MEMORANDUM DECISION Mar 15 2016, 8:59 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana
Joanna Green George P. Sherman Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Theodore T. Schwartz, March 15, 2016 Appellant-Petitioner, Court of Appeals Cause No. 01A02-1507-PC-872 v. Appeal from the Adams Circuit Court State of Indiana, The Honorable Chad E. Kukelhan, Appellee-Respondent. Judge Trial Court Cause No. 01C01-1109-PC-4
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 1 of 19 Case Summary [1] Theodore Schwartz appeals the post-conviction court’s denial of his petition for
post-conviction relief. We affirm.
Issues [2] Schwartz raises four issues, which we restate as:
I. whether Schwartz was denied his right to counsel at the initial hearing;
II. whether he was denied the right to a fair and impartial judge;
III. whether he was denied the effective assistance of trial counsel; and
IV. whether his guilty plea was knowing, voluntary, and intelligent.
Facts [3] On August 11, 2009, Schwartz was arrested in Adams County for possession of
methamphetamine within 1,000 feet of school property. After being taken to
the police station, Schwartz escaped and went on a crime spree that included
additional offenses in Allen County and Wells County.1 He was eventually
1 In Allen County, the State charged Schwartz with Class A felony rape, two counts of Class A felony criminal deviate conduct, Class A felony burglary, Class A felony robbery, Class B felony criminal confinement, Class C felony battery, Class C felony forgery, Class D felony strangulation, Class D felony auto theft, Class D felony receiving stolen auto parts, Class B felony dealing in methamphetamine, Class D felony possession of methamphetamine, Class D felony possession of reagents with intent to manufacture, and Class D felony possession of a controlled substance. Schwartz v. State, 02A05-1010-CR-714, slip op. at 3 (Ind. Ct. App. Mar. 31, 2011), trans. denied. On August 20, 2010, Schwartz pled guilty to rape, two counts of criminal deviate conduct, burglary, robbery, criminal confinement, battery, strangulation, and auto theft. The trial court sentenced Schwartz to 100 years in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 2 of 19 apprehended in Wells County. In Adams County, the State charged him with
Class A felony dealing in methamphetamine, Class B felony possession of
methamphetamine, Class C felony escape, and Class D felony escape.
[4] Schwartz’s initial hearing was held on August 28, 2009, and the trial court
appointed a public defender, Thomas Sheets, for Schwartz. At the initial
hearing, the trial court informed Schwartz that he and the prosecutor owned a
building together and that Schwartz had twenty days to file a motion for change
of judge based on that relationship. In the order on the initial hearing, which
was served on Sheets, the trial court noted that he and the prosecutor were
previous law partners and were co-owners of a building in which other
attorneys practiced. Attorney Stanley Campbell entered his appearance for
Schwartz in November 2009.
[5] On January 20, 2010, Schwartz’s Wells County attorney, Larry Mock, filed a
petition in the Wells County proceeding for appointment of medical experts to
determine Schwartz’s ability to assist in his defense. In the petition, Mock
alleged that Schwartz “relates that he is in contact with demons and frequently
talks to God who apparently is giving legal advice to Defendant.” Ex. 9 p. 1.
In Wells County, the State charged Schwartz with Class B felony burglary, two counts of Class C felony robbery, Class D felony residential entry, Class D felony auto theft, and Class D felony resisting law enforcement. Schwartz v. State, No. 90A04-1102-CR-109, slip op. at 2 (Ind. Ct. App. Aug. 19, 2011), trans. denied. On October 14, 2010, Schwartz pled guilty as charged, and the trial court sentenced him to an aggregate sentence of fifteen years to be served consecutive to the Allen County and Adams County sentences.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 3 of 19 The Wells County trial court appointed medical experts to examine Schwartz
and determine whether he had sufficient comprehension to understand the
nature of the criminal action pending against him and to assist in his own
defense. However, in October 2010, Mock withdrew the petition for
appointment of medical experts, and Schwartz pled guilty in Wells County.
[6] On February 14, 2011, Schwartz pled guilty in Adams County to Class B felony
possession of methamphetamine and Class C felony escape and admitted to
being an habitual substance offender. The State dismissed the remaining
charges. Schwartz agreed that “[a]ll terms of [the] sentence shall be in the
Court’s discretion.” Ex. 3 p. 2. Further, Schwartz waived his right to appeal
the sentence imposed by the trial court, including the right to appeal under
Indiana Appellate Rule 7 and the right to appeal “the trial court’s finding and
balancing of mitigating and aggravating factors or to challenge the sentence
imposed . . . .” Id. The trial court sentenced Schwartz to fifteen years for the
methamphetamine conviction enhanced by eight years for his status as an
habitual substance offender and consecutive to a six-year sentence for the
escape conviction for an aggregate sentence of twenty-nine years in the
Department of Correction. The trial court ordered that the sentence also be
consecutive to the sentence imposed for the Allen County convictions.
[7] In September 2011, Schwartz filed a pro se petition for post-conviction relief,
which was amended in November 2014. Schwartz argued that his due process
rights were violated when he was denied his right to a fair and impartial judge,
that he was denied his right to counsel when he was informed of the business
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 4 of 19 relationship between the judge and the prosecutor at the initial hearing, that his
guilty plea was not knowing, voluntary, and intelligent, and that he was denied
the effective assistance of trial counsel. At the evidentiary hearing, Schwartz
called Mock and Campbell as witnesses. After the evidentiary hearing, the
post-conviction court entered findings of fact and conclusions of law denying
Schwartz’s petition. Schwartz now appeals.
Analysis [8] Schwartz argues that the post-conviction court’s denial of his petition is clearly
erroneous. A court that hears a post-conviction claim must make findings of
fact and conclusions of law on all issues presented in the petition. Pruitt v. State,
903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-conviction Rule 1(6)). “The
findings must be supported by facts and the conclusions must be supported by
the law.” Id. Our review on appeal is limited to these findings and
conclusions. Id. Because the petitioner bears the burden of proof in the post-
conviction court, an unsuccessful petitioner appeals from a negative
judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative
judgment must show that the evidence as a whole ‘leads unerringly and
unmistakably to a conclusion opposite to that reached by the trial court.’” Id.
(quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under
this standard of review, “[we] will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Id.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 5 of 19 I. Right to Counsel2
[9] Schwartz argued in his petition for post-conviction relief that, although the
relationship between the judge and the prosecutor was disclosed to him at his
initial hearing, he was unrepresented at the time. According to Schwartz, the
“disclosure of the relationship made the initial hearing a critical stage of the
proceedings. . . .” App. p. 58.
[10] Schwartz first notes that the post-conviction court failed to enter findings of fact
or conclusions of law on this particular issue. Indiana Post-Conviction Rule
1(6) provides: “The court shall make specific findings of fact, and conclusions
of law on all issues presented, whether or not a hearing is held.” However, a
post-conviction court’s failure to enter specific findings of fact and conclusions
of law in ruling on a post-conviction petition is not reversible error when the
issues are sufficiently presented for review and addressed by the parties. Adcock
v. State, 22 N.E.3d 720, 724 (Ind. Ct. App. 2014). If the facts underlying a
claim are not in dispute, the issues are sufficiently clear, and both parties
address the merits in their briefs, remand for specific findings by the post-
conviction court is not necessary. Id. The underlying facts here are not in
2 Although not raised by the State, we note that “Defendants who plead guilty to achieve favorable outcomes forfeit a plethora of substantive claims and procedural rights.” Alvey v. State, 911 N.E.2d 1248, 1250-51 (Ind. 2009). Further, our supreme court has repeatedly emphasized that in “post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). However, because both parties address Issue I and Issue II on the merits and the State does not raise waiver, we do not address whether the issues are properly raised. Instead, we will address the issues on the merits.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 6 of 19 dispute, the issue is sufficiently clear, and both parties address the merits in
their briefs. Consequently, we will address the issue rather than remanding to
the post-conviction court.
[11] Our supreme court has held that a defendant’s right to counsel arises at any
point during a criminal proceeding in which the absence of counsel would
erode the defendant’s right to a fair trial. Hopper v. State, 957 N.E.2d 613, 616
(Ind. 2011). This includes any critical stage in which “(1) incrimination may
occur or (2) where the opportunity for effective defense must be seized or be
foregone.” Id. (internal quotations omitted). “An initial hearing conducted
under Indiana’s statutory scheme is not a critical stage of the criminal
proceeding requiring the presence of counsel.” Id. at 616-17.
[12] Schwartz argues that the initial hearing was, in fact, a critical stage of the
proceeding because the trial court informed him of the judge’s business
relationship with the prosecutor. Schwartz was, however, appointed an
attorney at the initial hearing, and that attorney was served with the order
regarding the initial hearing, which detailed the business relationship.
Schwartz’s attorney was presumably aware of the alleged conflict3 and had the
opportunity to file a motion for change of judge. Schwartz has not
3 At that time, Schwartz was represented by Thomas Sheets. However, Schwartz did not call Sheets to testify at his post-conviction hearing.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 7 of 19 demonstrated that he was denied his right to counsel at a critical stage of the
proceedings.
II. Right to Unbiased Judge
[13] Schwartz argued in his petition for post-conviction relief that he was denied the
right to a fair and impartial judge as a result of the business relationship
between the judge and the prosecutor. The post-conviction court rejected this
argument and found “the Petitioner was adequately informed of the
relationship between the judge and the prosecutor and [had] the opportunity to
exercise his right to a different judge. Furthermore, the Petitioner presented no
evidence of prejudice or harm he suffered as a result of his failure to seek a
different judge.” App. pp. 94-95.
[14] In general, a motion for a change of judge is governed by Indiana Criminal
Rule 12(B), which provides:
In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 8 of 19 Schwartz presented no rational inference that the judge had a personal bias or
prejudice against him. Consequently, there is little likelihood that a motion for
change of judge under Rule 12(B) would have been granted.
[15] Schwartz argues, however, that the judge’s business relationship violated
Indiana Judicial Conduct Canon 3.11 and that the judge would have been
required under the Judicial Conduct Canons to recuse. Canon 3.11 provides:
A judge shall not engage in any business, financial, or other remunerative activity if engaging in the activity would:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or
(4) result in violations of other provisions of this Code.
[16] Our court has previously clarified that “because the Indiana Supreme Court has
exclusive jurisdiction over alleged violations of the Code of Judicial Conduct,
we cannot determine whether a trial court judge violated a Judicial Canon.” In
re Guardianship of Hickman, 805 N.E.2d 808, 814-15 (Ind. Ct. App. 2004), trans.
denied. However, Schwartz cites Voss v. State, 856 N.E.2d 1211, 1221 (Ind.
2006), where our supreme court held that “the Judicial Canons may provide an
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 9 of 19 independent basis requiring disqualification even if the analysis required for
determination under Criminal Rule 12(B) would not require a change of judge.”
[17] We note that, despite the language of Canon 3.11, disqualification of a judge is
governed by Canon 2.11(A), which provides that “A judge shall disqualify
himself . . . in any proceeding in which the judge’s impartiality might
reasonably be questioned, including but not limited to the following
circumstances . . . (3) The judge knows that he . . . has an economic interest in
the subject matter in controversy or in a party to the proceeding that could be
substantially affected by the proceeding.” Thus, “the true question is whether
an objective person, knowledgeable of all the circumstances, would have a
reasonable basis for doubting the judge’s impartiality.” Sisson v. State, 985
N.E.2d 1, 19 (Ind. Ct. App. 2012), trans. denied.
[18] In support of his argument, Schwartz relies on Patterson v. State, 926 N.E.2d 90
(Ind. Ct. App. 2010), which we find readily distinguishable from this case. In
Patterson, the trial judge had previously served as prosecutor in the same
criminal matter for which the defendant stood trial. Patterson, 926 N.E.2d at 92.
Canon 2.11(A)(6) requires disqualification under such circumstances. See Ind.
Judicial Conduct Canon 2.11(A)(6)(a) (noting that a judge shall disqualify
himself where the judge “served as a lawyer in the matter in controversy”).
[19] Here, there is no indication that the judge’s business interest could have been
substantially affected by Schwartz’s criminal proceeding. We cannot say that
an objective person, knowledgeable of all the circumstances, would have a
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 10 of 19 reasonable basis for doubting the judge’s impartiality in Schwartz’s proceeding.
The post-conviction court did not err by denying Schwartz’s claim.
III. Ineffective Assistance of Trial Counsel
[20] Schwartz next argues that his trial counsel was ineffective. To prevail on a
claim of ineffective assistance of counsel, a petitioner must demonstrate both
that his or her counsel’s performance was deficient and that the petitioner was
prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984)), cert. denied. A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the
appropriate test for prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Id. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the
claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most
ineffective assistance of counsel claims can be resolved by a prejudice inquiry
alone. Id.
[21] Schwartz’s conviction was pursuant to a guilty plea. A post-conviction claim
challenging a conviction pursuant to a guilty plea is examined under Segura v.
State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main types of
ineffective assistance of counsel cases: (1) failure to advise the defendant on an Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 11 of 19 issue that impairs or overlooks a defense, and (2) an incorrect advisement of
penal consequences. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). In order
to set aside a conviction because of an attorney’s failure to raise a defense, a
petitioner who has pled guilty must establish that a defense was overlooked or
impaired and that the defense would likely have changed the outcome of the
proceeding. Segura, 749 N.E.2d at 499. “[I]f counsel’s shortcomings are
claimed to have resulted in a lost opportunity to mitigate the penalty, in order
to obtain a new sentencing hearing, the petitioner must show a reasonable
probability that the oversight would have affected the sentence.” Id.
A. Competency
[22] Schwartz argues that his trial counsel should have requested a competency
evaluation and ensured that he was competent to plead guilty. The post-
conviction court found:
[T]he Petitioner at no point in the underlying case asked for a competency evaluation. He did seek a competency evaluation in another pending case in the Wells Circuit Court, Cause No. 90C01-0908-FB-0022. In that case, Petitioner filed a Petition for Appointment of Medical Experts Pursuant to I.C. 35-36-3-1 on January 20, 2010. The petition was later withdrawn by the Petitioner in that cause on October 19, 2010. There was not a competency evaluation pending when the Petitioner pleaded guilty in the underlying cause in this court on February 14, 2011. Furthermore, both attorneys who represented the Petitioner in the cases in Wells and Adams Counties testified during the hearing on May 7, 2015 that they believed the Petitioner clearly understood the proceedings and they had no concerns about his ability to participate in the preparation of any defense. During the change of plea hearing, the court asked the Petitioner if he Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 12 of 19 suffered from any mental or emotional disability. The Petitioner stated he was medicated for depression but otherwise said, “I don’t have anything else.” Therefore, the court finds this claim to also be without merit.
App. pp. 93-94.
[23] Under Segura, Schwartz was required to prove that his trial counsel overlooked
or impaired the defense and that the defense would likely have changed the
outcome of the proceeding. Schwartz’s counsel in the Wells County
proceedings requested a competency evaluation on January 20, 2010.
However, on October 19, 2010, Schwartz’s Wells County attorney withdrew his
petition for appointment of medical experts. Schwartz’s Wells County attorney
testified that he withdrew the petition because he was comfortable that
Schwartz “understood what was going on.” Tr. p. 13. Schwartz then pled
guilty in Adams County on February 14, 2011. Schwartz’s Adams County
attorney testified that they “were able to discuss facts of the case, defenses,
strategies, possibilities, and [Schwartz] understood [their] conversations.” Id. at
15. Schwartz presented no evidence concerning his mental health at the time of
the Adams County proceedings and no evidence that a competency defense
would have been successful. Schwartz had the burden of presenting evidence to
support his allegations, and he did not meet his burden. We cannot say that the
post-conviction court’s order is clearly erroneous
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 13 of 19 B. Habitual Substance Offender Sentencing Enhancement
[24] According to Schwartz, under Indiana Code Section 35-50-2-10(f)(1), his
counsel should have argued for an habitual substance offender enhancement of
only one year and failed to do so. At the time of Schwartz’s sentencing, the
habitual substance offender enhancement statute provided:
The court shall sentence a person found to be a habitual substance offender to an additional fixed term of at least three (3) years but not more than eight (8) years imprisonment, to be added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3. If the court finds that:
(1) three (3) years or more have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last prior unrelated substance offense conviction and the date the person committed the substance offense for which the person is being sentenced as a habitual substance offender;
*****
then the court may reduce the additional fixed term. However, the court may not reduce the additional fixed term to less than one (1) year.
Ind. Code § 35-50-2-10(f) (repealed by P.L. 158-2013, § 664 (eff. July 1, 2014)).
[25] The trial court here imposed the maximum eight-year term for the habitual
substance offender enhancement. Schwartz argues that his trial counsel was
ineffective for failing to argue that Indiana Code Section 35-50-2-10(f)(1)
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 14 of 19 applied and requesting a one-year enhancement. The post-conviction court
disagreed and found:
[A]ll terms of the sentence were left to the court’s discretion. The court was not obligated to limit the sentence to a term of one year. There is absolutely no evidence to indicate the court abused its discretion when it sentenced the Petitioner to serve 8 additional years as a result of being a habitual substance offender.
App. p. 93.
[26] Schwartz was required to show a reasonable probability that the alleged
oversight would have affected his sentence. Perhaps if the trial court had
imposed the regular minimum sentence of three years, Schwartz’s argument
would be more persuasive. However, the trial court here imposed the
maximum, eight-year sentence even after his trial counsel pointed out that one
of the prior offenses was eighteen years old. Under these circumstances, the
post-conviction court’s conclusion is not clearly erroneous. Schwartz failed to
demonstrate a reasonable probability that the trial court would have imposed a
one-year habitual substance offender enhancement.
C. Change of Judge
[27] Schwartz contends that trial counsel was ineffective for failing to ask the trial
court to recuse himself due to his business relationship with the prosecutor.
The post-conviction court rejected this argument and found “the Petitioner was
adequately informed of the relationship between the judge and the prosecutor
and [had] the opportunity to exercise his right to a different judge.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 15 of 19 Furthermore, the Petitioner presented no evidence of prejudice or harm he
suffered as a result of his failure to seek a different judge.” App. pp. 94-95.
[28] Given our discussion in Issue II, we cannot say that Schwartz’s counsel was
deficient for failing to file a motion for change of judge or that Schwartz was
prejudiced by the alleged deficiency.4 The record is devoid of any evidence that
would suggest the trial court acted with bias toward Schwartz or that the
eventual outcome of his sentencing hearing would have been any different had
a motion for a change of judge been granted. Likewise, the record is devoid of
any evidence that would suggest the length of the sentence imposed would have
been any different had a timely motion for a change of judge been granted. As
such, Schwartz’s claim fails.
IV. Guilty Plea
[29] According to Schwartz, his guilty plea was not knowingly, voluntarily, and
intelligently entered. Post-conviction relief is a proper vehicle for challenging a
guilty plea, and we look at all evidence before the post-conviction court that
supports its determination that a guilty plea was voluntary, knowing, and
intelligent. Collins v. State, 14 N.E.3d 80, 85 (Ind. Ct. App. 2014). “A post-
4 At the time a motion for change of judge would have been filed, Schwartz was represented by Sheets. However, Schwartz did not call Sheets to testify at his post-conviction hearing. “When counsel is not called as a witness to testify in support of a petitioner’s arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner’s allegations.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. Campbell entered his appearance in November 2009. Campbell testified that he had other cases in Adams County at that time and that he did not recall ever having filed a motion for the judge to recuse based on the judge’s business relationship with the prosecutor.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 16 of 19 conviction petitioner must be allowed to withdraw his previous guilty plea
whenever the withdrawal ‘is necessary to correct manifest injustice’ that
occurred because ‘the plea was not knowingly and voluntarily made.’”
Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003) (quoting Lineberry
v. State, 747 N.E.2d 1151, 1156 (Ind. Ct. App. 2001)), trans. denied. Before
accepting a guilty plea, a trial court is required to take steps to insure that a
defendant’s plea is voluntary. Id.; see Ind. Code §§ 35-35-1-2; 35-35-1-3.
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. Id.
[30] Schwartz argued that his guilty plea was involuntary because he “did not
understand that he was giving up his right to challenge an erroneous sentence.”
App. p. 58. The post-conviction court concluded:
The court notes the plea agreement, sections 4 (f), (g), and (h), all informed the Petitioner that by entering into the plea agreement, he was waiving his right to appeal his sentence. He waived his right to a trial with respect to any aggravating or mitigating factors. He waived his right to appeal the sentence pursuant to Rule 7 of the Indiana Rules of Appellate Procedure and specifically waived his right to challenge the sentence imposed by the trial court on the basis that the sentence is erroneous. The Petitioner’s initials were placed by him at the beginning of each section 4 (f), (g), and (h) of the plea agreement. Therefore, the court now finds he was sufficiently advised of his waiver of appeal rights regarding the sentence imposed. Also, the Petitioner has not presented evidence of an erroneous sentence. Even if he could appeal the sentence, there is no evidence that the sentence imposed was erroneous.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 17 of 19 Id. at 95.
[31] A defendant may waive the right to appellate review of his sentence as part of a
written plea agreement. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Here,
Schwartz expressly waived his right to appellate review of his sentence as part
of his plea agreement. In the plea agreement, Schwartz waived his right to
appeal the sentence imposed by the trial court, including the right to appeal
under Indiana Appellate Rule 7 and the right to appeal “the trial court’s finding
and balancing of mitigating and aggravating factors or to challenge the sentence
imposed . . . .” Ex. 3 p. 2. Schwartz initialed each provision of the plea
agreement and signed the agreement. At the sentencing hearing, the trial court
did not advise Schwartz of his rights under Indiana Criminal Rule 11, which
include a right to appeal the sentence, due to the plea agreement provisions. See
Ex. 1 p. 29. Schwartz did not testify at the post-conviction hearing. In support
of his argument, Schwartz points only to the fact that he attempted to appeal his
sentence. However, the post-conviction court found that Schwartz validly
waived his right to appeal his sentence, and under these circumstances, we
cannot say that the post-conviction court’s finding is clearly erroneous. See e.g.,
Creech, 887 N.E.2d at 77 (holding that a petitioner’s waiver of his right to appeal
his sentence was valid despite the trial court’s erroneous advisement at the
sentencing hearing that he could appeal his sentence).
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 18 of 19 Conclusion [32] The post-conviction court’s denial of Schwartz’s petition for post-conviction
relief is not clearly erroneous. We affirm.
[33] Affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 01A02-1507-PC-872 | March 15, 2016 Page 19 of 19