Darrell McNary v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 7, 2019
• Docket: 71A03-1710-PC-2408
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 07 2019, 8:53 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Darrell McNary Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darrell McNary, February 7, 2019 Appellant-Defendant, Court of Appeals Case No. 71A03-1710-PC-2408 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1612-PC-42

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 1 of 9 [1] Darrell McNary appeals the denial of his petition for post-conviction relief. He

raises one issue which we revise and restate as whether the post-conviction

court erred in denying his petition. We affirm.

Facts and Procedural History

[2] On November 16, 2015, the State charged McNary with: Count I, dealing in

cocaine as a level 4 felony; Count II, dealing in cocaine as a level 5 felony;

Count III, possession of methamphetamine as a level 6 felony; and Count IV,

possession of cocaine as a level 6 felony. On January 19, 2016, McNary and

the State entered into a plea agreement in which McNary agreed to plead guilty

to Count II, dealing in cocaine as a level 5 felony, and the State agreed to

dismiss the remaining charges.

[3] On January 19, 2016, the court held a hearing at which other defendants as well

as McNary, who was represented by counsel, were present. The court informed

McNary of his trial rights and the process if he did not plead guilty. The court

also stated:

Here’s the deal, guys. The lawyers should know this, and the defendants should know it. What is going to happen is I’m going to talk to you about your plea agreements. If I find there’s a basis to accept them, I’ll take them under advisement. They will be under advisement until March because there will not be any sentencing – any more sentencings set in February. And it will be a different judge that is going to be doing the sentencing on this plea.

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 2 of 9 Transcript Volume II at 6-7. McNary answered affirmatively when asked if he

understood and agreed to that.

[4] Upon questioning by the court, McNary indicated that he had a GED and

some college and that he understood clearly what was going on. The following

exchange then occurred:

THE COURT: . . . Whose decision to plead guilty?

MR. MCNARY: Your Honor, it’s my decision to plead to this because I want to save the State –

THE COURT: All right.

MR. MCNARY: - time and money.

THE COURT: You want to accept your responsibility?

MR. MCNARY: Yes, because –

THE COURT: Okay. And are you guilty?

MR. MCNARY: Yes, I am, your Honor.

Id. at 9. McNary also indicated that he would waive his trial rights. After

further discussion, the court asked McNary: “Have I talked you out of your

plea?” Id. at 15. McNary answered: “No, your Honor.” Id.

[5] The court asked for a factual basis. Upon questioning by defense counsel,

McNary testified that he knowingly delivered cocaine to another individual on

November 10, 2015. The court scheduled a sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 3 of 9 [6] An entry in the chronological case summary (“CCS”) dated the same day as the

hearing states:

Hearing Journal Entry (Judicial Officer: Frese, Jerome)

Hearing Date: 01/19/2016

State by DPA Andres. Defendant in custody and represented by Attorney Keller. Defendant advised of rights. Parties file written plea agreement. Defendant advised that due to Judge Frese’s retirement another judge will sentence the Defendant. Defendant waives sentencing within thirty days. Defendant moves to have Court accept plea to Count II, Dealing in Cocaine, Level 5 felony. Voluntariness and factual basis found. Court takes motion to enter plea under advisement. Pre-sentence report ordered. Sentencing set for 3-7-16 at 9:00 a.m. Over State’s objection, bond modified to $500 full cash. ORDER ENTERED.

Appellant’s Supplemental Appendix Volume II at 4. The court also entered an

Order on Plea Hearing which stated in part: “Voluntariness and factual basis

found. Court takes motion to enter plea under advisement.” Id. at 26.

[7] On March 28, 2016, the court held a sentencing hearing. At the beginning of

the hearing, the court asked: “What are we doing with Mr. McNary?”

Transcript Volume II at 22. McNary’s counsel answered: “Judge, this was set

over for sentencing.” Id. The court sentenced McNary to four years in the

Department of Correction and recommended Purposeful

Incarceration/Therapeutic Community. That same day, the court entered a

sentencing order which states that the court “accepts plea unconditionally,”

entered judgment of conviction on Count II, dealing in cocaine as a level 5

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 4 of 9 felony, dismissed the remaining counts, sentenced McNary to four years in the

Department of Correction, and indicated that it would consider a sentence

modification of placement to community corrections should McNary

successfully complete Therapeutic Community. Appellant’s Supplemental

Appendix Volume II at 31.

[8] On December 1, 2016, McNary filed a petition for post-conviction relief. On

March 6, 2017, McNary filed a motion for leave to amend his petition for post-

conviction relief.

[9] On April 21, 2017, the court held a post-conviction hearing. McNary’s trial

counsel testified as to his advice regarding the charges, defenses, and the plea

agreement. He testified that he discussed the plea agreement multiple times

with McNary and advised him of his constitutional and statutory rights.

McNary testified in part that the trial court did not advise him or ask him if it

was his desire to withdraw the formal plea of not guilty and enter a plea of

guilty, that no factual basis existed to accept the guilty plea, that the court did

not accept the plea agreement, and the court did not pronounce the judgment of

conviction.

[10] On September 27, 2017, the court entered an order denying McNary’s petition

for post-conviction relief. Specifically, the court concluded that the CCS and

the sentencing order indicate that the trial court accepted the plea, McNary

indicated that he heard the advisement of rights at trial, and a factual basis was

established.

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 5 of 9 Discussion

[11] Before discussing McNary’s allegations of error, we observe that he is

proceeding pro se. Such litigants are held to the same standard as trained

counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

We also 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. “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.

[12] McNary argues that the post-conviction court erred in finding that he did not

prove that the guilty plea and plea agreement were not accepted and that he did

not prove that a judgment of conviction was not entered. He asserts that the

trial court did not reject or accept any plea of guilty or pronounce any judgment

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 6 of 9 of conviction at the plea and sentencing hearings. The State argues that the

record indicates that the trial court accepted McNary’s guilty plea and plea

agreement and entered judgment of conviction. It also asserts that McNary’s

claim that the post-conviction court could not rely on the guilty plea order,

sentencing order, and CCS is meritless.

[13] Generally, “[w]hen 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. “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 sentencing does not constitute

error where the defendant is otherwise properly sentenced.” Thompson, 492

N.E.2d at 272.

[14] McNary entered into a plea agreement in which he agreed to plead guilty to

Count II, dealing in cocaine as a level 5 felony. At the plea hearing, the court

informed McNary of his rights. McNary indicated that he understood clearly

what was going on, stated that it was his decision to plead guilty, indicated that

he would waive his trial rights, and testified that he knowingly delivered

cocaine to another individual. A CCS entry and order dated the same day as

the hearing both indicated that the trial court found voluntariness and a factual

basis with respect to the plea and that it would take the matter under

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 7 of 9 advisement. On the same day of the sentencing hearing, the court entered a

sentencing order which stated that it accepted the plea and entered judgment of

conviction on dealing in cocaine as a level 5 felony. To the extent McNary

suggests that the court’s CCS entries and orders do not indicate that the trial

court accepted the plea agreement, we disagree. See Benson v. State, 780 N.E.2d

413, 420 (Ind. Ct. App. 2002) (holding that the CCS is an official record of the

trial court, that the official record shows unequivocally that the trial court had

accepted the defendant’s guilty plea and entered judgment of conviction, and

that the case was distinguishable from State v. Daniels, 680 N.E.2d 829 (Ind.

1997), because there was no order book entry in Daniels finding Daniels guilty

pursuant to the plea agreement and because, unlike in Daniels, the trial court,

the defendant, and the State behaved as if the court had accepted the guilty

plea), reh’g denied, trans. denied. We cannot say that the evidence as a whole

unerringly and unmistakably lead to a conclusion opposite that reached by the

post-conviction court. 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

[15] For the foregoing reasons, we affirm the post-conviction court’s denial of

McNary’s petition.

[16] Affirmed. Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 8 of 9 Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1710-PC-2408 | February 7, 2019 Page 9 of 9