MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2020, 8:31 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE John Jay Lacey Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Jay Lacey, August 17, 2020 Appellant, Court of Appeals Case No. 19A-CR-2715 v. Appeal from the Boone County Superior Court State of Indiana, The Honorable Matthew C. Appellee. Kincaid, Judge Trial Court Cause No. 06D01-1606-F3-149
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 1 of 7 [1] John Jay Lacey, pro se, appeals the trial court’s denial of his motion to vacate a
plea agreement. We reverse and remand.
Facts and Procedural History
[2] On June 22, 2016, the State charged Lacey with aggravated battery as a level 3
felony. The State later alleged he was an habitual offender. On November 18,
2016, the State and Lacey entered into a plea agreement in which Lacey agreed
to plead guilty as charged and the State agreed not to file any additional charges
arising out of “the fact situation on which these charges are based.” Appellant’s
Appendix Volume II at 36. The plea agreement provided for an open sentence
but limited the habitual offender enhancement to fourteen years.
[3] On February 15, 2017, the court accepted the plea and sentenced Lacey to
fifteen years for aggravated battery and enhanced the sentence by thirteen years
for an aggregate sentence of twenty-eight years. On August 13, 2018, Lacey
filed a Motion to Correct Erroneous Sentence asserting in part that the two
previous crimes in the State of Florida were insufficient to support the habitual
offender enhancement. On September 9, 2018, the court denied Lacey’s
motion.
[4] On appeal, this Court held there was insufficient evidence to support the
thirteen-year habitual offender enhancement, reversed the judgment of the trial
court on the habitual offender finding, and remanded to the trial court for
resentencing. Lacey v. State, 124 N.E.3d 1253, 1257 (Ind. Ct. App. 2019). On
July 17, 2019, the trial court held a sentencing hearing and entered a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 2 of 7 resentencing order which vacated its earlier finding that Lacey was an habitual
offender and sentence enhancement of thirteen years and ordered that the
executed sentence of fifteen years for aggravated battery as a level 3 felony
would remain.
[5] On September 11, 2019, Lacey filed a pro se Motion to Vacate Conviction,
which asserted “[c]urrently, there exists no plea agreement governing Count I:
Aggravated Battery . . . .” Appellant’s Appendix Volume II at 151. On
September 17, 2019, the court denied the motion.
[6] On September 25, 2019, Lacey filed a Motion to Vacate Plea Agreement
asserting that the habitual offender allegation was the determining factor and
benefit in signing the plea agreement, he was not advised by counsel that the
habitual offender enhancement was erroneous, and he was no longer receiving
the benefit of the sentence cap on the habitual offender enhancement. On
October 23, 2019, the court denied Lacey’s motion.
Discussion
[7] Before addressing Lacey’s argument, we observe that although he is proceeding
pro se, such litigants are held to the same standards as trained attorneys and are
afforded no inherent leniency simply by virtue of being self-represented. See
Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Lacey argues that his plea
is not constitutionally valid, he received ineffective assistance of trial counsel,
his due process rights were violated by the court’s failure to inform him of his
lack of eligibility for the habitual offender allegation, the State erred in filing the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 3 of 7 habitual offender enhancement, the plea agreement is void and improper under
Federal Criminal Procedure Rule 11(a)(2), and he is wrongfully incarcerated as
a result of the partially vacated plea agreement. He requests that this Court
vacate the plea agreement and conviction. The State asserts that we should
remand this cause for proceedings under the Indiana Rules of Post-Conviction
Remedies. In reply, Lacey argues that “Appellees [sic] should be denied their
request for remand to proceed in accordance with I.C. 35-35-1-4(c) due to the
trial court’s procedural errors and statutory violations which are clear and
blatant violations of the Appellant’s due process rights.” Appellant’s Reply
Brief at 12.
[8] Ind. Code § 35-35-1-4(c) provides:
After being sentenced following a plea of guilty, or guilty but mentally ill at the time of the crime, the convicted person may not as a matter of right withdraw the plea. However, upon motion of the convicted person, the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made under this subsection shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies. For purposes of this section, withdrawal of the plea is necessary to correct a manifest injustice whenever:
(1) the convicted person was denied the effective assistance of counsel;
(2) the plea was not entered or ratified by the convicted person;
(3) the plea was not knowingly and voluntarily made;
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 4 of 7 (4) the prosecuting attorney failed to abide by the terms of a plea agreement; or
(5) the plea and judgment of conviction are void or voidable for any other reason.
The motion to vacate the judgment and withdraw the plea need not allege, and it need not be proved, that the convicted person is innocent of the crime charged or that he has a valid defense.
(Emphases added).
[9] The record reveals that Lacey filed both his September 11, 2019 Motion to
Vacate Conviction and his September 25, 2019 Motion to Vacate Plea
Agreement more than two years after the trial court’s February 15, 2017
sentencing order and more than one month after the court’s July 17, 2019
resentencing order. Thus, the trial court was required to treat Lacey’s motions
challenging the judgment and plea as a petition for post-conviction relief
pursuant to Ind. Code § 35-35-1-4(c).
[10] Ind. Post-Conviction Rule 1(5) provides:
The petition shall be heard without a jury. A record of the proceedings shall be made and preserved.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2020, 8:31 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE John Jay Lacey Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Jay Lacey, August 17, 2020 Appellant, Court of Appeals Case No. 19A-CR-2715 v. Appeal from the Boone County Superior Court State of Indiana, The Honorable Matthew C. Appellee. Kincaid, Judge Trial Court Cause No. 06D01-1606-F3-149
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 1 of 7 [1] John Jay Lacey, pro se, appeals the trial court’s denial of his motion to vacate a
plea agreement. We reverse and remand.
Facts and Procedural History
[2] On June 22, 2016, the State charged Lacey with aggravated battery as a level 3
felony. The State later alleged he was an habitual offender. On November 18,
2016, the State and Lacey entered into a plea agreement in which Lacey agreed
to plead guilty as charged and the State agreed not to file any additional charges
arising out of “the fact situation on which these charges are based.” Appellant’s
Appendix Volume II at 36. The plea agreement provided for an open sentence
but limited the habitual offender enhancement to fourteen years.
[3] On February 15, 2017, the court accepted the plea and sentenced Lacey to
fifteen years for aggravated battery and enhanced the sentence by thirteen years
for an aggregate sentence of twenty-eight years. On August 13, 2018, Lacey
filed a Motion to Correct Erroneous Sentence asserting in part that the two
previous crimes in the State of Florida were insufficient to support the habitual
offender enhancement. On September 9, 2018, the court denied Lacey’s
motion.
[4] On appeal, this Court held there was insufficient evidence to support the
thirteen-year habitual offender enhancement, reversed the judgment of the trial
court on the habitual offender finding, and remanded to the trial court for
resentencing. Lacey v. State, 124 N.E.3d 1253, 1257 (Ind. Ct. App. 2019). On
July 17, 2019, the trial court held a sentencing hearing and entered a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 2 of 7 resentencing order which vacated its earlier finding that Lacey was an habitual
offender and sentence enhancement of thirteen years and ordered that the
executed sentence of fifteen years for aggravated battery as a level 3 felony
would remain.
[5] On September 11, 2019, Lacey filed a pro se Motion to Vacate Conviction,
which asserted “[c]urrently, there exists no plea agreement governing Count I:
Aggravated Battery . . . .” Appellant’s Appendix Volume II at 151. On
September 17, 2019, the court denied the motion.
[6] On September 25, 2019, Lacey filed a Motion to Vacate Plea Agreement
asserting that the habitual offender allegation was the determining factor and
benefit in signing the plea agreement, he was not advised by counsel that the
habitual offender enhancement was erroneous, and he was no longer receiving
the benefit of the sentence cap on the habitual offender enhancement. On
October 23, 2019, the court denied Lacey’s motion.
Discussion
[7] Before addressing Lacey’s argument, we observe that although he is proceeding
pro se, such litigants are held to the same standards as trained attorneys and are
afforded no inherent leniency simply by virtue of being self-represented. See
Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Lacey argues that his plea
is not constitutionally valid, he received ineffective assistance of trial counsel,
his due process rights were violated by the court’s failure to inform him of his
lack of eligibility for the habitual offender allegation, the State erred in filing the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 3 of 7 habitual offender enhancement, the plea agreement is void and improper under
Federal Criminal Procedure Rule 11(a)(2), and he is wrongfully incarcerated as
a result of the partially vacated plea agreement. He requests that this Court
vacate the plea agreement and conviction. The State asserts that we should
remand this cause for proceedings under the Indiana Rules of Post-Conviction
Remedies. In reply, Lacey argues that “Appellees [sic] should be denied their
request for remand to proceed in accordance with I.C. 35-35-1-4(c) due to the
trial court’s procedural errors and statutory violations which are clear and
blatant violations of the Appellant’s due process rights.” Appellant’s Reply
Brief at 12.
[8] Ind. Code § 35-35-1-4(c) provides:
After being sentenced following a plea of guilty, or guilty but mentally ill at the time of the crime, the convicted person may not as a matter of right withdraw the plea. However, upon motion of the convicted person, the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made under this subsection shall be treated by the court as a petition for postconviction relief under the Indiana Rules of Procedure for Postconviction Remedies. For purposes of this section, withdrawal of the plea is necessary to correct a manifest injustice whenever:
(1) the convicted person was denied the effective assistance of counsel;
(2) the plea was not entered or ratified by the convicted person;
(3) the plea was not knowingly and voluntarily made;
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 4 of 7 (4) the prosecuting attorney failed to abide by the terms of a plea agreement; or
(5) the plea and judgment of conviction are void or voidable for any other reason.
The motion to vacate the judgment and withdraw the plea need not allege, and it need not be proved, that the convicted person is innocent of the crime charged or that he has a valid defense.
(Emphases added).
[9] The record reveals that Lacey filed both his September 11, 2019 Motion to
Vacate Conviction and his September 25, 2019 Motion to Vacate Plea
Agreement more than two years after the trial court’s February 15, 2017
sentencing order and more than one month after the court’s July 17, 2019
resentencing order. Thus, the trial court was required to treat Lacey’s motions
challenging the judgment and plea as a petition for post-conviction relief
pursuant to Ind. Code § 35-35-1-4(c).
[10] Ind. Post-Conviction Rule 1(5) provides:
The petition shall be heard without a jury. A record of the proceedings shall be made and preserved. 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.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 5 of 7 [11] Ind. Post-Conviction Rule 1(4)(g) provides:
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.
[12] Ind. Post-Conviction Rule 1(6) provides that “[t]he court shall make specific
findings of fact, and conclusions of law on all issues presented, whether or not a
hearing is held.”
[13] Based upon the record, we cannot say that the trial court treated Lacey’s
motion to vacate judgment and withdraw the plea as a petition for post-
conviction relief. The court did not set the matter for hearing, and neither party
moved for summary disposition of the petition. The record includes only a
summary entry denying Lacey’s motion, and no findings of fact or conclusions
of law were entered. In light of Ind. Code § 35-35-1-4(c), we remand for the
trial court to treat Lacey’s motion as a petition for post-conviction relief. See
generally State v. Oney, 993 N.E.2d 157, 166 (Ind. 2013) (observing “the
Legislature’s specific directive that[] ‘a motion to vacate judgment and
withdraw the plea made under this subsection shall be treated by the court as a
petition for postconviction relief,’”) (quoting Ind. Code § 33-35-1-4(c))
(emphasis added in Oney); Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 6 of 7 (holding that “[t]he proper avenue for challenging one’s conviction pursuant to
a guilty plea is through filing a petition for post-conviction relief and presenting
evidence at a post-conviction proceeding”) (quoting Tumulty v. State, 666
N.E.2d 394, 395-396 (Ind. 1996)); Collins v. State, 676 N.E.2d 741, 743 (Ind. Ct.
App. 1996) (holding that “[i]t is basic to and idiosyncratic in Indiana law that
error premised upon a guilty plea must be brought by a petition for post-
conviction relief under Ind. Rules of Procedure, Post-Conviction Rule 1”).
[14] For the foregoing reasons, we reverse and remand.
[15] Reversed and remanded.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 7 of 7