MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 18 2018, 10:35 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Victoria Christ Ian McLean
Deputy Public Defender Supervising Deputy Attorney
Indianapolis, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Petry, June 18, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-18
v. Appeal from the
Pike Circuit Court
State of Indiana, The Honorable
Appellee-Respondent. Jeffrey L. Biesterveld, Judge
Trial Court Cause No.
63C01-1409-PC-216
Kirsch, Judge.
[1] Following a jury trial, Mark A. Petry (“Petry”) was convicted of Class B felony
criminal deviate conduct, Class D felony sexual battery, and Class D felony
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criminal confinement. Petry admitted to being an habitual offender, and the
trial court sentenced him. After this court affirmed Petry’s convictions on direct
appeal, Petry filed a petition for post-conviction relief, asserting that his plea of
guilty to the habitual offender allegation was not knowing, intelligent, and
voluntary. The post-conviction court denied his petition, and he now appeals,
raising the following restated issue: whether the post-conviction court erred
when it determined that Petry failed to show, by a preponderance of the
evidence, that he did not know he was waiving his Boykin rights when he
pleaded guilty to the habitual offender enhancement.
[2] We affirm.
Facts and Procedural History
[3] The facts supporting Petry’s convictions, as set forth more fully by this court on
direct appeal, are that Petry sexually molested his teenage daughter more than
twenty times over the course of two years. Petry v. State, No. 63A01-1306-CR-
279, 2014 WL 729901, slip. op. at *1 (Ind. Ct. App. Feb. 25, 2014), trans. denied.
Among other things, he touched his penis to her vagina, used bungee cords to
tie her to the bed, duct-taped her hands behind her back, put his tongue on her
vagina, and forced her to perform oral sex. A bifurcated jury trial was held, and
at the end of the first phase, Petry was found guilty of Class B felony criminal
deviate conduct, Class D felony sexual battery, and Class D felony criminal
confinement. Id. at *3.
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[4] The trial court recessed the jury, entered judgment of conviction, and moved to
the habitual offender phase of the trial. Petry’s counsel told the trial court that
Petry “intends to waive jury trial on that issue and will admit to the habitual
charge.” Appellant’s App. Vol. II at 64; Trial Tr. Vol. III at 531. Petry, still under
oath, presented testimony to the trial court, regarding his decision to waive his
right to a jury trial to determine habitual offender status:
Q: Mr. Petry, you understand that you’ve been charged as an
habitual offender?
A: Yes. I have.
Q: And that there are, because of prior felony convictions that
you have received. You understand that?
A: Yes.
Q: And that the uh, you have the right to have this jury sit in
judgment on whether or not you did, in fact, commit those
offenses.
A: Yes.
Q: You understand that?
A: Yes.
Q: And you understand the seriousness of, of the habitual status,
as far as the enhancement and the penalties?
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A: Yes.
Q: Alright. And knowing all that, do you wish to waive your
right to have a jury determine those, the issue of your habitual
status?
A: Yes.
Q: Alright. And you, you feel like you fully understand what
you are doing here, in admitting to this?
A: Yes.
Q: Alright. You understand that that does not affect your right
to appeal the verdict on the other...
A: Yes.
Q: . . . counts? You understand that? Okay. You, is that, is this
decision your free will?
A: Yes.
Q: Anybody threaten you or force you to do this?
A: No.
Q: Okay.
Appellant’s App. Vol. II at 65-66. Next, the trial court asked Petry questions,
confirming that Petry knew and understood the enhancement penalties that he
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faced and that he had received adequate time to discuss it with his attorney.
The prosecutor then established the factual basis for Petry’s guilty plea, asking
Petry if he had the following convictions: (1) 2005 Class C felony burglary in
Daviess County; (2) 2000 Class C felony burglary in Dubois County; and (3)
1996 Class B felony arson in Knox County. Petry admitted to having the
convictions, and the exhibits establishing these convictions were admitted into
evidence. Appellant’s App. Vol. II at 69-71; State’s Trial Exs. 6, 7, 8. Petry had
pleaded guilty to each. State’s Trial Exs. 6, 7, 8.
[5] The trial court then asked Petry’s counsel if he had “a motion in regard to your
client’s former denial, not guilty plea as to the habitual offender count,” and
Petry’s counsel withdrew the not guilty plea. Appellant’s App. Vol. II at 72. The
trial court asked Petry “how do you plead to the habitual offender charge” and
Petry replied, “guilty.” Id. The Court found, “[T]he defendant understands the
nature of the charge to which he’s pleading guilty, that he understands the
possible penalty for the offense, that his plea was freely and voluntarily made,
and that a factual basis exists for the plea.” Id. The trial court concluded by
stating, “[T]he Court will find that the defendant is an habitual offender
pursuant to his plea,” and it dismissed the jury, ordered a presentence report,
and scheduled a sentencing hearing. Id.
[6] The trial court later sentenced Petry to twenty years for criminal deviate
conduct, three years for sexual battery, and three years for criminal
confinement, all to run concurrently. The sentence was then enhanced twenty-
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five years for the habitual offender status, for an aggregate sentence of forty-five
years.1
[7] Petry filed a direct appeal, claiming that the trial court should not have
admitted certain evidence and that the State presented insufficient evidence to
convict him, and this court affirmed Petry’s convictions. Petry, at *6. In
September 2014, Petry filed a pro se petition for post-conviction relief, later
amended in July 2017, when Petry was represented by a public defender,
alleging that his decision to admit to the habitual offender enhancement was
not knowing, intelligent, and voluntary because the trial court failed to advise
him of two constitutional rights: the privilege against self-incrimination and the
right to confront and cross-examine witnesses. Appellant’s App. Vol. II at 26-27.
[8] At the September 29, 2017 evidentiary hearing, Petry did not testify, but he
submitted the record, which consisted of the trial transcript, trial exhibits,
appellate briefs and appendices. Pet’r’s Ex. 1. The State did not present
evidence, but, in argument, conceded that the trial court did not advise Petry of
the two specific rights at the habitual phase, arguing that those advisements
1
We note that an habitual offender enhancement must be attached to a single conviction. State v. Arnold, 27
N.E.3d 315, 321 (Ind. Ct. App. 2015) (citing Ind. Code § 35-50-2-8), trans. denied. Here, we note that the
Sentencing Order reflects that the habitual offender enhancement “be served consecutive to Counts I, II, and
III.” Appellant’s App. Vol. 2 Prior Appeal at 54 (also marked as p. 296). To the extent that Petry’s enhancement
was attached to more than one conviction, that was improper. Arnold, 27 N.E.3d at 317 n.1 (noting that
“[a]ttaching habitual offender enhancement to all three convictions was improper”).
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were given to Petry at his initial hearing, and he was represented by counsel
throughout the proceedings. PCR Tr. at 6.
[9] After the parties submitted proposed findings, the post-conviction court issued
findings of fact and conclusions of law (“Order”). In denying Petry’s request
for relief, the post-conviction court determined that “there is no evidence that
Petry was unaware of his Boykin rights.” Appellant’s App. Vol. II at 56. In
reaching its decision, the post-conviction court acknowledged that although
Petry “was not formally advised prior to his plea of guilty to the Habitual
Offender enhancement” of his rights against self-incrimination and the right to
confront and cross examine witnesses, he “was advised by the Court” of those
rights at his initial hearing on January 24, 2012, he was represented by counsel,
and he “was present during the entire three day jury trial while his Boykin rights
were on full display.” Id. at 55-56.
[10] Petry now appeals, asking us to reverse the post-conviction court and vacate his
habitual offender enhancement.
Discussion and Decision
[11] Petry argues that his habitual offender guilty plea2 was not knowing, voluntary
and intelligent because, prior to his plea, he was not advised that he was
2
We note that our Supreme Court has determined that pleading guilty to the habitual offender adjudication
is distinguishable from stipulating to the enhancement. See Hopkins v. State, 889 N.E.2d 314, 316-17 (Ind.
2008) (holding that record indicated that defendant stipulated to being an habitual offender, but did not plead
guilty, and the stipulation was not subject to attack as being involuntary for lack of Boykin rights). Pleading
guilty to an habitual offender enhancement is also distinguishable from admitting only to the factual basis
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waiving (1) his right to confront and cross-examine the witnesses and (2) the
privilege against self-incrimination. He maintains that the post-conviction
court’s conclusion that, when he pleaded guilty, he was aware of these rights
and understood he was waiving them was not supported by the evidence.
[12] “A post-conviction petitioner bears the burden of establishing his claims by a
preponderance of the evidence.” Donnegan v. State, 889 N.E.2d 886, 891 (Ind.
Ct. App. 2008) (citing Ind. Post-Conviction Rule 1(5)), trans. denied. When a
petitioner appeals a denial of post-conviction relief, he appeals a negative
judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans.
denied. The petitioner must establish that the evidence as a whole unmistakably
and unerringly leads to a conclusion contrary to that of the post-conviction
court. Id. We will disturb a post-conviction court’s decision as being contrary
to law only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion.
Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied.
underlying felonies. See Garrett v. State, 737 N.E.2d 388, 392 (Ind. 2000) (holding that it was not a guilty plea
where defendant stipulated to the existence of prior offenses but the habitual allegation was still sent to the
jury, and the stipulation did not require trial court to advise defendant of rights he would waive by pleading
guilty). However, if the defendant, personally or through his attorney, goes beyond merely stipulating to the
underlying convictions and also expressly admits to the habitual offender enhancement, such an admission is
considered a guilty plea. See Vanzandt v. State, 730 N.E.2d 721, 726 (Ind. Ct. App. 2000). A defendant may
challenge a guilty plea only in a petition for post-conviction relief. Id.; see also Saylor v. State, 55 N.E.3d 354,
365 n.10 (Ind. Ct. App. 2016), trans. denied. Here, where Petry stated that he was pleading “guilty” to the
habitual allegation, and the parties’ appellate arguments are based on the premise that Petry pleaded guilty,
we proceed to address Petry’s claim on that basis that he did, in fact, plead guilty to the enhancement.
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[13] 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
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Manzano v. State, 12
N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 2376
(2015). Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings under a
clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence
or judge the credibility of witnesses, and we will consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
[14] In Boykin v. Alabama, 395 U.S. 238, 242(1969), the United States Supreme
Court held that it was reversible error for the trial court to accept a guilty plea
without an affirmative showing that it was intelligent and voluntary. “More
particularly, Boykin requires that the record must show, or there must be an
allegation and evidence which show, that the defendant was informed of, and
waived, three specific federal constitutional rights: the privilege against
compulsory self-incrimination, right to trial by jury, and the right to confront
one’s accusers.” Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006); see also Ind.
Code § 35-35-1-2 (noting that the trial court shall not accept a plea of guilty
without first determining that the defendant has been informed that he is
waiving certain rights).
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[15] In this case, Petry argues that his habitual offender enhancement must be
vacated because “[d]uring the guilty plea colloquy, the judge didn’t mention the
right to confront and cross-examine and the privilege against self-incrimination
Petry would waive by pleading guilty.” Appellant’s Br. at 13. In support of his
position, Petry relies on Ponce v. State, 9 N.E.3d 1265 (Ind. 2014), where the
defendant, who was a non-native English speaker, pleaded guilty to one count
of Class A felony delivery of cocaine. At his guilty plea hearing, he requested
and received an interpreter. The trial court, through the interpreter, advised
Ponce of his Boykin rights, and Ponce thereafter pleaded guilty. Ten years later,
Ponce filed a pro se petition for post-conviction relief, later amended by
counsel, alleging that Ponce’s plea was not entered knowingly, intelligently, and
voluntarily because the court-appointed interpreter failed to translate accurately
Ponce’s Boykin rights. Our Supreme Court agreed and reversed the post-
conviction court’s denial of Ponce’s petition. Id. at 1274.
[16] In its decision, the Ponce court determined that the trial court’s advisements
were properly given in English, but that the advisements were not accurately
communicated to Ponce in Spanish during the guilty plea hearing and that
“[w]e simply cannot infer . . . that Ponce understood an explanation given in a
foreign language of his legal rights especially where the Spanish interpretation
of the advisements was wholly inadequate.” Id. at 1272. Our Supreme Court
continued:
That is not to say, however, that Ponce is automatically entitled
to post-conviction relief. [O]nce a state prisoner has
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demonstrated that the plea taking was not conducted in
accordance with Boykin, the [S]tate may, if it affirmatively proves
in a post-conviction hearing that the plea was voluntary and
intelligent, obviate the necessity of vacating the plea. Stated
somewhat differently, once the defendant demonstrates that the
trial court did not advise him that he was waiving his Boykin
rights by pleading guilty, the burden shifts to the State to prove
that the petitioner nonetheless knew that he was waiving such
rights. And where the record of the guilty plea hearing itself does
not establish that a defendant was properly advised of and
waived his rights, evidence outside of that record may be used to
establish a defendant’s understanding.
Id. at 1272-73 (internal citations and quotation marks omitted). Ponce’s trial
counsel testified at the post-conviction hearing that he, with the aid of the
translator, discussed the Boykin rights with Ponce, and counsel believed that
Ponce understood based on Ponce’s “level of contentedness” and because
Ponce did not ask additional questions. Id. at 1273. The translator did not
testify at the post-conviction hearing. The Ponce Court determined that Ponce
“carried his initial burden of demonstrating that at the guilty plea hearing he
was not properly advised of the constitutional rights he was waiving[,]” but that
“the State failed to show that the record as a whole nonetheless demonstrated
that Ponce understood his constitutional rights and waived them.” Id. at 1274.
[17] Here, Petry argues on appeal that he met his threshold burden under Ponce, and
that the burden then shifted to the State to prove that Petry understood the
Boykin rights that he waived by pleading guilty. Appellant’s Br. at 13. He
maintains that the State did not present any evidence and failed to affirmatively
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prove Petry was aware he was waiving the two Boykin rights by his guilty plea,
and, therefore, his habitual offender plea must be vacated.
[18] We agree with Petry that, before accepting Petry’s plea of guilty, the trial court
did not advise him that he was waiving his right to confront and cross-examine
witnesses and his right against self-incrimination. Indeed, the post-conviction
court recognized that Petry “was not formally advised” of those rights.
Appellant’s App. Vol. II at 55. However, subsequent to the Ponce decision, this
court held, “Boykin does not require that the record of the guilty-plea
proceeding show that the accused was formally advised that entry of his guilty
plea waives certain constitutional rights, nor does Boykin require that the record
contain a formal waiver of these rights by the accused.” Winkleman v. State, 22
N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Dewitt v. State, 755 N.E.2d 167,
171 (Ind. 2001)), trans. denied. “Rather, Boykin only requires a conviction to be
vacated if the defendant did not know or was not advised at the time of his plea that
he was waiving his Boykin rights.” Id. (emphasis added). Here, the post-
conviction court determined that Petry did not establish by a preponderance of
the evidence that he did not know that he was waiving the two rights, and we
agree.
[19] In denying Petry’s petition for post-conviction relief, the post-conviction court
relied, in part, on Winkleman. In that case, during the first phase of his jury
trial, but before the jury convicted him, Winkleman pleaded guilty to an
habitual offender enhancement. On appeal, Winkleman argued that the trial
court failed to advise him of his Boykin rights before he pleaded guilty to the
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habitual offender enhancement, and this failure required that his plea be
vacated. The Winkleman court rejected the defendant’s claim. In so doing, the
court initially observed that Winkleman stated to the trial court that it was “not
necessary” for the trial court to advise him of his rights. Id. at 851.
Additionally, the Winkleman court relied on the fact that Winkleman admitted
to the habitual offender enhancement “‘in the midst of a trial, where the Boykin
rights are on display for all to see.’” Id. at 852 (quoting Hopkins v. State, 889
N.E.2d 314, 317 (Ind. 2008)). The Winkleman court concluded that
“Winkleman failed to establish on this record that he did not know he was
waiving his Boykin rights.” Id.
[20] Similar to Winkleman, where the defendant pleaded guilty to being an habitual
offender in the “midst of trial,” Petry pleaded guilty to the habitual offender
enhancement just after the completion of the first phase of his jury trial. Id.
Petry did not testify at his post-conviction hearing that he was unaware of his
Boykin rights, and, we note that Petry had pleaded guilty to charges at least
several times before his admission to the habitual offender enhancement. State’s
Trial Exs. 6, 7, 8. Based on this record, and on Winkleman, the post-conviction
court determined that Petry failed to show that he did not know he was waiving
his Boykin rights when he pleaded guilty to the habitual offender enhancement.
We cannot say that the post-conviction court’s decision was contrary to law.
[21] Petry suggests that we should not follow Winkleman because it “implicitly
shifted” the State’s burden under Ponce “to prove that the petitioner nonetheless
knew that he was waiving such rights” onto him, and it thereby “contravened
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[our] Supreme Court’s precedent” in Ponce. Appellant’s Br. at 16. We reject this
argument for two reasons. First, we find that Ponce is distinguishable and does
not control our decision today. Ponce involved review of a Class A felony drug
dealing conviction based upon an uninformed guilty plea and, thus, was not in
the context of a defendant admitting to an habitual offender sentencing
enhancement immediately following a jury trial. An habitual offender
adjudication is not the equivalent of a conviction of a crime. See Harris v. State,
964 N.E.2d 920, 927 (Ind. Ct. App. 2012) (“It is well settled that a habitual
offender finding does not constitute a separate crime, nor does it result in a
separate sentence. . . . Rather, a habitual offender finding results in a sentence
enhancement imposed upon the conviction of a subsequent felony.”), trans.
denied.
[22] Second, to the extent that Petry’s claim is that Winkleman is not good law
because it “contravenes” our Supreme Court’s precedent, Appellant’s Br. at 16,
we note that our Supreme Court denied the defendant’s request for transfer in
Winkleman. “We are aware that when the [S]upreme [C]ourt denies a petition
for transfer, it is not necessarily approving either the result or the reasoning in
that case, because the petition may not place the issue in question squarely
before the [S]upreme [C]ourt.” Roberts v. State, 725 N.E.2d 441, 446 (Ind. Ct.
App. 2000), trans. denied. “Nevertheless, we may ascribe some meaning to the
denial of transfer.” Id. In Winkleman, our colleagues stated that a defendant
seeking to set aside an habitual offender guilty plea need do more than show
only that he was not advised of his Boykin rights at the habitual phase of trial;
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he must show that he “did not know or was not advised” of the Boykin rights at
the time of his habitual offender guilty plea, 22 N.E.3d at 851, and, in that case,
Winkleman failed to do so. Our Supreme Court chose not to address that
determination.
[23] Similarly, in the present case, the post-conviction court determined that Petry
had not shown by a preponderance of the evidence that he did not know he was
waiving his Boykin rights when he admitted to being an habitual offender. On
appeal, Petry has not established that the evidence as a whole unmistakably and
unerringly leads to a conclusion contrary to that of the post-conviction court,
and, therefore, we affirm. See Dewitt, 755 N.E.2d at 170-71 (applying
“rigorous” post-conviction standard of review, Supreme Court affirmed the
post-conviction court’s decision that defendant knew he was waiving Boykin
rights when he pleaded guilty to burglary charge and held that “we cannot
conclude that the evidence as a whole leads unerringly and unmistakably to a
decision opposite that reached by the post-conviction court”).
[24] Affirmed.
Baker, J., and Bradford, J., concur.
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