Court of Appeals of Indiana | Memorandum Decision 53A04-1407-PC-308 | January 30, 2015 Page 1 of 24

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.

ATTORNEY FOR APPELLANT

Eric C. Bohnet

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jon Colin Blauvelt,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

January 30, 2015

Court of Appeals Cause No.

53A04-1407-PC-308

Appeal from the Monroe Circuit 

Court

The Honorable Marc R. Kellams, 

Judge

Cause No. 53C02-1103-PC-548

Brown, Judge.
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[1] Jon Colin Blauvelt appeals the denial of his petition for post-conviction relief. 

Blauvelt raises four issues, which we consolidate and restate as whether the 

post-conviction court erred in denying his petition for relief. We affirm.

Facts and Procedural History

[2] On October 22, 2008, Blauvelt attempted to murder Robin Shepherd and 

Marilyn Shepherd by pouring gasoline in and about they dwelling occupied and 

setting the dwelling on fire with the specific intent to kill them. Robin was 

sleeping and pregnant at the time. Blauvelt also knowingly or intentionally 

attempted to commit the crime of feticide by pouring the gasoline and setting 

the gasoline aflame or by setting the dwelling on fire. The fire damaged Robin’s 

dwelling and resulted in bodily injuries to Robin. 

[3] On October 24, 2008, the State charged Blauvelt with Count I, attempted 

murder of Robin as a class A felony; Count II, attempted murder of Marilyn as 

a class A felony; and Count III, arson resulting in bodily injury as a class A 

felony. On March 4, 2009, the State also charged Blauvelt with Count IV, 

attempted feticide as a class C felony. 

[4] On June 26, 2009, Blauvelt’s counsel, Attorney Patrick Schrems, filed a notice 

of intent to offer insanity as a defense. On August 12, 2009, Matt Oliver, PhD, 

HSPP, filed a mental health evaluation of Blauvelt, and on October 14, 2009, 

Dr. Greg Sidell also filed a mental health evaluation. 

[5] On January 13, 2010, Blauvelt signed a plea agreement in which he agreed to 

plead guilty as charged. The agreement specified that the total sentence was not 
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to exceed sixty years and that Blauvelt “waive[d] right to appeal guilty plea and 

sentence.” Appellant’s Appendix at 32. That same day, the court held a 

hearing. Blauvelt’s counsel withdrew the defense of insanity. Upon 

questioning by the court, Blauvelt informed the court that he was taking Zoloft 

and Haldol and indicated that the medications did not in any way affect his 

ability to think. The court informed Blauvelt of his constitutional rights 

including the right to require the State to prove the charges against him beyond 

a reasonable doubt before being convicted. The court reviewed the charging 

information, and Blauvelt indicated that he understood the charges and pled 

guilty. At the end of the hearing, the court found Blauvelt’s plea to be free, 

knowing, and voluntary, found a factual basis, and “continue[d] under 

advisement the entry of judgment and further sentencing pending the 

sentencing hearing.” Id. at 61.

[6] On March 2, 2010, the court held a sentencing hearing. Blauvelt’s counsel 

called Blauvelt’s mother who testified regarding his mental illness. Blauvelt 

made a statement but the record indicates that the statement is inaudible. His 

counsel asked the court to consider his age and lack of criminal history as 

mitigators. The court stated:

First of all I want to make note of the fact that [Blauvelt], when 

entering his plea of guilty, went through a long discussion with the 

Court with regard to his mental health issues and waived knowingly 

and intentionally any defenses that they might have raised. That 

doesn’t preclude him from raising that as an issue to be considered in 

the matter of sentencing, but that in light of his actions, knew the 

difference between right and wrong, and intentionally perpetrated the 

actions which resulted in these outrageous crimes. . . . And I’ve 
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looked over the presentence and considered certainly the evidence 

submitted during the sentencing hearing and I concur in large part 

with the State in their analysis of the defendant’s actions, the 

aggravating circumstances, which were set forth. It was a carefully 

planned out and thought set of actions.

Id. at 142.

[7] The court sentenced Blauvelt to thirty years each for Counts I, II, and III, and 

six years for Count IV, and ordered that the sentence for Count II be served 

consecutive to Count I, that the sentence for Count III be served concurrent 

with Counts I and IV, and that the sentence for Count IV be served concurrent 

with Counts I and III. The court sentenced Blauvelt to an aggregate sentence of 

sixty years. 

[8] On March 30, 2011, Blauvelt, pro se, filed a petition for post-conviction relief. 

On September 17, 2013, Blauvelt by counsel filed an amended petition for postconviction relief alleging that the trial court improperly accepted his guilty plea 

and that his trial counsel was ineffective. 

[9] On March 5, 2014, the court held an evidentiary hearing at which Blauvelt’s

counsel requested that the file from the direct criminal proceedings be entered 

into evidence or that judicial notice be taken of the file, and the court stated: “so 
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noted.”1 Transcript at 22. Blauvelt testified that he pled guilty because he was 

willing to accept responsibility for the arson, he “didn’t want to drag Robin . . . 

Shepard through . . . what could have been the trial,” and he “wasn’t trying to 

waste any more time or energy or money from the Court.” Id. at 2. He testified 

that he did not understand at that time that he was pleading guilty to attempted 

murder as well as arson because he was on three different medications: Zoloft, 

an antidepressant, Haldol, an antipsychotic, and Cogentin, which he 

understood was used to help stabilize the Haldol. He testified that the 

medications significantly interfered with his ability to comprehend and 

understand things, that he did not understand that he was confessing to having 

set the fire with the specific intent to kill anybody, and that a psychologist in the 

Monroe County Jail evaluated him a few weeks after his arrest and diagnosed 

him with schizophrenia, an unspecific personality disorder, and depression. 

When asked to describe the side effects of his medications, Blauvelt stated:

Significant side effects. Including lethargy, confusion, it crushed my 

emotional capacity to feel things, it made me sleep twenty (20) hours a 

day. It made it largely impossible to be able to express myself, my 

thoughts or my feeling as well as understand what was going on 

 

1 The transcript of the guilty plea hearing is contained in the appellant’s appendix but is missing pages 4 and 

18. The transcript of the sentencing hearing is contained in the appellant’s appendix but is missing pages 51, 

52, 53, and 77. The record does not contain a copy of the presentence investigation report or the mental 

health evaluations.
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around – well, what was being asked to me beyond just simple yes or 

no questions.

Id. at 5-6.

[10] On June 6, 2014, the court denied Blauvelt’s petition. The order states in part:

[Blauvelt] cites three reasons to find deficient performance: (1) failure 

of trial counsel to provide effective representation regarding issues 

pertaining to [Blauvelt’s] mental illness and medications, (2) counsel 

advised [Blauvelt] to accept a plea deal for counts for which there was 

insufficient evidence of intent, and (3) failure to make an effective 

defense at sentencing.

Regarding the first claim, counsel filed a Notice of Intent to offer 

Insanity as a Defense, indicating that [trial counsel] was aware of 

[Blauvelt’s] mental condition. Further, the transcript of the change of 

plea hearing indicates [trial counsel] had not ignored [Blauvelt’s] 

mental state in representing [Blauvelt]. Tr. Proceedings 7. [Blauvelt] 

has not met his burden in overcoming the presumption that he 

received ineffective [sic] assistance in this regard.

Regarding the second claim, [Blauvelt] asserts that there was 

insufficient evidence to show specific intent, but seeing as there was no 

trial for the prosecution to present evidence of this, the Court cannot 

baldly accept [Blauvelt’s] assertion. Given the presumption of 

effectiveness of counsel and [Blauvelt’s] failure to produce specific 

evidence that would indicate an inability for the state to prove specific 

intent, [Blauvelt] has not met his burden to show ineffective assistance 

for this claim.

Regarding the third claim, counsel called a witness at the sentencing, 

called [Blauvelt] for an unsworn statement, and suggested mitigating 

factors to the Court. The decision to not cross-examine the State’s 

witnesses is a tactical decision. See Osborne v. State, 481 N.E.2d 376, 

380 (Ind. 1985). Counsel’s tactical decisions and matters of strategy 

are discretionary and receive deferential review. Stephenson v. State, 
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864 N.E.2d 1022, 1031 (Ind. 2007) (quoting Stevens v. State, 770 

N.E.2d 739, 746 (Ind. 2002)[, reh’g denied, cert. denied, 540 U.S. 830, 

124 S. Ct. 69 (2003)), reh’g denied, cert. denied, 552 U.S. 1314, 128 S. Ct. 

1871 (2008)]. Counsel’s strategy and tactical decisions in presenting 

[Blauvelt’s] defense at sentencing have not fallen below an objective 

standard of performance.

B. Improper Acceptance of Guilty Plea Claim

In Owens v. State, the defendant pled guilty with “yes” or “no” answers, 

and this was a sufficient factual basis to deny his request to withdraw 

the guilty plea at sentencing. 426 N.E.2d 372, 374 (Ind. 1981). 

[Blauvelt’s] contention that his plea should not have been accepted 

because he did not provide a narrative description is without merit in 

light of Owen[s]. In respect to each charge, the Court asked [Blauvelt] 

if he understood the charge and how he pled to it. [Blauvelt] stated 

that he understood and pled guilty to each charge.

[Blauvelt] further contends that statements he made maintaining “it 

was not his intent to injure either [victim]” that were reported in his 

Presentence Investigation Report contradict his plea and therefore 

should have led the Court to reject his plea. Presentence Investigation 

Report 7. Unlike in Owen[s], [Blauvelt] never requested to withdraw 

his guilty plea, instead he asserts that statements made to a probation 

officer declaring that he did not intend to hurt anyone should negate 

the factual basis of his plea. Setting aside a guilty pleas [sic] after 

acceptance, but before sentencing in non-capital cases is left to the trial 

court’s discretion. See, e.g., Beech v. State, 702 N.E.2d 1132, 1136 (Ind. 

Ct.[ ]App. 1998); Harris v. State, 671 N.E.2d 864, 869 (Ind. Ct.[ ]App. 

1996)[, trans. denied]. Especially with no formal motion to withdraw 

the plea, the court did not abuse its discretion in accepting [Blauvelt’s] 

guilty plea.

Appellant’s Appendix at 4-5.
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Discussion

[11] Before discussing Blauvelt’s allegations of error, we note the general standard 

under which we review a post-conviction court’s denial of a petition for postconviction relief. The petitioner in a post-conviction proceeding bears the 

burden of establishing grounds for relief by a preponderance of the evidence. 

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). 

When appealing from the denial of post-conviction relief, the petitioner stands 

in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d 

at 679. On review, we will not reverse the judgment unless the evidence as a 

whole unerringly and unmistakably leads to a conclusion opposite that reached 

by the post-conviction court. Id. Further, the post-conviction court in this case 

entered findings of fact and conclusions thereon in accordance with Indiana 

Post-Conviction Rule 1(6). “A post-conviction court’s findings and judgment 

will be reversed only upon a showing of clear error – that which leaves us with 

a definite and firm conviction that a mistake has been made.” Id. In this 

review, we accept findings of fact unless clearly erroneous, but we accord no 

deference to conclusions of law. Id. The post-conviction court is the sole judge 

of the weight of the evidence and the credibility of witnesses. Id.

[12] The issue is whether the post-conviction court erred in denying Blauvelt’s

petition for relief. Blauvelt argues that: (A) his plea was not made knowingly, 

voluntarily, or intelligently; and (B) his trial counsel was ineffective. 
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A. Guilty Plea

[13] Blauvelt argues that his guilty plea was not knowingly and intelligently made 

because he did not understand that he was confessing to having acted with 

intent to kill. He contends that the trial court failed to take necessary steps to 

insure that he understood and intended his confession of specific intent. 

Without citation to the record, he asserts that the plea colloquy was severely 

abbreviated and consisted solely of the judge asking a single question for each 

charge which recited all of the elements of the offense along with Blauvelt’s 

answer of yes to the complete charge. He asserts that, “[w]hile such a cursory 

exchange may suffice in a routine case, a more thorough examination should 

have been used in light of the special complexity of the attempted murder 

charge as well as the allegations of mental illness and the knowledge that he 

was taking anti-psychotic drugs.” Appellant’s Brief at 12. He points to his 

statements to the probation officer during the preparation of the presentence 

investigation report in which he alleges he insisted that he was innocent of the 

attempt charges, and argues that his denial of an intent to harm should have 

triggered a re-evaluation of the validity of the guilty plea because Indiana does 

not permit a criminal defendant to plead guilty while also maintaining his 

innocence. He also argues that, to the extent the trial court originally relied on 

the assurances of Blauvelt’s trial counsel, the assurances have been cast in doubt 

by the fact that his trial counsel was then facing disciplinary charges for the 

same sort of neglect described by Blauvelt. 
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[14] The State argues that Blauvelt received notice of the specific intent element of 

attempted murder in the charging information and that Blauvelt acknowledged 

that he acted with specific intent. The State asserts that Blauvelt never moved 

to withdraw his plea and it would have been improper for the trial court to 

assume defense counsel’s role and question Blauvelt whether he wanted to 

withdraw his plea. The State also contends that nothing in the medical records 

suggests that the medications interfered with Blauvelt’s ability to read, follow a 

conversation, or understand legal proceedings.2 

[15] Generally, a guilty plea constitutes a waiver of constitutional rights, and this 

waiver requires a trial court to evaluate the validity of every plea before 

accepting it. Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For the plea to 

be valid, the defendant’s decision to plead guilty must be knowing, voluntary,

and intelligent. Id. “Prior to the acceptance of a guilty plea, a trial court must 

determine that such plea is voluntarily made.” Curry v. State, 674 N.E.2d 160, 

161 (Ind. 1996), abrogated on other grounds by Hall v. State, 849 N.E.2d 466, 470 

 

2 The State does not argue that Blauvelt waived his arguments based upon the provision in the plea 

agreement stating that he “waive[d] right to appeal guilty plea and sentence.” Appellant’s Appendix at 32. 

The Indiana Supreme Court has held that a defendant may waive the right to appellate review of his sentence 

as part of a written plea agreement, but that this holding does not affect the very long-standing policy that a 

defendant who can establish in a post-conviction proceeding that his plea was unintelligent is entitled to have 

his conviction set aside. Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). Given Blauvelt’s arguments that he 

did not knowingly, voluntarily, and intelligently plead guilty, we address the merits of his arguments 

notwithstanding the waiver provision in the plea agreement.
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(Ind. 2006). See also Ind. Code § 35-35-1-3(a) (“The court shall not accept a plea 

of guilty or guilty but mentally ill at the time of the crime without first 

determining that the plea is voluntary.”). “Where the court conducting a guilty 

plea hearing, either from its own knowledge or facts presented to it, has 

reasonable grounds for believing the defendant does not have sufficient 

comprehension to understand the proceedings, it shall immediately hold a 

hearing to determine whether the defendant has that ability.” Patterson v. State, 

500 N.E.2d 1191, 1193 (Ind. 1986), reh’g denied.

[16] At the guilty plea hearing, the following exchange occurred:

THE COURT: The Court has before it a plea and sentencing

agreement in that regard. Mr. Blauvelt, raise your right hand for me 

and swear or affirm to tell the truth, the whole truth and nothing but 

the truth.

[Blauvelt]: I do.

THE COURT: All right. Tell me your full name.

[Blauvelt]: Jon Colin Blauvelt.

* * * * *[3]

 

3 A portion of the omitted section is found on page 4 of the transcript which is missing from the appellant’s 

appendix. 
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[THE COURT]: . . . you understand the four charges against you, the 

penalties upon conviction and your constitutional rights.

[Blauvelt]: Yes.

THE COURT: In addition to having them read to you in the video, 

you had an opportunity to review your rights also in writing on this 

written acknowledgement form.

[Blauvelt]: Yes.

THE COURT: Do you have any questions at this time about the four 

charges against you, the penalties upon conviction of those charges or 

your constitutional rights?

[Blauvelt]: No.

THE COURT: Now, counsel, there was, at some point, a motion to 

interpose the defense of insanity raised. [Blauvelt] was evaluated. 

Let’s see? When was that? Well, I don’t see it.

[Prosecutor]: Our records show the notice of intent to offer insanity as 

defense was filed on June 25, 2009. I think that the evaluations were

done in August.

THE COURT: Thank you. Right, I show it file-stamped June 25th. 

Thank you. Consequently there was an evaluation of [Blauvelt] by 

two professionals. Greg Sidell, a medi[c]al doctor, reviewed or 

interviewed [Blauvelt] and filed his report October 14th, 2009. And his 

report concluded that “it is my opinion to a reasonable degree of 

medical certainty that [Blauvelt] was sane at the time of the alleged 

offense.” He then talks about [Blauvelt’s] behaviors and so forth. 

None of which would indicate that [Blauvelt] was incompetent or 

incapable in assisting in his own defense. Would you agree that’s Dr. 

Sidell’s report, [Blauvelt’s counsel]?

[Blauvelt’s Counsel]: Yes, Your Honor.

THE COURT: All right. Okay, thank you. We also had a report

filed from Centerstone from Matt Oliver, PhD, HSPP, and he came to 

similar conclusions. Would you agree with that, too, [Blauvelt’s 

counsel]?
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[Blauvelt’s Counsel]: Yes, Your Honor.

THE COURT: All right. So with regard to the motion to interpose 

the defense of insanity, [Blauvelt’s counsel]?

[Blauvelt’s Counsel]: Well, [Blauvelt] is certainly not a model picture 

of health, Your Honor. He certainly has sufficient capacity to 

appreciate and assist in his defense, so we would formally withdraw 

that defense at this time.

THE COURT: And you’ve been able to talk with him about his case?

[Blauvelt’s Counsel]: Absolutely.

THE COURT: And been able to discuss with him the strengths and 

weaknesses and the benefits of going to trial?

[Blauvelt’s Counsel]: Extensively.

THE COURT: And you believe that he has sufficiently understood 

and been able to converse with you and make decisions?

[Blauvelt’s Counsel]: He’s been engaged in the process, asks insightful 

questions, indicating to me that he has insight into what he’s facing 

and the ramifications of his decisions here today.

THE COURT: Jon, do you agree with that?

[Blauvelt]: Yes, sir. 

THE COURT: Okay. Are you willing to admit that you were sane as 

the law defines it at the time of the commission of the offense, that you 

knew the difference between right and wrong?

[Blauvelt]: Yes, sir.

THE COURT: Okay. And do you believe that you’ve been able to 

comprehend [your counsel’s] discussions with you?

[Blauvelt]: Yes, sir.

THE COURT: And have been able to discuss what’s happening and 

so forth?
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[Blauvelt]: Yes, sir.

THE COURT: All right. And will you promise me that if there’s 

anything that I ask you or say that you don’t understand, you’ll ask me 

to explain it further?

[Blauvelt]: Yes, sir.

THE COURT: Okay. Now you’re not today under the influence of 

alcohol.

[Blauvelt]: No, sir.

THE COURT: Are you taking medications?

[Blauvelt]: Yeah, I’m taking medication.

THE COURT: Okay, do you know what medications you’re taking?

[Blauvelt]: Zoloft and Haldol.

THE COURT: All right. And do you believe that those medications 

in any way effect your ability to think?

[Blauvelt]: No, sir.

Appellant’s Appendix at 43-48. The court informed Blauvelt of his 

constitutional rights and questioned him regarding the plea agreement, and 

Blauvelt confirmed that he was pleading guilty to all four counts. 

[17] Blauvelt’s statements at the plea hearing were coherent and responsive. We 

cannot say that the trial court from its own knowledge or facts presented to it 

had reasonable grounds for believing that Blauvelt did not have sufficient 

comprehension to understand the proceedings. See Middleton v. State, 567 

N.E.2d 141, 143 (Ind. Ct. App. 1991) (observing that “[w]hile many of [the 

defendant’s] responses during his guilty plea colloquy with the guilty plea court 
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were ‘yes sirs’, that in and of itself is not unusual given the nature of the 

standard questions propounded to a defendant,” and concluding that the record 

was devoid of anything at the guilty plea hearing which imposed a duty upon 

the guilty plea court to hold a hearing to determine if the defendant had 

sufficient comprehension to understand the proceeding), trans. denied. 

[18] Further, Blauvelt did not call his prior physician as a witness at the postconviction hearing, and, other than Blauvelt’s own testimony, the record does 

not reveal how any prescription drugs Blauvelt may have been taking affected 

his ability to voluntarily, knowingly, and intelligently plead guilty. We 

acknowledge that the Indiana Supreme Court published an order nine days 

after the sentencing hearing in this case which suspended Blauvelt’s trial 

counsel from the practice of law for a period of not less than six months due in 

part to trial counsel’s repeated lack of communication with clients and neglect 

of their cases. See In re Schrems, 922 N.E.2d 618 (Ind. 2010). Nonetheless, 

Blauvelt did not submit any testimony of his trial counsel at the post-conviction 

hearing. “Where trial counsel is not presented in support, the post-conviction 

court may infer that trial counsel would not have corroborated appellant’s 

allegations.” Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989). Because 

Blauvelt did not call his trial counsel as a witness at the post-conviction hearing, 

the court was entitled to infer that counsel would not have corroborated 

Blauvelt’s allegations. 

[19] To the extent that Blauvelt suggests he was not sufficiently informed of the 

requirement that he had to act with specific intent, we observe that the 
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transcript in the appellant’s appendix is missing page 18, and that page 19 

appears to be a continuation of the court’s description of Count I. Specifically, 

page 19 of the transcript states:

with specific intent to kill Robin Shepherd, attempt to commit the crime 

of murder by pouring flammable gasoline in and about the dwelling 

occupied by a sleeping Robin Shepherd and, or, by setting the gasoline 

aflame and, or, by setting the dwelling on fire, each act which in its 

own and, or, all of which together constitutes a substantial step toward 

the commission of the crime of murder. So it says essentially that by 

setting fire to the house that she was in, that you attempted to kill her by 

your actions and that you took a substantial step toward the commission 

of the crime of murder even though she did not die as a result of your 

offense. Do you understand the charge as its [sic] alleged in Count I.

[Blauvelt]: Yes, sir.

THE COURT: To that charge, how do you plead?

[Blauvelt]: Guilty.

Appellant’s Appendix at 57 (emphases added). With respect to Count II, the 

court stated that the charging information alleged that Blauvelt “did with the 

specific intent to kill Marilyn Shepherd, attempt to commit the crime of murder 

. . . .” Id. at 58. The court asked Blauvelt if he understood the charge, and 

Blauvelt answered: “Yes, sir.” Id. The trial court explicitly informed Blauvelt 

of the element of specific intent. Based upon the record, we cannot say that 

reversal is warranted.

[20] With respect to Blauvelt’s reliance on his statements in the presentence 

investigation report (“PSI”), we observe that the record does not contain a copy 

of the PSI. Even assuming that, as suggested by Blauvelt, he told his probation 
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officer that he had not intended to hurt either victim, again, we cannot say that 

reversal is warranted. In Ross v. State, which he cites, the Indiana Supreme 

Court held that “a judge may not accept a plea of guilty when the defendant 

both pleads guilty and maintains his innocence at the same time.” 456 N.E.2d 

420, 423 (Ind. 1983). In Moredock v. State, 540 N.E.2d 1230, 1230 (Ind. 1989), 

reh’g denied, the Court addressed whether a trial court may accept a plea from a 

defendant who pleads guilty in open court but tells a probation officer that he 

did not commit the crime. The Court declined to extend the rule of Ross to 

protestations which occur outside the courtroom. 540 N.E.2d at 1231. The 

Court held that the defendant’s statements to his probation officer that he did 

not attack the victim and that he was only trying to help her was not an 

adequate basis for post-conviction relief. Id.

[21] Based upon our review of the record, we cannot say that the evidence as a 

whole unerringly and unmistakably leads to a conclusion opposite that reached 

by the post-conviction court. See Dewitt v. State, 755 N.E.2d 167, 170-171 (Ind.

2001) (rejecting the defendant’s argument that the post-conviction court erred 

by concluding that the defendant’s decision to plead guilty was knowing, 

voluntary, and intelligent); Mayberry v. State, 542 N.E.2d 1359, 1360-1361 (Ind. 

Ct. App. 1989) (rejecting the petitioner’s claim that the post-conviction court 

erred in failing to set aside his conviction based upon his guilty plea because he 

asserted his innocence in a presentence investigation interview), trans. denied.
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B. Ineffective Assistance of Trial Counsel

[22] Blauvelt asserts that his trial counsel was ineffective because he advised him to 

plead guilty to crimes which were factually unsustainable, failed to evaluate and 

address the consequences of Blauvelt’s mental illnesses, and failed to present 

evidence of those illnesses at sentencing. Without citation to the record, he 

asserts that the evidence of an intent to kill Robin was weak at best, in part 

because she was protected by a closed door, and her injuries did not appear to 

have resulted from being targeted by the fire because they were focused on her 

face and neck, indicating that she was injured while facing the fire. He argues 

that competent counsel would have highlighted evidence of an intent to kill 

Marilyn was non-existent beyond her presence in the apartment, that evidence 

of his mental illness “should have established reasonable doubt regarding the 

purported intent to kill, and would have supported the plausibility of alternative 

motives for setting the fire such as a suicide attempt or simple property 

destruction,” and that, “[u]nfortunately, [his] counsel appears to have viewed 

the mental illnesses only in the context of an insanity defense which was 

inapplicable.” Appellant’s Brief at 21. Lastly, he contends that it was 

ineffective assistance for his trial counsel to lead him to accept an agreement 

with no apparent resulting benefit where “[e]ven if he had been found guilty of 

attempting to kill Robin but not Marilyn, the resulting sentences for the arson 

and attempted murder would likely have run concurrently since they would 

have been essentially the same crime,” that “it appears that one of the two 

would have had to have been vacated as constituting double jeopardy,” and 
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that “[t]he attempted feticide charge violated double jeopardy since it was 

necessarily based on the same facts as the attempted murder of the pregnant 

mother.” Id. at 23, 23 n.1. 

[23] The State argues the post-conviction court could infer that Blauvelt’s trial 

counsel would not have corroborated Blauvelt’s allegations because he did not 

call trial counsel as a witness, that Blauvelt did not present any evidence of 

contrary intent that his trial counsel overlooked and presented only his selfserving testimony that he did not intend to kill anyone when he set the fire, and 

that he surmises that he set the fire as part of a suicide attempt. The State 

asserts that trial counsel did not overlook any available defense stemming from 

Blauvelt’s mental health and points out that one of the court-appointed doctors 

strongly suspected that Blauvelt was feigning mental illness.4 The State also 

argues that Blauvelt did not suffer prejudice because there was no reasonable 

probability of acquittal at trial and that trial counsel’s representation at 

sentencing was not ineffective. 

 

4 The State cites the prosecutor’s comments in which the prosecutor stated that Blauvelt was “evaluated by 

two mental health evaluators. Matt Oliver stated that, ‘I strongly suspect that [Blauvelt] is malingering with 

respect to his reporting clinical problems in a means to mitigate the legal consequences of his actions.’ Mr. 

Blauvelt was [inaudible] of lying to Mr. Oliver about his mental health status.” Appellant’s Appendix at 136.
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[24] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner 

must demonstrate both that his counsel’s performance was deficient and that 

the petitioner was prejudiced by the deficient performance. French v. State, 778 

N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls 

below an objective standard of reasonableness based on prevailing professional 

norms. Id. To meet the appropriate test for prejudice, the petitioner must show 

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

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

probability is a probability sufficient to undermine confidence in the outcome. 

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong 

will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective 

assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. 

[25] When considering a claim of ineffective assistance of counsel, a “strong 

presumption arises that counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” 

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance 

is presumed effective, and a defendant must offer strong and convincing 

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will 

not support a claim of ineffective assistance of counsel. Clark v. State, 668 

N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. 

Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second 
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guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly 

speculate as to what may or may not have been an advantageous trial strategy 

as counsel should be given deference in choosing a trial strategy which, at the 

time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 

40, 42 (Ind. 1998).

[26] Because Blauvelt was convicted pursuant to a guilty plea, we must analyze his 

claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two 

main types of ineffective assistance of counsel cases. The first category relates 

to “an unutilized defense or failure to mitigate a penalty.” Willoughby v. State, 

792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied. The second category 

relates to “an improper advisement of penal consequences,” and this category 

has two subcategories: (1) “claims of intimidation by exaggerated penalty or 

enticement by an understated maximum exposure;” or (2) “claims of incorrect 

advice as to the law.” Id. 

[27] Blauvelt’s claims of ineffective assistance based upon his trial counsel’s failure 

to evaluate and address the consequences of his mental illness and failure to 

present evidence of those illnesses at sentencing fall under the first category. 

Because Blauvelt did not call his trial counsel as a witness at the post-conviction 

hearing, there is no evidence as to why counsel made the decisions he did. 

Thus, the court was entitled to infer that counsel would not have corroborated 

Blauvelt’s allegations. See Owens v. State, 464 N.E.2d 1277, 1280 (Ind. 1984) 

(holding that the court was entitled to infer that counsel would not have 

corroborated petitioner’s allegation of incompetency where petitioner failed to 
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produce the testimony of trial counsel and that “[w]ithout the benefit of 

counsel’s testimony here, we will conclude that counsel’s decision was a tactical 

judgment and not necessarily indicative of ineffective representation”).

[28] To the extent Blauvelt argues that his trial counsel failed to argue his mental 

illness as a mitigator, we observe that Blauvelt does not cite to the record to 

support his argument that his mental illness was ignored or downplayed in 

either his initial brief or his reply brief. In his statement of facts, Blauvelt 

alleges that he was eventually diagnosed at the jail with schizophrenia, 

depression, and an unspecified personality disorder. However, he does not 

argue how his mental illness limited his function or explain the nexus between 

the illness and the crime. Moreover, his trial counsel raised mental illness to 

some extent at the sentencing hearing. Trial counsel asked Blauvelt’s mother 

whether she had ever been aware or noticed any mental health issues with 

Blauvelt. At some point, Blauvelt’s mother testified:

I did take him to a psychologist for several visits when he was about 

fourteen or fifteen, when I sensed that he just seemed so ill at ease. I 

was told there was nothing wrong with him, that he was just [a] typical 

teenager, that [he] didn’t have a good relationship with his father and, 

you know, the typical things. I mean, a professional told me this. If I 

just had any clue what these demons inside that he was fighting 

unsuccessfully, I would have had him committed, to get the treatment 

that he so desperately needs, but I didn’t know and I’m going to pay 

for it for the rest of my life.

Appellant’s Appendix at 132-133. While Blauvelt’s counsel did not specifically 

mention his mental illness as a mitigator, the prosecutor acknowledged the

evidence presented by his mother by stating: “There’s been a lot of talk either by 
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his mother today and in the presentence report that he does have some mental 

health issues.” Id. at 136. At the sentencing hearing, the court stated Blauvelt 

was not precluded from raising his mental illness as a mitigator but rejected 

such a consideration and concluded that it was a carefully planned set of 

actions. We cannot say that reversal is warranted on this basis. 

[29] Blauvelt’s claim that his trial counsel was ineffective for leading him to accept 

an agreement with no apparent resulting benefit falls under the second category 

in Segura. To prove prejudice due to incorrect advice as to penal consequences,

the petitioner may not simply allege that he would not have pled guilty. Segura, 

749 N.E.2d at 507. The petitioner must instead “establish, by objective facts, 

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

penal consequences were material to the decision to plead.” Id. “[S]pecific 

facts, in addition to the petitioner’s conclusory allegation, must establish an 

objective reasonable probability that competent representation would have 

caused the petitioner not to enter a plea.” Id. In analyzing a claim of incorrect 

advice as to the law, the focus must be on whether the petitioner proffered 

specific facts indicating that a reasonable defendant would have rejected the 

petitioner’s plea had the petitioner’s trial counsel performed adequately. See

Willoughby, 792 N.E.2d at 564.

[30] To the extent Blauvelt claims that his trial counsel led him to accept an 

agreement with no apparent resulting benefit because of double jeopardy 

considerations, we observe that he does not argue that any statements by his 

trial counsel were erroneous or material to his decision to plead guilty. In the 
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argument section of his brief, Blauvelt does not assert that his trial counsel 

failed to discuss double jeopardy implications with him. Again, Blauvelt did 

not present his trial counsel’s testimony at the post-conviction hearing. Thus, 

the court was entitled to infer that counsel would not have corroborated his 

allegations. Once again, we cannot say that reversal is warranted on this basis. 

Conclusion

[31] For the foregoing reasons, we affirm the post-conviction court’s order.

[32] Affirmed.

Bailey, J., and Robb, J., concur.