MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2018, 6:23 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Ian McLean
Liisi Brien Supervising Deputy Attorney
Deputy Public Defender General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hane C. Harris, December 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-PC-1995
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne L.
Appellee-Plaintiff Vorhees, Judge
Trial Court Cause No.
18C01-1605-PC-009
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 1 of 10
Case Summary
[1] Hane C. Harris appeals the denial of his petition for post-conviction relief,
arguing that his guilty plea was not knowing, voluntary, and intelligent because
the trial court did not advise him of his rights as required by Boykin v. Alabama,
395 U.S. 238 (1969), or otherwise question him regarding his understanding
and waiver of those rights. Because the trial court, at the guilty-plea hearing,
referenced Harris’s plea agreement, which sets forth his Boykin rights and
provides that he will be waiving those rights by pleading guilty, and because
Harris did not present any evidence that he did not know about his Boykin rights
when he pled guilty, we affirm the post-conviction court.
Facts and Procedural History
[2] In March 2007, the State charged Harris with Count 1: Class D felony
strangulation and Count 2: Class A misdemeanor domestic battery. The State
later added a habitual-offender count. On June 15, 2007, Harris and the State
entered into a plea agreement. According to the agreement, Harris would plead
guilty to Counts 1 and 2, and the State would dismiss the habitual-offender
count. In addition, the plea agreement advised Harris that, by pleading guilty,
he was waiving certain rights:
The Defendant understands that the State and Federal
Constitutions guarantee all criminal Defendants certain rights,
among them being the rights to a public trial by jury, to a speedy
trial, to be free from self-incrimination, to confront and cross-
examine the State’s witnesses, to have compulsory process for
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 2 of 10
obtaining witnesses for the defense, and to require the State to
prove guilt beyond a reasonable doubt. The Defendant further
understands that the entry of a guilty plea pursuant to this
agreement waives those rights and constitutes an admission of
the truth of all the facts alleged in the information count to which
a plea of guilty has been entered. . . .
State’s Ex. 1. Both Harris and his attorney signed the plea agreement. Id.
[3] At the guilty-plea hearing the following week, the trial court engaged in the
following colloquy with Harris:
THE COURT: I’m looking at a document entitled Plea
Agreement, is that your signature on the very
last page?
[HARRIS]: Yes, ma’am.
THE COURT: And it indicates that you’re going to plead
guilty to Counts 1 and 2, that you have an
agreed upon sentence and the State’s going to
dismiss the habitual offender enhancement, is
that your understanding?
[HARRIS]: Yes, ma’am.
THE COURT: Before I can accept a guilty plea from you, I
have to be satisfied that you fully
understand your constitutional rights, that
your plea of guilty is being made freely and
voluntarily, and that you in fact committed
the crime. Therefore, I have to ask you
some questions and hear some evidence. If
you don’t understand the questions, or the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 3 of 10
words that I use, please let me know and I
will explain them to you. You may also
speak privately with your attorney at any
time. Do you understand that?
[HARRIS]: Yes, ma’am.
*****
THE COURT: Have you ever been treated for any mental
illness?
[HARRIS]: No, ma’am.
THE COURT: To your knowledge, do you now suffer from
any mental or emotional disability?
[HARRIS]: No, ma’am.
THE COURT: Are you now under the influence of any
alcohol or any drugs?
[HARRIS]: No, ma’am.
THE COURT: Do you want me to withdraw your earlier
pleas of not guilty and plead guilty to Counts
1 and 2 pursuant to the written Plea
Agreement?
[HARRIS]: Yes, ma’am.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 4 of 10
THE COURT: It’s already placed in your plea agreement,
the legal and constitutional rights that
you’ll be giving up by entering into this
plea. Do you understand that you will be
giving up those rights?
[HARRIS]: Yes, I do.
Def.’s Ex. 1, pp. 3-4 (emphases added). After the trial court asked Harris
additional questions regarding whether he had been forced or threatened to
plead guilty and a factual basis was established, the court said:
The Court finds the Defendant is 40 years old. He understands
the nature of the charges against him to which he has moved to
plead guilty. He understands the possible sentences for the
crimes. His pleas are freely and voluntarily made and that there
is a factual basis for the pleas. The Court will accept the offers of
pleas of guilty and find the Defendant Guilty of Count 1 . . . and
Count 2 . . . and enter judgement of conviction accordingly. The
Court will approve the written Plea Agreement . . . .
Id. at 10; see also State’s Ex. 2 (trial court’s order on guilty plea).
[4] In 2016, Harris filed a pro se petition for post-conviction relief, which was later
amended by counsel. The petition alleged that Harris’s guilty plea was not
knowing, intelligent, and voluntary because the trial court did not advise him of
his Boykin rights. Appellant’s App. Vol. II p. 19. Before the hearing on his
petition was held, Harris filed a waiver of his right to be present, in which he
stated that he was not an essential witness and would not be “taking the stand.”
Id. at 25.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 5 of 10
[5] At the hearing, Harris introduced the transcript of his guilty-plea hearing, and
the State introduced the plea agreement. In accordance with the waiver, Harris
did not testify. After taking the matter under advisement, the post-conviction
court entered an order denying Harris’s petition. Specifically, the court
concluded:
9. The parties agree to the facts and procedural posture as set
forth above. This Amended Petition presents a legal issue:
whether Petitioner is entitled to post-conviction relief because the
trial court did not advise him specifically, out loud during the
guilty plea hearing that he was waiving his Boykin rights by
pleading guilty. Or, was it sufficient for the trial court judge to
reference the written rights recitation in the Plea Agreement that
the Petitioner acknowledged signing.
*****
11. I am satisfied the Record shows Petitioner knowingly waived
his Boykin rights. He executed a Plea Agreement, with counsel
also signing off on the Agreement. The Plea Agreement recited
all the constitutional rights which the trial court must include in a
Boykin advisement.
12. It is clear from the record that Petitioner knew he was
waiving the constitutional rights discussed in Boykin. Petitioner’s
Plea Agreement specifically indicated that by pleading guilty,
Petitioner was waiving the constitutional rights specified by the
United States Supreme Court in Boykin. Petitioner has also
acknowledged that he signed the plea agreement and that he
understood its terms.
13. Petitioner was adequately notified of his Boykin rights. . . .
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 6 of 10
Id. at 48.
[6] Harris now appeals.
Discussion and Decision
[7] Harris contends that the post-conviction court erred in denying relief. A person
who files a petition for post-conviction relief has the burden of establishing the
grounds for relief by a preponderance of the evidence. Hollowell v. State, 19
N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies relief, and
the petitioner appeals, the petitioner must show that the evidence leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id. at 269.
[8] Harris argues that his guilty plea was not knowing, intelligent, and voluntary
because the trial court failed to make an “independent determination” that he
understood the constitutional rights he was waiving by pleading guilty.
Appellant’s Br. p. 10.1 According to Boykin, a trial court must be satisfied that a
defendant is aware of his right against self-incrimination, his right to trial by
jury, and his right to confront his accusers before accepting a guilty plea. Dewitt
1
In support, Harris cites Hunt v. State, 487 N.E.2d 1330 (Ind. Ct. App. 1986), where we held that a trial
court’s failure to make an independent determination of a defendant’s understanding of the rights he
was waiving was automatically grounds for post-conviction relief. However, that part of Hunt is no
longer good law. Maloney v. State, 684 N.E.2d 488, 490-91 (Ind. 1997) (noting a split in the Court of
Appeals on the issue and concluding that the Hunt view was no longer good law); White v. State, 497
N.E.2d 893, 905 (Ind. 1986).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 7 of 10
v. State, 755 N.E.2d 167, 171 (Ind. 2001); 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). However,
Boykin does not require that the record of the guilty-plea proceeding show that
the defendant 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. Dewitt, 755 N.E.2d at 171. Boykin does
not require a conviction to be vacated if the defendant knows or is advised at
the time of his plea that he is waiving his Boykin rights. Davis v. State, 675
N.E.2d 1097, 1103 (Ind. 1996).
[9] In other words, a petitioner who claims that his plea was involuntary and
unintelligent but can only establish that the trial judge failed to advise him of
his Boykin rights has not met his burden of proof. White v. State, 497 N.E.2d
893, 905 (Ind. 1986) (explaining that the previous rule, which required strict
compliance with the list of advisements, “led to reversal in instances where the
trial judge’s omission [could not] genuinely be said to have worked an injustice
or, indeed, . . . made any difference at all”). Rather, the petitioner must present
evidence from which the post-conviction court could conclude by a
preponderance of the evidence that the trial judge’s failure to advise him that he
was waiving his Boykin rights by pleading guilty rendered his decision
involuntary or unintelligent. Id. The only petitioners entitled to relief are those
“who can prove that they were actually misled by the judge, the prosecutor, or
defense counsel about the choices before them.” Id. at 905-06.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 8 of 10
[10] Here, it appears to us that the trial court made an independent determination
that Harris understood he was waiving his Boykin rights by pleading guilty.
The court said that before it could accept Harris’s guilty plea, it had “to be
satisfied that [Harris] fully underst[ood] his constitutional rights.” Def.’s Ex. 1,
p. 3. The court then referenced Harris’s plea agreement, which sets forth his
Boykin rights and provides that, by pleading guilty, he will be waiving those
rights. The court told Harris that the plea agreement, which Harris admitted
signing, contained the constitutional rights that he was waiving. See id. at 4
(“It’s already placed in your plea agreement, the legal and constitutional rights
that you’ll be giving up by entering into this plea.”). The court asked Harris if
he understood that he would be giving up those rights, and Harris said yes. At
the end of the hearing, the court concluded that Harris’s guilty plea was freely
and voluntarily made.
[11] But even if the court did not make a sufficient independent determination,
Harris is still not entitled to post-conviction relief. That is because our Supreme
Court has held that Boykin does not require a conviction to be vacated if the
defendant knows or is advised at the time of his plea that he is waiving his
Boykin rights. Davis, 675 N.E.2d at 1103. Harris did not present any evidence
that he did not know about his Boykin rights when he pled guilty, such as that
he did not actually read his plea agreement or that he could not read. Indeed,
Harris did not testify at the post-conviction hearing or present any evidence
other than the guilty-plea transcript. As our Supreme Court has reiterated, a
“petitioner for post-conviction relief has the burden of establishing his grounds
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 9 of 10
for relief by a preponderance of the evidence.” Hall v. State, 849 N.E.2d 466,
472 (Ind. 2006). Harris did not meet that burden here. We therefore affirm the
post-conviction court.
[12] Affirmed.
Mathias, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1995 | December 20, 2018 Page 10 of 10