Terry A. Moore v. State of Indiana ( 2014 )


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  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    any court except for the purpose of                                       Aug 15 2014, 8:49 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
    MARK SMALL                                        GREGORY F. ZOELLER
    Indianapolis, Indiana                             Attorney General of Indiana
    ELLEN H. MEILAENDER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    TERRY A. MOORE,                                   )
    )
    Appellant-Petitioner,                      )
    )
    vs.                                 )       No. 49A05-1401-PC-11
    )
    STATE OF INDIANA,                                 )
    )
    Appellee-Respondent.                       )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable John M. T. Chavis, Judge
    The Honorable Anne M. Flannelly, Commissioner
    Cause No. 49F15-9203-PC-34022
    August 15, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    NAJAM, Judge
    STATEMENT OF THE CASE
    Terry A. Moore was convicted of carrying a handgun without a license, as a Class
    D felony, pursuant to a guilty plea. Moore subsequently petitioned for post-conviction
    relief, which the post-conviction court denied. He now appeals, challenging the post-
    conviction court’s judgment, and he raises a single issue for our review, namely, whether
    his guilty plea was knowing and voluntary.
    We affirm.
    FACTS AND PROCEDURAL HISTORY
    In March 1992, the State charged Moore with carrying a handgun without a
    license, as a Class D felony. And in October 1992, Moore pleaded guilty as charged.
    The trial court entered judgment of conviction and, on the State’s recommendation, the
    court sentenced Moore to one and one-half years with one year suspended to probation.
    On October 14, 2011, following his adjudication as an habitual offender, Moore
    filed a petition for post-conviction relief alleging that his 1992 guilty plea was not
    knowing or voluntary.     The post-conviction court denied that petition following a
    hearing. This appeal ensued.
    DISCUSSION AND DECISION
    The petitioner bears the burden of establishing his grounds for post-conviction
    relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Harrison v.
    State, 
    707 N.E.2d 767
    , 773 (Ind. 1999). To the extent the post-conviction court denied
    relief in the instant case, Moore appeals from a negative judgment and faces the rigorous
    burden of showing that the evidence as a whole “‘leads unerringly and unmistakably to a
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    conclusion opposite to that reached by the [lower] court.’” See Williams v. State, 
    706 N.E.2d 149
    , 153 (Ind. 1999) (quoting Weatherford v. State, 
    619 N.E.2d 915
    , 917 (Ind.
    1993)). It is only where the evidence is without conflict and leads to but one conclusion,
    and the post-conviction court has reached the opposite conclusion, that its decision will
    be disturbed as contrary to law. Bivins v. State, 
    735 N.E.2d 1116
    , 1121 (Ind. 2000).
    A guilty plea constitutes a waiver of constitutional rights, and this waiver requires
    the trial court to evaluate the validity of every plea before accepting it. Davis v. State,
    
    675 N.E.2d 1097
    , 1102 (Ind. 1996). For a plea to be valid, it must represent 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). A court accepting a guilty plea must
    determine that the defendant: (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-examining 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 crime charged. 
    Ind. Code § 35-35-1-2
    ;
    Diaz, 934 N.E.2d at 1094. In assessing the voluntariness of the plea, we review all the
    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 which are part of the record. Diaz, 934 N.E.2d at 1094.
    Moore contends that his guilty plea was not knowing or voluntary because the trial
    court did not advise him of the range of penalties he faced, including sentencing
    alternatives for a Class D felony. At the hearing on his petition for post-conviction relief,
    3
    Moore presented evidence that the court reporter could not find the recording of the
    October 29, 1992 sentencing hearing. Moore also presented affidavits executed by the
    Commissioner who presided over his guilty plea and sentencing hearings, the deputy
    prosecutor, and his former trial counsel, each stating that they had no recollection of the
    plea or sentencing hearings. Finally, Moore testified at the post-conviction hearing that,
    prior to pleading guilty, he had not been advised either of the sentencing range he faced
    or the possibility of alternate misdemeanor sentencing.
    But the State presented evidence that Moore had been advised of the sentencing
    range prior to pleading guilty. In particular, the judgment of conviction signed by the
    trial court on the date Moore pleaded guilty states in relevant part that the court found
    that Moore “was advised of the maximum and minimum possible sentences[.]”
    Appellant’s App. at 34. And, as the State points out, in his petition for post-conviction
    relief, Moore states in relevant part that the trial court “correctly advised him of the range
    of penalties to a Class D felony[.]” Id. at 39. Thus, Moore’s contention on this issue
    must fail.
    Moore also contends that he was not advised of misdemeanant sentencing
    alternatives and that he would not have pleaded guilty to a Class D felony if he had been
    so advised. But our supreme court has held that
    when the accused pleads guilty to a class D felony, the court is not required
    to advise the accused of the misdemeanant sentencing alternatives. The
    trial judge is bound by the terms of the plea agreement. When, as here, the
    agreement does not give the judge discretion to sentence the accused as a
    misdemeanant, then the accused need not be advised of this sentencing
    alternative.
    4
    Hutchinson v. State, 
    501 N.E.2d 1062
    , 1066 (Ind. 1986). Here, Moore’s plea agreement
    states that he pleaded guilty to a Class D felony and did not give the trial court discretion
    to sentence him as a misdemeanant. Accordingly, the trial court was not required to
    advise Moore of the possibility of misdemeanant sentencing alternatives. Moore has not
    demonstrated that his guilty plea was not knowing and voluntary. The post-conviction
    court did not err when it denied Moore’s petition for post-conviction relief.
    Affirmed.
    BAILEY, J., and PYLE, J., concur.
    5
    

Document Info

Docket Number: 49A05-1401-PC-11

Filed Date: 8/15/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021