MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2017, 10:15 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Eldridge, February 21, 2017 Appellant-Petitioner, Court of Appeals Case No. 02A03-1609-PC-2045 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Respondent. Jr., Judge Trial Court Cause Nos. 02D06-1509-PC-109 02D04-0304-FA-23
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 1 of 19 [1] Brian Eldridge appeals the denial of his petition for post-conviction relief.
Eldridge raises two issues which we revise and restate as:
I. Whether Eldridge was deprived of a procedurally fair post-conviction hearing; and
II. Whether he was denied the effective assistance of trial counsel.
We affirm.
Facts and Procedural History
[2] In February 2003, the State charged Eldridge under cause number 02D04-0302-
FA-11 (“Cause No. 11”) with: Count I, criminal deviate conduct as a class A
felony; Count II, criminal deviate conduct as a class A felony; Count III, sexual
battery as a class C felony; Count IV, sexual battery as a class C felony; Count
V, sexual battery as a class C felony; Count VI, possession of legend drug or
precursor as a class D felony; and Count VII, possession of legend drug or
precursor as a class D felony. On April 14, 2003, the State charged Eldridge
under cause number 02D04-0304-FA-21 (“Cause No. 21”) with rape as a class
A felony and sexual battery as a class C felony. That same day, the State
charged Eldridge under cause number 02D04-0304-FA-23 (“Cause No. 23”)
with two counts of criminal deviate conduct as class A felonies and sexual
battery as a class C felony.
[3] On September 26, 2003, Eldridge and the State entered into a plea agreement
pursuant to which he agreed to plead guilty to criminal deviate conduct as a
class A felony under Cause No. 11, rape as a class A felony under Cause No.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 2 of 19 21, and criminal deviate conduct as a class A felony under Cause No. 23. The
agreement further provided that the State would dismiss the remaining charges
at sentencing and that the trial court would have “the final and full authority to
impose the sentence it deems proper.” Direct Appeal Appendix at 40(A). The
agreement was signed by Eldridge and his attorney and stated:
I, Brian S. Eldridge, represent that I am the defendant and that I have read this plea agreement or I have had my attorney read it to me. I represent that I understand the plea agreement and accept same voluntarily and without force, threat or other promises from anyone (other than the plea agreement).
I further understand that I have a right to a speedy, public trial by court or by jury in the county in which the offense allegedly occurred; I have a right to require witnesses to be present at any hearing or at the trial for the purpose of testifying on my behalf and at my request subpoenas will be issued by the court requiring witnesses to appear for me; and, I have a right to remain silent and that I cannot be required to give any testimony or make any statement against myself to anyone. I understand that this plea of guilty waives (gives up) the aforesaid rights.
All of which I hereby affirm under the penalties of perjury.
Id. at 40(C).
[4] On September 26, 2003, the court held a hearing. The court asked Eldridge if
he wished to plead guilty to criminal deviate conduct as a class A felony under
Cause No. 11, rape as a class A felony under Cause No. 21, and criminal
deviate conduct as a class A felony under Cause No. 23, and he answered
affirmatively. Eldridge indicated that he had never been treated for any mental Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 3 of 19 illness and did not suffer from any mental or emotional disability and was not
under the influence of alcohol or drugs. The court informed Eldridge of his
right to a speedy trial by a jury, the right to face all witnesses and question and
cross-examine them, the right to require witnesses to be present, the right not to
be compelled to make any statement, and the right to appeal his conviction if he
went to trial and was found guilty. The court read the charges, and Eldridge
indicated that he understood them. Eldridge indicated that he understood that
by pleading guilty he would be admitting that he committed the crimes charged
and that he would be found guilty and sentenced without a trial. Eldridge also
indicated that he understood the possible sentences and that the court would
decide whether the terms would be served concurrently or consecutively.
Eldridge indicated that he signed the plea agreement, read it, discussed it with
his counsel, his plea of guilty was his own free and voluntary act, and he was
satisfied with his attorney. Eldridge then pled guilty pursuant to the plea
agreement.
[5] Eldridge indicated that he administered a drug to L.M. without her knowledge
and placed his finger in her vagina, that he administered a legend drug to J.P.
without her knowledge and had sexual intercourse with her, and that he gave
T.T. a drug without her knowledge and placed his finger in her vagina. The
court stated: “I’ll take the matter under advisement, refer the matter for pre-
sentence investigation report.” Direct Appeal Transcript at 17. The court
scheduled a sentencing hearing for October 27, 2003. The prosecutor moved to
submit a videotape of the incidents if the court wished to view them. Eldridge’s
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 4 of 19 counsel objected, stated that a factual basis had been established, and stated: “I
mean, that’s part of what we’re doing here, trying to avoid a [sic] protracted
proceedings when it’s clear to everyone what happened.” Id. at 18. The court
suggested noting the recording as an exhibit on the issue of factual basis, and
Eldridge’s counsel did not object “in so far as it’s for the use of the court . . . .”
Id.
[6] On October 27, 2003, the court held a sentencing hearing. Eldridge indicated
that the presentence investigation report was correct. Eldridge’s parents and
uncle testified. Eldridge’s counsel argued that Eldridge expressed a great deal
of remorse and asked the court to sentence him to the minimum sentence of
twenty years. Eldridge stated that he did not want his daughter watching the
tapes, that he wanted to do right for his child, and that he respects the law. He
also stated:
And I thank [the prosecutor] for at least, you know, coming up with the least of three charges that he did come up with. You know, they’re not to my liking because I would have pled guilty to all the five sexual batteries. But the criminal deviate conduct, man, I wasn’t trying to hurt no one. I mean, that’s all I can say dude, I mean, I wasn’t trying to hurt anybody, I wasn’t definitely trying to be back in this orange and jail. And the most thing I dislike is the fact that I hurt my friends. Because no one, no one was supposed to see the tape, and I was in the process of destroying it. But I decided to confess to this girl that I wanted, you know, that I had took pictures of her friend, and to go back and tell her because she was my friend too. Go back and tell her that I took pictures and then maybe it will ease the blow. But the bottom dropped out and here I am.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 5 of 19 Sentencing Transcript at 24-25. After Eldridge’s statement, his counsel
submitted the following mitigating circumstances: his employment at the time
of the offenses, his family support, his guilty plea, he turned himself in after he
was confronted, his acceptance of responsibility, and long incarceration would
work a hardship on his relationship with his daughter and his family
responsibilities.
[7] The court indicated that it had not viewed the tape but that it was admitting the
tape under seal only and that the only purpose of its admission was “to
corroborate the plea of guilty should that ever become an issue.” Id. at 27. The
court found Eldridge’s guilty plea and acceptance of responsibility as a
mitigating factor. The court found Eldridge’s criminal history and the nature of
the offenses further compounded by “what must be humiliation in the filming
of these terrible acts” as aggravators. Id. at 28. The court sentenced Eldridge to
thirty years for each count to be served consecutive with each other for an
aggregate sentence of ninety years. The court dismissed the remaining counts.
[8] On direct appeal, Eldridge argued that his sentence was inappropriate, and this
court affirmed. Eldridge v. State, No. 02A04-0401-CR-48, slip op. at 2 (Ind. Ct.
App. June 16, 2004).
[9] On July 6, 2005, Eldridge filed a pro se petition for post-conviction relief. 1 On
August 8, 2005, a public defender filed a written appearance and notice of
1 The record does not contain a copy of this petition.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 6 of 19 inability to investigate. In December 2008, the public defender filed a notice of
withdrawal.
[10] On September 30, 2015, Eldridge filed a pro se petition for post-conviction
relief. 2 Eldridge alleged in part that his trial counsel was ineffective for failing
to object to his being sentenced without the court accepting his guilty plea. On
December 15, 2015, a public defender filed a notice of non-representation.
[11] On December 23, 2015, the State filed a motion to require Eldridge to submit
his case by affidavit. That same day, the court entered an order granting the
State’s motion, granting Eldridge until April 4, 2016, to submit his case by
affidavit, granting the State until June 6, 2016, to file a response, and ordering
that the parties submit proposed findings of fact and conclusions of law on or
before August 8, 2016. The court’s order states in part:
[Eldridge] shall promptly notify the court if he wishes to engage counsel to represent him in this matter.
THE PETITION FOR POST-CONVICTION RELIEF MAY BE DISMISSED if [Eldridge] does not (1) submit his case for post-conviction relief by affidavit, (2) submit a written request for additional time in which to submit his case by affidavit, or (3) notify the court that he wishes to engage counsel to represent him, ON OR BEFORE THE DATE SPECIFIED ABOVE FOR SUBMITTING HIS CASE BY AFFIDAVIT.
2 Eldridge alleged that his earlier petition for post-conviction relief was withdrawn without prejudice.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 7 of 19 Appellant’s Appendix at 46.
[12] On April 11, 2016, Eldridge filed his own affidavit in support of his petition
asserting that his sentence was illegal and must be vacated because the trial
court did not accept his guilty plea. On June 6, 2016, the State filed a response
to Eldridge’s affidavit.
[13] On June 20, 2016, Eldridge filed a pro se motion to compel interrogatories for
his trial counsel alleging that he served an interrogatory on his trial counsel on
March 8, 2016, requesting him to answer the questions within thirty days and
his trial counsel had not answered the interrogatory. On June 24, 2016, the
court denied Eldridge’s motion to compel interrogatories.
[14] On August 5, 2016, an attorney filed an appearance for Eldridge. That same
day, Eldridge by counsel filed a verified motion to continue the post-conviction
action and argued that Post-Conviction Rule 1(9)(b) allowed the court to
require a pro se petitioner to submit the case by affidavit, but Eldridge was no
longer a pro se petitioner. Eldridge’s counsel also alleged that she would need to
conduct a complete investigation, review all records, conduct discovery, and
meet with Eldridge. She also alleged that “[d]ue to counsel’s case load, it will
be at least a year before counsel is ready to litigate this case” and requested that
the court vacate the order requiring Eldridge to submit his case by affidavit and
continue the matter until counsel notified the court that she is ready to proceed.
Id. at 85. The court denied the motion.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 8 of 19 [15] On August 8, 2016, Eldridge filed proposed findings of fact and conclusions of
law. 3 That same day, the court denied Eldridge’s petition. The post-conviction
court’s order found that Eldridge was correct in stating that the trial court did
not explicitly accept his guilty plea and states:
2. No Indiana decision appears to have precisely addressed the question whether a court implicitly accepts a defendant’s guilty plea when, without explicitly accepting the plea, it accepts the plea as a mitigating factor and proceeds to sentence the defendant in accordance with the plea. The Court of Appeals has held that a court does implicitly accept a plea agreement when it accepts a guilty plea entered pursuant to the agreement. Rogers v. State, 715 N.E.2d 428, 429 (Ind. Ct. App. 1999). More generally, numerous decisions have addressed implicit acceptance of various matters, and have held that implicit acceptance may be inferred from conduct consistent with acceptance but inconsistent with non-acceptance. See, e.g., Northern Indiana Public Service Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006) (Court of Appeals’ issuance of opinion on the merits constituted implicit acceptance of discretionary interlocutory appeal); Parrish v. Toth, 559 N.E.2d 369, 370-371 (Ind. Ct. App. 1990) (trial court implicitly accepted civil defendant’s amended answer, asserting affirmative defense of right of set-off, by allowing defendant to present evidence regarding that defense during presentation of damages evidence); Laux v. State, 821 N.E.2d 816, 820 (Ind. 2005) (Indiana Supreme Court “implicitly accepted that sentencing aggravators do not constitute double jeopardy violations” by letting stand both a death sentence and a conviction and sentence for robbery that was used as an aggravator in sentencing under death penalty statute); Ringo v. State, 736 N.E.2d 1209, 1211-1212 (Ind. 2000)
3 Eldridge’s document states: “COMES NOW Petitioner, Brian Eldridge, by pro se representation, and tenders his Proposed Findings of Fact and Conclusions of Law . . . .” Appellant’s Appendix at 87.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 9 of 19 (waiver of Miranda rights occurs when the defendant, after being advised of those rights and acknowledging that he understands them, proceeds to make a statement without taking advantage of those rights, even if defendant has not explicitly waived rights); Hierlmeier v. North Judson-San Pierre Bd. of School Trustees, 730 N.E.2d 821, 824 (Ind. Ct. App. 2000) (teacher, alleged to have engaged in inappropriate behavior, implicitly accepted future date for school board’s consideration of cancellation of his contract by failing to object to future date and to request immediate vote at conclusion of hearing). No known decision is to the contrary. From the principle underlying these decisions, it logically follows that this Court implicitly accepted Mr. Eldridge’s guilty plea when it noted the plea as a mitigating factor, dismissed nine (9) counts pursuant to the plea agreement, and proceeded to sentence him in accordance with the plea.
3. Furthermore, even if the Court’s act of sentencing Mr. Eldridge in accordance with his guilty plea had not constituted implicit acceptance of the plea, [Eldridge’s trial counsel] could not have affected the ultimate outcome of the proceeding by objecting. Had [trial counsel] timely objected at sentencing that the Court had not yet accepted the plea, the Court could easily have corrected the claimed error by accepting the plea before proceeding to sentence Mr. Eldridge. In no event could the Court’s technical error (if any), in not explicitly accepting the guilty plea, entitle Mr. Eldridge to an undeserved windfall in the form of vacation of the guilty plea, because the remedy for an error must not be more severe than necessary to correct the error. See, e.g., Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). Counsel will not be found ineffective for failing to raise an objection that would not have affected the outcome of the proceeding. See Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006) (claim of ineffective assistance will not succeed without showing of reasonable probability that outcome of proceeding was affected by counsel’s claimed errors).
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 10 of 19 4. [Eldridge] has failed to prove his claim on the merits by a preponderance of the evidence.
Id. at 96-98.
Discussion
[16] Before discussing Eldridge’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a 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.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Id. Further, the post-conviction court in this case
entered findings of fact and conclusions thereon in accordance with Indiana
Post-Conviction Rule 1(6). “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.” Id. In this
review, we accept findings of fact unless clearly erroneous, but we accord no
deference to conclusions of law. Id. The post-conviction court is the sole judge
of the weight of the evidence and the credibility of witnesses. Id.
I.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 11 of 19 [17] The first issue is whether Eldridge was deprived of a procedurally fair post-
conviction hearing. Eldridge argues that he was deprived of his right to a
procedurally fair determination of his claims when the post-conviction court
denied his request to compel his trial and appellate counsel to respond to
interrogatories, required him to submit the case by affidavit, and refused to
grant a continuance to give his post-conviction counsel adequate time to consult
with him, review the record, and amend the petition if necessary. He
acknowledges that the civil discovery rules do not permit a party to serve
interrogatories upon a non-party but do permit a party to take oral and written
depositions of a non-party and to serve a non-party with a discovery request.
[18] The State notes Eldridge’s acknowledgement that the civil rules governing post-
conviction proceedings do not permit a party to serve interrogatories upon a
non-party. It argues that the post-conviction court did not err when it required
the cause to proceed by affidavit where the appearance of counsel occurred well
after the cause had already proceeded by affidavit. The State also contends that
the trial court did not abuse its discretion in denying Eldridge’s motion to
continue given the lateness of the motion, lack of specific claims, and
procedural posture.
[19] Ind. Post-Conviction Rule 1(9)(b) provides in part:
In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing. If the pro se petitioner requests
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 12 of 19 issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony. If the court finds the witness’ testimony would be relevant and probative, the court shall order that the subpoena be issued. If the court finds the proposed witness’ testimony is not relevant and probative, it shall enter a finding on the record and refuse to issue the subpoena.
[20] Ind. Post-Conviction Rule 1(5) provides:
All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except as provided above in Section 4(b). The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.
[21] Generally, “if the PCR court orders the cause submitted by affidavit under Rule
1(9)(b), it is the court’s prerogative to determine whether an evidentiary hearing
is required, along with the petitioner’s personal presence, to achieve a ‘full and
fair determination of the issues raised[.]’” Smith v. State, 822 N.E.2d 193, 201
(Ind. Ct. App. 2005), trans. denied. We review the post-conviction court’s
decision to forego an evidentiary hearing when affidavits have been submitted
under Rule 1(9)(b) under an abuse of discretion standard. Id. The post-
conviction court has the discretion to determine whether to grant or deny the
petitioner’s request for a subpoena. Pannell v. State, 36 N.E.3d 477, 486 (Ind.
Ct. App. 2015), trans. denied. We will not reverse a trial court’s decision on
discovery absent an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1133
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 13 of 19 (Ind. 1997), reh’g denied. As for Eldridge’s motion to continue, it is well-
established that we review the grant or denial of a continuance for abuse of
discretion. Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001). An abuse of
discretion occurs only where the evidence is clearly against the logic and effect
of the facts and circumstances. See Pannell, 36 N.E.3d at 486; Evans v. State, 809
N.E.2d 338, 342 (Ind. Ct. App. 2004), trans. denied.
[22] We hold in Part II below that Eldridge’s trial counsel was not ineffective for
failing to object to the trial court’s failure to explicitly accept the plea
agreement. The claims raised in Eldridge’s petition and his affidavit did not
raise issues which required any factual determination, and Eldridge fails to
establish how the testimony of his trial counsel or an evidentiary hearing would
have aided him. We cannot say that the post-conviction court abused its
discretion in ordering the parties to proceed by affidavit in its December 23,
2015 order, in denying Eldridge’s request to compel his trial and appellate
counsel to respond to interrogatories, or in denying his motion for a
continuance. The motion did not allege the possibility of additional claims and
was filed more than ten months after his September 2015 petition, four months
after the date the court imposed for Eldridge to submit his case by affidavit, and
three days before the date proposed findings of fact and conclusions thereon
were due. See Pannell, 36 N.E.3d at 487 (“[T]he facts in the record are sufficient
for us to address [the petitioner’s] arguments because we may conclude from
the face of [the petitioner’s] motion that the testimony he expected from his
requested witnesses would not have been relevant or probative to his post-
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 14 of 19 conviction ineffective assistance of counsel or prosecutorial misconduct claims
and, therefore, the post-conviction court was not required to issue his subpoena
requests. As a result, the post-conviction court did not abuse its discretion, and
the court’s failure to enter findings before denying the subpoenas was not a
reversible error.”), trans. denied; Smith, 822 N.E.2d at 201 (holding that “other
than claiming that the affidavits he and the State submitted raised issues of fact,
[the petitioner] has failed to show how an evidentiary hearing would have aided
him”); Lloyd v. State, 717 N.E.2d 895, 902 (Ind. Ct. App. 1999) (holding that
petitioner failed to present an issue of fact which would afford him a hearing
regarding his assertion that his trial counsel was ineffective in failing to object to
a prosecutor’s comment), reh’g denied, trans. denied.
II.
[23] The next issue is whether Eldridge was denied the effective assistance of trial
counsel. He asserts that his trial counsel’s failure to object when the court
imposed sentence without having accepted his guilty plea resulted in him being
sentenced without first having been convicted and that this amounted to
fundamental error requiring reversal even absent any showing of prejudice. The
State argues that Eldridge’s defense counsel had no reasonable basis for
objecting to the sentence and that Eldridge cannot show that an objection
would have altered any of the results as the trial court would simply have made
its acceptance of the guilty plea more explicit.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 15 of 19 [24] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). Counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. To meet the appropriate test for prejudice, the petitioner must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “[L]ogic dictates that ‘a verdict
or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.’” Hilliard v.
State, 609 N.E.2d 1167, 1169-1170 (Ind. Ct. App. 1993) (quoting Strickland, 466
U.S. at 696, 104 S. Ct. at 2069)). Failure to satisfy either prong will cause the
claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel
claims can be resolved by a prejudice inquiry alone. Id.
[25] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 16 of 19 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the
objection would have been sustained if made. Passwater v. State, 989 N.E.2d
766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),
cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).
[26] “When a defendant pleads guilty, he makes a judicial admission of actual
guilt.” Ford v. State, 570 N.E.2d 84, 87 (Ind. Ct. App. 1991) (citing Patton v.
State, 517 N.E.2d 374, 375 (Ind. 1987), reh’g denied), trans. denied. “The plea
itself is a guilty verdict.” Id. (citing McKrill v. State, 452 N.E.2d 946, 949 (Ind.
1983)). “It has long been the law in this state that no reversible error occurs
when a court conducts a hearing at which a guilty verdict is made, does not
formally enter judgment on that verdict, but then sentences the defendant.” Id.
(citing Thompson v. State, 492 N.E.2d 264, 271-272 (Ind. 1986), reh’g denied).
The Indiana Supreme Court has held that “[f]ailure to enter judgment prior to
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 17 of 19 sentencing does not constitute error where the defendant is otherwise properly
sentenced.” Thompson, 492 N.E.2d at 272.
[27] Moreover, as pointed out by the post-conviction court and the State, if
Eldridge’s trial counsel had objected, the trial court could easily have corrected
the claimed error by accepting the plea agreement. Thus, Eldridge cannot show
he was prejudiced by his counsel’s failure to object on that basis. The evidence
as a whole does not unerringly and unmistakably lead to a conclusion opposite
that reached by the post-conviction court. 4 See Ford, 570 N.E.2d at 87 (rejecting
the petitioner’s argument that the trial court erred by sentencing him without
having formally accepted his guilty plea on the record and observing that the
petitioner did not deny his guilt and affirmed several times to the trial court
prior to sentencing he was pleading guilty).
Conclusion
[28] For the foregoing reasons, we affirm the post-conviction court’s denial of
Eldridge’s petition for post-conviction relief.
[29] Affirmed.
4 To the extent Eldridge asserts fundamental error, the Indiana Supreme Court has stated that it is wrong to review a fundamental error claim in a post-conviction proceeding, that “the fundamental error exception to the contemporaneous objection rule applies to direct appeals,” and that “[i]n post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 18 of 19 Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017 Page 19 of 19