Hane C. Harris v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 20, 2018
• Docket: 18A-PC-1995
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 20 2018, 6:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Ian McLean Liisi Brien Supervising Deputy Attorney Deputy Public Defender General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hane C. Harris, December 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-PC-1995 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne L. Appellee-Plaintiff Vorhees, Judge Trial Court Cause No. 18C01-1605-PC-009

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 1 of 10 Case Summary [1] Hane C. Harris appeals the denial of his petition for post-conviction relief,

arguing that his guilty plea was not knowing, voluntary, and intelligent because

the trial court did not advise him of his rights as required by Boykin v. Alabama,

395 U.S. 238 (1969), or otherwise question him regarding his understanding

and waiver of those rights. Because the trial court, at the guilty-plea hearing,

referenced Harris’s plea agreement, which sets forth his Boykin rights and

provides that he will be waiving those rights by pleading guilty, and because

Harris did not present any evidence that he did not know about his Boykin rights

when he pled guilty, we affirm the post-conviction court.

Facts and Procedural History [2] In March 2007, the State charged Harris with Count 1: Class D felony

strangulation and Count 2: Class A misdemeanor domestic battery. The State

later added a habitual-offender count. On June 15, 2007, Harris and the State

entered into a plea agreement. According to the agreement, Harris would plead

guilty to Counts 1 and 2, and the State would dismiss the habitual-offender

count. In addition, the plea agreement advised Harris that, by pleading guilty,

he was waiving certain rights:

The Defendant understands that the State and Federal Constitutions guarantee all criminal Defendants certain rights, among them being the rights to a public trial by jury, to a speedy trial, to be free from self-incrimination, to confront and cross- examine the State’s witnesses, to have compulsory process for

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 2 of 10 obtaining witnesses for the defense, and to require the State to prove guilt beyond a reasonable doubt. The Defendant further understands that the entry of a guilty plea pursuant to this agreement waives those rights and constitutes an admission of the truth of all the facts alleged in the information count to which a plea of guilty has been entered. . . .

State’s Ex. 1. Both Harris and his attorney signed the plea agreement. Id.

[3] At the guilty-plea hearing the following week, the trial court engaged in the

following colloquy with Harris:

THE COURT: I’m looking at a document entitled Plea Agreement, is that your signature on the very last page?

[HARRIS]: Yes, ma’am.

THE COURT: And it indicates that you’re going to plead guilty to Counts 1 and 2, that you have an agreed upon sentence and the State’s going to dismiss the habitual offender enhancement, is that your understanding?

THE COURT: Before I can accept a guilty plea from you, I have to be satisfied that you fully understand your constitutional rights, that your plea of guilty is being made freely and voluntarily, and that you in fact committed the crime. Therefore, I have to ask you some questions and hear some evidence. If you don’t understand the questions, or the Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 3 of 10 words that I use, please let me know and I will explain them to you. You may also speak privately with your attorney at any time. Do you understand that?

*****

THE COURT: Have you ever been treated for any mental illness?

[HARRIS]: No, ma’am.

THE COURT: To your knowledge, do you now suffer from any mental or emotional disability?

THE COURT: Are you now under the influence of any alcohol or any drugs?

THE COURT: Do you want me to withdraw your earlier pleas of not guilty and plead guilty to Counts 1 and 2 pursuant to the written Plea Agreement?

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 4 of 10 THE COURT: It’s already placed in your plea agreement, the legal and constitutional rights that you’ll be giving up by entering into this plea. Do you understand that you will be giving up those rights?

[HARRIS]: Yes, I do.

Def.’s Ex. 1, pp. 3-4 (emphases added). After the trial court asked Harris

additional questions regarding whether he had been forced or threatened to

plead guilty and a factual basis was established, the court said:

The Court finds the Defendant is 40 years old. He understands the nature of the charges against him to which he has moved to plead guilty. He understands the possible sentences for the crimes. His pleas are freely and voluntarily made and that there is a factual basis for the pleas. The Court will accept the offers of pleas of guilty and find the Defendant Guilty of Count 1 . . . and Count 2 . . . and enter judgement of conviction accordingly. The Court will approve the written Plea Agreement . . . .

Id. at 10; see also State’s Ex. 2 (trial court’s order on guilty plea).

[4] In 2016, Harris filed a pro se petition for post-conviction relief, which was later

amended by counsel. The petition alleged that Harris’s guilty plea was not

knowing, intelligent, and voluntary because the trial court did not advise him of

his Boykin rights. Appellant’s App. Vol. II p. 19. Before the hearing on his

petition was held, Harris filed a waiver of his right to be present, in which he

stated that he was not an essential witness and would not be “taking the stand.”

Id. at 25.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 5 of 10 [5] At the hearing, Harris introduced the transcript of his guilty-plea hearing, and

the State introduced the plea agreement. In accordance with the waiver, Harris

did not testify. After taking the matter under advisement, the post-conviction

court entered an order denying Harris’s petition. Specifically, the court

concluded:

9. The parties agree to the facts and procedural posture as set forth above. This Amended Petition presents a legal issue: whether Petitioner is entitled to post-conviction relief because the trial court did not advise him specifically, out loud during the guilty plea hearing that he was waiving his Boykin rights by pleading guilty. Or, was it sufficient for the trial court judge to reference the written rights recitation in the Plea Agreement that the Petitioner acknowledged signing.

11. I am satisfied the Record shows Petitioner knowingly waived his Boykin rights. He executed a Plea Agreement, with counsel also signing off on the Agreement. The Plea Agreement recited all the constitutional rights which the trial court must include in a Boykin advisement.

12. It is clear from the record that Petitioner knew he was waiving the constitutional rights discussed in Boykin. Petitioner’s Plea Agreement specifically indicated that by pleading guilty, Petitioner was waiving the constitutional rights specified by the United States Supreme Court in Boykin. Petitioner has also acknowledged that he signed the plea agreement and that he understood its terms.

13. Petitioner was adequately notified of his Boykin rights. . . .

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 6 of 10 Id. at 48.

[6] Harris now appeals.

Discussion and Decision [7] Harris contends that the post-conviction court erred in denying relief. A person

who files a petition for post-conviction relief has the burden of establishing the

grounds for relief by a preponderance of the evidence. Hollowell v. State, 19

N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies relief, and

the petitioner appeals, the petitioner must show that the evidence leads

unerringly and unmistakably to a conclusion opposite that reached by the post-

conviction court. Id. at 269.

[8] Harris argues that his guilty plea was not knowing, intelligent, and voluntary

because the trial court failed to make an “independent determination” that he

understood the constitutional rights he was waiving by pleading guilty.

Appellant’s Br. p. 10.1 According to Boykin, a trial court must be satisfied that a

defendant is aware of his right against self-incrimination, his right to trial by

jury, and his right to confront his accusers before accepting a guilty plea. Dewitt

1 In support, Harris cites Hunt v. State, 487 N.E.2d 1330 (Ind. Ct. App. 1986), where we held that a trial court’s failure to make an independent determination of a defendant’s understanding of the rights he was waiving was automatically grounds for post-conviction relief. However, that part of Hunt is no longer good law. Maloney v. State, 684 N.E.2d 488, 490-91 (Ind. 1997) (noting a split in the Court of Appeals on the issue and concluding that the Hunt view was no longer good law); White v. State, 497 N.E.2d 893, 905 (Ind. 1986).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 7 of 10 v. State, 755 N.E.2d 167, 171 (Ind. 2001); see also Ind. Code § 35-35-1-2 (noting

that the trial court shall not accept a plea of guilty without first determining that

the defendant has been informed that he is waiving certain rights). However,

Boykin does not require that the record of the guilty-plea proceeding show that

the defendant was formally advised that entry of his guilty plea waives certain

constitutional rights, nor does Boykin require that the record contain a formal

waiver of these rights by the accused. Dewitt, 755 N.E.2d at 171. Boykin does

not require a conviction to be vacated if the defendant knows or is advised at

the time of his plea that he is waiving his Boykin rights. Davis v. State, 675

N.E.2d 1097, 1103 (Ind. 1996).

[9] In other words, a petitioner who claims that his plea was involuntary and

unintelligent but can only establish that the trial judge failed to advise him of

his Boykin rights has not met his burden of proof. White v. State, 497 N.E.2d

893, 905 (Ind. 1986) (explaining that the previous rule, which required strict

compliance with the list of advisements, “led to reversal in instances where the

trial judge’s omission [could not] genuinely be said to have worked an injustice

or, indeed, . . . made any difference at all”). Rather, the petitioner must present

evidence from which the post-conviction court could conclude by a

preponderance of the evidence that the trial judge’s failure to advise him that he

was waiving his Boykin rights by pleading guilty rendered his decision

involuntary or unintelligent. Id. The only petitioners entitled to relief are those

“who can prove that they were actually misled by the judge, the prosecutor, or

defense counsel about the choices before them.” Id. at 905-06.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 8 of 10 [10] Here, it appears to us that the trial court made an independent determination

that Harris understood he was waiving his Boykin rights by pleading guilty.

The court said that before it could accept Harris’s guilty plea, it had “to be

satisfied that [Harris] fully underst[ood] his constitutional rights.” Def.’s Ex. 1,

p. 3. The court then referenced Harris’s plea agreement, which sets forth his

Boykin rights and provides that, by pleading guilty, he will be waiving those

rights. The court told Harris that the plea agreement, which Harris admitted

signing, contained the constitutional rights that he was waiving. See id. at 4

(“It’s already placed in your plea agreement, the legal and constitutional rights

that you’ll be giving up by entering into this plea.”). The court asked Harris if

he understood that he would be giving up those rights, and Harris said yes. At

the end of the hearing, the court concluded that Harris’s guilty plea was freely

and voluntarily made.

[11] But even if the court did not make a sufficient independent determination,

Harris is still not entitled to post-conviction relief. That is because our Supreme

Court has held that Boykin does not require a conviction to be vacated if the

defendant knows or is advised at the time of his plea that he is waiving his

Boykin rights. Davis, 675 N.E.2d at 1103. Harris did not present any evidence

that he did not know about his Boykin rights when he pled guilty, such as that

he did not actually read his plea agreement or that he could not read. Indeed,

Harris did not testify at the post-conviction hearing or present any evidence

other than the guilty-plea transcript. As our Supreme Court has reiterated, a

“petitioner for post-conviction relief has the burden of establishing his grounds

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 9 of 10 for relief by a preponderance of the evidence.” Hall v. State, 849 N.E.2d 466,

472 (Ind. 2006). Harris did not meet that burden here. We therefore affirm the

post-conviction court.

[12] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 10 of 10