Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jul 15 2013, 6:08 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES K. WISCO GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARNELL CHIVERS, )
)
Appellant-Defendant, )
)
vs. ) No. 24A01-1205-PC-206
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FRANKLIN CIRCUIT COURT
The Honorable J. Steven Cox, Judge
Cause No. 24C01-0603-FB-161
July 15, 2013
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
On appeal from denial of post-conviction relief, Darnell Chivers (“Chivers”)
presented three issues for our review, which we consolidated and restated as whether the
post-conviction court erroneously denied his petition for relief because:
I. He was denied effective assistance of counsel; and
II. His guilty plea was involuntary.
We affirmed, holding that he was not denied effective assistance of counsel, and that the
issue of whether his guilty plea was entered into voluntarily was not properly before us
because of a procedural bar. Chivers now petitions for rehearing.
We grant Chivers’s petition for rehearing for the sole purpose of clarifying our earlier
opinion.
Issues
In his petition for rehearing, Chivers raises several issues, which we revise and restate
as:
I. Whether Chivers successfully withdrew his motion to withdraw his
guilty plea, thus placing the issue of the voluntariness of his guilty plea
properly before us on appeal from denial of post-conviction relief;
II. Whether Chivers’s guilty plea was involuntary because he was
ineligible for the habitual offender enhancement; and
III. Whether Chivers received ineffective assistance of counsel.
Discussion and Decision
Motion to Withdraw Guilty Plea
Chivers contends that, contrary to the facts as stated in the opinion, “the record clearly
reflects that the Motion to Withdraw Plea of Guilty was heard on the record in open court and
2
withdrawn by Petitioner.” (Pet. for Reh’g at 4.) In support of this argument, Chivers relies
in his petition for rehearing on the sentencing transcript, and effectively claims that we have
misread the record. (Pet. for Reh’g at 2-4.) However, Chivers failed to provide the
sentencing transcript to this Court in support of his appeal from denial of post-conviction
relief, thus depriving us of the opportunity to review that portion of the record.
Moreover, our review of the record makes it clear that Chivers’s argument on
rehearing misrepresents the trial court record.1 The Chronological Case Summary indicates
that the “Defendant’s Motion to Withdraw of Plea [sic] Overruled and Denied. Copies sent
to M. Wilhelm, Darnell Chivers, T. Davis on 10-28-08.” (App. at 11.) The sentencing
hearing was held the following day, on October 29, 2008. (App. at 11.)
Further, during the hearing on Chivers’s petition for post-conviction relief, the post-
conviction court stated, “I think I actually denied [the Motion to Withdraw Plea of Guilty]
beforehand, and then at the sentencing hearing I asked him about it, and he at that point said,
no, I don’t want to go forward [with the Motion to Withdraw Plea of Guilty].” (Tr. at 57.)
The post-conviction court then stated, “I think it was made . . . it was motioned. It was
denied of . . . you know, on paper, and they were aware of it, but then at the sentencing
hearing I just wanted to make sure we weren’t in one of these situations.” (Tr. at 57.)
The record clearly indicates that the trial court denied Chivers’s motion to withdraw
his guilty plea before the sentencing hearing, and then took an extra step to ensure the
1
We remind Chivers’s appellate counsel that, under our rules of professional conduct, “[a] lawyer shall not
knowingly[] . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer[.]” Ind. Professional Conduct Rule
3.3(a)(1).
3
voluntariness of Chivers’s guilty plea. Therefore, we conclude that the record does not
support Chivers’s argument on rehearing.
Voluntariness of Guilty Plea
Because we have decided supra that the trial court denied Chivers’s motion to
withdraw his guilty plea, we decline to reconsider our conclusion that his argument as to the
voluntariness of his guilty plea is not properly before us on appeal from denial of post-
conviction relief.
Ineffective Assistance of Counsel
Chivers argues that his trial counsel’s failure to recognize the improper habitual
offender allegation renders her assistance ineffective, and “that the ineffective assistance was
material to his decision to plead guilty.” (Pet. for Reh’g at 7.) He contends that “if the
habitual offender enhancement had been dismissed, any hypothetical reasonable defendant
would contemplate his options much more seriously, and would be much more likely to
decide differently regarding proceeding to trial without the illusory threat of facing an
additional fifty (50) years.” (Pet. for Reh’g at 7.)
In its Habitual Offender Information, the State alleged that Chivers was convicted in
Ohio of, inter alia, Breaking and Entering. (App. at 19.) The record contains no pre-
sentence report, order from an Ohio court, or Chronological Case Summary from an Ohio
court with which to independently verify the nature and existence of Chivers’s prior criminal
convictions in Ohio. However, during the hearing on the petition for post-conviction relief,
Chivers argued that the Breaking and Entering conviction was a Felony of the Fifth Degree in
4
Ohio, and thus was eligible for a maximum penalty of up to twelve months under Ohio law.
(App. at 33-34.) Further, during the hearing, the State conceded that the Breaking and
Entering conviction was a Felony of the Fifth Degree in Ohio. (Tr. at 55.) And our research
reveals that Breaking and Entering is a Felony of the Fifth Degree in Ohio, and is therefore
eligible for a maximum penalty of up to twelve months under Ohio law. Ohio Code §§
2911.13 & 2929.14. As such, we acknowledge that the uncontroverted evidence points to the
conclusion that the Ohio conviction for Breaking and Entering could not serve as a felony for
purposes of an habitual offender allegation. See Ind. Code § 35-50-2-1(b) (2012).
However, even without the habitual offender allegation, Chivers avoided exposure to
a substantial additional penalty by pleading guilty. Chivers was convicted of one count of
Armed Robbery, as a Class B felony,2 and two counts of Criminal Confinement, as Class B
felonies.3 The maximum sentence for a Class B felony is twenty years and, except in certain
circumstances, the trial court determines whether sentences are to be served concurrently or
consecutively. I.C. §§ 35-50-2-5, § 35-50-1-2(c). Generally,
the total of the consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant
is sentenced for felony convictions arising out of an episode of criminal
conduct shall not exceed the advisory sentence for a felony which is one (1)
class of felony higher than the most serious of the felonies for which the
person has been convicted.
I.C. § 35-50-1-2(c).
Indiana Code section 35-50-1-2 provides an exception to this limitation when a crime
2
Ind. Code § 35-42-5-1.
3
I.C. §§ 35-42-3-3(a)(1), (b)(2)(A) (2002). The relevant statutory provision was modified, effective July
1, 2006.
5
of violence, such as Robbery, as a Class B felony, is involved. I.C. §§ 35-50-1-2(c) (2005)4,
35-50-1-2(a)(12). And the Indiana Supreme Court has held that the sentencing limitation of
Indiana Code section 35-50-1-2 does not apply to consecutive sentencing between a crime of
violence and those that are not crimes of violence. Ellis v. State, 736 N.E.2d 731, 737 (Ind.
2000). Therefore, if all three Class B felonies were run consecutively, the trial court could
have imposed a sentence of up to thirty years imprisonment for the two convictions of
Criminal Confinement,5 with an additional twenty years imprisonment for the conviction of
Armed Robbery, for a maximum sentence of up to fifty years imprisonment. Because
Chivers pleaded guilty based on the advice of his attorney, and his guilty plea reduced his
exposure from fifty to a total of twenty years imprisonment, we cannot agree that Chivers has
demonstrated that he did not receive effective assistance of counsel.
Conclusion
We grant Chivers’s petition for rehearing, reaffirming our opinion in all respects.
VAIDIK, J., and BROWN, J., concur.
4
The relevant statute has been modified many times. We refer to the version of the statute in force at the
time the crime was committed.
5
The maximum sentence the trial court could have imposed for the two convictions of Criminal
Confinement, run consecutively, is still thirty years imprisonment, the advisory sentence for a Class A
felony. I.C. § 35-50-2-4; Ellis, 736 N.E.2d at 737.
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Darnell Chivers v. State of Indiana
Combined Opinion