MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 20 2017, 8:59 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
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General Deidre R. Eltzroth J.T. Whitehead Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James A. Briley, Jr., June 20, 2017 Appellant-Petitioner, Court of Appeals Case No. 58A01-1611-PC-2587 v. Appeal from the Ohio Circuit Court State of Indiana, The Honorable Appellee-Respondent. James D. Humphrey, Judge Trial Court Cause No. 58C01-1310-PC-3
Kirsch, Judge.
[1] Through plea agreements in two counties, James A. Briley (“Briley”) pleaded
guilty to two Class B felony burglaries and six Class C felony burglaries. He
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 1 of 20 filed a petition for post-conviction relief, challenging his plea to the two Class B
felony convictions.1 The post-conviction court denied relief. He appeals the
denial of his petition raising the following restated issues:
I. Whether Briley received ineffective assistance of trial counsel; and
II. Whether Briley’s guilty plea was knowing, intelligent, and voluntary.
[2] We affirm.
Facts and Procedural History [3] Following investigation into a string of burglaries occurring in Ohio, Dearborn,
and Switzerland counties, the State charged Briley, in October and November
2009, with sixteen felonies, eight in Ohio county and eight in Dearborn County.
The Ohio charges consisted of: Count I, Class B felony burglary; Count II,
Class B felony conspiracy to commit burglary; Count III, Class C felony
burglary; Count IV, Class C felony conspiracy to commit burglary; Count V,
Class C felony burglary; Count VI, Class C felony conspiracy to commit
burglary; Count VII, Class B felony burglary; Count VIII, Class B felony
conspiracy to commit burglary. Pet’r’s Ex. 4. The burglaries were committed at
various bars and restaurants. The two Class B felony burglary charges, Counts
I and VII, occurred at the River House III (“the River House”) and Hong Kong
1 Briley does not appeal the six Class C felony convictions.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 2 of 20 Kitchen, respectively, and were elevated to a Class B felony because each was
alleged to have been committed at a business with an attached dwelling. Briley
was similarly charged in Dearborn County with having committed eight
Class C felony burglary offenses. See Pet’r’s Ex. 1 at 10-12 (guilty plea
transcript referring to Dearborn charges).
[4] On April 23, 2010, Briley entered into a Negotiated Plea Agreement
(“Agreement”) in which he agreed to plead guilty to the following four counts
of burglary in Ohio County: Count I and VII, Class B felonies (for burglaries
committed at Hong Kong Kitchen and River House, respectively) and Counts
III and V, Class C felonies; Counts II, IV, VI, and VIII were dismissed, and
sentencing was left open to trial court discretion. Around the same time, Briley
entered into a similar plea agreement resolving the pending Class C felony
burglaries in Dearborn County, pleading guilty to four counts of Class C
felony burglary, Counts I, III, V, and VII; the remaining four counts were
dismissed. In total, Briley pleaded guilty to two Class B felony burglary
charges and six Class C felony burglary charges, and eight felony charges,
consisting of burglary and conspiracy to commit burglary, were dismissed.
[5] The trial court held a hearing on the two pleas on April 23, 2010.2 At the
guilty plea hearing, the trial court specifically addressed the fact that Briley was
pleading guilty to, not only Class C felonies, but also to Class B felonies: “I
2 By agreement of the parties, the trial court conducted the guilty plea hearing on both the Ohio County and the Dearborn County cases.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 3 of 20 want to make sure you understand that you have two Class B felonies here.”
Id. at 18. After that, Briley admitted the factual basis for the eight burglary
charges to which he was pleading guilty, including, as is relevant here, “Count
I, that on or about between October 17, 2009, and October 20, 2009, in Ohio
County, State of Indiana, James A. Briley did break and enter the building or
structure of another person, that being the River House III business and
attached dwelling owned by [William] Sherman, located at 143 Main Street,
Rising Sun, Ohio County, State of Indiana, with the intent to commit the felony
of theft therein” and “Count VII, on or about November 7, 2009, in Ohio
County, State of Indiana, James A. Briley did break and enter the building or
structure of another person, to-wit: Hong Kong Kitchen business and attached
dwelling, owned by Min [Qui], located at 206 Main Street, Ohio County, State
of Indiana, with the intent to commit the felony of theft therein.” Id. at 19-20.
The trial court advised Briley that a Class B felony is punishable by a sentence
of six to twenty years, with an advisory sentence of ten, and a Class C felony is
punishable by a sentence of two to eight years, with an advisory of four years,
and it reminded Briley that sentencing was left to the discretion of the trial
court. Id. at 15.
[6] At the subsequent sentencing hearing, Briley presented character and
conduct witnesses and testified on his own behalf. Among other things,
Briley testified that he was breaking into the buildings to steal money to
support his drug habit, but that he did not intend to encounter people or
hurt anyone. He utilized his electrician skills to plan and methodically
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 4 of 20 carry out the burglaries. He used a GPS, mask, gloves, and walkie talkies to
converse with one or more other individuals that he had persuaded or
“buffaloed” into assisting him. Id. at 68. Briley admitted that he had two
prior felony convictions, one in 2008 for being a convicted felon in
possession of a firearm, and one in 1999 for “carrying a weapon where
alcohol was served.”3 Id. at 57. Briley also admitted that he had a
significant drug problem at the time of his arrest, was committing the
burglaries to steal money to “feed [his] drug habit,” and was on probation at
the time of the current offenses. Id. at 66. The State presented the
testimony of Detective Normal Rimstidt (“Detective Rimstidt”), who stated
that, after investigation and surveillance, investigators believed one
individual was behind the string of burglaries and that, when Briley was
apprehended and interviewed, he was, at first, not forthcoming, but
thereafter was very cooperative.
[7] The hearing was concluded and, when it resumed at a later date, the trial
court addressed what it found to be aggravators and mitigators. It found as
aggravating: Briley’s criminal history of twelve prior convictions, including
two prior felonies; the fact that he was on probation in Kentucky at the time
of the current offenses; and the level of planning and calculation that went
into the crimes. It found as mitigating that jail officers testified that he was
3 We note that at the hearing on Briley’s petition for post-conviction relief, Briley stated that the two felonies were for (1) possession of a firearm by a convicted felon and (2) possession of a controlled substance. Tr. at 14-15.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 5 of 20 a good inmate, he was in a committed relationship, and he pleaded guilty;
however, the trial court found that “none . . . [rose] to the level of a
significant mitigating factor.” Id. at 92.
[8] On August 13, 2010, the trial court issued its written Judgment and
Pronouncement of Sentence (“Sentencing Order”). For the four Ohio County
burglary convictions, the trial court sentenced Briley to twenty years on each of
the two Class B felony convictions and six years on each of the two Class C
felony convictions, to run concurrent with each other, for a total of twenty
years. On each of the four Dearborn County Class C felony burglary
convictions, the trial court sentenced Briley to six years, to be served
concurrently. The trial court ordered the Dearborn County sentences to be
served consecutive to the Ohio County sentences, for a twenty-six-year
aggregate sentence in the Indiana Department of Correction. The trial court’s
Sentencing Order addressed the aggravating and mitigating circumstances that
were discussed at the prior hearing, as well as “the number of burglary offenses
. . . indicating Defendant’s level of dangerousness to the community.” Pet’r’s
Ex. 6. The trial court also found that each of the eight offenses occurred at a
separate date, at separate locations, and involved separate victims. Id.
[9] On October 31, 2013, Briley filed his pro se Petition for Post-Conviction Relief
in which he challenged his conviction to the elevated burglary charges.
Appellant’s App. at 13. The petition was later amended by counsel to allege
claims that Briley received ineffective assistance of counsel because he was
misled about the choices before him, the State lacked sufficient evidence to
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 6 of 20 support the Class B felony burglary charges, and his plea was not knowing,
voluntary, and intelligent. Id. at 36-38. Briley’s petition asserted that counsel
failed to properly investigate and “[h]ad he done so, Briley would have refused
the plea, insisted on taking the case to trial, and would have succeeded in
defending himself against the elevated [] charge[s].” Id. at 37.
[10] On October 28, 2016, the post-conviction court held a hearing on Briley’s
petition for post-conviction relief. Briley presented evidence consisting of the
deposition testimony of the owner of Hong Kong Kitchen, Min Qui (“Qui”),
and an affidavit of the manager of the River House, William Sherman
(“Sherman”). Qui stated that he and his family lived in an apartment above
Hong Kong Kitchen and that he had not used the restaurant for any family
purpose after closing hours. Pet’r’s Ex. 8. Sherman stated that at the time of the
burglary, he lived above the River House, he kept all personal effects in his
apartment, and that after the bar would close for the night, he would go upstairs
and not return to the bar until the following day. Pet’r’s Ex. 9. Qui’s deposition
and Sherman’s affidavit each stated that the entrance to the residential
apartment, which was located above each of those restaurants, was from the
exterior of the building and was separate from the entrance to the restaurant.
[11] Briley also presented the testimony of his trial attorney, Gary Sorge (“Sorge”).
Briley’s post-conviction counsel asked Sorge about “the elevated Class B felony
charges, those pertaining, specifically, to the River House and the Hong Kong
Kitchen[,] and Sorge replied, “I felt like the State could easily prove that he had
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 7 of 20 actually broken into them and committed a felony.” Tr. at 8-9. Counsel further
inquired:
Q. And how about the additional element of Burglary of a Dwelling in those two charges?
A. My memory is that we discussed whether or not the State could actually prove a B felony versus a C felony, but I cannot remember why that wasn’t further looked into.
Id. Briley also testified at the hearing, stating that he and Sorge had discussed
whether Briley “could defend [himself] against the elevated burglary charges[,]”
and Sorge told him that the State “had [him] by the reading of the law, that the
law read a dwelling attached[.]” Id. at 13. Briley’s counsel asked, “Had you
been advised that you could defend yourself against the B felony charges, would
you have pled guilty?” Id. Briley replied “No” and said he would have taken
the case to trial. Id. Upon cross-examination, Briley conceded that the eight
burglaries were each separate incidents and that he had two prior felony
convictions in Kentucky.
[12] The State presented the testimony of Detective Rimstidt. He stated that when
on patrol during daytime hours, he regularly observed the Qui family, including
their minor children, gathered in the restaurant, with the children playing or
doing homework. Id. at 16-17. Detective Rimstidt testified that, when he was
on patrol for the 6:00 p.m. to 6:00 a.m. shift, he sometimes observed the owners
in the business after it was closed, doing such activities as food preparation or
repairs. Id. at 17-19, 21.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 8 of 20 [13] On November 18, 2016, the post-conviction court issued a written order
denying Briley’s petition. Its order included the following:
10. On cross examination of trial counsel, Gary Sorge stated that the Petitioner received a sentence significantly less than the maximum sentence he could have received in this matter. In addition the Court finds that Mr. Sorge discussed the issue of proof of Burglary of a Dwelling or Business, with the Petitioner, in making the decision to accept the proposed plea.
11. The Court also finds that relevant legal authorities regarding the issues of “dwelling” were not sufficiently settled or clear to allow the Court to find that counsel for the Petitioner was incompetent in his representation.
The Court, therefore, finds that the Petitioner has failed to show that trial counsel’s performance was deficient, or that any possible deficient representation prejudiced the Petitioner and altered the outcome of the proceedings.
Appellant’s App. at 78. Concluding that Briley failed to carry his burden of
proof, the post-conviction court denied his petition for post-conviction relief.
Briley now appeals.
Discussion and Decision [14] Briley appeals the post-conviction court’s denial of his 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.”
Ind. Post-Conviction Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind.
2013). When issuing its decision to grant or deny relief, the post-conviction
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 9 of 20 court must make findings of fact and conclusions of law. P-C.R. 1(6). A
petitioner who appeals the denial of his post-conviction petition faces a rigorous
standard of review. Massey v. State, 955 N.E.2d 247, 253 (Ind. 2011). In
conducting our review, we neither reweigh evidence nor judge witness
credibility; rather, we consider only the evidence and reasonable inferences
most favorable to the judgment. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct.
App. 2013), trans. denied. “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.” Passwater, 989
N.E.2d at 770 (citation and quotation marks omitted). In other words, if a post-
conviction petitioner was denied relief in the proceedings below, he must show
that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite the one reached by the post-conviction court. Massey, 955 N.E.2d at
253.
[15] In this appeal, Briley contends that the post-conviction court erred in denying
his petition for post-conviction relief, asserting that his trial counsel was
ineffective and that his guilty plea was not knowing, voluntary, and intelligent.
Both claims stem from whether the Hong Kong Kitchen and the River House
burglaries could be considered as having occurred in a dwelling under Indiana’s
burglary statute.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 10 of 20 I. Assistance of Trial Counsel [16] Briley maintains that he was denied his constitutional right to effective
assistance of trial counsel. To prevail on an ineffective assistance claim, Briley
must satisfy two components: he must demonstrate both deficient performance
and prejudice resulting from it. Carrillo v. State, 982 N.E.2d 461, 464 (Ind. Ct.
App. 2013) (citing Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) and
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Deficient performance is
“representation [that] fell below an objective standard of reasonableness,
[where] counsel made errors so serious that counsel was not functioning as
‘counsel’ guaranteed by the Sixth Amendment.” Passwater, 989 N.E.2d at 770.
We assess counsel’s performance based on facts that are known at the time and
not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.
2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad
tactics will not support an ineffective assistance claim; instead, we evaluate
counsel’s performance as a whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind.
Ct. App. 2011), trans. denied. “[C]ounsel’s performance is presumed effective,
and a defendant must offer strong and convincing evidence to overcome this
presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007). “Strickland
does not guarantee perfect representation, only a reasonably competent
attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans.
denied.
[17] Prejudice results where there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.”
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 11 of 20 Carrillo, 982 N.E.2d at 464. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Perez v. State, 748 N.E.2d 853, 854
(Ind. 2001). “Failure to satisfy either prong will cause the claim to fail.” French
v. State, 778 N.E.2d 816, 824 (Ind. 2002). Thus, if the petitioner cannot
establish prejudice, we need not evaluate counsel’s performance. Bryant v. State,
959 N.E.2d 315, 319 (Ind. Ct. App. 2011). Where, as here, the defendant has
entered a guilty plea, he is entitled to relief only if he proves that (1) he would
not have pleaded guilty absent the ineffective assistance of counsel; and (2)
there is a reasonable probability that he would have received a more favorable
result in a trial.4 Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001); Jeffries v. State,
966 N.E.2d 773, 779 (Ind. Ct. App. 2012), trans. denied.
[18] Briley claims that Sorge was ineffective for failing to inform him that “[t]he
State lacked sufficient evidence to elevate Briley’s Class B felony charges in
reliance on dwellings adjacent to both the River House and the Hong Kong
Kitchen,” Appellant’s Br. at 10, and that had he been accurately advised, he
would have refused the plea, insisted on taking the case to trial, and would
have succeeded in defending himself against the elevated version of the charge;
alternatively, he states that he would have entered a guilty plea to the lesser
Class C felony charges for those burglaries and been sentenced to less time.
4 As this court has recognized, a defendant’s self-serving testimony that he would not have pleaded guilty is by itself insufficient to establish prejudice. Carrillo v. State, 982 N.E.2d 461, 465 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 12 of 20 See id. at 16 (asserting that he would have entered guilty plea to lesser Class
C felony charges and had decreased sentence exposure).
[19] Briley’s position assumes the premise that the State lacked sufficient evidence to
convict Briley of burglary as a Class B felony. At the time of the crimes,
Indiana law provided that burglary was a Class C felony, but was a Class B
felony if “the building or structure is a . . . dwelling.” Ind. Code § 35-43-2-1.
Dwelling was defined as “a building, structure, or other enclosed space,
permanent or temporary, movable or fixed, that is a person’s home or place of
lodging.” Ind. Code § 35-41-1-10.5 Our courts have said that burglary of a
dwelling is not so much an offense against property as it is an offense against
the sanctity and security of habitation. Howell v. State, 53 N.E.3d 546, 549 (Ind.
Ct. App. 2016), trans. denied. “To that end, the legislature has provided an
increased penalty for burglarizing a dwelling ‘because of the potential danger to
the probable occupants.’” Id. (quoting Byers v. State, 521 N.E.2d 318, 319 (Ind.
1988)).
[20] Briley presented evidence at the post-conviction hearing that the businesses
were on the first floor and the apartments were on the second floor in their
respective buildings, that the entrances to the apartments were from the exterior
of the buildings, and that personal effects were not kept in the businesses. Thus,
he argues, “the adjacent apartments were physically and meaningfully separate
5 This definition was moved in 2012 to Indiana Code section 35-31.5-2-107.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 13 of 20 from the businesses Briley burgled.” Appellant’s Br. at 8-9. His evidence
indicates that, had he not pleaded guilty and proceeded to trial, Briley could
have presented argument and evidence in defense of the Class B felony charges.
However, the State presented evidence at the post-conviction hearing in support
of its contrary position. For instance, Detective Rimstidt testified that he
regularly saw the Qui family use the Hong Kong Kitchen for personal purposes
during the day and sometimes saw the adults there after hours. Briley urges
that “[t]he post-conviction court erred in finding any credibility or
relevance to Detective Rimstidt’s testimony.” Id. at 12. However, we
neither reweigh evidence nor judge witness credibility, and we consider only the
evidence and reasonable inferences most favorable to the judgment. McKnight,
1 N.E.3d at 199. Furthermore, at any trial, the factfinder would have been
assigned the task of assessing Detective Rimstidt’s credibility and
weighing the evidence, as well as that of any other witnesses that the
State may have called on the issue, against that of witnesses that Briley
called to testify.
[21] In sum, the record before us indicates that a factual dispute existed, such that
evidence would have been presented at trial as to if, how, and when the
restaurants/bars were used for personal use, such as cooking, dining, or
studying and whether or to what extent the businesses, or either of them,
fulfilled a purpose connected with residential living. We agree with the State
that “[g]iven the case law regarding structures that contained both dwellings
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 14 of 20 and businesses,6 the facts of the crimes, and the evidence that would have been
presented at trial, it was not unsound nor deficient for counsel to advise that the
State could prevail on the elevated counts.” Appellee’s Br. at 11. Briley has not
established that Sorge should have advised him that the State lacked sufficient
evidence to convict him of the Class B felony charges.
[22] Nevertheless, assuming without deciding that, as Briley claims, there
was insufficient evidence to prove that the burglaries committed at the
Hong Kong Kitchen and at the River House constituted burglaries of a
dwelling and that they should have been charged as Class C felonies –
and that counsel Sorge performed deficiently for failing to so advise
Briley – we still find no error. To succeed in obtaining post-conviction
relief, Briley was required to prove that not only was Sorge’s
representation deficient, but that Briley was prejudiced thereby. Carrillo,
982 N.E.2d at 464. He has failed to prove such prejudice.
[23] Briley concedes that “the State only had sufficient evidence to support
eight Class C felonies[.]” Appellant’s Br. at 15. The sentencing range for
6 The State argues that “[t]he lack of direct access between the business section and home section of a structure” is not necessarily “fatal to the [Class B] elevation.” Appellee’s Br. at 19. In support, the State refers us to Shepard v. State, 839 N.E.2d 1268, 1270 (Ind. Ct. App. 2005), where this court held that a garage attached to a home was a “dwelling” for purposes of burglary, even though there was not a point of access connecting the garage to the home and the garage was primarily used for storage. He also cites to Minneman v. State, 466 N.E.2d 438, 439 (Ind. 1984), cert. denied, 470 U.S. 1030 (1985), where a defendant broke into a store that was adjoined by a garage and living quarters and connected by interior doors. The defendant argued that the owner intended that the middle area be a commercial space, and that because he did not enter the living quarters, he had not broken into a dwelling, but the Minneman Court found that it was “immaterial” that the designated living quarters were not entered. 466 N.E.2d at 440.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 15 of 20 Class C felony is two to eight years, with the advisory being four. Ind.
Code § 35-50-2-6. Thus, if convicted of eight Class C felonies Briley
faced a maximum of sixty-four years, if the four sentences in each
county were ordered to be served consecutive to each other, as well as
consecutive to those in the other county. Here, for each of the six Class
C felonies to which Briley pleaded guilty, the trial court sentenced him
to six years of imprisonment; there is nothing in the record to suggest
that if the two Class B felonies were, instead, Class C felonies, the trial
court would have imposed anything less than six years per conviction.
Assuming for the moment that he received that same six-year term for
each of eight Class C felony convictions, his aggregate sentence, if
entirely consecutive, would be forty-eight years, which is twenty-two
years more than the twenty-six-year sentence that he received in the
Sentencing Order.
[24] Briley contends that the record suggests that, if he had been convicted of
eight Class C felonies (instead of two Class B felonies and six Class C
felonies), the trial court would have imposed “a similar sentence,”
whereby four six-year Ohio County convictions would run concurrent
with each other, and four six-year Dearborn County convictions would
run concurrent with each other and consecutive to those in Ohio county,
such that “Briley would have received a sentence of twelve years
aggregate between the two counties.” Appellant’s Br. at 15. Given the
record before us, this assertion not only is speculative, but also assumes far too
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 16 of 20 much in terms of what the trial court would or would not do had it imposed
sentence on eight Class C felonies. Specifically, the trial court’s Sentencing
Order recognized that Briley was on probation at the time of his offense,
he had twelve prior convictions, two of which were prior felonies, which
might have exposed him to an habitual offender charge. The trial court
also stated that it considered each of the burglaries in each of the
counties as separate offenses because they occurred on different dates,
were in different locations, and had different victims and, further, that
the number of burglaries reflected a “level of dangerousness to the
community.” Pet’r’s Ex. 6. The trial court specifically recognized the
degree of skill and planning that Briley used to conduct the crimes,
including Briley’s use of his skills as an electrician, a GPS, mask, gloves,
and walkies-talkies to communicate with one or more accomplices that
he had persuaded or tricked into assisting him. Based on the record
before us, we reject Briley’s suggestion that, if all eight of the convictions
would have been entered as Class C felonies, it is likely that he would have
received a lesser sentence. Under Segura, Briley was required to show that
“there is a reasonable probability that he would have received a more favorable
result in a competently run trial.” 749 N.E.2d at 507. We find that he has not
done so. Briley has failed to show that he was prejudiced by the
performance of his trial counsel, and, accordingly, the post-conviction
court did not err when it denied his petition for post-conviction relief.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 17 of 20 II. Guilty Plea [25] Briley claims that his guilty plea to two Class B felonies was not
knowing, intelligent and voluntary pursuant to the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and Article
One, Sections Twelve and Thirteen of the Indiana Constitution. “The
long-standing test for the validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.’” Diaz v. State, 934 N.E.2d
1089, 1094 (Ind. 2010) (quoting North Carolina v. Alford, 400 U.S. 24, 31
(1970)).
[26] Before accepting a guilty plea, a trial court judge is required to take steps
to ensure that a defendant’s plea is voluntary. See Ind. Code §§ 35-35-1-
2, -3. Here, at the guilty plea hearing, the trial court informed Briley of his
rights were he to go to trial, confirmed that Briley understood those rights, that
he had read his advisement, and informed Briley of the State’s burden of proof
if he went to trial. The trial court reviewed the charges with Briley and
confirmed that he understood the nature of the charges to which he would be
pleading guilty, including two Class B felonies, if the trial court accepted the
agreement, and it advised Briley of the potential penalties. Generally
speaking, if a trial court undertakes these steps, a post-conviction
petitioner will have a difficult time overturning his guilty plea on
collateral attack. Lineberry v. State, 747 N.E.2d 1151, 1156 (Ind. Ct.
App. 2001). However, a defendant who can show that he was coerced
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 18 of 20 or misled into pleading guilty by the judge, prosecutor, or defense
counsel will present a colorable claim for relief. Id. In assessing the
voluntariness of the plea, appellate courts review all the evidence before
the post-conviction court, including testimony given at the post-
conviction trial, the transcript of the petitioner’s original sentencing, and
any plea agreements or other exhibits which are part of the record. Diaz,
934 N.E.2d at 1094. Here, Briley’s claim is that he was “misadvised of
his penal consequences when he was told he faced Class B felonies
rather than lesser Class C felony charges[,]” and “had he known he
faced only Class C felonies, he would not have pled to B felonies[.]”
Appellant’s Br. at 17.
[27] Contrary to his argument, Briley did, in fact, “face[]” Class B felonies. Id. He
was charged with having committed two, and as we determined above, the
post-conviction court heard evidence that if trial had occurred each party would
have presented evidence as to whether the locations Briley burglarized served
some residential purpose or would otherwise constitute a dwelling under
Indiana law. According to the testimony of both Sorge and Briley, Sorge
discussed the elevated Class B felony charges with Briley, and Sorge believed
that the facts and law were against the defense. Tr. at 13. At the guilty plea
hearing, the trial court expressly confirmed with Briley his understanding that
he was pleading guilty to two Class B felonies, it confirmed his understanding
of possible penalties, and Briley admitted the factual basis as alleged for the
charges. Pet’r’s Ex. 1 at 18-20.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 19 of 20 [28] Briley has not shown that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite the one reached by the post-conviction
court. Accordingly, we find that the post-conviction court did not err when it
denied Briley’s petition for post-conviction relief.
Affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 58A01-1611-PC-2587 | June 20, 2017 Page 20 of 20