Terry A. Moore v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 15, 2014
• Docket: 49A05-1401-PC-11
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Aug 15 2014, 8:49 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

TERRY A. MOORE, ) ) Appellant-Petitioner, ) ) vs. ) No. 49A05-1401-PC-11 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable John M. T. Chavis, Judge The Honorable Anne M. Flannelly, Commissioner Cause No. 49F15-9203-PC-34022

August 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge STATEMENT OF THE CASE

Terry A. Moore was convicted of carrying a handgun without a license, as a Class

D felony, pursuant to a guilty plea. Moore subsequently petitioned for post-conviction

relief, which the post-conviction court denied. He now appeals, challenging the post-

conviction court’s judgment, and he raises a single issue for our review, namely, whether

his guilty plea was knowing and voluntary.

We affirm.

FACTS AND PROCEDURAL HISTORY

In March 1992, the State charged Moore with carrying a handgun without a

license, as a Class D felony. And in October 1992, Moore pleaded guilty as charged.

The trial court entered judgment of conviction and, on the State’s recommendation, the

court sentenced Moore to one and one-half years with one year suspended to probation.

On October 14, 2011, following his adjudication as an habitual offender, Moore

filed a petition for post-conviction relief alleging that his 1992 guilty plea was not

knowing or voluntary. The post-conviction court denied that petition following a

hearing. This appeal ensued.

DISCUSSION AND DECISION

The petitioner bears the burden of establishing his grounds for post-conviction

relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Harrison v.

State, 707 N.E.2d 767, 773 (Ind. 1999). To the extent the post-conviction court denied

relief in the instant case, Moore appeals from a negative judgment and faces the rigorous

burden of showing that the evidence as a whole “‘leads unerringly and unmistakably to a

2 conclusion opposite to that reached by the [lower] court.’” See Williams v. State, 706

N.E.2d 149, 153 (Ind. 1999) (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.

1993)). It is only where the evidence is without conflict and leads to but one conclusion,

and the post-conviction court has reached the opposite conclusion, that its decision will

be disturbed as contrary to law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000).

A guilty plea constitutes a waiver of constitutional rights, and this waiver requires

the trial court to evaluate the validity of every plea before accepting it. Davis v. State,

675 N.E.2d 1097, 1102 (Ind. 1996). For a plea to be valid, it must represent 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). A court accepting a guilty plea must

determine that the defendant: (1) understands the nature of the charges; (2) has been

informed that a guilty plea effectively waives several constitutional rights, including trial

by jury, confrontation and cross-examining of witnesses, compulsory process, and proof

of guilt beyond a reasonable doubt without self-incrimination; and (3) has been informed

of the maximum and minimum sentences for the crime charged. Ind. Code § 35-35-1-2;

Diaz, 934 N.E.2d at 1094. In assessing the voluntariness of the plea, we 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.

Moore contends that his guilty plea was not knowing or voluntary because the trial

court did not advise him of the range of penalties he faced, including sentencing

alternatives for a Class D felony. At the hearing on his petition for post-conviction relief,

3 Moore presented evidence that the court reporter could not find the recording of the

October 29, 1992 sentencing hearing. Moore also presented affidavits executed by the

Commissioner who presided over his guilty plea and sentencing hearings, the deputy

prosecutor, and his former trial counsel, each stating that they had no recollection of the

plea or sentencing hearings. Finally, Moore testified at the post-conviction hearing that,

prior to pleading guilty, he had not been advised either of the sentencing range he faced

or the possibility of alternate misdemeanor sentencing.

But the State presented evidence that Moore had been advised of the sentencing

range prior to pleading guilty. In particular, the judgment of conviction signed by the

trial court on the date Moore pleaded guilty states in relevant part that the court found

that Moore “was advised of the maximum and minimum possible sentences[.]”

Appellant’s App. at 34. And, as the State points out, in his petition for post-conviction

relief, Moore states in relevant part that the trial court “correctly advised him of the range

of penalties to a Class D felony[.]” Id. at 39. Thus, Moore’s contention on this issue

must fail.

Moore also contends that he was not advised of misdemeanant sentencing

alternatives and that he would not have pleaded guilty to a Class D felony if he had been

so advised. But our supreme court has held that

when the accused pleads guilty to a class D felony, the court is not required to advise the accused of the misdemeanant sentencing alternatives. The trial judge is bound by the terms of the plea agreement. When, as here, the agreement does not give the judge discretion to sentence the accused as a misdemeanant, then the accused need not be advised of this sentencing alternative.

4 Hutchinson v. State, 501 N.E.2d 1062, 1066 (Ind. 1986). Here, Moore’s plea agreement

states that he pleaded guilty to a Class D felony and did not give the trial court discretion

to sentence him as a misdemeanant. Accordingly, the trial court was not required to

advise Moore of the possibility of misdemeanant sentencing alternatives. Moore has not

demonstrated that his guilty plea was not knowing and voluntary. The post-conviction

court did not err when it denied Moore’s petition for post-conviction relief.

Affirmed.

BAILEY, J., and PYLE, J., concur.