MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 26 2017, 10:34 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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 Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Anne C. Kaiser Larry D. Allen
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin Merida, July 26, 2017
Appellant-Petitioner, Court of Appeals Case No.
69A05-1703-PC-637
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Respondent. Judge
Trial Court Cause No.
69C01-1401-PC-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 1 of 9
Case Summary
[1] In an open plea, Calvin Merida (“Merida”) pled guilty to two counts of Child
Molesting, as Class A felonies,1 and was sentenced to sixty years imprisonment.
His sentence was affirmed upon appeal. He subsequently brought a petition for
post-conviction relief, claiming ineffectiveness of trial counsel related to advice
regarding guilty pleas, credit-restricted felon status, and sentencing issues. The
post-conviction court denied the petition, and Merida now appeals.
[2] We affirm.
Issues
[3] Merida presents a single issue for our review, which we restate as whether the
post-conviction court erred when it denied his petition for post-conviction relief
by concluding that Merida would not have agreed to any of the State’s proffered
plea agreements.
Facts and Procedural History
[4] We take a portion of our facts and procedural history from this Court’s review
of Merida’s direct appeal:
1
Ind. Code § 35-42-4-3(a). Merida was tried and convicted before a substantial revision to Indiana’s criminal
statutes. We refer throughout to the statutes applicable at the time of Merida’s offenses.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 2 of 9
Merida married his wife, J.M., who at the time of their marriage
had a daughter, R.M., from a prior relationship. Merida adopted
R.M. as his daughter. On at least two occasions during the
period from 2001 to 2007, Merida performed or submitted
to sexual intercourse or deviate sexual conduct with R.M. while
he was at least twenty-one years of age and R.M. was less than
fourteen years of age.
On December 20, 2010, the State filed charges against Merida for
eight counts of Child Molesting, as Class A felonies, with each
separate count pertaining to one year from 2000 to 2007. On
December 21, 2010, the State moved to amend its charging
information to add counts Nine and Ten. Count Nine alleged
that Merida had committed Child Molesting, as a Class A felony,
during the period from January 1, 2001 to November 1, 2001.
Count Ten alleged that Merida had committed Child Molesting,
as a Class A felony, during the period from December 1, 2001 to
December 31, 2007.
On November 28, 2011, the State moved to dismiss the eight
original counts, and a jury trial as to Counts Nine and Ten was
scheduled for November 30, 2011. After a jury was [empaneled]
but before evidence was offered, Merida pled guilty to Counts
Nine and Ten.
On January 30, 2012, a sentencing hearing was conducted. At its
conclusion, the trial court entered judgments of conviction
against Merida and sentenced him to thirty years imprisonment
for each of the two counts, with the sentences run consecutively
for an aggregate term of imprisonment of sixty years.
Merida v. State, No. 69A01-1203-CR-110, Slip op. at 2-3 (Ind. Ct. App. Oct. 13,
2012), vacated, 987 N.E.2d 1091 (Ind. 2013) [hereinafter Merida II].
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 3 of 9
[5] Merida appealed, challenging his sentence as inappropriate. This Court revised
his sentence downward. Merida, No. 69A01-1203-CR-110, Slip op. at 5. The
Indiana Supreme Court granted transfer and affirmed the trial court’s original
aggregate sentence of sixty years. Merida II, 987 N.E.2d at 1092.
[6] On January 13, 2014, Merida filed a petition for post-conviction relief.
Appointed counsel from the State Public Defender entered an appearance on
February 12, 2014.
[7] On September 30, 2016, Merida filed an amended petition for post-conviction
relief. In the petition, Merida alleged that he had been denied the effective
assistance of trial counsel, contending specifically that his trial counsel had
given him legally erroneous advice as to whether a conviction would result in
Merida having status as a credit-restricted felon. Had he been correctly advised,
Merida alleged, he would have accepted a plea agreement offered by the State,
would not have opted to proceed to trial, and would not have entered an open
plea after the jury was empaneled but before the opening of evidence.
[8] On February 6, 2017, the post-conviction court conducted a hearing on
Merida’s petition. The parties submitted proposed findings of fact and
conclusions thereon. On March 20, 2017, the post-conviction court entered its
order denying Merida’s petition for relief. The court found that Merida would
not have accepted any of the State’s offered plea agreements, regardless of
advice of counsel as to credit-restricted status.
[9] This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 4 of 9
Discussion and Decision
[10] Merida challenges the post-conviction court’s denial of his petition for relief. A
petitioner in a post-conviction proceeding must bear the burden of establishing
grounds for relief by a preponderance of the evidence. Humphrey v. State, 73
N.E.3d 677, 681 (Ind. 2017). Upon appeal, the petitioner stands in the position
of one appealing a negative judgment. Id. “In order to prevail on an appeal
from the denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court.” Id. Upon entering findings and
conclusions upon a petition for post-conviction relief, though we will not defer
to the court’s legal conclusions, 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.’” Id. at 682 (quoting Ben-Yisrayl
v. State, 729 N.E.2d 102, 106 (Ind. 2000)).
[11] The Sixth Amendment to the United States Constitution and Article I, section
13 of the Indiana Constitution afford to an accused the right to the assistance of
counsel. This right requires the “effective” assistance of counsel. Powell v.
Alabama, 287 U.S. 45, 72 (1932). Defendants are entitled to the effective
assistance of counsel during plea negotiations as well as at trial. Lafler v. Cooper,
566 U.S. 156, 162 (2012). The United States Supreme Court has held that the
two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984), applies to
challenges to guilty pleas relying on claims of ineffective assistance of counsel.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 5 of 9
Lafler, 566 U.S. at 162-63 (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)). The
Strickland test’s two components are:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687. Failure to establish either part of the Strickland test
will cause a claim of ineffective counsel to fail. State v. Greene, 16 N.E.3d 416,
419 (Ind. 2014).
[12] Here, Merida argues that, when consulting with him on the terms of the State’s
plea offers, his trial counsel incorrectly advised him as to whether the offenses
with which he was charged would, in the event of conviction, result in Merida
having the status of a credit-restricted felon. He argues that credit-restricted
felon status would have resulted in his having to serve at least 85% of a prison
term, rather than the ordinary credit-time scheme of 50% of the imposed prison
term. See I.C. 35-50-6-3(e) (providing that “[a] person assigned to Class IV
earns one (1) day of good time credit for every six (6) days the person is
imprisoned for a crime or confined awaiting trial or sentencing”); App’x Vol. II
at 73.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 6 of 9
[13] Merida argues that counsel incorrectly advised him that he would have had
credit-restricted felon status as a result of a guilty plea to the charged offenses.
Had counsel correctly advised him that this was not the case, Merida argues
that he would have accepted one of the State’s proffered plea agreements. One
of these agreements provided for a thirty-year term of imprisonment, with ten
years suspended to probation. Had he entered into this agreement, and had the
trial court accepted the agreement, Merida argues that he would have faced an
actual time-served period of ten years of imprisonment as a non-credit-restricted
felon—a term of imprisonment Merida insists he would have accepted.
Instead, Merida proceeded to trial without having accepted any plea agreement
and, just prior to the opening of evidence, entered an open plea of guilty to two
counts of Child Molesting, resulting in an aggregate prison term of sixty years
and an actual-time-served period of thirty years.
[14] Reviewing Merida’s claim, the post-conviction court found that while it was
likely Merida’s counsel had at least reviewed whether Merida would have been
a credit-restricted felon upon acceptance of a guilty plea, there was apparent
confusion over whether counsel had advised Merida correctly. However, the
post-conviction court found that whatever Merida’s likely status, he would not
have accepted any of the plea agreements offered by the State. In doing so, the
court relied on the following testimony from Merida’s trial counsel:
Well, we talked about this… And here’s what my memory is.
My memory was that, when this was brought up to me, that
somehow Calvin was trying to get to ten (10) do five (5). O.k.? I
can’t point to a particular conversation or why but that was my
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 7 of 9
memory. [The State] over here was consistently at, well, thirty
(30) with five (5) suspended and after that he wouldn’t move
from thirty (30) with ten (10) and I do think I talked to Calvin
about all three (3) of those plea agreements, thirty (30) with five
and the thirty (30) with ten (10) suspended. I understand he’s
disputing the credit issue, but I have a memory that somehow at
one point I was trying to get to ten (10) do five (5), maybe using a
lesser.
(Tr. Vol. II at 12.)
[15] Based upon this testimony, the post-conviction court found that counsel
“recalled that it was his memory that [Merida] was seeking an offer for an
executed five (5) actual years in prison.” (App’x Vol. 2 at 72.) Looking to the
confusion over which counts the credit-restricted status might apply to, and to
Merida’s refusal to accept other pleas, the court found that “Merida’s rejection
of three (3) written plea offers was because, as [counsel] testified, Mr. Merida
wanted a plea offer to an executed five (5) years in prison.” (App’x Vol. 2 at
76.) The post-conviction court then concluded, “However, even the last written
plea offer for a clearly non-credit restricted thirty 30 years with 10 (20 do 10
years) suspended did not comport with Mr. Merida’s desired ten (10) do five (5)
years executed, and was therefore rejected.” (App’x Vol. 2 at 77-78.)
[16] We find no error in the post-conviction court’s findings and conclusions in this
respect. While trial counsel’s testimony is perhaps not a model of clarity, the
post-conviction court was entitled to credit counsel’s testimony over Merida’s
testimony that he was willing to accept a sentence requiring more than five
years of actual time served. Trial counsel’s only testimony as to Merida’s
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 8 of 9
expressed wishes was that Merida would not accept a plea that would have
required him to serve more than five actual years of imprisonment. The lowest
plea agreement offer the State extended to Merida would have required an
executed term of twenty years, resulting in ten years of actual time served—at
least five more years of actual time served than trial counsel remembered
Merida was willing to serve. Assuming arguendo that trial counsel provided
erroneous advice as to the credit-restricted felon statute, Merida failed to
establish that he was prejudiced by the erroneous advice because he did not rely
on it in any event.
[17] To the extent Merida argues for the credibility of his testimony concerning the
contents of counsel’s advice and the terms he would have found acceptable, his
argument calls upon us to reassess the post-conviction court’s weighing of the
testimony of trial counsel. We are foreclosed from doing so by our standard of
review. The post-conviction court was entitled to credit counsel’s testimony,
and the court’s conclusions flow logically from its findings. We find no clear
error in the trial court’s conclusion that Merida was not prejudiced and thus
was not entitled to post-conviction relief.
Conclusion
[18] The post-conviction court did not err when it denied Merida’s petition for relief.
[19] Affirmed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 69A05-1703-PC-637 | July 26, 2017 Page 9 of 9