Phillip Gonzalez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 2, 2018
• Docket: 02A03-1711-PC-2659
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 02 2018, 10:26 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Jonathan O. Chenoweth Tyler G. Banks Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Phillip Gonzalez, March 2, 2018 Appellant-Petitioner, Court of Appeals Case No. 02A03-1711-PC-2659 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Respondent Jr., Judge Trial Court Cause No. 02D05-1509-PC-102

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 1 of 13 [1] Phillip Gonzalez appeals from the denial of his petition for post-conviction

relief, arguing that the post-conviction court erroneously determined that (1) he

did not simultaneously plead guilty and maintain his innocence; and (2) there is

a sufficient factual basis underlying the guilty plea. Finding no error, we affirm.

Facts [2] On May 10, 2012, Gonzalez pleaded guilty to Class B felony robbery in cause

number 02D06-1202-FB-31 (“FB-31”)1 and to Class B felony attempted robbery

in cause number 02D06-1203-FB-45 (“FB-45”) pursuant to a plea agreement.

At the May 10, 2012, guilty plea hearing, the trial court explained the charge to

which Gonzalez was pleading guilty:

Court: In the FB-45 cause you’re pleading guilty to Attempt[ed] Robbery, a class B felony. That reads: On or about January 15, 2012, in Allen County, Indiana, said defendant did, while armed with a deadly weapon, to wit: a firearm, attempt to commit the crime of robbery, to wit: with intent to take property from the person or presence of another person, to wit: John Frontz, by using or threatening the use of force or by putting said John Frontz in fear, said defendant engaged in conduct constituting a substantial step toward the commission of the crime of robbery, to wit: by pointing said firearm at John Frontz while demanding that said John Frontz give the defendant

1 Gonzalez did not challenge his guilty plea in FB-31 in the post-conviction proceedings.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 2 of 13 United States currency. Do you understand the charge to which you’re pleading in that cause?

Gonzalez: Yes sir.

Appellant’s App. Vol. II p. 54.2 The following colloquy then occurred between

Gonzalez and his attorney:

Q: Mr. Gonzalez, let me give you help. In both cases you robbed, or attempted to rob, people, correct?

A: Yes sir.

Q: And both of those robberies took place in Allen County, Indiana?

Q: And both of them involved either you or someone you were with having a handgun, using that handgun so as to threat[en] and frighten the victim, correct?

***

Q: In [FB-]45, we have the same thing, robbery, in Allen County, with a gun. You went to Broadway Joes on Broadway Street, correct?

2 Gonzalez has not provided the transcripts or other materials from the underlying criminal proceedings as separate documents in the appellate record; instead, portions of the transcript and records are included in his appendix.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 3 of 13 Q: You were with some other guys, right?

Q: And were you armed or was one of the other fellows armed?

A: I was not armed.

Q: You were unarmed?

Q: Somebody else was armed, though, correct?

Q: And there was a confrontation involving you and Mr. Frontz, is that correct, John Frontz?

Q: He was the bartender?

Q: Is that correct?

Q: And there was an attempt to rob him of property, correct?

Q: And did you participate in that robbery?

Q: And did you take the property or did you—you say you did not have the weapon, correct?

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 4 of 13 Q: But you assisted in taking the property or doing something to make the robbery go down?

Q: What did you do?

A: I didn’t do nothing.

Q: You were there, right?

A: Yeah, I was there.

Q: And you were with your friend who had a gun?

Q: You left the place with your friend . . . . ?

Q: You participated in an attempt to rob Mr. Frontz of property, correct?

Id. at 58-61. The trial court accepted Gonzalez’s guilty plea and later imposed a

total sentence of sixteen years, with four years suspended to probation.

[3] On September 23, 2015, Gonzalez filed a petition for post-conviction relief,

arguing that there was an improper factual basis underlying his guilty plea in

FB-45 and that the guilty plea in that cause is invalid because he simultaneously

admitted guilt and protested his innocence. Gonzalez and the State eventually

filed competing motions for summary judgment on his petition. On October

23, 2017, the post-conviction court granted the State’s motion, finding, in

pertinent part, as follows:

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 5 of 13 7. Even on the supposition that Mr. Gonzalez’s single statement that he “didn’t do nothing” amounted to an unambiguous denial of guilt, . . . he would not be entitled to post-conviction relief . . . because he repeatedly and specifically contradicted that supposed denial of guilt . . . . Both before and after his alleged denial of participation, Mr. Gonzalez specifically admitted that he did participate in the attempted robbery. Even if his claimed denial of guilt was unambiguous, it was not also consistent, as needed to obtain relief . . . .

8. Furthermore, it does not appear that Mr. Gonzalez did unambiguously deny participation in the attempted robbery as an accomplice. In this regard, it should be noted that a person who does not actively do anything to carry out a crime, such as a lookout, may nevertheless be convicted of the crime as an accomplice. Mr. Gonzalez acknowledged that he went to Broadway Joe’s with the armed person or persons who actually attempted to carry out the crime, he participated (somehow) in the attempt, and he left together with the same persons he came with. These admissions are consistent with the theory that he accompanied the co-perpetrators in order to provide assistance in case of need (just as a lookout might do) even though he “didn’t do nothing” because it turned out that there was no occasion for him to provide active assistance. His assertion that he “didn’t do nothing” is, at most, ambiguous as to whether he participated in the attempted robbery as an accomplice . . . .

10. . . . Mr. Gonzalez did admit that he understood the nature of the crime and understood that his guilty plea was an admission that he committed the crime. . . . [T]he court did not abuse its discretion in finding that an adequate Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 6 of 13 factual basis had been established, even without regard to any further admissions from Mr. Gonzalez.

11. . . . Mr. Gonzalez’s [further] admissions, however, amounted at the very least to the relatively minimal evidence needed for a factual basis establishing that he was a participant in the crime and not a mere bystander. Mr. Gonzalez admitted that, in both cases, he robbed or attempted to rob people; both cases involved a handgun wielded by himself or a co-perpetrator to threaten or frighten people; in FB-45, he went to Broadway Joe’s with some other people, at least one of whom was armed; he participated in the attempted robbery by “assist[ing] in taking the property or doing something to make the robbery go down”; and he left with his co-perpetrators after “participat[ing] in an attempt to rob Mr. Frontz of property.” . . . No authority suggests that the Court abused its discretion in finding a factual basis despite Mr. Gonzalez’s ambiguous statement that he “didn’t do nothing.”

12. . . . Mr. Gonzalez acknowledged his understanding that he was admitting that he had acted “with intent to take property from the person or presence of another person, to wit: John Frontz, by using or threatening the use of force or by putting said John Frontz in fear.”

Appealed Order p. 10-13 (internal citations omitted) (emphases original).

Gonzalez now appeals.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 7 of 13 Discussion and Decision I. Standard of Review [4] Gonzalez argues that the post-conviction court should not have granted

summary judgment in favor of the State on his petition for post-conviction

relief. The general rules regarding the review of a ruling on a petition for post-

conviction relief are well established:

“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). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post- conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

[5] Here, the post-conviction court granted summary judgment under the

procedure outlined in Section 1(4)(g) of the post-conviction rules. Under this

provision, the post-conviction court may grant a motion for summary

disposition of a petition when no genuine issue of material fact appears in the

record and a party is entitled to judgment as a matter of law. Ind. Post-

Conviction Rule 1(4)(g). Where, as here, there are no genuine issues of

material fact, we are considering pure issues of law on appeal to which we

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 8 of 13 apply a de novo standard of review. Hughley v. State, 15 N.E.3d 1000, 1003

(Ind. 2014).

II. Protestation of Innocence [6] Gonzalez argues that the plea was invalid because he simultaneously pleaded

guilty and maintained his innocence. It is well established that accepting a

guilty plea when a defendant both pleads guilty and maintains his innocence at

the same time is reversible error. E.g., Ellis v. State, 67 N.E.3d 643, 646 (Ind.

2017). This rule is designed to heighten the reliability of the guilty plea.

Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992). For this rule to apply, the

defendant’s protestation of innocence must have been both consistent and

unequivocal. Carter v. State, 739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v.

State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (defendant was entitled to relief

because he consistently maintained innocence at the guilty plea hearing and

clearly denied committing the crime charged).

[7] Gonzalez focuses on the point in his testimony at which he was asked “What

did you do?” and replied, “I didn’t do nothing.” Appellant’s App. Vol. II p. 61.

We disagree that this response amounts to a protestation of innocence. This

exchange occurred in the context of the establishment of a factual basis for

Gonzalez’s guilt as an accomplice to attempted robbery. It is apparent that

when Gonzalez said, “I didn’t do nothing,” he was simply explaining that he

did not take an active part in the attempted robbery—which he was not

required to admit to plead guilty as an accomplice. See Pugh v. State, 52 N.E.3d

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 9 of 13 955, 967 (Ind. Ct. App. 2016) (four factors determine sufficiency of evidence for

accomplice liability: (1) presence at scene of crime; (2) companionship with

another at scene of crime; (3) failure to oppose commission of crime; and

(4) course of conduct before, during, and after commission of crime), trans.

denied. And even as he made that explanation, he also repeatedly admitted that

he participated in the robbery and came and left the scene with the individual(s)

who actively committed the robbery. Appellant’s App. Vol. II p. 58-61. Under

these circumstances, we do not find that Gonzalez’s statement that “I didn’t do

nothing” amounts to a consistent and unequivocal protestation of innocence.

Therefore, the post-conviction court did not err by granting judgment in favor

of the State on this issue.

III. Factual Basis [8] Gonzalez also argues that the guilty plea cannot stand because an adequate

factual basis for the plea was not established. A trial court cannot accept a

defendant’s guilty plea unless there is an adequate factual basis for the plea.

State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010). As explained by our Supreme

Court, “[t]he purpose of the factual basis requirement is to ensure that a person

who pleads guilty is truly guilty.” Id. Moreover, “a finding of factual basis is a

subjective determination that permits a court wide discretion—discretion that is

essential due to the varying degrees and kinds of inquiries required by different

circumstances.” Butler v. State, 658 N.E.2d 72, 76-77 (Ind. 1995). A factual

basis exists “when there is evidence about the elements of the crime from which

a court could reasonably conclude that the defendant is guilty. Relatively

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 10 of 13 minimal evidence has sometimes been held adequate.” Id. at 77 (internal

footnote omitted).

[9] Claims about omissions in the factual basis “have been unavailing when the

omissions do not seem to demonstrate doubt about actual guilt.” Cooper, 935

N.E.2d at 150. Even if a defendant fails to admit the existence of an element,

“other evidence produced at the plea hearing and/or the defendant’s advised

acknowledgement that by pleading guilty he understands that he is admitting all

the elements of the charged offense may supply an adequate factual basis.”

Wingham v. State, 780 N.E.2d 1164, 1165 (Ind. Ct. App. 2002).

[10] In this case, Gonzalez argues that there is no evidence in the factual basis that

he acted with the requisite mens rea for accomplice liability—that is, that he

knowingly or intentionally aided the principal actor. Ind. Code § 35-41-2-4. He

emphasizes the well-accepted principle that for accomplice liability, “mere

presence, coupled with knowledge that a crime is being committed is not

sufficient to establish guilt.” Green v. State, 937 N.E.2d 923, 930 (Ind. Ct. App.

2010).

[11] Gonzalez explicitly admitted to the following:

• He “robbed, or attempted to rob, people[.]” Appellant’s App. Vol. II p. 58. • Gonzalez went with a group of people to Broadway Joe’s. At least one of the other people was armed with a handgun to threaten and frighten the victim. Id. at 59, 60. • There was a confrontation between Gonzalez and the victim. Id. at 60.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 11 of 13 • There was an attempt to rob the bartender of property. Gonzalez “participate[d] in that robbery,” “assisted in taking the property or doing something to make the robbery go down” and “participated in an attempt to rob [the victim] or property[.]” Id. at 61. • Afterwards, Gonzalez left the bar with the same group of people. Id.

Additionally, Gonzalez acknowledged that by pleading guilty, he was admitting

that he acted “with intent to take property from the person or presence of

another person[.]” Id. at 54.

[12] It does appear to be true that the element of Gonzalez’s mens rea was omitted

from the factual basis. But as noted above, a defendant’s advised

acknowledgement that by pleading guilty he is admitting to all the elements of

the charged offense may supply an adequate factual basis as to an element that

is omitted during his testimony. Wingham, 780 N.E.2d at 1165. Here, not only

did Gonzalez make such an acknowledgement about all the elements—

including mens rea—he went on to admit specifically that he participated with

and assisted in the attempted robbery. We note that the Wingham Court

distinguished between a scenario in which (as here) an element is omitted and a

scenario in which the defendant actually denies guilt as to some necessary

element of the offense. Id. Here, as we have already found above, Gonzalez

did not deny his guilt as to a necessary element of the offense. As such, the trial

court’s advisement and Gonzalez’s acknowledgement thereof supplement his

testimony to provide sufficient evidence regarding his mens rea.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 12 of 13 [13] We find that this evidence suffices to establish a factual basis. Consequently,

the post-conviction court did not err by granting judgment in the State’s favor

on this issue.

[14] The judgment of the post-conviction court is affirmed.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2659 | March 2, 2018 Page 13 of 13