Aug 07 2015, 10:17 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Deidre R. Eltzroth J.T. Whitehead
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie D. Williams, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
35A02-1412-PC-864
v. Appeal from the Huntington Superior
Court
State of Indiana, The Honorable Jeffrey Heffelfinger,
Judge
Appellee-Plaintiff.
Case No. 35D01-1107-PC-14
Vaidik, Chief Judge.
Case Summary
[1] Willie D. Williams pled guilty to a Class C felony, a Class D felony, a Class A
misdemeanor, and being a habitual substance offender; in exchange, the State
dismissed a Class B felony and a Class D felony. Although sentencing was left
to the discretion of the trial court, the maximum sentence Williams faced under
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the plea agreement was twenty years; in contrast, he faced a maximum sentence
of thirty-two years under the original charges. The trial court ultimately
sentenced Williams to an aggregate term of sixteen years.
[2] Williams later filed a petition for post-conviction relief alleging that his plea was
not knowing, voluntary, and intelligent because defense counsel misadvised
him about whether he was actually eligible for the habitual-substance-offender
enhancement. But even assuming that Williams was ineligible for the habitual-
substance-offender enhancement, because Williams benefited from his plea
agreement and the specific facts do not establish an objective reasonable
probability that competent representation would have caused him not to enter a
plea, we conclude that Williams is not entitled to relief on his claim that his
guilty plea was not knowing, voluntary, and intelligent. We therefore affirm
the post-conviction court.
Facts and Procedural History
[3] On September 1, 2009, Williams exited I-69 in Huntington County at the
Markle exit. Ex. D (factual basis contained in plea agreement). When
Williams failed to stop at a stop sign at US 224, a police officer pulled him over.
The officer approached Williams’ van and asked for his driver’s license and
registration; Williams, however, drove off. As Williams continued driving on
US 224, he threw a plastic bag containing pills out his van window. Williams
eventually stopped his van again. When the officer ordered Williams out of his
van, he refused to get out. The officer therefore unlocked the van door through
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the window, removed Williams from the van, and handcuffed him. Williams
told the officer that he did not have a driver’s license. The police found $150 in
cash inside Williams’ van and 504 pills—including methadone and
alprazolam—packaged for sale inside the bag that Williams had thrown out his
van window.
[4] The State charged Williams with five counts: Count I: Class B felony dealing in
a schedule I, II, or III controlled substance; Count II: Class C felony dealing in
a schedule IV controlled substance; Count III: Class D felony possession of a
controlled substance; Count IV: Class D felony resisting law enforcement; and
Count V: Class A misdemeanor driving while suspended. Ex. A.
[5] In October 2009 the State extended to Williams the following offer: Williams
would plead guilty to Counts I, IV, and V; in exchange, the State would dismiss
Counts II and III and “not file a habitual substance offender enhancement.”
Ex. 1. In addition, the State agreed to a sentence of eighteen years with no
probation. Id. Williams, however, rejected this offer because he believed that
the State could not prove Count I: Class B felony dealing in a schedule I, II, or
III controlled substance. P-C Tr. p. 18. The matter was set for a jury trial.
[6] Based on Williams’ rejection of the offer, in December 2009 the State added a
new count alleging that Williams was a habitual substance offender because he
had committed two prior unrelated substance offenses. Ex. B. The State
amended this count in May 2010 to add a third prior unrelated substance
offense. Ex. C. Specifically, the State alleged that Williams was a habitual
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substance offender because he had accumulated the following prior unrelated
substance offenses:
1. Possession of Paraphernalia as a class A misdemeanor, committed
on October 29, 2005, conviction entered on October 31, 2005, in the
Allen Superior Court under Cause No. 02D04-0510-CM-007929.
2. Possession of Cocaine as a class C felony, committed on April 4,
1995, conviction entered on October 27, 1995, in the Marion Superior
Court under Cause No. 49G02-9504-CF-046076.
3. Possession of Cocaine as a felony, committed on February 21, 1992,
conviction entered on November 15, 1999, in the 16th Judicial District
Court, in the Parish of St. Martin, in the State of Louisiana under
docket no. 127,610.
Id. Williams filed an objection to this amendment, see Appellant’s App. p. 7
(CCS entry dated May 10, 2010), but the record does not reveal the grounds for
the objection. 1
[7] On May 13, 2010, the day Williams’ jury trial was scheduled to start, Williams
and the State entered a plea agreement in which Williams pled guilty to Count
II: Class C felony dealing in a schedule IV controlled substance, Count IV:
Class D felony resisting law enforcement, Count V: Class A misdemeanor
driving while suspended, and being a habitual substance offender. Ex. D. In
exchange, the State agreed to dismiss Count I (a Class B felony) and Count III
(a Class D felony). Id. Although sentencing was left to the discretion of the
1
Defense counsel wrote a letter to Williams in June 2010 in which counsel opined that Williams would
receive “8 to 12 years” at sentencing but that had he gone to trial, a jury would have convicted him on all
counts and he would have faced “well beyond 20 years up to over 30 years.” Ex. E. Defense counsel also
told Williams that he had “preserved our objection to the amendment on the habitual substance offender.”
Id. But again, the letter does not reveal the grounds for the objection.
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trial court, see id., the maximum sentence Williams faced under the plea
agreement was twenty years. 2
[8] At the sentencing hearing, the trial court commented as follows:
Mr. Williams your record is one of the worst ones that I’ve seen in
quite a while. This makes your ninth and tenth (9th and 10th) felony
offenses. By the Probation’s count you have a[t] least eleven (11) prior
misdemeanor offenses[,] you have three (3) Petitions to Revoke[,]
you’ve committed a Battery offense while you [were] awaiting
sentencing for these offenses[,] your record shows that you have at
least two (2) prior Batter[ies] and one (1) prior Strangulation.
Ex. G, p. 39. The court sentenced Williams to eight years for Count II,
enhanced by eight years for being a habitual substance offender; one and one-
half years for Count IV; and one year for Count V. The court ordered the
sentences to run concurrently, for an aggregate term of sixteen years.
[9] In July 2011 Williams, pro se, filed a petition for post-conviction relief, which
was amended by counsel in February 2014. Specifically, Williams alleged that
his guilty plea was not knowing, voluntary, and intelligent and that his trial
counsel was ineffective because the three convictions the State used to support
his habitual-substance-offender enhancement were improper. At the hearing on
his petition for post-conviction relief, Williams testified that he was never
advised that he was ineligible for the habitual-substance-offender enhancement
2
Because Williams pled guilty to one crime of violence—Class D felony resisting law enforcement—the
consecutive-sentencing limitation in Indiana Code section 35-50-1-2 did not apply. See Johnson v. State, 749
N.E.2d 1103, 1110 (Ind. 2001) (“However, the limitations the statute imposes on consecutive sentencing do
not apply between crimes of violence and those that are not crimes of violence.”).
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and that had he known he was ineligible, “I wouldn’t have pled guilty. I would
have insisted on going to trial.” P-C Tr. p. 16. When asked why he would
have chosen to go to trial, Williams explained:
I feel the State couldn’t prove intent to deliver a controlled substance
without a reasonable doubt. The State could only prove uh, a
possession of a controlled substance which is a lesser included offense
and knowing that without the habitual I would have insisted on going
to trial and asked my attorney to negotiate a better plea bargain.
Id.
[10] Following the hearing, the post-conviction court denied relief. See Appellant’s
App. p. 99-104 (post-conviction court’s order).
[11] Williams now appeals.
Discussion and Decision
[12] Williams contends that the post-conviction court erred in denying him relief. In
post-conviction proceedings, the petitioner bears the burden of proof by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State,
881 N.E.2d 639, 643 (Ind. 2008). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment, and the standard of review is rigorous. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004); see also Trujillo v. State, 962 N.E.2d 110, 113 (Ind.
2011). “To prevail on appeal from 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
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court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010), reh’g denied. Here,
the post-conviction court made findings of fact and conclusions of law in
accordance with Indiana Post-Conviction Rule 1(6). “A post-conviction court’s
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) (quotation
omitted), reh’g denied. “The post-conviction court is the sole judge of the weight
of the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d
1208, 1210 (Ind. 1998), reh’g denied. Accordingly, we accept the post-conviction
court’s findings of fact unless they are clearly erroneous, but we do not defer to
the post-conviction court’s conclusions of law. Wilson v. State, 799 N.E.2d 51,
53 (Ind. Ct. App. 2003).
[13] Williams first contends that the three convictions the State used to support his
habitual-substance-offender enhancement were improper. Specifically, he
alleges that his conviction for possession of paraphernalia does not qualify as a
“substance offense” under the habitual-substance-offender statute and that the
other two convictions—both for possession of cocaine—“are not in the proper
sequence.” Appellant’s Br. p. 6.
[14] On appeal, the State does not challenge Williams’ assertion that his two
possession-of-cocaine convictions are not in the proper sequence. See Ind. Code
Ann. § 35-50-2-10 (West 2012) (“After a person has been convicted and
sentenced for a substance offense committed after sentencing for a prior
unrelated substance offense conviction, the person has accumulated two (2)
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prior unrelated substance offense convictions.”). 3 Instead, the State argues that
Williams’ conviction for possession of paraphernalia indeed qualifies as a
“substance offense” under the habitual-substance-offender statute, and when
that conviction is combined with one of Williams’ possession-of-cocaine
convictions, “the State had the necessary number of prior convictions, namely
two.” Appellee’s Br. p. 14.
[15] At the time of the offenses, Indiana’s habitual-substance-offender statute
provided, in part:
(a) As used in this section:
(1) “Drug” means a drug or a controlled substance (as defined
in IC 35-48-1).
(2) “Substance offense” means a Class A misdemeanor or a felony in
which the possession, use, abuse, delivery, transportation, or
manufacture of alcohol or drugs is a material element of the crime. The
term includes an offense under IC 9-30-5 and an offense under IC 9-11-
2 (before its repeal).
(b) The state may seek to have a person sentenced as a habitual
substance offender for any substance offense by alleging, on a page
separate from the rest of the charging instrument, that the person has
accumulated two (2) prior unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for a substance
offense committed after sentencing for a prior unrelated substance
3
Indeed, the dates contained in the habitual-substance-offender charging information confirm that Williams’
two possession-of-cocaine convictions are not in the proper sequence. That is, Williams committed the
possession offense in the Louisiana case in 1992 but was not sentenced until 1999. Williams committed the
possession offense in the Indiana case in 1995 and was sentenced that same year. Because Williams was not
sentenced in the Louisiana case before he committed the possession offense in the Indiana case, the Louisiana
conviction cannot be used to support Williams’ habitual-substance-offender enhancement.
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offense conviction, the person has accumulated two (2) prior unrelated
substance offense convictions. . . .
*****
(f) 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. . . .
Ind. Code Ann. § 35-50-2-10 (West 2012) (emphasis added). Both parties
concede that there are no appellate cases directly addressing whether possession
of paraphernalia qualifies as a “substance offense” under the habitual-
substance-offender statute. See Appellant’s Br. p. 7 (“No appellate cases address
this issue directly.”); Appellee’s Br. p. 14 (“Unsurprisingly, although case law
on the specific issue is lacking . . . .”). 4
[16] Indiana, however, made significant changes to its criminal code effective July 1,
2014. One of those changes was to repeal the habitual-substance-offender
statute effective July 1, 2014. See P.L. 158-2013. Now, drug felonies are
included under the general habitual-offender statute. See Peoples v. State, 929
N.E.2d 750, 751-52 (Ind. 2010) (explaining that in 2001 the legislature limited
when drug offenses could be counted under the general habitual-offender
statute); compare Ind. Code Ann. § 35-50-2-8(b)(3)(C), (d)(3)(C) (West 2012)
4
In Aslinger v. State, another panel of this Court noted in a footnote that the defendant’s possession-of-
paraphernalia conviction “would merit the HSO enhancement.” 2 N.E.3d 84, 92 n.4 (Ind. Ct. App. 2014),
clarified on reh’g, Aslinger v. State, No. 35A02-1303-CR-296 (Ind. Ct. App. May 7, 2014), trans. not sought.
However, the Court did not directly address whether possession of paraphernalia satisfied the statutory
definition of “substance offense.”
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(limiting the number of drug offenses that could be used to support the general
habitual-offender enhancement) with Ind. Code Ann. § 35-50-2-8 (West 2014
Supp.) (new statute containing no such limits). Accordingly, whether
possession of paraphernalia qualifies as a “substance offense” under the now-
repealed habitual-substance-offender statute is not a pressing issue in light of the
recent changes to our criminal code.
[17] But even assuming that Williams’ possession-of-paraphernalia conviction did
not qualify as a “substance offense” under the now-repealed habitual-substance-
offender statute and therefore Williams did not have two prior unrelated
substance-offense convictions, we find that Williams is still not entitled to relief
on his claim that his guilty plea was not knowing, voluntary, and intelligent.
“The long-standing test for the validity of a guilty plea is ‘whether the plea
represents 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)
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this
objective, the Indiana Code provides that the court accepting the guilty plea
must determine that the defendant, among other things: (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-
examination 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 crimes charged. Id.; see also Ind.
Code § 35-35-1-2. In assessing the voluntariness of the plea, we review all the
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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 that are part of the record. Diaz, 934 N.E.2d
at 1094.
[18] However, a defendant may not enter a plea agreement calling for an illegal
sentence, benefit from that sentence, and then later complain that it was an
illegal sentence. Russell v. State, --- N.E.3d ---, --- (Ind. June 29, 2015); see also
Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987). This is because defendants
who plead guilty to achieve favorable outcomes in the process of bargaining
give up a plethora of substantive claims and procedural rights. Lee v. State, 816
N.E.2d 35, 40 (Ind. 2004); Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001).
Therefore, where a defendant “knowingly, intelligently, and voluntarily enters a
plea agreement, there is no compelling reason to set aside the conviction on the
grounds that the sentence is later determined to be invalid or to have contained
a mistake of law.” Russell, --- N.E.3d at --- (emphasis and quotation omitted).
[19] Williams asserts that he was “misadvised” about the penal consequences of his
plea and “[h]ad he known he was actually ineligible [for the habitual-substance-
offender enhancement], he would not have pled to it and would have insisted
on trial.” Appellant’s Br. p. 10. With respect to a claim that a defendant has
received incorrect advice as to the penal consequences of a plea:
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 post-conviction relief
may be granted if the plea can be shown to have been influenced by
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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.
Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct. App. 2011) (emphasis added)
(quoting Segura v. State, 749 N.E.2d 496, 504-05 (Ind. 2001)), trans. denied. That
is, a petitioner must establish, by objective facts, circumstances that support the
conclusion that counsel’s errors in advice as to penal consequences were
material to the decision to plead. Id. “‘Merely alleging that the petitioner
would not have pleaded is insufficient. Rather, specific facts, in addition to the
petitioner’s conclusory allegation, must establish an objective reasonable
probability that competent representation would have caused the petitioner not
to enter a plea.’” Id. at 563-64 (quoting Segura, 749 N.E.2d at 507).
[20] Although Williams said that had he known he was ineligible for the habitual-
substance-offender enhancement he would not have pled guilty and would have
gone to trial, the objective facts show otherwise. Williams initially faced a
Class B felony, a Class C felony, a Class D felony, 5 and a Class A
misdemeanor, for a maximum possible sentence of thirty-two years. Williams
eventually pled guilty to a Class C felony, a Class D felony, a Class A
misdemeanor, and being a habitual substance offender, for a maximum possible
sentence of twenty years. In addition, defense counsel, a very experienced
5
Williams was actually charged with two Class D felonies, including Class D felony possession of a
controlled substance. However, as the post-conviction court found, the possession and dealing charges
would have merged for sentencing. See Appellant’s App. p. 103 n.1.
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criminal lawyer, objected to the State’s motion to amend the habitual-
substance-offender enhancement and advised Williams that “the jury would
have convicted [him] on all counts as charged.” Ex. E. Finally, although
Williams claimed that the State could not prove Count I: Class B felony dealing
in a schedule I, II, or III controlled substance, there is no evidence in the record
that this charge was weak. These objective facts do not support the conclusion
that Williams’ decision to plead guilty was driven by defense counsel’s alleged
erroneous advice about Williams’ eligibility for the habitual-substance-offender
enhancement. Accordingly, because Williams benefited from his plea
agreement and the specific facts do not establish an objective reasonable
probability that competent representation would have caused him not to enter a
plea, we conclude that Williams is not entitled to relief on his claim that his
guilty plea was not knowing, voluntary, and intelligent. 6
[21] Affirmed.
May, J., and Mathias, J., concur.
6
Williams also raises this issue under ineffective assistance of counsel. See Appellant’s Br. p. 11 (“[C]ounsel
misadvised Williams regarding his eligibility for [the] habitual substance offender enhancement . . . .”).
However, for the same reasons discussed above, Williams’ ineffective-assistance-of-counsel claim also fails.
See Segura, 749 N.E.2d at 504-05 (noting that the test for evaluating an attorney’s incorrect advice as to penal
consequences is the same “[w]hether viewed as ineffective assistance of counsel or an involuntary plea . . .
.”).
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