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

Walker Whatley

Pendleton Correctional Facility

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Walker Whatley,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 30, 2015

Court of Appeals Case No.

49A02-1411-PC-781

Appeal from the Marion Superior 

Court

The Honorable David Seiter, Master 

Commissioner

Case No. 49G20-0111-PC-22293

Crone, Judge.

Case Summary

[1] Walker Whatley appeals the denial of his petition for postconviction relief 

(“PCR”). He argues that the postconviction court erred in denying his petition 

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because there is no record of his guilty plea hearing to show that he was advised 

of certain constitutional rights and waived them. Because Whatley cannot rely 

solely on the missing record to carry his burden to show that he was not advised 

of his constitutional rights, we affirm.

Facts and Procedural History

[2] In November 2001, the State charged Whatley with class C felony possession of 

cocaine and a firearm, class D felony possession of cocaine, and class A 

misdemeanor possession of marijuana. In February 2002, the State and 

Whatley, who was represented by counsel, entered into a plea agreement, 

wherein Whatley agreed to plead guilty to class C felony possession of cocaine 

and a firearm and the State agreed to dismiss the remaining charges. The plea 

agreement informed Whatley that by pleading guilty he was waiving certain 

rights, including the rights to a public and speedy trial by jury, to confront and 

cross-examine the witnesses against him, and to remain silent and not to be 

compelled to testify against himself.

[3] A guilty plea hearing was held. The court reporter was later unable to locate 

the audio recording of the hearing. However, the chronological case summary 

(“CCS”) contains an entry for the guilty plea hearing stating that Whatley was 

advised of his rights and potential penalties and the factual basis for the offense 

was given and that the trial court found that Whatley understood his rights and 

knowingly and voluntarily waived them. The trial court accepted the plea 

agreement. The trial court later held a sentencing hearing and sentenced 

Whatley in accordance with the terms of his plea agreement.

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[4] In March 2011, Whatley filed a motion for transcripts of his guilty plea and 

sentencing hearings. In November 2011, the court reporter filed an affidavit 

stating that she had exercised due diligence in attempting to locate the audio 

recordings of those hearings but had been unable to locate them.

[5] In 2012, Whatley filed a PCR petition, alleging that the trial court violated the 

Indiana Rules of Criminal Procedure by failing to maintain the recording of his 

guilty plea hearing, he asserted his innocence at the guilty plea hearing, his plea 

was not voluntary, and he was not advised of his federal constitutional rights as 

required by Boykin v. Alabama, 395 U.S. 238 (1969).

1

 Subsequently, he filed an 

amended PCR petition, alleging that his counsel provided ineffective assistance

in failing to communicate with him prior to the guilty plea hearing and in 

coercing him to sign the plea agreement. He also alleged that the factual basis 

for the charge was not established. In 2014, Whatley filed a motion to 

withdraw guilty plea,2 which contained the same allegations that he made in his 

PCR petitions.

[6] A hearing was held, at which the postconviction court admitted the court 

reporter’s affidavit. Initially, Whatley testified that at his guilty plea hearing he 

1

 “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).

2 Our appellate courts treat such a motion as a PCR petition. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013).

See also Ind. Code § 35-35-1-4(c) (providing that a motion to withdraw guilty plea that is filed after the 

convicted person is sentenced “shall be treated by the court” as a PCR petition).

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maintained his innocence and did not admit to the factual basis underlying the

charge of class C felony possession of cocaine and a firearm. Subsequently, he 

testified that, after a recess, he admitted to the factual basis for the charge but

only because his attorney coerced him to do so. No other evidence was 

introduced. The postconviction court issued findings of facts and conclusions

of law denying Whatley’s petition. Specifically, the postconviction court 

concluded that Whatley failed to carry his burden to show (1) that he received 

ineffective assistance of counsel and (2) that the factual basis for the charge was 

not established. This pro se appeal followed.

Discussion and Decision

[7] In a postconviction proceeding, the petitioner “bears the burden of establishing 

grounds for relief by a preponderance of the evidence.” Ritchie v. State, 875 

N.E.2d 706, 713 (Ind. 2007). “When a petitioner appeals from a negative 

judgment, he or she must convince the appeals court that the evidence as a 

whole leads unerringly and unmistakably to a decision opposite that reached by 

the trial court.” Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), cert. denied

(2002). Although Whatley is “proceeding pro se and lacks legal training, such 

litigants are held to the same standard as trained counsel and are required to 

follow procedural rules.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 

2007), trans. denied (2008).

[8] The gist of Whatley’s argument appears to be that the postconviction court 

erred in denying his PCR petition because the trial court failed to maintain 

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audio recordings of his guilty plea as required by Indiana Criminal Rule 10,

3

and therefore there is no record to show that he was advised of his Boykin rights. 

The postconviction court’s findings of facts and conclusions of law do not 

contain any specific findings or conclusions relating to this contention although 

Whatley did raise it in his PCR petition. In Allen v. State, 749 N.E.2d 1158 

(Ind. 2001), our supreme court stated,

A court that hears a post-conviction claim must make findings of fact 

and conclusions of law on all issues presented in the petition. See Ind. 

Post-Conviction Rule 1(6). The findings must be supported by facts 

and the conclusions must be supported by the law. See Bivins v. State, 

735 N.E.2d 1116, 1121 (Ind. 2000), reh’g denied. Our review on appeal 

is limited to these findings and conclusions. 

Id. at 1164. Later in the opinion, the supreme court observed that the 

postconviction court failed to make a specific finding and conclusion as to one 

of Allen’s claims of ineffective assistance, and therefore the court would review 

that issue de novo. Id. at 1170. Accordingly, we will review the issue raised by 

Whatley de novo.

[9] It is true that “[t]he failure to advise a criminal defendant of his constitutional 

rights in accordance with Boykin prior to accepting a guilty plea will result in 

3 Indiana Criminal Rule 10 requires that the trial court create an electronic recording of all proceedings 

whenever a defendant pleads guilty to a felony or misdemeanor charge and is sentenced upon that plea. It 

also requires that if a transcription of the recorded matter is not prepared, certified, and filed in the criminal 

proceeding, the electronic recording must be maintained as a court record for ten years in all misdemeanors 

or fifty-five years in all felony cases.

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reversal of the conviction.” Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014). 

However, our supreme court has held that

[a] petitioner cannot obtain post-conviction relief on the ground of the 

lack of Boykin advisements simply by proving that the guilty plea 

record is lost and cannot be reconstructed. Rather, as with any claim, 

the petitioner has the burden of demonstrating by a preponderance of 

the evidence that he is entitled to post-conviction relief. 

Hall v. State, 849 N.E.2d 466, 473 (Ind. 2006). In Hall, our supreme court 

concluded that Hall failed to carry his burden because at his PCR hearing, he

relied solely on the fact that there was no record of his guilty plea hearing and 

did not present any evidence regarding whether he had been advised of his 

Boykin rights. Id. at 472-73.

[10] Likewise, Whatley did not present any evidence at his PCR hearing regarding 

whether he was advised of his Boykin rights. He cannot carry his burden by 

simply relying on the fact that the record of the guilty plea hearing is missing. 

The plea agreement, which Whatley signed, specifically contains an 

enunciation of and waiver of rights. In addition, the CCS indicates that the trial 

court advised him of his rights and that he waived them. Accordingly, we 

conclude that Whatley failed to carry his burden to show that he did not receive 

his Boykin advisements.4

 Therefore, we affirm the denial of his PCR petition.

4

 Whatley does not challenge the postconviction court’s conclusion that he failed to carry his burden to show 

that he received ineffective assistance of counsel. To the extent that Whatley argues that without a record of 

the guilty plea hearing, the postconviction court cannot confirm or deny whether he maintained his 

innocence or whether he admitted the factual basis to support his conviction, that argument is waived for 

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[11] Affirmed.

May, J., and Bradford, J., concur.

failure to present a cogent argument. See Whaley v. State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006) (“Failure 

to put forth a cogent argument acts as a waiver of the issue on appeal.”); Ind. Appellate Rule 46(A)(8)(a) 

(“The argument must contain the contentions of the appellant on the issues presented, supported by cogent 

reasoning.”).

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