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

Eric L. Davis, Sr.

Westville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Eric L. Davis, Sr.,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 31, 2015

Court of Appeals Case No.

71A03-1403-PC-82

Appeal from the St. Joseph Superior 

Court.

The Honorable Jerome Frese, Judge.

Cause No. 71D03-1109-PC-45

Shepard, Senior Judge

[1] Eric L. Davis, Sr., appeals from the denial of his petition for post-conviction 

relief. He asserts that his trial counsel engineered a plea agreement that was at 

least partly illusory. We affirm.

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 1 of 6
Issue

[2] Davis raises several issues, only one of which was appropriately raised in this 

post-conviction proceeding: whether Davis received ineffective assistance of 

trial counsel in negotiating the plea agreement.

1

Facts and Procedural History

[3] The State charged Davis with being a felon in possession of a handgun, a Class 

C felony; possession of a handgun without a license, a Class A misdemeanor;

and being a habitual offender. The State and Davis entered into a plea 

agreement, and Davis agreed to plead guilty to the C felony charge. In 

exchange, the State agreed to dismiss the other charges and to cap the executed 

portion of Davis’s sentence at two years, the mandatory minimum.

[4] The trial court accepted the plea agreement and sentenced Davis to eight years. 

The court allowed Davis to serve the two-year executed term on day reporting 

with electronic monitoring, and it suspended the remaining six years. Davis did 

not appeal.

1 Davis also appears to claim prosecutorial misconduct and trial court error in permitting the State to file a

habitual offender enhancement, but those claims are unavailable on post-conviction review. See Lambert v. 

State, 743 N.E.2d 719, 726 (Ind. 2001) (“post-conviction procedures do not provide a petitioner with a ‘superappeal’ or opportunity to consider freestanding claims that the original trial court committed error”).

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 2 of 6

 
[5] Later, the State petitioned to revoke Davis’s probation, and Davis admitted to 

the violation. The trial court sentenced Davis to serve his full eight-year 

sentence at the Department of Correction.

[6] Davis filed a petition for post-conviction relief, and the court held an 

evidentiary hearing. The State later submitted a memorandum conceding that 

it “mistakenly and inappropriately applied the Habitual Offender 

enhancement” to the case. Appellant’s April 8, 2015 Appendix, p. 45.2

 The 

post-conviction court denied Davis’s petition, and this appeal followed.

Discussion and Decision

[7] Davis argues that he established that his trial counsel rendered ineffective 

assistance because she negotiated a plea agreement for which one of its

benefits—dismissal of the habitual offender enhancement—was illusory. He 

says the State should not have been allowed to file the enhancement charge at 

all because it was an impermissible double enhancement.

[8] As a preliminary matter, the State claims that Davis has waived this issue by 

failing to provide a complete record on appeal. Specifically, Davis has not 

provided us with a transcript of his guilty plea hearing. We reject the State’s 

2 Davis filed several versions of his Appellant’s Appendix while the case was pending, and they do not all 

contain the same documents. For clarity’s sake, we will cite to an Appendix by the filing date.

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 3 of 6

 
claim because an appellant’s failure to include an item in the appendix “shall 

not waive any issue or argument.” Ind. Appellate Rule 49(B).

[9] When appealing the denial of post-conviction relief, a petitioner must show that 

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

opposite that reached by the post-conviction court. Campbell v. State, 19 N.E.3d 

271, 274 (Ind. 2014). The post-conviction court made findings of fact and 

conclusions thereon. Thus, we will reverse only upon a showing of clear 

error—that which leaves us with a definite and firm conviction that a mistake 

has been made. Id.

[10] To establish ineffective assistance, a petitioner must demonstrate: (1) counsel’s 

performance fell below an objective standard of reasonableness based on 

prevailing professional norms; and (2) there is a reasonable probability that, but 

for counsel’s unprofessional error, the result of the proceeding would have been 

different. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014). A petitioner must 

overcome a strong presumption that counsel rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional 

judgment. Id. at 419. Isolated mistakes, poor strategy, inexperience, and 

instances of bad judgment do not necessarily render representation ineffective. 

Wentz v. State, 766 N.E.2d 351, 361 (Ind. 2002).

[11] Furthermore, when counsel is alleged to have given incorrect advice as to penal 

consequences, a petitioner must establish by objective facts that counsel’s error 

was material to petitioner’s decision to plead guilty. Willoughby v. State, 792 

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 4 of 6
N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied. Merely alleging that the 

petitioner would not have pled had correct advice been given is insufficient. Id. 

Specific facts must establish an objective reasonable probability that competent 

representation would have caused the petitioner not to enter a plea. Id.

[12] Here, the post-conviction court did not make a definitive finding about

ineffective assistance. Instead, the court acknowledged that the habitual 

offender enhancement was inappropriate but explained that the plea agreement 

contained multiple, substantial benefits for Davis.

[13] The evidence supports the post-conviction court’s conclusion. Davis received 

the minimum possible executed sentence of two years, well short of the 

maximum sentence of eight. And, doubtless due to the amount of executed 

time, the trial court allowed Davis to serve that portion of his sentence on day 

reporting rather than in the Department of Correction. These are significant 

benefits. Davis’s trial counsel stated in post-conviction discovery responses that 

she believed the cap on the executed portion of the sentence “contributed to 

deciding to forego the suppression hearing and trial in the underlying criminal 

case.” Appellant’s April 8, 2015 App. p. 28.

[14] Based on this evidence, we cannot conclude that Davis established an objective 

reasonable probability that correct advice on the habitual offender enhancement 

would have caused him to reject the plea bargain. The plea bargain was so 

beneficial to Davis that counsel’s performance fell within the range of 

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 5 of 6
professional norms despite her failure to note that the habitual charge was 

unavailable. Davis has failed to establish clear error.

[15] For the reasons stated above, we affirm the judgment of the post-conviction 

court.

[16] Affirmed.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1403-PC-82 | July 31, 2015 Page 6 of 6