MEMORANDUM DECISION
Jun 11 2015, 8:52 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Eric L. Davis, Sr. Gregory F. Zoeller
Westville, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric L. Davis, Sr., June 11, 2015
Appellant-Defendant, Court of Appeals Case No.
71A03-1410-PC-374
v. Appeal from the St. Joseph Superior
Court;
The Honorable Jane W. Miller,
State of Indiana, Judge;
Appellee-Plaintiff. 71D08-1210-PC-47
May, Judge.
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[1] Eric L. Davis, Sr. appeals the denial of his petition for post-conviction relief.
We affirm.
Facts and Procedural History
[2] On December 18, 2009, Davis agreed to plead guilty to Class C felony carrying
a handgun without a license 1 and Class C misdemeanor operating a vehicle
while never licensed. 2 His plea agreement left the issue of sentencing open to
the discretion of the trial court. On February 10, 2010, the trial court
pronounced an eight-year sentence.
[3] On October 4, 2012, Davis filed a petition for post-conviction relief, which he
later amended. He claimed, among other things, his trial counsel was
ineffective for incorrectly advising him he was subject to a habitual offender
enhancement if he went to trial and the trial court acted inappropriately when it
questioned witnesses during a hearing on Davis’ motion to suppress. The post-
conviction court held evidentiary hearing on December 20, 2013, and on
September 17, 2014, denied Davis’ petition.
Discussion and Decision
[4] We first note Davis proceeds pro se. A litigant who proceeds pro se is held to the
rules of procedure that trained counsel is bound to follow. Smith v. Donahue,
1
Ind. Code § 35-47-2-1(a) (2012); Ind. Code § 35-47-2-23(c) (2009).
2
Ind. Code § 9-24-18-1.
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907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. One risk
a litigant takes when he proceeds pro se is that he will not know how to
accomplish all the things an attorney would know how to accomplish. Id.
When a party elects to represent himself, there is no reason for us to indulge in
any benevolent presumption on his behalf or to waive any rule for the orderly
and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.
Ct. App. 2006).
[5] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are
civil in nature, the petitioner must prove his grounds for relief by a
preponderance of the evidence. Id. A party appealing a post-conviction
judgment must establish that the evidence is without conflict and, as a whole,
unmistakably and unerringly points to a conclusion contrary to that reached by
the post-conviction court. Id. Where, as here, the post-conviction court makes
findings of fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6), we do not defer to the court’s legal conclusions, but “the
findings and judgment will be reversed only upon a showing of clear error – that
which leaves us with a definite and firm conviction that a mistake has been
made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation
and citation omitted).
[6] A successful claim of ineffective assistance of trial counsel must satisfy two
components. First, the defendant must show deficient performance -
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representation that fell below an objective standard of reasonableness involving
errors so serious that the defendant did not have the counsel guaranteed by the
Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g
denied. Second, the defendant must show prejudice - a reasonable probability
(i.e., a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been different. Id.
[7] Davis argues his trial counsel incorrectly advised him an additional habitual
offender count could be added to his charges if he went to trial, and this alleged
misinformation induced him to accept the State’s plea offer. One category of
claims under which we review allegations of ineffective assistance of counsel
following a guilty plea is “improper advisement of penal consequences.”
Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied.
Improper advisement includes “incorrect advice as to the law.” Id.
[8] Our Indiana Supreme Court has held:
Whether viewed as ineffective assistance of counsel or an involuntary
plea, the post-conviction court must resolve the factual issue of the
materiality of the bad advice in the decision to plead, and the post-
conviction relief may be granted if the plea can be shown to have been
influenced by counsel’s error. However, if the post-conviction court
finds that the petitioner would have pleaded guilty even if competently
advised as to the penal consequences, the error in advice is immaterial
to the decision to plead and there is no prejudice.
Segura v. State, 749 N.E.2d 496, 504-5 (Ind. 2001).
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[9] Davis alleges his trial counsel advised him “the State would file a habitual
offender count against him if he did not plead guilty[.]” (PCR Order at 6.) 3
Davis contends he decided to plead guilty after his motion to suppress was
denied because he was concerned about the sentence enhancement should he be
found guilty at trial.
[10] “The state may not seek to have a person sentenced as a habitual offender for a
felony offense . . . if the current offense is a misdemeanor that is enhanced to a
felony in the same proceeding as the habitual offender proceeding solely
because the person had a prior unrelated conviction.” Ind. Code § 35-50-2-8.
The State charged Davis with Class C misdemeanor operating while never
licensed; Class A misdemeanor carrying a handgun without a license; and Class
C felony possession of a handgun by a felon. Davis’ misdemeanor handgun
charge was enhanced to a felony by virtue of a prior unrelated conviction, so a
habitual offender enhancement was prohibited by Ind. Code § 35-50-2-8.
[11] The post-conviction court acknowledged Davis’ trial counsel was incorrect in
his interpretation of the relevant statutes, but found: “Although counsel’s advice
was inaccurate, [Davis] has failed to demonstrate how he was prejudiced by his
counsel’s actions. . . . By pleading guilty Davis was in no worse position than
he would have [been in] had he gone to trial.” (PCR Order at 8-9.) We agree.
3
Davis did not include a copy of the post-conviction court’s order in his appendix, and thus we cite to the
order he attached to the end of his Appellant’s Brief.
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[12] Police pulled Davis over because he did not signal a turn. After stopping Davis,
the officer discovered an outstanding warrant for Davis’ arrest. While placing
Davis under arrest, the officer asked Davis if he had any weapons on his
person, and Davis indicated he was carrying a gun. At the time of the arrest,
Davis was on probation for a prior felony, and thus the State had sufficient
evidence Davis committed Class C felony possession of a handgun by a felon.
See Ind. Code § 35-47-2-1 (2009) (“a person shall not carry a handgun in any
vehicle . . . without a license issued under this chapter being in the person’s
possession”); and see Ind. Code § 35-47-2-23(c)(2) (2009) (“A person who violates
[Ind. Code § 35-47-2-1] commits a Class A misdemeanor. However, the offense
is a Class C felony: . . . (2) if the person . . . (B) has been convicted of a felony
within fifteen (15) years before the date of the offense.”).
[13] Pursuant to the plea agreement, Davis entered a plea of guilty to Class C felony
possession of a handgun by a felon and Class C misdemeanor operating a
vehicle without ever receiving a license; sentencing was left open to the trial
court’s discretion. Davis received a sentence of eight years, which is the
statutory maximum for a Class C felony. Davis has not indicated how he could
have achieved a more favorable outcome had he gone to trial, and therefor he
has not demonstrated prejudice. See Missouri v. Frye, 132 S. Ct. 1399, 1409
(2012) (To establish prejudice in a claim of ineffective assistance of counsel
following a guilty plea, “it is necessary to show a reasonable probability that the
end result of the criminal process would have been more favorable by reason of
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a plea to a lesser charge or a sentence of less prison time.”). Accordingly, we
affirm the denial of his petition for post-conviction relief. 4
[14] Affirmed.
Robb, J., and Mathias, J., concur.
4
Davis also appeals the post-conviction court’s decision that the trial court did not err when it questioned
witnesses during the hearing on Davis’ motion to suppress. However, Davis has not provided citation to
legal precedent or the record in support of his claim; thus, it is waived. See Ind. Appellate Rule 46(A)(8)(a)
(argument must be supported by citations to relevant parts of the record); and see Reed v. State, 702 N.E.2d
685, 689 (Ind. 1998) (failure to provide complete record and citations thereto results in waiver of issue on
appeal).
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