APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JAMES HAMILTON GREGORY F. ZOELLER

Bunker Hill, Indiana Attorney General of Indiana

JUSTIN F. ROEBEL

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMES W. HAMILTON, )

)

Appellant-Petitioner, )

)

 vs. ) No. 32A01-1403-PC-128

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT 1

The Honorable Mark A. Smith, Judge

Cause No. 32D04-1301-PC-1

December 16, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

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.
2

James Hamilton (“Hamilton”) appeals pro se the Hendricks Superior Court’s 

denial of his petition for post-conviction relief. Hamilton raises three issues, which we 

reorder and restate as:

I. Whether the post-conviction court erred when it concluded that Hamilton was 

not prejudiced by his trial counsel’s incorrect advice as to the penal consequences 

of his guilty plea; 

II. Whether the post-conviction court erred when it denied Hamilton’s habeas 

corpus claim; and, 

III. Whether the post-conviction court’s findings of fact and conclusions of law 

are inadequate because the court failed to address all issues raised in Hamilton’s

petition for post-conviction relief;

Concluding that Hamilton failed to prove that he was prejudiced by trial counsel’s 

deficient performance or present any other reversible error, we affirm.

Facts and Procedural History

In 2011, Hamilton pleaded guilty to Class B felony dealing in cocaine, as a lesser 

included offense of Class A felony dealing in cocaine. Pursuant to the plea agreement, 

five additional counts were dismissed, including a second charge of Class A felony 

dealing in cocaine. At the guilty plea hearing, the trial court questioned Hamilton about 

his ability to comply with the extended term of probation provided for in the plea 

agreement after noting that Hamilton had four prior felony convictions and had never 

successfully completed probation. 

The following exchange occurred between the court and Hamilton:

COURT: . . . [A]nybody else that comes into this courtroom, the State is 

asking for twenty-five (25) or thirty (30) years. I understand this is a 

twenty (20) year plea, but, you are getting a gift.

HAMILTON: Yes, I am.
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COURT: Why should I approve it?

HAMILTON: Um, like I said, I just, I believe can [sic] get through this 

program and work with . . . 

COURT: I don’t. That is the only reason I’m going to take this plea 

agreement. I don’t believe in one iota that you are going to be able to 

complete six (6) years at the Work Release Facility without screwing it up. 

Because, I’m looking at your pre-sentence report and that is all I see are 

messes up every time. You can’t follow rules. There is [sic] going to be 

more rules on you at the Work Release Facility and then if you make it 

through that, fourteen (14) years of probation. 

HAMILTON: I understand.

COURT: Ever time I look through here you violated every, single time as I 

recall that you’ve been on some type of supervised release. Correct me if 

I’m wrong, in my mind you should just be given a twenty (20) year hit at 

the Department of Corrections. I don’t like putting drug dealers in the 

Work Release Facility to begin with. This is a zero (0) tolerance plea, you 

are doing every day of your back-up time. . . . If you have a notion that you 

are going to bring any illegal substance into that facility and start doing 

anything stupid there, you might as well get rid of that now and let’s just 

get it over with and send you to prison today, because it ain’t going to 

happen.

Trial Tr. pp. 67-69.

The trial court reluctantly accepted Hamilton’s plea and Hamilton was ordered to 

serve 7300 days (twenty years) in the Indiana Department of Correction. 2162 days, or 

the equivalent of six years minus 28 days credit for time served, were ordered to be 

served on work release. The remaining 5110 days (fourteen years) were suspended, but 

Hamilton was ordered to serve 4010 days (eleven years) on probation. On the date he 

was sentenced, Hamilton signed his “probation order” which explicitly stated that 

Hamilton was prohibited from consuming controlled substances or illegal drugs and from 

violating any state or federal law. 

Hamilton began serving his executed sentence on work release on May 17, 2011. 

On June 6, 2011, Hamilton was asked to submit a urine screen. Hamilton attempted to 
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bribe a correctional officer “to make the drug screen go away” by giving the officer $20. 

Trial Tr. p. 74. The urine screen tested positive for cocaine. On October 4, 2011, the 

trial court revoked Hamilton’s placement in work release and revoked his probation in its 

entirety. Hamilton was ordered to serve his twenty-year sentence in the Department of 

Correction, with credit for time served.

Hamilton appealed his probation revocation. In pertinent part, he argued that 

according to the terms of his plea agreement, his period of probation was to follow work 

release; therefore, “the trial court abused its discretion when it revoked his probation at a 

time when, according to the terms of the plea agreement, his probation had not yet 

started.” Hamilton v. State, 970 N.E.2d 796, No. 32A05-1110-CR-599 at *2 (Ind. Ct. 

App. July 16, 2012). 

Concerning Hamilton’s argument, our court observed:

Hamilton does not question the general rule that a “defendant’s 

probationary period begins immediately after sentencing” even if his actual 

probation begins at a later time. Instead, he argues that when, as here, the 

terms of the plea agreement say otherwise, the trial court is bound by those 

terms. Hamilton contends: “In contrast to all of the cases cited by the State, 

Hamilton’s argument is based on Ind[iana] Code [section] 35-35-3-3(e): 

once the court accepts a plea agreement, it is strictly bound by its terms and 

may impose only the sentence required by the plea agreement.”

Id. (internal and record citation omitted). Citing Kopkey v. State, 743 N.E.2d 331 (Ind. 

Ct. App. 2001), trans. denied and Gardner v. State, 678 N.E.2d 398 (Ind. Ct. App. 1997), 

our court rejected Hamilton’s argument because “[a] defendant’s ‘probationary period’

begins immediately after sentencing, even if defendant’s plea agreement provides that the 

actual probation follows an executed sentence.” Id. at 3. Our court also rejected 
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Hamilton’s claim concerning the start of his probationary period because of the trial 

court’s statements to Hamilton at the guilty plea hearing, which are quoted above. Id. at 

3-4. Accordingly, our court concluded that the “trial court did not abuse its discretion in 

revoking Hamilton’s probation for a violation that occurred within his term of work 

release.” Id. at 4.

On January 7, 2013, Hamilton filed a pro se petition for post-conviction relief. 

Hamilton alleged he was entitled to post-conviction relief because 1) his plea agreement 

was ambiguous, 2) his trial counsel was ineffective, and 3) his guilty plea was not 

knowing and voluntary. Appellant’s App. pp. 12-13. Hamilton’s petition was amended 

in November 2013 to add claims of prosecutorial misconduct and ineffective appellate 

counsel. 

Counsel entered an appearance for Hamilton in December 2013. In responsive 

pleadings filed prior to the hearing on Hamilton’s petition, Hamilton argued that he was 

illegally confined because his plea agreement was void. 

On January 28, 2014, a hearing was held on Hamilton’s petition. Hamilton argued 

that his trial counsel was ineffective because counsel advised him that a violation of the 

terms of his work release would only result in the revocation of his work release 

placement, and not the revocation of his probation. Also, the plea agreement provided 

that Hamilton’s probationary period would begin after he had served the executed portion 

of his sentence. Hamilton argued that he would not have accepted the plea agreement if 

he had understood that his probation could be revoked based on a violation of his work 
6

release placement. Hamilton’s trial counsel acknowledged that he incorrectly advised 

Hamilton of the law. 

On February 21, 2014, the post-conviction court issued findings of fact and 

conclusions of law. The court denied Hamilton’s request for post-conviction relief after 

concluding:

Hamilton has failed to meet his burden to show that his trial counsel’s 

failure to properly advise him that his probation could be revoked while 

serving his work release sentence caused him prejudice. There is evidence 

that Mr. Hamilton never intended to go to trial. Mr. Hamilton’s contrary 

testimony at this PCR hearing is simply self-serving and not credible. 

During his PCR testimony, Mr. Hamilton completely denied a factual basis 

existed; however, the evidence indicates that he readily acknowledged the 

facts along with his guilt at the guilty plea hearing. In this case Scott 

Knierim testified that he was retained to negotiate a plea with the State to 

avoid prison time for the Petitioner. He was successful in doing the same 

and ultimately successful in getting the Court to accept and approve [] the 

same, despite the Court’s previously stated reservations with the plea terms. 

Further, Mr. Knierim testified that there was never discussion of pursuing a 

jury trial. The evidence against Petitioner was overwhelming. The State 

had in its possession video evidence of a controlled buy between Mr. 

Hamilton and a confidential informant on more than one occasion. Mr. 

Hamilton received substantial benefits as a result of Mr. Knierim’s efforts 

in negotiating the plea agreement. But for his own use of cocaine while in 

work release as well as his ill-fated attempt to bribe the work release officer 

regarding the dirty urine screen, Mr. Hamilton might very well still be 

enjoying the substantial benefits he received from the agreement. While his 

trial counsel forthrightly acknowledged error in advising him of a possible 

probation violation while in work release, it was not counsel’s error that 

harmed Mr. Hamilton. 

Appellant’s App. p. 261. Hamilton now appeals.

I. Post-Conviction Standard of Review

Post-conviction proceedings are not “super appeals” through which convicted 

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 
7

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners 

a limited opportunity to raise issues that were unavailable or unknown at trial and on 

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction 

petitioner bears the burden of establishing grounds for relief by a preponderance of the 

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial 

of post-conviction relief, the petitioner stands in the position of one appealing from a 

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, 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. at 643-44.

Where, as here, the post-conviction court makes findings of fact and conclusions 

of law in accordance with Indiana Post–Conviction Rule 1(6), we cannot affirm the 

judgment on any legal basis, but rather, must determine if the court’s findings are 

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 

2011), aff’d on reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction 

court’s legal conclusions, we review the post-conviction court’s factual findings under a 

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge 

the credibility of witnesses, and we will consider only the probative evidence and 

reasonable inferences flowing therefrom that support the post-conviction court’s decision. 

Id.

II. Ineffective Assistance of Trial Counsel

Hamilton contends that the post-conviction court clearly erred in denying his 

claim of ineffective assistance of trial counsel. “To establish a post-conviction claim 
8

alleging violation of the Sixth Amendment right to effective assistance of counsel, a 

defendant must establish the two components set forth in Strickland v. Washington, 466 

U.S. 668 (1984).” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013).

First, a defendant must show that counsel’s performance was deficient. This 

requires a showing that counsel’s representation fell below an objective 

standard of reasonableness and that counsel made errors so serious that 

counsel was not functioning as counsel guaranteed to the defendant by the 

Sixth Amendment. Second, a defendant must show that the deficient 

performance prejudiced the defense. This requires a showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, meaning a 

trial whose result is reliable. To establish prejudice, a defendant must show 

that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A reasonable 

probability is one that is sufficient to undermine confidence in the outcome.

Id. at 718-19 (citations omitted).

We initially observe that “[t]here are two different types of ineffective assistance 

of counsel claims that can be made in regards to guilty pleas: (1) failure to advise the 

defendant on an issue that impairs or overlooks a defense and (2) an incorrect advisement 

of penal consequences.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App.

2013) (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)); see also Smith v. State, 

770 N.E.2d 290, 295 (Ind. 2002). Hamilton alleged and proved that he received incorrect 

advice as to the law. See Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011) 

(distinguishing between claims of “intimidation by exaggerated penalty or enticement by 

an understated maximum exposure” and “incorrect advice as to the law”).

However, Hamilton must also establish prejudice, i.e. prove “by objective facts, 

circumstances that support the conclusion that [trial] counsel’s errors in advice as to 

penal consequences were material to the decision to plead.” See Segura, 749 N.E.2d at 
9

507. Therefore, Hamilton had to establish an objective reasonable probability that 

competent representation would have caused him not to enter a plea. See id. We focus 

on whether Hamilton proffered specific facts indicating that a reasonable defendant 

would have rejected the plea had Hamilton’s trial counsel performed adequately. See

Trujillo, 962 N.E.2d at 115.

Hamilton’s trial counsel admitted that he incorrectly advised Hamilton that a 

violation of his work release placement would not result in a revocation of his probation. 

However, Hamilton failed to present specific evidence, except for his own self-serving 

testimony, that he would have rejected the plea offer if he had been correctly advised of 

the law. 

Hamilton’s goal in plea negotiations was to avoid jail time. He informed trial 

counsel that he desired to complete his sentence in work release because he had four 

children to support. Counsel accomplished that goal by negotiating a plea that resulted in 

substantial benefit to Hamilton. Hamilton was charged with two counts of Class A 

felony dealing in cocaine (in addition to three lesser charges), and counsel negotiated an 

agreement whereby Hamilton pleaded guilty to one Class B felony, a lesser included 

offense of Class A felony dealing in cocaine, and would serve his executed time in work 

release. The remaining four charges were dismissed. 

Importantly, it is unlikely that Hamilton would have prevailed at trial because the 

evidence against him was overwhelming. Hamilton participated in controlled buys, which

were videotaped.
10

Although the trial court accepted Hamilton’s plea, the court expressed a great deal 

of reservation and warned Hamilton that

This is a zero (0) tolerance plea, you are doing every day of your back-up 

time. . . . If you have a notion that you are going to bring any illegal 

substance into that facility and start doing anything stupid there, you might 

as well get rid of that now and let’s just get it over with and send you to 

prison today, because it ain’t going to happen.

Trial Tr. pp. 68-69. In spite of that warning, approximately three weeks after he began 

serving his executed time in work release, Hamilton used cocaine and attempted to bribe 

a corrections officer. Hamilton’s own criminal conduct, and not the incorrect advice of 

trial counsel, resulted in Hamilton serving executed time in the Department of Correction. 

For all of these reasons, we conclude that Hamilton has not established that he was 

prejudiced by trial counsel’s deficient performance, and therefore, he failed to prove that 

his trial counsel was ineffective. See e.g. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. 

Ct. App. 2003) (stating that if the post-conviction court finds that the petitioner would 

have pleaded guilty even if competently advised as to the penal consequences, the error 

in advice is immaterial to the decision to plead and there is no prejudice).

III. Habeas Corpus

Hamilton contends that the trial court abused its discretion when it found that 

Hamilton’s habeas corpus claim “is not at issue in this case.” Appellant’s Br. at 11; 

Appellant’s App. p. 262. Hamilton claims he is entitled to habeas corpus relief because 

he is unlawfully confined under the “illegal plea bargain.” Appellant’s Br. at 18.

“The purpose of a writ of habeas corpus is to determine the lawfulness of custody 

or detention of the defendant and may not be used to determine collateral matters not 
11

affecting the custody process.” Hardley v. State, 893 N.E.2d 740, 742 (Ind. Ct. App.

2008) (citation omitted). A defendant is entitled to a writ of habeas corpus if he or she is 

unlawfully incarcerated and is entitled to immediate release. Id. (citation omitted).

Proper claims under a petition for a writ of habeas corpus include allegations that the 

petitioner’s sentence has expired, that he has been denied good time or credit time, or that 

he is seeking a correction of the beginning or end of his sentence. See Partlow v. 

Superintendent, 756 N.E.2d 978, 980 (Ind. 2001).

In this case, Hamilton alleged that he would not have entered into the plea 

agreement if he had been correctly advised that his probation could be revoked if he 

violated the terms of his work release. Hamilton concedes that if he prevails on his 

challenge to the plea agreement, the appropriate remedy is a new trial. Hamilton is 

attacking his conviction, and therefore, a writ of habeas corpus is not proper.1 See

Partlow, 756 N.E.2d at 980 (stating that when a prisoner attacks the validity of his 

conviction or sentence, a petition for post-conviction relief is the appropriate path to a 

judicial remedy; however, when one asserts he shall immediately be released from 

custody, a petition for writ of habeas corpus is proper). 

IV. Findings and Conclusions

Hamilton also argues that the trial court did not “make specific findings of fact and 

conclusions of law on all the issues Hamilton presented in his petition for relief as 

 1 Hamilton also failed to properly plead his habeas corpus claim. Hamilton’s counsel was allowed to file 

a responsive pleading seven days prior to the hearing on his petition for post-conviction relief. Hamilton 

claims that the pleading should be treated as an amendment to his petition for post-conviction relief. 

However, Hamilton did not seek leave of the court to amend his petition as required by Post-Conviction

Rule 1(4)(c).
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required by” Post-Conviction Rule 1(6). Appellant’s Br. at 19. Rule 1(6) provides: “The 

court shall make specific findings of fact, and conclusions of law on all issues presented, 

whether or not a hearing is held.”

The trial court’s finding of facts specifically detail the events leading up to 

Hamilton’s decision to plead guilty, his sentence, and the revocation of his probation. 

The trial court also addressed trial counsel’s testimony at the hearing and counsel’s 

admission that he gave incorrect advice to Hamilton during the plea agreement 

negotiations.

The trial court did not specifically address Hamilton’s claims that his plea was not 

knowing and voluntary and of prosecutorial misconduct.2 However, these claims center 

on trial counsel’s incorrect legal advice, i.e. that a violation of Hamilton’s work release 

placement would not result in a revocation of his probation. The trial court’s findings 

and conclusions resolved the issue of trial counsel’s incorrect advice and whether the 

error in advice was material to Hamilton’s decision to plead guilty. Accordingly, the 

post-conviction court’s failure to issue specific findings on Hamilton’s claims that his 

plea was not knowing and voluntary and of prosecutorial misconduct is not reversible 

error. See Jackson v. State, 676 N.E.2d 745, 750 (Ind. Ct. App. 1997), trans. denied.

Conclusion

Hamilton failed to prove that trial counsel’s incorrect advice was material to his 

decision to plead guilty; therefore, Hamilton did not prove that his trial counsel was 

 2 In his pleadings and Appellant’s Brief, Hamilton also appears to argue that the prosecutor engaged in 

misconduct during the probation revocation proceedings. This claim should have been raised in the direct 

appeal of his probation revocation, and may not be raised in his petition for post-conviction relief.
13

ineffective. We affirm the post-conviction court’s denial Hamilton’s petition for postconviction relief.

Affirmed.

RILELY, J., and CRONE, J. concur.