Harris v. State

• Decision Date: 31 January 2002
• Docket Number: No. 43A04-0106-PC-261.,43A04-0106-PC-261.
• Citation: 762 N.E.2d 163
• Parties: Michael L. HARRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

762 N.E.2d 163

Michael L. HARRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 43A04-0106-PC-261.

Court of Appeals of Indiana.

January 31, 2002.

Michael L. Harris, Bunker Hill, IN, Appellant Pro Se.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Michael L. Harris pleaded guilty to Child Molesting, as a Class B felony. He subsequently petitioned for post-conviction relief to set aside his guilty plea. Following a hearing, the post-conviction court denied Harris' petition. He now appeals, presenting the following consolidated and restated issues for our review:

1. Whether his guilty plea was knowing and voluntary.

2. Whether he was denied the effective assistance of trial counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 18, 1998, the State charged Harris with Attempted Child Molesting, as a Class A felony, and Child Molesting, as a Class C felony. The State subsequently amended the information to also charge Harris with Child Molesting, as a Class B felony. Each of the charged offenses stemmed from Harris' alleged molestation of M.S., a child under the age of fourteen, from February 1997 through March 1998. Harris and the State entered into a plea agreement, in which Harris agreed to plead guilty to the B felony charge. In addition, the agreement provided in relevant part that any executed prison sentence imposed "shall not exceed ten (10) years with the condition that if ten (10) years are executed there will be no probation period." The agreement also provided that the State "will take no position on the defendant's request for work release" and that Harris "has not been promised anything other than as stated in this agreement." Following a hearing, the trial court accepted Harris' guilty plea and imposed an executed sentence of ten years' incarceration. Harris subsequently petitioned for post-conviction relief, which the court denied.

DISCUSSION AND DECISION

Standard of Review

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), cert. denied, 529 U.S. 1088, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000). To the extent the post-conviction court denied relief in the instant case, Harris appeals from a negative judgment and faces the rigorous burden of showing that the evidence as a whole "`leads unerringly and unmistakably to a conclusion opposite to that reached by the [ ] 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)),

cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). 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 court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. Allen v. State, 749 N.E.2d 1158, 1164 (Ind.2001). The findings must be supported by facts and the conclusions must be supported by the law. Id. Our review on appeal is limited to these findings and conclusions. Id.

Issue One: Knowing and Voluntary Plea

Harris contends that his guilty plea was not knowing and voluntary because he was misled and misinformed regarding his sentencing possibilities, and because the State breached the plea agreement. Specifically, Harris alleges that his attorney misrepresented to him that there would be "no probation period" and that work release and home detention were "possibilities." In addition, Harris maintains that the State breached the plea agreement when, in response to Harris' subsequent petition to modify his sentence, the State opposed his request for work release. On appeal, Harris points out that pursuant to Indiana Code Section 35-50-6-1, he will be on parole upon his release from prison, and pursuant to Indiana Code Sections 35-38-2.5-7 and 35-38-2.6-1, he is not eligible for either home detention or work release. We address each of Harris' contentions in turn.

On review of a guilty plea, we look at all the evidence before the post-conviction court. Hendrickson v. State, 660 N.E.2d 1068, 1072 (Ind.Ct.App.1996). If the evidence exists to support the court's determination that the guilty plea was voluntary, intelligent and knowing, we will not reverse. Id. When a guilty plea is attacked because of alleged misinformation concerning sentencing, the issue of the validity of such plea is determined by a two-part test: 1) whether the defendant was aware of actual sentencing possibilities and 2) whether the accurate information would have made any difference in his decision to enter the plea. Jackson v. State, 676 N.E.2d 745, 752 (Ind.Ct.App. 1997),trans. denied.

Harris first contends that he would not have entered his guilty plea had he known that he will be placed on parole upon release from prison. See I.C. § 35-50-6-1. He asserts that his plea agreement, which states that "if ten (10) years are executed there will be no probation period[,]" contravenes the statutory requirement that "when a person imprisoned for a felony completes his fixed term of imprisonment, ... he shall be released: (1) on parole ...; or (2) to the committing court if his sentence included a period of probation." See id. However, Harris mistakenly uses the terms "parole" and "probation" interchangeably. In fact, parole is defined in relevant part as "[t]he release of a prisoner from imprisonment before the full sentence has been served." BLACK'S LAW DICTIONARY 1139 (7th ed.1999). In contrast, probation is defined as "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison." Id. at 1220. While the two terms have similar meanings, an important and relevant distinction is made in that "`[p]robation' relates to judicial action taken before the prison door is closed, whereas `parole' relates to executive action taken after the door has closed on a convict." Carswell v. State, 721 N.E.2d 1255, 1262 (Ind.Ct.App.1999).

Here, while Harris' plea agreement states that no probation will be imposed if he is sentenced to ten years executed, and the trial court honored that provision, the agreement does not mention parole. As such, contrary to Harris' assertion, the plea agreement does not violate the statutory parole requirement. In addition, our supreme court has noted that the parole impact of a plea is neither a constitutional right nor an advisement required by statute. Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind.1988). Thus, Harris' plea is not rendered involuntary or unknowing because he was unaware that parole would be statutorily imposed. See id. Moreover, when the trial court asked Harris whether "anybody [had] promised [him] anything in addition to that contained within the plea agreement[,]" Harris responded "No." Harris merely asks us to reweigh the evidence and redetermine witness credibility, an invitation we decline on appeal. See Marshall v. State, 590 N.E.2d 627, 632 (Ind.Ct.App.1992)

(declining to reweigh evidence and affirming post-conviction court's denial of petition where defendant claimed he was misadvised regarding length of sentence), trans. denied.

Regarding work release, the plea agreement states only that "the State will take no position on the defendant's request for work release." And Harris' plea agreement is silent regarding the possibility of home detention. As Harris stated in his petition for post-conviction relief, he merely claims he was promised that the possibility of work release and home detention would be "uncontested by the Prosecutor." In other words, he entered the plea agreement knowing that he was not guaranteed either work release or home detention. Our supreme court has held that "[a] mere hope for a certain outcome at sentencing, without more, does not suffice to set aside a guilty plea for lack of voluntariness." State v. Moore, 678 N.E.2d 1258, 1267 (Ind.1997),cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998). Thus, Harris cannot show that his plea was made involuntarily in light of the alleged misinformation regarding these sentencing options.

Finally, Harris contends that the State breached its promise to take no position regarding his request for work release when it opposed Harris' subsequent petition to modify his sentence requesting work release. He maintains that as a result of this breach, his guilty plea should be set aside. We cannot agree.

It is clear that prosecutors must honor their promises given in exchange for guilty pleas. Harris v. State, 671 N.E.2d 864, 870 (Ind.Ct.App.1996) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). As the United States Supreme Court has held, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262, 92 S.Ct. 495. Accordingly, "only breaches of material promises will allow a court to conclude that a plea was involuntarily induced and thus constitutionally infirm." Rodriguez v. New Mexico, 12 F.3d 175, 175 (10th Cir.1993).

Here, we need not decide whether the State's opposition to Harris' subsequent request for work release constituted a breach of the plea agreement, because such a breach could not be considered material to Harris' decision to plead guilty. As we have already noted, Harris avers that he was promised only the possibility of work release at the time he entered his plea. Thus, the State's promise to...