Anthony Barnett v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jan 22 2014, 9:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ANTHONY BARNETT GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY BARNETT, )
)
Appellant-Petitioner, )
)
vs. ) No. 22A01-1302-PC-84
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable J. Terrence Cody, Judge
Cause No. 22C01-0310-PC-2
January 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Over thirty years ago, Anthony Barnett pleaded guilty to a Class C felony based
on the State’s assurances that it would recommend a ten-year sentence. At the sentencing
hearing, the State realized its recommendation was erroneously made as though the crime
was a Class B felony. Without objection, the trial court allowed the State to reduce its
recommendation to five years and imposed that sentence.
Barnett now appeals the denial of his petition for post-conviction relief, which
claimed in part that his guilty plea was not knowing, intelligent, and voluntary. We
conclude the post-conviction court did not err by denying Barnett’s petition and therefore
affirm.
In December 1979, the State charged Barnett with Class C felony burglary in
cause number 13794. In March 1980, pursuant to plea recommendations filed by the
State, Barnett pleaded guilty to this charge as well as to a Class C felony robbery charge
and a Class C felony battery charge in two other cause numbers. The State’s
recommendation in cause number 13794 stated that if Barnett followed through with his
intent to plead guilty to Class C felony burglary, the State recommended a sentence of ten
years, with four years executed and six years suspended, to be served concurrent with the
two other causes. The recommendations in the two other causes were the same.
At the guilty plea hearing, Barnett’s counsel told the trial court that the plea
recommendation called for concurrent ten-year sentences, with four years executed and
six years suspended. The court asked Barnett, “Is this the recommendation as you
understand it, Mr. Barnett?” Ex. Vol. p. 24. Barnett responded, “Yes, sir.” Id. The
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court and defense counsel then asked whether he understood the terms of the offer, to
which he responded, “Yeah.” Id.
At the sentencing hearing, the State observed that its plea recommendations,
which clearly noted Class C felonies, were within the statutory parameters of Class B
instead of Class C felony sentences. 1 Defense counsel agreed there was a mistake. Upon
the State’s request and defense counsel’s assent, the trial court allowed the
recommendation to be amended to five years, with four years executed and one year
suspended, noting, “I certainly don’t see how the defendant is going to be prejudiced by a
reduction in the amount of time in the recommendation and I don’t see where that’s going
to cause us any problem.” Id. at 53. The court found the amended recommendation
reasonable and thus sentenced Barnett to concurrent five-year sentences, with four years
executed and one year suspended.
Over twenty years later in 2003, after he was charged with being a habitual
offender in another cause number, Barnett filed a petition for post-conviction relief
challenging his Class C felony burglary conviction in cause number 13794. The petition
was dismissed without prejudice, then later reinstated and amended. In the amended
petition, Barnett claimed that he received ineffective assistance of trial counsel and that
his guilty plea was not knowing, intelligent, and voluntary. After several hearings, the
post-conviction court denied the petition.
1
At the time Barnett committed these offenses, the statutory range for a Class B felony was between six
and twenty years, with the presumptive sentence being ten years. Ind. Code § 35-50-2-5 (1977). The
statutory range for a Class C felony was between two and eight years, with the presumptive sentence
being five years. Ind. Code § 35-50-2-6 (1977).
3
In this appeal, Barnett abandons his claim of ineffective assistance and contends
only that the post-conviction court erred by denying relief on the guilty plea issue.
Specifically, he contends that he was misled into thinking he faced twenty years, the
maximum sentence for a Class B felony, and that he was not informed that the minimum
sentence for a Class C felony was two years. Had he been properly advised, he claims,
he would have chosen to go to trial on the burglary charge.
In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a negative
judgment. Henley, 881 N.E.2d at 643. The reviewing court will not reverse the
judgment unless the petitioner shows that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at
643-44. Further, the post-conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will
reverse a post-conviction court’s findings and judgment only upon a showing of clear
error, which is that which leaves us with a definite and firm conviction that a mistake has
been made. Id. at 644. The post-conviction court is the sole judge of the weight of the
evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.
2004). We accept findings of fact unless clearly erroneous, but we accord no deference
to conclusions of law. Id.4
On review of a guilty plea, we look at all the evidence before the post-conviction
court. Moffitt v. State, 817 N.E.2d 239, 249 (Ind. Ct. App. 2004), trans. denied. If the
evidence exists to support the post-conviction court’s determination that the guilty plea
was knowing, intelligent, and voluntary, we will not reverse. Id. When a guilty plea is
attacked because of alleged misinformation concerning sentencing, the issue of the
validity of such plea is determined by the following two-part test: (1) whether the
defendant was aware of actual sentencing possibilities; and (2) whether the accurate
information would have made any difference in his decision to enter the plea. Id.The transcript of Barnett’s guilty plea hearing does not show he was informed of
the sentencing range for a Class C felony. At the post-conviction hearings, the court took
judicial notice that neither defense counsel nor the State recalled any specifics of the
case. For his part, Barnett testified he was inexperienced with criminal proceedings and
pleaded guilty based on the State’s sentencing recommendation of ten years because he
was told he could otherwise receive up to twenty years. He claimed no one explained
what was going on at the sentencing hearing when the State reduced its recommendation
and that he was never informed that the minimum sentence for a Class C felony was two
years. Had he known, he claimed, he would have taken his chances and gone to trial on
the burglary charge. Among his exhibits, Barnett submitted commitment orders showing
he was sentenced to concurrent ten-year terms.
The post-conviction court’s order denying relief stated:
1. Petitioner has asserted that he was misled into pleading guilty
to a Class B Felony offense for which he was not charged. The Official
Court Records do not support this assertion, although the Commitment
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Order and the Amended Commitment Order certainly make it appear that
he did so.
2. With respect to Petitioner’s claim that his Guilty Plea was not
inte[lligent]ly, knowingly, and voluntarily [m]ade, the transcript of
Petitioner’s plea change hearing establishes that he was advised of his
Boykin rights and voluntarily waived them. Petitioner has not pled specific
facts from which a trier of fact could reasonably find by a preponderance of
the evidence that his guilty plea was not inte[lligent], knowing, or
voluntary.
3. The only evidence that Petitioner has offered to demonstrate
that his plea was not inte[lligent]ly, knowingly, and voluntarily made is his
own recollection of events. No additional corroboration has been
presented. In the absence of additional corroboration, Petitioner’s self-
serving statement is insufficient to allow a trier of fact to reasonably find
for him by a preponderance of the evidence.
Appellant’s App. p. 98. As noted above, we will not reverse the denial unless Barnett
shows the evidence as a whole leads unerringly and unmistakably to the opposite
conclusion.
We acknowledge that the guilty plea hearing transcript does not show Barnett was
advised of the sentencing range for a Class C felony and that Barnett testified he was
never informed of the two-year minimum sentence. We further acknowledge Barnett’s
testimony that he was told he faced up to twenty years. We note, however, that Barnett’s
recollection during the post-conviction proceedings of this last point is unclear at best.
At the first evidentiary hearing, before he had reviewed the guilty plea and sentencing
transcripts, Barnett told the post-conviction court that the trial judge told him at his guilty
plea hearing that he was pleading guilty to a Class B felony and that the maximum
sentence he faced was twenty years. Tr. p. 18. Later at that same evidentiary hearing,
Barnett claimed it was both the trial court and the State who told him he faced up to
twenty years for a Class B felony. Id. at 32. Before the final evidentiary hearing, Barnett
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reviewed the guilty plea and sentencing transcripts, neither of which showed he was told
that he was pleading guilty to a Class B felony or that he faced up to twenty years. He
thus testified at the final hearing that it must have been defense counsel or “somebody”
that told him he faced up to twenty years: “I was just told that I could get up to ten (10)
years or twenty (20) years if I didn’t plead guilty, and apparently at first I thought that it
may have been the Judge that told me that, but after reading and studying the transcripts
then it had to be my – my attorney. Somebody had me under the – had me under the –
had me under the impression that I could get up to twenty (20) years if I didn’t plead
guilty and take the ten (10) years.” Id. at 107-08.
For purposes of this appeal, we accept at face value Barnett’s assertion that he was
not aware that the minimum sentence for a Class C felony as charged was two years. In
any event, Barnett fails with respect to the second part of the two-pronged test. Despite
his assertion to the contrary, he did not establish that accurate information would have
made a difference in his decision to plead guilty to Class C felony burglary in cause
number 13794. See Jackson v. State, 676 N.E.2d 745, 752 (Ind. Ct. App. 1997), trans.
denied. Barnett points to his own testimony that, had he known the minimum sentence
for a Class C felony was only two years, he would have taken his chances and gone to
trial.
The evidence in the record, however, does not support this assertion. See White v.
State, 497 N.E.2d 893, 905 (Ind. 1986) (“To decide a claim that a plea was not made
voluntarily and intelligently, we will review all the evidence before the court which heard
his post-conviction petition, including testimony given at the post-conviction trial, the
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transcript of the petitioner’s original sentencing, and any plea agreements or other
exhibits which are a part of the record.”). The record shows that Barnett committed three
separate Class C felony offenses within a three-month period. Because he committed
several offenses within a limited time span, it is unlikely that he would have received the
minimum two-year sentence for the underlying burglary charge had he been convicted at
trial. Indeed, with the possibility of consecutive maximum sentences, his sentencing
exposure for all three offenses was twenty-four years. 2 Instead, by pleading guilty,
Barnett received a recommendation from the State that he serve an executed sentence of
only four years. In addition, he was able to dispose of all three charges.
Moreover, both the trial court and defense counsel questioned Barnett at the guilty
plea hearing to ensure he understood the State was recommending concurrent ten-year
sentences, with four years executed and six years suspended, if he pleaded guilty in all
three causes. As Barnett was willing to accept a four-year executed sentence at the outset
(even if the aggregate sentence was erroneous), it is difficult to believe he would have
rejected that same four-year executed sentence and gone to trial on the burglary charge if
he had known the minimum sentence for a Class C felony was two years. Because the
State’s plea recommendation involved all three charges, going to trial on the burglary
charge would have risked a deal on the two other charges.
Given these circumstances, Barnett has failed to show that he would not have
pleaded guilty had he known the minimum sentence for a Class C felony was two years.
2
Barnett claims the trial court was required to impose concurrent sentences because he was not subject to
mandatory consecutive sentences. Even if consecutive sentences were not mandatory, the trial court
would have still had the discretion to impose his sentences consecutively.
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See Jackson, 676 N.E.2d at 752 (petitioner not entitled to post-conviction relief on claim
that two years of probation was contrary to plea agreement where he was allowed to
plead to a lesser offense and his entire sentence was suspended in exchange for two years
of probation). Barnett has not shown that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction court. We
therefore affirm the court’s denial of relief.
Affirmed.
BAILEY, J., and MAY, J., concur.
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