Kistler v. State

• Citation: 936 N.E.2d 1258
• Decision Date: 15 November 2010
• Docket Number: No. 35A04-1004-PC-245.,35A04-1004-PC-245.
• Parties: Donald G. KISTLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

936 N.E.2d 1258

Donald G. KISTLER, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

No. 35A04-1004-PC-245.

Court of Appeals of Indiana.

Nov. 15, 2010.

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Special Assistant to the State Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Donald Kistler appeals the post-conviction court's denial of his petition for post-conviction relief. Kistler raises two issues, which we revise and consolidate as whether the post-conviction court erred in denying Kistler's petition for relief. We affirm.

The relevant facts as discussed in Kistler's direct appeal follow:

Sometime in late 2003, Kistler was visiting the home of a friend who had two daughters. The older daughter, N.M., was less than fourteen years old at the time. Kistler went into N.M.'s room, where N.M. was playing with dolls, and closed the door. Kistler sat down beside N.M. and, through her clothing, fondled her chest and vagina. He then instructed N.M. not to tell anyone what had happened.

Early in the morning on March 16, 2005, Kistler was again visiting the same friend's house. He went in where N.M.'s younger sister, C.M., was lying down. Kistler lay down and got under the blanket that was covering ten-year-old C.M. Once under the blanket, Kistler placed his hand inside C.M.'s pajama bottoms and underwear and fondled her buttocks and vagina. He also inserted his finger into her anus. Both N.M. and C.M. had previously been molested by their biological father, a fact that was known to Kistler.

Kistler v. State, No. 35A02-0602-CR-132, 857 N.E.2d 1048, slip op. at 2-3 (Ind.Ct.App. Nov.28, 2006), trans. denied.

On March 29, 2005, the State charged Kistler with child molesting as a class A felony and child molesting as a class C felony. Id. at 3. The State also alleged that Kistler was an habitual offender. Id. The information for the habitual offender charge alleged that Kistler had accumulatedat least two prior unrelated convictions: (1) operating a vehicle while a habitual traffic violator as a class D felony; and (2) operating while intoxicated as a class D felony. On November 1, 2005, Kistler and the State entered into a plea agreement whereby Kistler agreed to plead guilty to child molesting as a class B felony and child molesting as a class C felony and in exchange the State agreed to dismiss the habitual offender allegation and to reduce the class A felony count to a class B felony. Id. Pursuant to the agreement, sentencing was left to the trial court's discretion. Id.

The court found the following aggravating factors: (1) there were multiple victims of the crimes; (2) Kistler had a prior criminal history of great length including two prior unrelated felony convictions and five unrelated misdemeanor convictions, "two of which had victim impact." Sentencing Hearing Transcript at 50. The court noted that Kistler "was aware of—that the victims of his sexual charges—sexual abuse, were already and have already been sexually abused by their family." Id. The court found that "the plea of guilty is not of any value in determining lessening of the sentence in that a plea or a charge of habitual offender was dismissed and granted to the defendant a lesser period of time." Id. The court found no mitigating factors. The court sentenced Kistler to eight years for the class C conviction and twenty years for the class B conviction and ordered that the sentences be served consecutively. Thus, Kistler received an aggregate sentence of twenty-eight years.

On appeal, Kistler argued that the trial court erred in identifying aggravating and mitigating circumstances and that his sentence was inappropriate in light of the nature of the offense and the character of the offender, and this court affirmed. Kistler, slip op. at 2.

On May 16, 2007, Kistler filed a pro se petition for post-conviction relief. On November 16, 2009, Kistler, represented by a public defender, filed a Motion for Leave to Amend Pro Se Petition for Post-Conviction Relief, and argued that his guilty plea was not entered knowingly, intelligently, or voluntarily and that he was denied the effective assistance of counsel. Specifically, the petition alleged that any habitual offender charge was improper and that thus the threat of an habitual offender enhancement to his sentence rendered his plea illusory and "[h]ad [Kistler] known that the Habitual Offender enhancement could not be used against him, he would not have pled guilty, but insisted on going to trial." Appellant's Appendix at 53. The State did not object to Kistler's motion to amend his petition, and the court scheduled a hearing. At the hearing, the court indicated that it would "look at this based upon the amended claim of November the 16th." Post-Conviction Hearing Transcript at 24.

At the hearing, Kistler testified that he would not have pled guilty if he had known that he was not an habitual offender. Kistler also testified that at the time that he pled guilty he did not know the amount of time he was facing for the habitual offender charge. Kistler's appellate counsel also testified, and Kistler introduced the transcripts from previous hearings, an affidavit of his trial counsel, and the charging information for the habitual offender allegation. The post-conviction court denied Kistler's petition. The relevant portion of the court's order states:

6. [Kistler] presents two claims in regard to his guilty plea. First, [Kistler] claims that his plea was not entered knowingly, voluntarily, and intelligently.

7. Here, there is no question that at the time the bargain was made that the habitual offender enhancement filed against [Kistler] was not legally supportable. The question for this Court is whether the improper threat motivated [Kistler] to plead guilty. [Kistler] was 38 years old at the time of this plea of guilty. With the habitual offender enhancement he faced a maximum sentence of 88 years and without the habitual offender enhancement he faced a maximum sentence of 58 years. He agreed with the State to plead to a class B felony and a class C felony under which he faced a maximum sentence of 28 years. [Kistler] had confessed to touching the girls to police, and there was no affirmative defense available. [Kistler] agreed to a deal that gave him a maximum sentence that would allow him the chance to be released while he was middle-aged. The other possibilities whether 58 or 88 years would not allow [Kistler] to be released until he was nearly 70 years old or just over 80 years old respectively. [Kistler] testified that the reason that he filed his Petition was to receive a shorter prison sentence; he did not state that he wanted to withdraw his plea because he believed that he was innocent of the charges. [Kistler] has not shown that his guilty plea was obtained by the improper threat. [Kistler] is not entitled to relief on this ground.

Appellant's Appendix at 78-79. The court's order also stated:

The Court notes that [Kistler] at the hearing seemed unclear on the consequences of his being successful on his petition. [Kistler] testified that he believed that he would get less time if he pursued his petition and that was the reason that he filed it. Given the fact that [Kistler] could once again be facing a maximum penalty of thirty years more than he received, it is not clear [Kistler], given the option, would want a chance to take the case to trial. See Indiana Post-Conviction Rule 1(10)(c). If it is [Kistler's] plan to simply plead guilty according to the same terms as before, that undercuts his claim that he would not have pled guilty given the proper advice.

Id. at 80.

Before discussing Kistler's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of postconviction relief, the petitioner stands in the position of one appealing from a negative judgment. 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

The issue is whether the post-conviction court erred in denying Kistler's petition for relief. Kistler argues that his plea was illusory because it was induced by the State's agreement to dismiss an invalid habitual offender charge. Kistler also argues that he received ineffective assistance of trial counsel because his trial counsel did not move to dismiss the habitual offender count, did not advise Kistler that he was not eligible for the habitual offender charge, and did not correctly inform Kistler of the sentence that he actually faced.

The State correctly concedes that Kistler was improperly charged as an habitual offender.¹ "[A] bargained plea, motivated by an improper threat, is to be deemed illusory and a denial of substantive rights." Champion v. State, 478 N.E.2d 681, 683 (Ind.1985) (citing Gibson v. State, 456 N.E.2d 1006 (Ind.1983)). "At the...