Court of Appeals of Indiana | Opinion 24A04-1607-PC-1618 | March 14, 2017 Page 1 of 8

APPELLANT PRO SE

David Earl Ison

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David Earl Ison,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

March 14, 2017

Court of Appeals Case No.

24A04-1607-PC-1618

Appeal from the Franklin Circuit 

Court

The Honorable J. Steven Cox, 

Judge

Trial Court Cause No.

24C01-1407-PC-630

Altice, Judge.

Case Summary

[1] David Earl Ison, pro se, appeals the denial of his post-conviction relief (PCR) 

petition. We find the following issue dispositive: Did the post-conviction court 
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err in declining to address Ison’s claim of ineffective assistance of trial counsel, 

which incorporated a challenge to the voluntariness of his plea?

[2] We remand. 

Facts & Procedural History

[3] On September 25, 2011, Roy Napier, Angela Napier, Melissa Napier, Jacob 

Napier, and Henry Smith were murdered in Franklin County. Shortly 

thereafter, Ison became a suspect and blood and DNA evidence were recovered 

from his home, as well as two firearms that had been used in the shootings. At 

the time of the killings, Ison was on probation for unrelated convictions on ten 

counts of burglary. In sum, Ison had twenty prior felony convictions.

[4] The State charged Ison with five counts of murder (Counts I through V) on 

October 7, 2011. Franklin County Prosecutor Melvin Wilhelm (Prosecutor 

Wilhelm ) struggled with whether to seek the death penalty and eventually

consulted with the Indiana Prosecuting Attorneys Council’s capital litigation 

committee, which advised him to seek the death penalty. Thereafter, 

Prosecutor Wilhelm spoke with Ison’s trial counsel, Hubert Branstetter 

(Attorney Branstetter), regarding the possibility of a plea agreement in which 

Ison would plead guilty to life imprisonment without parole (LWOP) to avoid 

the death penalty. A document was prepared by Prosecutor Wilhelm and 

presented to Ison by Attorney Branstetter. Ison signed the document, agreeing 

to LWOP. This document, which Ison believed to be a plea agreement, was 

never filed with the trial court. 
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[5] On February 3, 2012, the State filed an amended information adding an LWOP

count (Count VI). The trial court held an initial hearing regarding Count VI on 

March 1, 2012, which transformed into a guilty plea hearing when Ison pled 

guilty to Count VI and changed his plea to guilty with regard to Counts I 

though V. The trial court advised Ison that this would necessarily require him 

to be in prison for the rest of his natural life. After briefly inquiring into Ison’s

mental state and ability to understand the proceedings, the trial court engaged 

Ison in the following discussion:

COURT: The guilty plea that you’re offering is your own free 

choice and decision?

DEFENDANT: Yes, sir.

COURT: No one has offered you any promises or anything of 

value to get you to plead guilty?

DEFENDANT: No, sir.

COURT: Forced, threaten, place in you [sic] in fear, anyone 

else you know been forced, threaten, or placed in fear to 

get you to plead guilty?

DEFENDANT: No, sir.

COURT: Still your intention to plead guilty?

DEFENDANT: Yes, sir.
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Petitioner’s Exhibit A at 6-7. Prosecutor Wilhelm then detailed the factual basis 

for each of the counts, which Ison admitted. At no point during the hearing did 

Ison expressly waive his Boykin rights.1 In accepting the pleas, however, the 

court stated: “The Court will find you’re forty-six years of age. You understood 

the nature of the charge which you plead guilty, the possible sentence you could 

receive. That your plea of guilty is freely and voluntarily made and there’s a 

factual basis for your plea of guilty.” Petitioner’s Exhibit A at 9-10. At the 

sentencing hearing on March 14, 2012, the trial court sentenced Ison to LWOP.

[6] Ison, pro se, filed his original PCR petition on June 26, 2014. Thereafter, on 

October 19, 2015, Ison filed a motion to amend his PCR petition, alleging for 

the first time that his trial counsel was ineffective and that his plea was not 

made knowingly, intelligently, and voluntarily. Ison made a number of 

additional pro-se filings and even filed an improper interlocutory appeal, which 

this court dismissed on March 4, 2016. This was followed by Ison’s filing a 

flurry of additional documents.2 Though there is some ambiguity in the record, 

it appears that Ison filed a “Supplemental Motion and Verified Amended PCR”

 

1

In Boykin v. Alabama, 395 U.S. 238, 242 (1969), the Supreme Court held that it was reversible error for the 

trial court to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. “More 

particularly, Boykin requires that the record must show, or there must be an allegation and evidence which 

show, that the defendant was informed of, and waived, three specific federal constitutional rights: the 

privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s 

accusers.” Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). Although a defective guilty plea transcript may be 

rehabilitated, it is up to the State to affirmatively demonstrate in a post-conviction hearing that the plea was 

voluntary and intelligent when made. See Youngblood v. State, 542 N.E.2d 188, 189 (Ind. 1989).

2

Ison also filed an original action with our Supreme Court, which was promptly dismissed as improper by 

the Court on May 9, 2016.
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in April 2016, which asserted a number of claims including ineffective 

assistance of counsel and involuntariness of his plea. 

[7] Ison’s post-conviction hearing commenced on June 29, 2016. The postconviction court sua sponte appointed standby counsel for Ison during the

hearing. Ison testified at the hearing and detailed his claims. He emphasized 

that his primary claims were ineffective assistance of counsel and 

involuntariness of his plea. He asserted several arguments associated with these 

two related claims. At the conclusion of his case, Ison briefly addressed three 

additional claims. 

[8] On July 1, 2016, the post-conviction court issued its order denying Ison’s PCR 

petition. In the order, the court expressly considered only the three grounds for 

relief raised in Ison’s original petition filed in 2014. These grounds did not 

include ineffective assistance of counsel or the related claim regarding his guilty 

plea. The court explained:

At the evidentiary hearing on Petitioner’s Verified Petition for 

Post Conviction Relief, Petitioner made many other arguments 

as grounds for relief, (i.e.) ineffective assistance of counsel, and 

offered exhibits relating to the definition of infamous and 

whether the Indiana State Constitution required that his charges 

be brought by Grand Jury Indictment as opposed to a charging 

information as an example. To the extent that these other issues 

are not raised by the only Petition properly before the Court, the 

Court deems them waived and declines to address them further.

Appendix at 21. Ison now appeals. 
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Discussion & Decision

[9] Ison has abandoned several dubious claims that he asserted below and focuses 

his appeal on his interconnected claims of ineffective assistance of counsel and 

involuntariness of his guilty plea. In general, Ison asserts that he never waived 

his Boykin rights, the plea agreement that he signed was not presented to the 

court, his trial counsel misled him and did not properly advise him regarding 

the plea,3 and counsel did not file a written request to withdraw the plea upon 

Ison’s request. Although some of his arguments might have teeth, we do not 

address their merits because the trial court did not reach these issues.

[10] The record establishes and the State acknowledges that Ison filed an 

amendment to his PCR petition on October 19, 2015 (the 2015 Amendment), 

asserting new claims of error (that is, ineffective assistance of counsel and 

 

3

Ison claims that counsel made him feel as though he was automatically eligible for the death penalty and 

LWOP. According to Ison, he was not aware that Ind. Code § 35-50-2-9 sets out aggravators and mitigators 

to be considered by the judge or jury when determining whether to impose such sentences. Ison asserts that 

he was under the influence of drugs at the time of the murders and has a history of mental illness, both of 

which are potential mitigating circumstances. 

Additionally, Ison makes a novel argument that he was not eligible for the death penalty or LWOP because 

the aggravators alleged by the State did not fall under I.C. § 35-50-2-9(b)(1). Indeed, the alleged aggravators 

were that Ison committed multiple murders and did so while he was on probation for a prior felony. I.C. §

35-50-2-9(b)(8) and (9)(C). Ison’s argument takes advantage of a clear error in the statute. In subsections (d), 

(e), and (g), the statute indicates that the judge or jury (whichever is applicable) must find at least one of the 

aggravators “described in subsection (1).” The reference should be to subsection (b), as subsection (1) is only 

one of the statute’s many listed aggravators. This is an obvious technical error in the statute. See Woerner v. 

City of Indianapolis, 177 N.E.2d 34, 37 (Ind. 1961) (“Legislative enactments are not more than any other 

writings to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature 

can be collected from the whole statute.”). The General Assembly should promptly address this.
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involuntariness of plea).4 Pursuant to Indiana Post-Conviction Rule 1(4)(c), a 

“petitioner shall be given leave to amend the petition as a matter of right no 

later than sixty [60] days prior to the date the petition has been set for trial.” 

Ison filed the 2015 Amendment before a trial date was even set and, thus, well 

within the period in which he could amend his PCR petition as a matter of 

right. Accordingly, the 2015 Amendment was properly before the trial court, as 

well as possibly other subsequent amendments.

[11] At the post-conviction hearing held on June 29, 2016, Ison presented his case 

and focused on the issues of ineffective assistance of trial counsel and 

involuntariness of his guilty plea, which were first alleged in the 2015 

Amendment. In addition to the 2015 Amendment, the court acknowledged at 

the hearing that it had a lengthy document filed by Ison on April 14, 2016,5

which Ison claimed was another amendment raising additional issues. 

[12] In its brief order issued two days after the post-conviction hearing, the court 

indicated for the first time that it would not consider any of Ison’s claims raised 

in filings made after the original PCR petition filed in 2014. Without any 

explanation, the court concluded that the only petition properly before it was 

the original petition. This was erroneous. 

 

4

Several of his subsequent filings, though not as obviously designated as amendments, continued to assert 

these claims in addition to other claims. 

5 This document is not file stamped in the record before us or noted on the CCS.
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[13] On remand, we direct the post-conviction court to make specific findings of fact 

and conclusions of law with respect to Ison’s claims of ineffective assistance of 

trial counsel and involuntariness of his guilty plea. See State v. Cozart, 897 

N.E.2d 478, 484 (Ind. 2008) (remanding for findings and conclusions on claims 

not addressed by the post-conviction court).

[14] Remanded with instructions.

[15] Riley, J. and Crone, J., concur.