collar before placing him in a running shower for
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ten to fifteen minutes. After removing Gibson from the shower, Englert and his
accomplices again used the belt as a leash around Gibson’s neck while
transporting him to the murder site. Englert has failed to establish that his
guilty plea was rendered involuntary by an illusory threat to seek the death
penalty or LWOP.
II. Ineffective Assistance of Trial Counsel
[18] Englert contends that he received ineffective assistance of trial counsel. We
review claims of ineffective assistance of counsel based upon the principles
enunciated in Strickland v. Washington, 466 U.S. 668 (1984):
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
requires a showing that: (1) counsel’s performance was deficient
by falling below an objective standard of reasonableness based on
prevailing professional norms; and (2) counsel’s performance
prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687, 694, 104
S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994).
[…] Failure to satisfy either prong will cause the claim to fail.
Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
[19] Trial counsel’s performance “is presumed effective, and a defendant must offer
strong and convincing evidence to overcome this presumption.” Wilkes v. State,
984 N.E.2d 1236, 1241 (Ind. 2013) (citation omitted). Englert must prove that
his trial counsel’s representation fell below the minimum range of competence
for attorneys in criminal cases. Strickland, 466 U.S. at 688–89. Englert cannot
prevail by showing only “isolated poor strategy, bad tactics, a mistake,
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carelessness or inexperience.” Lambert v. State, 743 N.E.2d 719, 741 (Ind.
2001), reh’g. denied. Rather, Englert must show that his counsel’s entire defense
was inadequate. Id. Further, “‘[j]udicial scrutiny of counsel’s performance
must be highly deferential.’” Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012)
(quoting Strickland, 466 U.S. at 689). Englert’s counsel’s decisions are assessed
objectively, in view of what a reasonable, minimally-competent attorney could
have chosen to do or not do in the circumstances; this inquiry should not
involve hindsight or evaluate his counsel’s subjective opinions or beliefs.
Harrington v. Richter, 562 U.S. 86, 106–07 (2011).
[20] As for prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’” Id. at 104 (quoting
Strickland, 466 U.S. at 687). Rather, Englert must show that, had his counsel
performed competently, there is “‘a reasonable probability that […] the result of
the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at
687). Failure to demonstrate both deficient performance and prejudice is fatal
to an ineffective-assistance claim. State v. Greene, 16 N.E.3d 416, 419 (Ind.
2014). Accordingly, if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed. Carter v.
State, 929 N.E.2d 1276, 1280 (Ind. 2010). Englert’s specific claims of ineffective
assistance are that (A) McCoy was ineffective because he coerced him into
pleading guilty by knowingly making false statements to him and (B) both
counsel were ineffective for failing to move to withdraw his guilty plea pursuant
to Indiana Code section 35-35-1-4(b).
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A. Allegedly False Statements
[21] Although Englert claims that his trial counsel made many false statements to
him, the only one he specifically identifies on appeal is the alleged statement
McCoy made to him and his family that the State would certainly pursue the
death penalty or LWOP unless he pled guilty to murder. Englert, however,
points to nothing in the record that such a statement was ever made. On the
other hand, the record does contain substantial evidence refuting Englert’s
claim.
[22] For one thing, McCoy testified that no meeting between himself, Englert, and
Englert’s parents ever occurred. Moreover, McCoy testified that while he was
concerned that the State would request the death penalty or LWOP, he also
testified that the State was only “considering the death penalty and [LWOP.]”
PCR Tr. p. 21 (emphasis added). McCoy also testified that he did not coerce
Englert into pleading guilty and “[a]bsolutely” made no false statements of
material fact to Englert at any time. PCR Tr. p. 32. The record supports the
post-conviction court’s finding that McCoy “did not make false statements of
‘material fact’ and did not coerce [Englert] into pleading guilty.” Appellant’s
PCR App. Vol. II p. 36. Englert has failed to establish that McCoy’s
performance was deficient for making false statements to him.
B. Motion to Withdraw Guilty Plea
[23] Englert claims that his trial counsel were ineffective for failing to move to
withdraw his guilty plea. Pursuant to Indiana Code section 35-35-1-4(b),
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[a]fter entry of a plea of guilty, or guilty but mentally ill at the time
of the crime, but before imposition of sentence, the court may
allow the defendant by motion to withdraw his plea of guilty, or
guilty but mentally ill at the time of the crime, for any fair and just
reason unless the state has been substantially prejudiced by
reliance upon the defendant’s plea. [….] However, the court shall
allow the defendant to withdraw his plea of guilty, or guilty but
mentally ill at the time of the crime, whenever the defendant
proves that withdrawal of the plea is necessary to correct a
manifest injustice.
[24] Englert’s argument is based on his already-discussed claim that his guilty plea
was rendered involuntary by the State’s allegedly illusory threat to seek the
death penalty or LWOP. As discussed, however, there is no indication that any
such threat was ever made, and it would not have been illusory if it had been
made. Englert has failed to establish that a fair and just reason to grant a
motion to withdraw his guilty plea existed or that granting a motion to
withdraw would have been necessary to correct a manifest injustice, fatally
undercutting any claims of deficient performance or prejudice. Englert has
failed to establish that he received ineffective assistance of trial counsel.
[25] The judgment of the post-conviction court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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