Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED Oct 19 2012, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ALBERT HARRIS GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ALBERT HARRIS, ) ) Appellant-Petitioner, ) ) vs. ) No. 49A02-1205-PC-386 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc T. Rothenberg, Judge The Honorable Ann Flannelly, Commissioner Cause No. 49F09-9503-PC-40173
October 19, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Petitioner, Albert Harris (Harris), appeals the post-conviction court’s
denial of his petition for post-conviction relief.
We affirm.
ISSUES
Harris raises two issues on appeal, which we restate as the following three issues:
(1) Whether the post-conviction court erred in denying his claim that the trial court
did not properly advise him of the minimum possible sentence he could receive
before pleading guilty;
(2) Whether the post-conviction court erred in denying his claim that his judgment
of conviction was inappropriately entered by a master commissioner; and
(3) Whether the post-conviction court erred in denying his claim that the trial
court’s judgment was void because the trial court failed to sign his abstract of
judgment.
FACTS AND PROCEDURAL HISTORY
On March 22, 1995, Police Officer David Schutz (Officer Schutz) of the Marion
County Police Department received a radio dispatch concerning a stolen 1984 gray
Chevy van with temporary plates. While en route to the location of the theft, he turned
eastbound at an intersection and saw a vehicle matching the stolen van’s description
traveling in the same direction. At that point, the driver of the van, later identified as
Harris, began “accelerating in an erratic manner.” (G.P. Transcript p. 7). He crossed the 2 double yellow line into the westbound lane in an attempt to overtake and pass a smaller
gray vehicle that was traveling eastbound. Officer Schutz activated his emergency lights
and pursued Harris. Harris continued to accelerate but lost control of his vehicle. The
vehicle skidded, veered to the right, and eventually flipped over onto its side. Officer
Schutz got out of his vehicle and observed Harris attempting to flee but apprehended him
before he could.
On June 7, 1995, the trial court held a hearing and Harris pled guilty to Count I,
auto theft, a Class D felony.1 In exchange, the State dismissed Count II, resisting law
enforcement, as well as charges against Harris in another Cause. That same day, the trial
court sentenced Harris to 545 days executed.
On September 23, 2011, Harris filed a petition for post-conviction relief in which
he claimed that: (1) his guilty plea was not made intelligently, knowingly, or voluntarily
because the trial court failed to advise him that he could be sentenced to a Class A
misdemeanor instead of a Class D felony; (2) the judgment of conviction was improper
because it was not signed by a judge; and (3) the abstract of judgment was not signed by
the trial court. On February 8, 2012, the post-conviction court held a hearing on the
petition and denied all of Harris’ claims.
Harris now appeals. Additional facts will be provided as necessary.
1 Harris has failed to provide an Appellant’s Appendix that complies with the requirements of Indiana Appellate Rule 50(A). His Appendix does not include copies of the Chronological Case Summary, his petition for post-conviction relief, his charging Information, or his plea agreement. Accordingly, we do not know the exact date or nature of his charges. Nevertheless, we will attempt to address his arguments based on the record before us.
3 DISCUSSION AND DECISION
On appeal from the denial of post-conviction relief, a petitioner stands in the
position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,
498 (Ind. 2011). In such a case, a petitioner must show that the evidence, taken as a
whole, leads unerringly and unmistakably to a conclusion opposite that reached by the
trial court. Id. We do not defer to the post-conviction court’s legal conclusions, but we
will reverse only on a showing of clear error. Id. Moreover, this court will only consider
the probative evidence and all reasonable inferences therefrom that support the post-
conviction court’s determination and will not reweigh the evidence. Bigler v. State, 732
N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.
I. Guilty Plea Advisements
First, Harris argues that he did not intelligently, knowingly, or voluntarily enter
into his plea agreement because the trial court did not inform him of the possibility that
he could be sentenced for a Class A misdemeanor rather than a Class D felony. Before a
criminal defendant pleads guilty, the trial court is required to advise the defendant of the
maximum and minimum possible sentences for the offenses to which he is pleading
guilty. I.C. § 35-35-1-2. At the time of Harris’ offense, the maximum possible sentence
for a Class D felony was three years’ imprisonment, and the minimum sentence was six
months’ imprisonment. I.C. § 35-50-2-7(a) (1993).2 However, pursuant to I.C. § 35-50-
2 We will evaluate Harris’ claims under the sentencing statute in effect in 1995, as our supreme court declared in Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) that the sentencing statute in effect at the time a crime is committed governs the sentence for that crime.
4 2-7(b) (1993), “notwithstanding subsection (a), if a person has committed a Class D
felony, the court may enter judgment of conviction of a Class A misdemeanor and
sentence accordingly.” Harris points to this provision as evidence that the trial court
should have advised him that he could be sentenced for a Class A misdemeanor rather
than a Class D felony. We disagree.
I.C. §§ 35-50-2-7(b)(1),-(2) (1993) list certain exceptions to the trial court’s ability
to sentence a defendant for a Class A misdemeanor rather than a Class D felony. I.C. §
35-50-2-7(b) (1993) states: “however, the court shall enter a judgment of conviction of a
Class D felony if . . . (2) the offense is auto theft (I.C. § 35-43-4-2.5).” Thus, because
Harris was convicted of auto theft as a Class D felony, the trial court did not have the
discretion to lower his sentence to that of a Class A misdemeanor. We therefore
conclude that the post-conviction court did not err in denying Harris’ claim that he was
not informed of a potential Class A misdemeanor sentence.
II. Judgment of Conviction
Next, Harris argues that his judgment and sentence are void because the master
commissioner rather than the presiding judge of the trial court signed his judgment of
conviction. He contends that under I.C. § 33-5-35.1-8(f), the rules governing magistrates
were applicable to commissioners, including I.C.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED Oct 19 2012, 9:18 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
ALBERT HARRIS GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ALBERT HARRIS, ) ) Appellant-Petitioner, ) ) vs. ) No. 49A02-1205-PC-386 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marc T. Rothenberg, Judge The Honorable Ann Flannelly, Commissioner Cause No. 49F09-9503-PC-40173
October 19, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Petitioner, Albert Harris (Harris), appeals the post-conviction court’s
denial of his petition for post-conviction relief.
We affirm.
ISSUES
Harris raises two issues on appeal, which we restate as the following three issues:
(1) Whether the post-conviction court erred in denying his claim that the trial court
did not properly advise him of the minimum possible sentence he could receive
before pleading guilty;
(2) Whether the post-conviction court erred in denying his claim that his judgment
of conviction was inappropriately entered by a master commissioner; and
(3) Whether the post-conviction court erred in denying his claim that the trial
court’s judgment was void because the trial court failed to sign his abstract of
judgment.
FACTS AND PROCEDURAL HISTORY
On March 22, 1995, Police Officer David Schutz (Officer Schutz) of the Marion
County Police Department received a radio dispatch concerning a stolen 1984 gray
Chevy van with temporary plates. While en route to the location of the theft, he turned
eastbound at an intersection and saw a vehicle matching the stolen van’s description
traveling in the same direction. At that point, the driver of the van, later identified as
Harris, began “accelerating in an erratic manner.” (G.P. Transcript p. 7). He crossed the 2 double yellow line into the westbound lane in an attempt to overtake and pass a smaller
gray vehicle that was traveling eastbound. Officer Schutz activated his emergency lights
and pursued Harris. Harris continued to accelerate but lost control of his vehicle. The
vehicle skidded, veered to the right, and eventually flipped over onto its side. Officer
Schutz got out of his vehicle and observed Harris attempting to flee but apprehended him
before he could.
On June 7, 1995, the trial court held a hearing and Harris pled guilty to Count I,
auto theft, a Class D felony.1 In exchange, the State dismissed Count II, resisting law
enforcement, as well as charges against Harris in another Cause. That same day, the trial
court sentenced Harris to 545 days executed.
On September 23, 2011, Harris filed a petition for post-conviction relief in which
he claimed that: (1) his guilty plea was not made intelligently, knowingly, or voluntarily
because the trial court failed to advise him that he could be sentenced to a Class A
misdemeanor instead of a Class D felony; (2) the judgment of conviction was improper
because it was not signed by a judge; and (3) the abstract of judgment was not signed by
the trial court. On February 8, 2012, the post-conviction court held a hearing on the
petition and denied all of Harris’ claims.
Harris now appeals. Additional facts will be provided as necessary.
1 Harris has failed to provide an Appellant’s Appendix that complies with the requirements of Indiana Appellate Rule 50(A). His Appendix does not include copies of the Chronological Case Summary, his petition for post-conviction relief, his charging Information, or his plea agreement. Accordingly, we do not know the exact date or nature of his charges. Nevertheless, we will attempt to address his arguments based on the record before us.
3 DISCUSSION AND DECISION
On appeal from the denial of post-conviction relief, a petitioner stands in the
position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,
498 (Ind. 2011). In such a case, a petitioner must show that the evidence, taken as a
whole, leads unerringly and unmistakably to a conclusion opposite that reached by the
trial court. Id. We do not defer to the post-conviction court’s legal conclusions, but we
will reverse only on a showing of clear error. Id. Moreover, this court will only consider
the probative evidence and all reasonable inferences therefrom that support the post-
conviction court’s determination and will not reweigh the evidence. Bigler v. State, 732
N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied.
I. Guilty Plea Advisements
First, Harris argues that he did not intelligently, knowingly, or voluntarily enter
into his plea agreement because the trial court did not inform him of the possibility that
he could be sentenced for a Class A misdemeanor rather than a Class D felony. Before a
criminal defendant pleads guilty, the trial court is required to advise the defendant of the
maximum and minimum possible sentences for the offenses to which he is pleading
guilty. I.C. § 35-35-1-2. At the time of Harris’ offense, the maximum possible sentence
for a Class D felony was three years’ imprisonment, and the minimum sentence was six
months’ imprisonment. I.C. § 35-50-2-7(a) (1993).2 However, pursuant to I.C. § 35-50-
2 We will evaluate Harris’ claims under the sentencing statute in effect in 1995, as our supreme court declared in Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) that the sentencing statute in effect at the time a crime is committed governs the sentence for that crime.
4 2-7(b) (1993), “notwithstanding subsection (a), if a person has committed a Class D
felony, the court may enter judgment of conviction of a Class A misdemeanor and
sentence accordingly.” Harris points to this provision as evidence that the trial court
should have advised him that he could be sentenced for a Class A misdemeanor rather
than a Class D felony. We disagree.
I.C. §§ 35-50-2-7(b)(1),-(2) (1993) list certain exceptions to the trial court’s ability
to sentence a defendant for a Class A misdemeanor rather than a Class D felony. I.C. §
35-50-2-7(b) (1993) states: “however, the court shall enter a judgment of conviction of a
Class D felony if . . . (2) the offense is auto theft (I.C. § 35-43-4-2.5).” Thus, because
Harris was convicted of auto theft as a Class D felony, the trial court did not have the
discretion to lower his sentence to that of a Class A misdemeanor. We therefore
conclude that the post-conviction court did not err in denying Harris’ claim that he was
not informed of a potential Class A misdemeanor sentence.
II. Judgment of Conviction
Next, Harris argues that his judgment and sentence are void because the master
commissioner rather than the presiding judge of the trial court signed his judgment of
conviction. He contends that under I.C. § 33-5-35.1-8(f), the rules governing magistrates
were applicable to commissioners, including I.C. §§ 33-4-7-4, -8, which provided that a
magistrate could not enter a final judgment unless sitting as judge pro tempore or special
judge. The transcript of Harris’ guilty plea and sentencing hearing states that it was
presided over by “the Honorable Charles A. Wiles, Judge” (Judge Wiles), and Harris
5 claims that Judge Wiles was a commissioner at the time of the hearing and not a judge.
(G.P. Tr. p. 3).
Pursuant to Indiana Post-Conviction Rule 1(5), a petitioner has the burden of proof
in post-conviction proceedings to establish his claims by a preponderance of the
evidence. Harris has not fulfilled his burden on appeal because he has not provided us
with any evidence that Judge Wiles was a commissioner when he signed the judgment.
The post-conviction court found that Judge Wiles served as both a Marion County
Municipal Court Judge and a Marion County Superior Court Judge, but did not find that
he had ever served as a commissioner. Thus, absent evidence contrary to the post-
conviction court’s findings, we conclude that the post-conviction court did not err in
determining that Judge Wiles was a judge when he signed Harris’ judgment of
conviction.
III. Abstract of Judgment
Finally, although he admits that Judge Wiles signed his judgment of conviction,
Harris claims that his plea is void because no one signed his abstract of judgment. We
disagree. Our supreme court has previously held that it is the trial court’s judgment of
conviction and not the abstract of judgment that is the official trial court record and
which thereafter is the controlling document. Robinson v. State, 805 N.E.2d 783, 794
(Ind. 2004). The abstract of judgment is merely a Department of Correction document
and does not constitute the judgment of the trial court. See id. In Robinson, the supreme
court held that there was no error in denying Robinson’s motion to correct sentence in
6 which he requested that the trial court correct an error in his abstract of judgment. Id. In
light of this precedent, we conclude that the post-conviction court did not err in declining
to grant Harris’ claim that his judgment was void because the trial court signed the
judgment of conviction rather than the abstract of judgment.
CONCLUSION
Based on the foregoing, we conclude that: (1) the post-conviction court did not err
in denying Harris’ claim that the trial court did not properly advise him of the minimum
possible sentence he could receive prior to his guilty plea; (2) the post-conviction court
did not err in denying his claim that his judgment was inappropriately entered by a master
commissioner; and (3) the post-conviction court did not err in denying his claim that the
trial court’s judgment was void because the trial court did not sign the abstract of
Affirmed.
BAILEY, J. and CRONE, J. concur