Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 1 of 17

MEMORANDUM DECISION

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 establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE

Sam Spicer, II

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan M. Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Sam Spicer, II, 

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 26, 2019

Court of Appeals Case No.

19A-PC-145

Appeal from the Dearborn Circuit 

Court

The Honorable James D. 

Humphrey, Judge

Trial Court Cause No.

15C01-1604-PC-9

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 2 of 17

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Sam Spicer, II, (Spicer), appeals the post-conviction 

court’s denial of his petition for post-conviction relief (PCR).

[2] We affirm.

ISSUES

[3] Spicer presents two issues on appeal, which we restate as the following:

(1) Whether Spicer’s freestanding claim that the trial court 

abused its discretion when it denied his motion to withdraw 

his guilty plea is procedurally defaulted; and

(2) Whether the post-conviction court’s findings of fact and 

conclusions of law denying his PCR are clearly erroneous. 

FACTS AND PROCEDURAL HISTORY

[4] The facts pertaining to Spicer’s underlying conviction for Class A felony 

conspiracy to commit dealing in methamphetamine are as follows:

Following a tip, detectives of the Dearborn County Sheriff’s 

Department initiated an investigation into a possible 

methamphetamine manufacturing operation. Over a period of 

time, the detectives observed two individuals, later identified as 

Spicer and Lisa Ellis (“Ellis”), “continuously involved in the 

criminal activity” of transporting numerous individuals to 

pharmacies in Dearborn County, with the goal of purchasing 

pseudoephedrine. 

As part of the scheme, Spicer would deliver the pseudoephedrine 

to Vernis Newton (“Newton”) in Ohio and to an unnamed 
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individual in Kentucky; methamphetamine was manufactured in 

both locations. Each ninety-six count box of pseudoephedrine 

that was purchased could produce approximately two grams of 

methamphetamine. Spicer and Newton had an arrangement by 

which Newton would give Spicer one gram of 

methamphetamine, and Newton would keep the rest. Spicer, in 

turn, kept one half gram of methamphetamine for himself and 

gave the other half to the individual who had purchased the box 

of pseudoephedrine. The people involved in this conspiracy were 

mostly addicts and undereducated, some having only an eighth 

grade education. 

The probable cause affidavit, signed by Detectives Norman 

Rimstidt and Carl Pieczonka, described various purchases 

observed by the detectives. In all, the detectives saw individuals 

purchasing five-and-a-half boxes of pseudoephedrine, an amount 

detectives estimated “is equivalent to 15.84 grams of 

pseudoephedrine.” This amount of pseudoephedrine was “well 

in excess of what it would take to manufacture more than three 

grams of methamphetamine.” 

On February 14, 2014, the State charged Spicer and 

approximately twenty-four other co-defendants with Class A 

felony conspiracy to commit dealing in methamphetamine in an

amount of three grams or more. The overt act alleged to be in 

furtherance of the agreement was the purchase of 

pseudoephedrine for the manufacture of methamphetamine. 

Spicer v. State, No. 15A05-1409-CR-410, (Ind. Ct. App. May 12, 2015) (record 

citations omitted), trans. denied. The trial court appointed a public defender 

(Guilty Plea Counsel) to represent Spicer. Spicer invoked his right to a speedy 

trial, and his jury trial was scheduled for April 7, 2014. The parties engaged in 

discovery and plea negotiations. By April 4, 2014, the State had negotiated plea 
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bargains with over twenty of Spicer’s co-defendants, and the State had 

completed its trial preparation. 

[5] On April 4, 2014, which was the Friday before Spicer’s trial was to begin on 

Monday, the trial court was notified that the parties had entered into a plea 

agreement.

1

 The trial court convened a guilty plea hearing. When the parties 

appeared in court, Guilty Plea Counsel informed the trial court that Spicer had 

changed his mind and had decided to exercise his right to a jury trial. The State

verified that it was prepared for trial. The trial court confirmed Spicer’s trial 

date of April 7, 2014, and recessed the proceedings. 

[6] Later in the day on April 4, 2014, the trial court reconvened the proceedings 

because Spicer had decided to change his plea pursuant to a plea agreement 

wherein he would plead “open” to the Class A felony charge. (PCR Exh. 7,

Exh. Vol. I, p. 136). When the parties appeared in court, Spicer indicated 

through Guilty Plea Counsel that he desired to have a specific paragraph 

removed from the plea agreement. The State would not agree to the proposed

change and suggested that Spicer simply plead guilty without having any plea 

agreement in place. 

[7] Before taking Spicer’s change of plea, the trial court verified with Spicer that he 

understood his trial rights, understood that he was waiving them with his plea,

had not been offered anything or been threatened to induce his plea, and that he 

1

 The record is silent regarding the terms of the original plea agreement. 
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felt that his plea was his own free choice and decision. The trial court also 

verified with Spicer that he understood that he was pleading “open” to the 

Class A felony charge which carried a possible sentencing range of between 

twenty and fifty years, with an advisory sentence of thirty years. (PCR Exh. 7, 

Exh. Vol. I, p. 137). Spicer confirmed to the trial court that he wished to plead 

guilty despite understanding that his criminal record could be considered by the 

trial court as a basis for increasing his sentence. Spicer established a factual 

basis for his plea. The trial court accepted Spicer’s guilty plea and set the 

matter for sentencing for June 10, 2014. Spicer’s sentencing hearing was later 

rescheduled for July 24, 2014. Spicer’s pre-sentence investigation report 

revealed that Spicer had a criminal history dating from 2003 consisting of two 

prior felony convictions and five prior unrelated misdemeanor convictions. 

[8] Between his guilty plea hearing and sentencing, Spicer filed several letters and 

pro se motions with the trial court seeking to set aside his guilty plea. On June 

2, 2014, Spicer wrote a pro se letter to the trial court in which he claimed that he 

was firing Guilty Plea Counsel because, among other things, he alleged that 

Guilty Plea Counsel had advised him that he would “get no less or no more in 

the case [than] anybody else. Which the way I understood would be 20 

suspend 10 do 5 with [purposeful] incarceration, which now I believe otherwise 

now [sic].” (PCR Exh. 5, Exh. Vol. I, p. 57). In a pro se motion to withdraw 

guilty plea he filed with the trial court on July 3, 2014, Spicer alleged that 

Guilty Plea Counsel had been ineffective for failing to review the plea 

agreement with him prior to his change of plea and that his counsel had “no 
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criminal justice knowledge.” (Guilty Plea App., Vol. I, p. 184). Spicer also 

asserted his innocence to the charge. In a second pro se motion to withdraw 

guilty plea filed with the trial court on July 14, 2014, Spicer argued that his plea 

should be set aside because he was asserting his innocence to the charge. Spicer 

also alleged that Guilty Plea Counsel had been ineffective but did not raise any 

detailed allegations. 

[9] On July 24, 2014, the trial court held a combined hearing on sentencing and on 

Spicer’s motions to set aside his guilty plea. The trial court first addressed 

Spicer’s motions to withdraw his plea. Spicer re-asserted his claim that Guilty 

Plea Counsel had advised him that he would get “no less and no more than 

anybody else in the case, and that’s the may [sic] reason I pled open to the A.” 

(PCR Exh. 7, Exh. Vol. I, p. 145). The trial court asked Guilty Plea Counsel 

for comment, and Guilty Plea Counsel informed the trial court that he had 

explained to Spicer what the different possibilities of resolving the case were, 

that he thought that the State had a strong case against Spicer, including a 

number of co-defendants who were willing to testify against him, and that 

Spicer had decided to plead guilty. Guilty Plea Counsel stated, “I thought that 

was in his best interests at that time . . . and I still do.” (PCR Exh. 7, Exh. Vol. 

I, p. 146). The trial court took Spicer’s motions to withdraw his guilty plea 

under advisement and proceeded to take evidence and argument for sentencing, 

which it also took under advisement. 

[10] On August 13, 2014, the trial court denied Spicer’s motions to set aside his plea. 

The trial court found that Spicer had admitted his factual guilt, Spicer had failed 
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to demonstrate any incompetence by Guilty Plea Counsel, Spicer had failed to 

demonstrate that any manifest injustice would result if his plea was not 

withdrawn, and that the State would be significantly prejudiced if it were, as it 

had extended favorable plea agreements to over twenty of Spicer’s coconspirators in order to procure their testimony for Spicer’s trial. On August 

13, 2014, the trial court also sentenced Spicer to forty years of incarceration. 

The trial court found Spicer’s guilty plea and hardship to his family as 

mitigating factors which were outweighed by the significant aggravating factors 

of the nature and circumstances of the crime, Spicer’s criminal record, and the 

fact that he was on probation for a felony conviction at the time of the offense. 

[11] Spicer pursued a direct appeal and raised two issues: (1) Whether the trial court 

considered improper aggravating circumstances for sentencing, and (2) whether 

the trial court’s sentence was inappropriate given his character and the nature of 

his offense. See Spicer, slip op. at 3-5. This court affirmed Spicer’s sentence. Id.

at 5.

[12] On April 25, 2016, Spicer filed his PCR, which he amended on June 1, 2018, 

after the public defender had withdrawn from his case. In his PCR, Spicer 

alleged that the trial court had abused its discretion in denying his motions to 

withdraw his guilty plea and that Guilty Plea Counsel had been ineffective for

“misleading [Spicer] to believe if he took a plea that he would not get any more 

time [than] the rest of the defendants, which was the main reason why Spicer 

pled guilty[.]” (PCR App. Vol. II, p. 29). On August 24, 2018, and November 

20, 2018, the post-conviction court held evidentiary hearings on Spicer’s PCR. 
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Guilty Plea Counsel testified that he recalled that Spicer was reluctant to go to 

trial. Spicer asked Guilty Plea Counsel if he recalled telling Spicer that he 

would get no more or less of a sentence than his co-defendants if he pleaded 

guilty, that if Spicer took the case to trial he could get a forty or fifty-year 

sentence, and that Spicer had to plead guilty open to the charge. Guilty Plea 

Counsel responded that he “would have told you what your options were, 

which ones I thought were most advisable. But I would never tell you a 

guaranteed outcome of any option you might take.” (PCR Transcript Vol. I, p. 

26). Guilty Plea Counsel explained that he would not have told Spicer that he 

would get no more or less than his co-defendants because “different factors 

come up, and it’s always at the discretion of the [c]ourt. All I can tell you is my 

feelings about how things are likely to turn out, but I would never guarantee 

anything like that.” (PCR Tr. Vol. I, p. 27). When Spicer posited that he 

simply took Guilty Plea Counsel’s word for what he said Spicer would receive 

as a sentence, Guilty Plea Counsel responded, “I never gave you my word on 

what outcome you would receive under any scenario.” (PCR Tr. Vol. I, p. 27). 

Spicer’s sister, Ruby Spicer (Ruby), also testified at the hearing on Spicer’s PCR

in support of his theory that Guilty Plea Counsel had informed Spicer he would 

receive a sentence no more and no less severe than his co-defendants. On 

December 6, 2018, both Spicer and the State submitted proposed findings of 

fact and conclusions of law to the post-conviction court. 
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[13] On December 18, 2018, the post-conviction court entered its Order denying 

Spicer’s PCR, in support of which it entered the following relevant findings of 

fact and conclusions of law:

21. [Guilty Plea Counsel] testified that he did not recall ever 

telling Mr. Spicer that if he pled open, he would receive “no 

more or no less than anybody else in the case.”

* * * *

23. [Guilty Plea Counsel] testified that he would “never tell you 

[Spicer] a guaranteed outcome of any option you might take.” 

* * * *

26. Ruby Spicer testified that [Guilty Plea Counsel] had a 

discussion with Ruby in which he claimed Spicer would not 

receive worse than any other co-defendant if he were to plead 

open to the single charged count, and that “the Judge would 

probably be more lenient, in fact, on him taking it.”

27. Ruby Spicer also stated, when asked by the [c]ourt, that her 

testimony as to what [Guilty Plea Counsel] said was “what I got 

out of the conversation.” 

28. Spicer presented no further evidence at [the] hearing beyond 

the testimony of [Guilty Plea Counsel] and Ruby Spicer. 

* * * * 
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31. Spicer similarly did not enter the record of the proceedings 

into evidence, nor request the [c]ourt to take judicial notice of 

any record of proceedings. 

* * * * 

43. Additionally, the [c]ourt finds Spicer’s proffered evidence 

that he was “promised” to receive no less than any of the other 

co-defendants’ sentences by pleading open to the [c]ourt to be 

unpersuasive. 

(PCR App. Vol. II, pp. 12-13, 15). The post-conviction court found Ruby’s 

testimony to be “suspect,” given that eighteen of his co-defendants had pleaded 

to Class D felony charges, one co-defendant had judgment on his Class D 

felony conviction entered as a Class A misdemeanor, three co-defendants 

pleaded to single Class B felony charges, and one co-defendant pleaded to a 

Class A felony charge with a fixed sentence of thirty years with fifteen years 

suspended. (PCR App. Vol. II, p. 15). The post-conviction court found that 

it is illogical to believe that an attorney would guarantee Spicer 

that he would receive “no more or less” than the twenty-four (24) 

co-defendants, when such light sentences for all but one (1) codefendant were legally impossible to obtain for Spicer because he 

was pleading guilty to the Class A Felony. He could not 

reasonably expect to receive the same sentence as his codefendants when they negotiated for and received lesser charges. 

(PCR App. Vol. II, p. 15). Because it found that Spicer had failed to show that

Guilty Plea Counsel had rendered deficient performance, the post-conviction
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court declined to determine whether Spicer had suffered any prejudice as a 

result of Guilty Plea Counsel’s representation. 

[14] Spicer now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Withdrawal of Guilty Plea

[15] Spicer contends that the trial court abused its discretion when it denied his 

motion to withdraw his guilty plea. More specifically, he argues that a 

withdrawal of his plea was merited because he entered his plea based on 

mistaken sentencing advice and because he professed his innocence to the trial 

court prior to sentencing. The State responds that Spicer was procedurally 

barred from bringing that claim in his PCR and that it is not available for our 

review. We agree with the State. 

[16] As a general rule, a defendant is permitted to move to withdraw his guilty plea 

prior to sentencing. See Ind. Code § 35-35-1-4(b). However, once a defendant 

has moved the trial court for the withdrawal of his plea and the trial court 

denies the motion, a direct appeal is the proper avenue for contesting the trial 

court’s decision. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). If a 

defendant fails to raise the issue that was available for direct appeal, it is waived 

and cannot be raised in a post-conviction proceeding. See Mills v. State, 868 

N.E.2d 446, 452 (Ind. 2007).

[17] Here, Spicer moved the trial court to withdraw his plea prior to sentencing. At 

the July 24, 2014, combined plea withdrawal and sentencing hearing, the trial 
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court heard evidence on Spicer’s motions and took the matter under 

advisement. On August 13, 2014, the trial court denied Spicer’s motions to 

withdraw his plea. Spicer pursued a direct appeal but did not raise the issue of

the trial court’s denial of his motions to withdraw. Therefore, the issue was 

waived, was not properly raised in Spicer’s PCR, and is not available for our 

review. See id. 

II. Ineffectiveness of Counsel

A. Standard of Review

[18] Spicer appeals following the post-conviction court’s denial of relief. PCR 

proceedings are civil proceedings in which a petitioner may present limited 

collateral challenges to a criminal conviction and sentence. Weisheit v. State, 

109 N.E.3d 978, 983 (Ind. 2018). In a PCR proceeding, the petitioner bears the 

burden of establishing his claims by a preponderance of the evidence. Id. 

When a petitioner appeals from the denial of his PCR, he stands in the position 

of one appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263, 

269 (Ind. 2014). To prevail on appeal from the denial of a PCR, the petitioner 

must show that the evidence “as a whole leads unerringly and unmistakably to 

a conclusion opposite that reached by the post-conviction court.” Id. In 

addition, where a post-conviction court makes findings of fact and conclusions 

of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer 

to its legal conclusions, but we will reverse its findings and judgment only upon 

a showing of clear error, meaning error which leaves us with a definite and firm 

conviction that a mistake has been made. Id. 
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B. Findings and Conclusions

[19] Before proceeding to Spicer’s argument of ineffective assistance of counsel, we 

will address two brief preliminary arguments made by Spicer regarding the postconviction court’s findings and conclusions. Spicer first draws our attention to 

the fact the post-conviction court’s order “is a verbatim adoption of the State’s 

proffered findings and conclusions.” (Appellant’s Br. pp. 13-14). Spicer does 

not argue that he was deprived of a fair and full adjudication of his PCR, but he 

correctly notes that our supreme court has observed that the wholesale adoption 

of a party’s findings results in “an inevitable erosion of the confidence of an 

appellate court that the findings reflect the considered judgment of the trial 

court.” Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001). Nevertheless, in light 

of the high volume of cases presided over by trial court judges and the need to 

“keep the docket moving,” our supreme court has declined to prohibit the 

practice. Id. at 708-09. 

[20] Our review of the post-conviction court’s Order revealed that it made some 

non-substantive changes to the State’s proposed findings and conclusions, and, 

therefore, there is evidence that the post-conviction court did not simply 

rubberstamp the State’s proposed order. We are cognizant that Spicer declined 

to waive the post-conviction court’s thirty-day deadline for entering its Order. 

However, we do not promote such near-wholesale adoptions of proposed 

orders, because, as noted by our supreme court, it endangers the perception of 

the judiciary as providing full, fair, and unbiased determinations. Id. at 709. 
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[21] Spicer also challenges the post-conviction court’s finding that he “did not enter 

the record of the proceedings into evidence, nor request the [c]ourt to take 

judicial notice of any record of proceedings.” (PCR App. Vol. II, p. 13). Our 

review leads us to conclude that this finding does not enjoy support in the 

record. Spicer’s proffered PCR Exhibits 1-7, consisting of relevant portions of 

the record of proceedings in the underlying Class A felony case and transcripts 

of the guilty plea hearing and hearing on Spicer’s motions to withdraw his plea, 

were admitted into evidence at the PCR hearing without objection. In addition, 

on June 1, 2018, Spicer had moved the post-conviction court to take judicial 

notice of its own records, and the post-conviction court granted the motion on 

June 21, 2018. We also note that this finding was one of the State’s proposed 

findings adopted by the post-conviction court and that the State itself requested 

at the PCR hearing that the post-conviction court take judicial notice of the 

record of proceedings in the underlying case, a request that the post-conviction

court granted. 

[22] We conclude that this finding is clearly erroneous. However, Spicer does not 

argue that this finding undermines the post-conviction court’s legal conclusion 

that his counsel’s performance was not deficient, and, as more fully explained 

below, we conclude that the post-conviction court’s determination in that 

regard was not clearly erroneous. In addition, the Order denying relief contains 

several findings of fact regarding the underlying proceedings. Therefore, we 
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conclude that Spicer has failed to demonstrate that he was prejudiced by the 

post-conviction court’s erroneous finding.2

 

C. Ineffective Assistance of Counsel

[23] Spicer also argues that he received ineffective assistance because Guilty Plea 

Counsel provided him with inaccurate advice regarding the sentence Spicer 

would receive, advice that caused Spicer to plead guilty to the offense. We 

evaluate ineffective assistance of counsel claims under the two-part test 

articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such 

a claim, a petitioner must show that 1) his counsel’s performance was deficient 

based on prevailing professional norms; and 2) that the deficient performance 

prejudiced the defense. Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018) (citing 

Strickland, 466 U.S. at 687). In analyzing whether counsel’s performance was 

deficient, we determine whether, upon consideration all of the circumstances, 

counsel’s actions were reasonable under prevailing professional norms. Id. To

demonstrate sufficient prejudice in the context of a defendant’s decision to 

plead guilty based on the allegedly deficient advice of guilty plea counsel, the 

petitioner must show that there is a reasonable probability that, but for his 

counsel’s unprofessional errors, “he would not have pleaded guilty and would 

have insisted on going to trial.” Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind. 

2019) (quoting Jae Lee v. United States, — U.S. —, 137 S.Ct. 1958, 1965, 198 

2

 The remainder of Spicer’s preliminary arguments are addressed by our resolution of his main arguments on 

appeal. 
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L.Ed.2d 476 (2017)). A petitioner’s failure to satisfy either the ‘performance’ or 

the ‘prejudice’ prong of a Strickland analysis will cause an ineffective assistance 

of counsel claim to fail. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). 

[24] Here, Spicer claimed in his PCR that Guilty Plea Counsel’s performance was 

deficient because he inaccurately advised Spicer that “he would not get any 

more time [than] the rest of the defendants, which was the main reason why 

Spicer pled guilty[.]” (PCR App. Vol. II, p. 29). Guilty Plea Counsel testified 

at the PCR hearing that he would not have guaranteed Spicer the outcome of 

any of the options for proceeding that he had discussed with Spicer. Guilty 

Plea Counsel more specifically testified that he would not have guaranteed 

Spicer that he would receive no more or less time than his co-defendants 

because “different factors come up, and it’s always at the discretion of the 

[c]ourt.” (PCR Tr. Vol. I, p. 27). The post-conviction court rejected Ruby’s 

testimony as suspect and unpersuasive, and it ultimately rejected Spicer’s 

allegation that Guilty Plea Counsel had advised him in the manner Spicer 

claimed. In light of Guilty Plea Counsel’s testimony, we cannot say that the 

evidence “as a whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court[,]” which is our standard of 

review following the denial of a PCR. See Hollowell, 19 N.E.3d at 269. The 

post-conviction court’s determination that Guilty Plea Counsel’s performance 
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was not deficient was not clearly erroneous, and, therefore, we affirm the postconviction court’s denial of relief.3

CONCLUSION

[25] Based on the foregoing, we conclude that Spicer’s claim that the trial court 

abused its discretion when it denied his motion to withdraw his guilty plea is 

procedurally defaulted and that the post-conviction court’s conclusion that he 

was not denied the effective assistance of counsel was not clearly erroneous. 

[26] Affirmed. 

[27] Baker, J. and Brown, J. concur

3

 Because Spicer has failed to establish any grounds for relief based upon his counsel’s performance, we do 

not engage in any analysis of the prejudice prong of the Strickland analysis. See Taylor, 840 N.E.2d at 331.