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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TERRY A. MOORE, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A05-1401-PC-11

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable John M. T. Chavis, Judge

The Honorable Anne M. Flannelly, Commissioner

Cause No. 49F15-9203-PC-34022

August 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
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STATEMENT OF THE CASE

Terry A. Moore was convicted of carrying a handgun without a license, as a Class 

D felony, pursuant to a guilty plea. Moore subsequently petitioned for post-conviction 

relief, which the post-conviction court denied. He now appeals, challenging the postconviction court’s judgment, and he raises a single issue for our review, namely, whether 

his guilty plea was knowing and voluntary.

We affirm.

FACTS AND PROCEDURAL HISTORY

In March 1992, the State charged Moore with carrying a handgun without a 

license, as a Class D felony. And in October 1992, Moore pleaded guilty as charged. 

The trial court entered judgment of conviction and, on the State’s recommendation, the 

court sentenced Moore to one and one-half years with one year suspended to probation.

On October 14, 2011, following his adjudication as an habitual offender, Moore 

filed a petition for post-conviction relief alleging that his 1992 guilty plea was not 

knowing or voluntary. The post-conviction court denied that petition following a 

hearing. This appeal ensued.

DISCUSSION AND DECISION

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). To the extent the post-conviction court denied 

relief in the instant case, Moore appeals from a negative judgment and faces the rigorous 

burden of showing that the evidence as a whole “‘leads unerringly and unmistakably to a 
3

conclusion opposite to that reached by the [lower] 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)). 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 guilty plea constitutes a waiver of constitutional rights, and this waiver requires 

the trial court to evaluate the validity of every plea before accepting it. Davis v. State, 

675 N.E.2d 1097, 1102 (Ind. 1996). For a plea to be valid, it must represent a voluntary 

and intelligent choice among the alternative courses of action open to the defendant. 

Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010). A court accepting a guilty plea must 

determine that the defendant: (1) understands the nature of the charges; (2) has been 

informed that a guilty plea effectively waives several constitutional rights, including trial 

by jury, confrontation and cross-examining of witnesses, compulsory process, and proof 

of guilt beyond a reasonable doubt without self-incrimination; and (3) has been informed 

of the maximum and minimum sentences for the crime charged. Ind. Code § 35-35-1-2; 

Diaz, 934 N.E.2d at 1094. In assessing the voluntariness of the plea, we review all the 

evidence before the post-conviction court, including testimony given at the postconviction trial, the transcript of the petitioner’s original sentencing, and any plea 

agreements or other exhibits which are part of the record. Diaz, 934 N.E.2d at 1094.

Moore contends that his guilty plea was not knowing or voluntary because the trial 

court did not advise him of the range of penalties he faced, including sentencing 

alternatives for a Class D felony. At the hearing on his petition for post-conviction relief, 
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Moore presented evidence that the court reporter could not find the recording of the 

October 29, 1992 sentencing hearing. Moore also presented affidavits executed by the 

Commissioner who presided over his guilty plea and sentencing hearings, the deputy 

prosecutor, and his former trial counsel, each stating that they had no recollection of the 

plea or sentencing hearings. Finally, Moore testified at the post-conviction hearing that, 

prior to pleading guilty, he had not been advised either of the sentencing range he faced 

or the possibility of alternate misdemeanor sentencing.

But the State presented evidence that Moore had been advised of the sentencing 

range prior to pleading guilty. In particular, the judgment of conviction signed by the 

trial court on the date Moore pleaded guilty states in relevant part that the court found 

that Moore “was advised of the maximum and minimum possible sentences[.]” 

Appellant’s App. at 34. And, as the State points out, in his petition for post-conviction 

relief, Moore states in relevant part that the trial court “correctly advised him of the range 

of penalties to a Class D felony[.]” Id. at 39. Thus, Moore’s contention on this issue 

must fail.

Moore also contends that he was not advised of misdemeanant sentencing 

alternatives and that he would not have pleaded guilty to a Class D felony if he had been 

so advised. But our supreme court has held that

when the accused pleads guilty to a class D felony, the court is not required 

to advise the accused of the misdemeanant sentencing alternatives. The 

trial judge is bound by the terms of the plea agreement. When, as here, the 

agreement does not give the judge discretion to sentence the accused as a 

misdemeanant, then the accused need not be advised of this sentencing 

alternative.
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Hutchinson v. State, 501 N.E.2d 1062, 1066 (Ind. 1986). Here, Moore’s plea agreement 

states that he pleaded guilty to a Class D felony and did not give the trial court discretion 

to sentence him as a misdemeanant. Accordingly, the trial court was not required to 

advise Moore of the possibility of misdemeanant sentencing alternatives. Moore has not 

demonstrated that his guilty plea was not knowing and voluntary. The post-conviction 

court did not err when it denied Moore’s petition for post-conviction relief.

Affirmed.

BAILEY, J., and PYLE, J., concur.