MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 31 2015, 9:21 am
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
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric L. Davis, Sr., July 31, 2015
Appellant-Petitioner, Court of Appeals Case No.
71A03-1403-PC-82
v. Appeal from the St. Joseph Superior
Court.
The Honorable Jerome Frese, Judge.
State of Indiana, Cause No. 71D03-1109-PC-45
Appellee-Respondent.
Shepard, Senior Judge
[1] Eric L. Davis, Sr., appeals from the denial of his petition for post-conviction
relief. He asserts that his trial counsel engineered a plea agreement that was at
least partly illusory. We affirm.
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 1 of 6
Issue
[2] Davis raises several issues, only one of which was appropriately raised in this
post-conviction proceeding: whether Davis received ineffective assistance of
1
trial counsel in negotiating the plea agreement.
Facts and Procedural History
[3] The State charged Davis with being a felon in possession of a handgun, a Class
C felony; possession of a handgun without a license, a Class A misdemeanor;
and being a habitual offender. The State and Davis entered into a plea
agreement, and Davis agreed to plead guilty to the C felony charge. In
exchange, the State agreed to dismiss the other charges and to cap the executed
portion of Davis’s sentence at two years, the mandatory minimum.
[4] The trial court accepted the plea agreement and sentenced Davis to eight years.
The court allowed Davis to serve the two-year executed term on day reporting
with electronic monitoring, and it suspended the remaining six years. Davis did
not appeal.
1
Davis also appears to claim prosecutorial misconduct and trial court error in permitting the State to file a
habitual offender enhancement, but those claims are unavailable on post-conviction review. See Lambert v.
State, 743 N.E.2d 719, 726 (Ind. 2001) (“post-conviction procedures do not provide a petitioner with a ‘super-
appeal’ or opportunity to consider freestanding claims that the original trial court committed error”).
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 2 of 6
[5] Later, the State petitioned to revoke Davis’s probation, and Davis admitted to
the violation. The trial court sentenced Davis to serve his full eight-year
sentence at the Department of Correction.
[6] Davis filed a petition for post-conviction relief, and the court held an
evidentiary hearing. The State later submitted a memorandum conceding that
it “mistakenly and inappropriately applied the Habitual Offender
2
enhancement” to the case. Appellant’s April 8, 2015 Appendix, p. 45. The
post-conviction court denied Davis’s petition, and this appeal followed.
Discussion and Decision
[7] Davis argues that he established that his trial counsel rendered ineffective
assistance because she negotiated a plea agreement for which one of its
benefits—dismissal of the habitual offender enhancement—was illusory. He
says the State should not have been allowed to file the enhancement charge at
all because it was an impermissible double enhancement.
[8] As a preliminary matter, the State claims that Davis has waived this issue by
failing to provide a complete record on appeal. Specifically, Davis has not
provided us with a transcript of his guilty plea hearing. We reject the State’s
2
Davis filed several versions of his Appellant’s Appendix while the case was pending, and they do not all
contain the same documents. For clarity’s sake, we will cite to an Appendix by the filing date.
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 3 of 6
claim because an appellant’s failure to include an item in the appendix “shall
not waive any issue or argument.” Ind. Appellate Rule 49(B).
[9] When appealing 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. Campbell v. State, 19 N.E.3d
271, 274 (Ind. 2014). The post-conviction court made findings of fact and
conclusions thereon. Thus, we will reverse only upon a showing of clear
error—that which leaves us with a definite and firm conviction that a mistake
has been made. Id.
[10] To establish ineffective assistance, a petitioner must demonstrate: (1) counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms; and (2) there is a reasonable probability that, but
for counsel’s unprofessional error, the result of the proceeding would have been
different. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). A petitioner must
overcome a strong presumption that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 419. Isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation ineffective.
Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002).
[11] Furthermore, when counsel is alleged to have given incorrect advice as to penal
consequences, a petitioner must establish by objective facts that counsel’s error
was material to petitioner’s decision to plead guilty. Willoughby v. State, 792
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 4 of 6
N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied. Merely alleging that the
petitioner would not have pled had correct advice been given is insufficient. Id.
Specific facts must establish an objective reasonable probability that competent
representation would have caused the petitioner not to enter a plea. Id.
[12] Here, the post-conviction court did not make a definitive finding about
ineffective assistance. Instead, the court acknowledged that the habitual
offender enhancement was inappropriate but explained that the plea agreement
contained multiple, substantial benefits for Davis.
[13] The evidence supports the post-conviction court’s conclusion. Davis received
the minimum possible executed sentence of two years, well short of the
maximum sentence of eight. And, doubtless due to the amount of executed
time, the trial court allowed Davis to serve that portion of his sentence on day
reporting rather than in the Department of Correction. These are significant
benefits. Davis’s trial counsel stated in post-conviction discovery responses that
she believed the cap on the executed portion of the sentence “contributed to
deciding to forego the suppression hearing and trial in the underlying criminal
case.” Appellant’s April 8, 2015 App. p. 28.
[14] Based on this evidence, we cannot conclude that Davis established an objective
reasonable probability that correct advice on the habitual offender enhancement
would have caused him to reject the plea bargain. The plea bargain was so
beneficial to Davis that counsel’s performance fell within the range of
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 5 of 6
professional norms despite her failure to note that the habitual charge was
unavailable. Davis has failed to establish clear error.
[15] For the reasons stated above, we affirm the judgment of the post-conviction
court.
[16] Affirmed.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 6 of 6