Freeman v. State

• Decision Date: 05 December 2014
• Docket Number: No. 20A05–1310–PC–547.,20A05–1310–PC–547.
• Citation: 24 N.E.3d 1021 (Table)
• Parties: De'Carlos FREEMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

24 N.E.3d 1021 (Table)

De'Carlos FREEMAN, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 20A05–1310–PC–547.

Court of Appeals of Indiana.

Dec. 5, 2014.

De'Carlos Freeman, Westville, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION–NOT FOR PUBLICATION

ROBB, Judge.

Case Summary and Issues

De'Carlos Freeman, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Freeman raises several issues for review, which we have restated as: 1) whether the post-conviction court erred in denying his motion for discovery; 2) whether Freeman's guilty plea was voluntary, intelligent, and knowing; 3) whether Freeman was denied effective assistance of trial counsel; 4) whether he was erroneously sentenced in violation of the Indiana Double Jeopardy Clause; and 5) whether the trial court denied Freeman the right of allocution. Concluding that the post-conviction court did not err in denying Freeman's petition for post-conviction relief, we affirm.

Facts and Procedural History

While driving in his patrol car, Officer Michael Davis of the Elkhart Police Department observed Freeman riding a moped down Fourth Street. Officer Davis saw Freeman swerve in his lane and almost fall over twice. Officer Davis then observed Freeman make a right turn into an alley without properly using his signal. Officer Davis believed Freeman to be impaired, and he pulled Freeman over. Freeman immediately put his hands into his pockets, and after Officer Davis commanded Freeman to keep his hands up, Freeman fled on his moped. Officer Davis pursued Freeman in his patrol car and also dispatched other officers in the area. Freeman eventually lost control, crashed the moped, and fled on foot. Once the officers caught up with Freeman, he physically struggled with them during the arrest. Freeman was eventually apprehended with the use of a K–9 and a taser.

The State charged Freeman with receiving stolen property, a Class D felony; resisting law enforcement, a Class D felony; and resisting law enforcement, a Class A misdemeanor. After his initial hearing on July 1, 2001, a public defender (“Counsel”) was appointed to represent Freeman. Counsel met with Freeman at the Elkhart County Jail. On October 12, 2011, at the advice of Counsel, Freeman pled guilty to both counts of resisting law enforcement in exchange for the dismissal of the receiving stolen property charge. No written copy of the plea agreement was submitted to the court, and sentencing was scheduled for November 9, 2011.

During the course of Freeman's legal proceedings, he and Counsel communicated by letter on numerous occasions. In his letters, Freeman made several claims of innocence. Although Freeman pled guilty on October 12, 2011, he received a letter from Counsel dated November 4, 2011, which stated:

The investigator has measured the are [sic] from Harrison where you pulled into the alley. I have provided you with a map so that you can ensure me that the area marked is where you went. If that is the case, it is only 115 feet from Harrison to that point. Therefore, you could not have turned your signal on 200 ft prior. The statute would [sic] says you have to turn it on 200 ft prior to the turn.

I spoke with the prosecutor. I told him my position is that if you were not able to comply with the statute, then you can't be pulled over for it and therefore, everything else should be dismissed. His argument at this point is that even if the stop was not legal, that you committed an independent crime after being stopped (by fleeing on the scooter) and therefore you are still responsible for your conduct. Had you not taken off, and only received a ticket for failure to turn in time, then because you could not comply with the statute, the ticket would have to be thrown out.

I am, at this point, trying to do some research on the issue as to whose position is right. Unfortunately, so far, the legal authorities I have reviewed have sided with the prosecutor, but I will let you know as soon as I find something out.

Appellant's Appendix at 98. Freeman was sentenced on November 9, 2011. He neither spoke nor asked to speak at the sentencing hearing. Freeman appealed, claiming that his guilty plea was not in writing as required by Indiana Code section 35–35–3–3. This court affirmed his conviction on March 30, 2012. Freeman v. State, Cause No. 20A04–1111–CR–619, slip op. at 2 (Ind.Ct.App., March 30, 2012) (holding that the verbal guilty plea was valid and affirming both of Freeman's convictions).

Freeman, pro se, filed his petition for post-conviction relief on March 12, 2013. Freeman also filed with the post-conviction court a motion for discovery. The post-conviction court denied Freeman's discovery motion and held an evidentiary hearing on June 20, 2013, at which both Officer Davis and Counsel testified. Because Freeman appeared at the post-conviction hearing by video, the post-conviction court set a second hearing for July 26, 2013, to allow Freeman time to mail his proposed exhibits to the court. All exhibits, including the letters that had been exchanged with Counsel, were admitted without objection at the hearing. The post-conviction court issued findings of fact and conclusions of law denying Freeman's petition for post-conviction relief on October 11, 2013. Freeman now appeals.

Discussion and Decision

I. Standard of Review

“Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence.” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind.2013) (citing Ind. Post–Conviction Rule 1(5) ). “Post-conviction proceedings do not offer a super-appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules.” Id. (citation and quotation marks omitted). These challenges are limited to issues unknown at the original trial or issues unavailable on direct appeal. Id. Issues that are available on direct appeal, if not raised, are waived, and issues litigated adversely to the defendant are precluded from further review. Pruitt v. State, 903 N.E.2d 899, 905 (Ind.2009).

“Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment and bears the burden of proof.” Wilkes, 984 N.E.2d at 1240 (citation omitted). The defendant must show this court that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Id. “The post-conviction court is the sole judge of the evidence and the credibility of the witnesses,” Collins v. State, 14 N.E.3d 80, 86 (Ind.Ct.App.2014) (citation omitted), and we defer to its factual findings, unless they are clearly erroneous, id. at 83.

II. Freeman's Discovery Request

Freeman contends the post-conviction court erred by denying his motion for a copy of Counsel's client file and the prosecutor's file, which included the dash-cam video from Officer Davis's patrol car. “Trial and post-conviction courts are accorded broad discretion in ruling on discovery matters and we will affirm their determinations absent a showing of clear error and resulting prejudice.” Wilkes, 984 N.E.2d at 1251. The post-conviction court found that Freeman's discovery request was improper under Indiana Trial Rule 26. The post-conviction court's order does not say, specifically, why Freeman's discovery request was improper. However, we note that Freeman has made no argument as to why his request was proper. Therefore, we cannot say the post-conviction court abused its discretion.

III. Freeman's Guilty Plea¹

Freeman contends that his convictions must be vacated because his guilty plea was not voluntary, intelligent, and knowing and because there was not an adequate factual basis.

A. Voluntariness of Plea

Before accepting a guilty plea, the trial court must determine that the defendant understands the nature of the charges to which he is pleading, understands that the plea will waive certain rights, and understands the range of penalties he faces. See Ind.Code § 35–35–1–2. These statutory requirements ensure that the guilty plea “represents a voluntary and intelligent choice.” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind.2010). “[P]ost-conviction relief is a proper vehicle for challenging a guilty plea, and we look at all evidence before the post-conviction court that supports its determination that a guilty plea was voluntary, knowing, and intelligent.” Collins, 14 N.E.3d at 85. In this context, voluntariness is dependent “on whether the defendant knowingly and freely entered the plea....” State v. Moore, 678 N.E.2d 1258, 1266 (Ind.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998).

“A guilty plea entered after a trial court has reviewed the various rights that a defendant is waiving and has made the inquiries called for by statute is unlikely to be found wanting in a collateral attack.” Cornelious v. State, 846 N.E.2d 354, 357 (Ind.Ct.App.2006), trans. denied. Such is the case here. During Freeman's guilty plea...