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:

G. ALLEN LIDY GREGORY F. ZOELLER

Roscoe Stovall, Jr., & Associates Attorney General of Indiana

Mooresville, Indiana

IAN MCLEAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DIONNE HARRIS, )

)

Appellant-Petitioner, )

)

vs. ) No. 34A04-1111-PC-593

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE HOWARD SUPERIOR COURT

The Honorable George A. Hopkins, Special Judge

Cause No. 34D01-0703-PC-176

May 23, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Dionne Harris appeals the post-conviction court’s denial of his petition for postconviction relief. We affirm. 

Issues

Harris raises three issues, which we restate as:

I. whether the post-conviction court special judge should 

have held a new evidentiary hearing before issuing his 

findings of fact and conclusions thereon;

II. whether Harris’s guilty plea was voluntary; and

III. whether Harris received ineffective assistance of trial 

counsel.

Facts

In March 2005, the State charged Harris with Class A felony dealing in cocaine, 

Class C felony possession of cocaine, and Class C misdemeanor operating a motor 

vehicle without having received a license, and alleged that Harris was an habitual 

offender. In a separate cause, Harris was also charged with two counts of Class D felony 

theft. Harris filed a motion to suppress, and on January 5, 2007, the trial court denied 

Harris’s motion. After the motion was denied, Harris and his attorney agreed that they 

should appeal the denial. However, they did not discuss filing an interlocutory appeal.

During the next week, the State offered Harris a plea agreement. Under the plea 

agreement, if Harris pled guilty to Class A felony dealing in cocaine, the State agreed to 

dismiss the remaining charges, including the theft charges and the habitual offender 
3

allegation. Harris’s attorney discussed the proposed plea agreement with him. His 

attorney recalled advising Harris that, by entering into the plea agreement, he was 

waiving his right to appeal his conviction. However, they did not specifically discuss the

appeal of the denial of the motion to suppress at that time.

Harris decided to accept the plea agreement, and a guilty plea hearing was held on 

February 7, 2007. At the guilty plea hearing, the trial court advised Harris of his rights, 

including the following advisement: “If you were to have a trial and you were to be found 

guilty you would have the right to appeal your conviction to the Indiana Supreme Court 

or the Court of Appeals, but by pleading guilty you’re giving up that right.” Petitioner’s 

Exhibit 2 p. 3. Harris indicated that he understood his rights and did not have any 

questions. The trial court accepted Harris’s guilty plea and sentenced him to thirty years 

with ten years suspended to probation for the Class A felony dealing in cocaine 

conviction. A few days after sentencing, Harris asked his attorney about the appeal of the 

denial of the motion to suppress, and his attorney said an appeal of the denial was not 

possible after the guilty plea. 

In 2007, Harris filed a petition for post-conviction relief, which was subsequently 

amended several times. Ultimately, Harris argued that: (1) his credit time was calculated 

incorrectly; (2) his guilty plea was involuntary; and (3) he received ineffective assistance 

of counsel. The post-conviction court held an evidentiary hearing on September 17, 

2010. In July 2011, Harris filed a motion for appointment of a special judge, and the 

Indiana Supreme Court appointed Judge George Hopkins as the special judge. After 

Judge Hopkins was appointed, Harris filed a pro se appearance, and his attorney filed a 
4

motion to withdraw, which Judge Hopkins granted. Harris also filed a request for a copy 

of the chronological case summary and a copy of the post-conviction transcripts. On 

October 4, 2011, Judge Hopkins entered findings of fact and conclusions thereon denying 

Harris’s petition for post-conviction relief regarding his ineffective assistance of counsel 

and involuntary guilty plea claims and granting Harris’s petition for post-conviction relief 

regarding his credit time claim. Harris now appeals. 

Analysis

Harris appeals the post-conviction court’s denial of his petition for post-conviction 

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

conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 

905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). “The findings must be supported 

by facts and the conclusions must be supported by the law.” Id. Our review on appeal is 

limited to these findings and conclusions. Id. Because the petitioner bears the burden of 

proof in the post-conviction court, an unsuccessful petitioner appeals from a negative 

judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment 

must show that the evidence as a whole ‘leads unerringly and unmistakably to a 

conclusion opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749 

N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review, “[we] will 

disturb a post-conviction court’s decision as being contrary to law only where the 

evidence is without conflict and leads to but one conclusion, and the post-conviction 

court has reached the opposite conclusion.” Id. 

I. New Evidentiary Hearing
5

After Judge Menges held an evidentiary hearing on Harris’s petition for postconviction relief, a special judge was appointed pursuant to Indiana Trial Rule 53.2.1

 

Harris argues that the special judge should have conducted a new evidentiary hearing to 

determine the weight and credibility of the testimony.2

Even assuming Harris could request such a hearing, he concedes that “this due 

process right may be waived and/or the parties can stipulate to the validity of the ability 

of the successor judge to rule on the evidence presented.” Appellant’s Br. p. 8. Further, 

Harris concedes that “the record is silent as to whether there was an objection to the 

 

1

Indiana Trial Rule 53.2 provides:

(A) Time limitation for holding matter under advisement. Whenever 

a cause (including for this purpose a petition for post conviction 

relief) has been tried to the court and taken under advisement by 

the judge, and the judge fails to determine any issue of law or 

fact within ninety (90) days, the submission of all the pending 

issues and the cause may be withdrawn from the trial judge and 

transferred to the Supreme Court for the appointment of a special 

judge.

(B) Exceptions. The time limitation for holding an issue under 

advisement established under Section (A) of this rule shall not 

apply where:

(1) The parties who have appeared or their counsel stipulate 

or agree on record that the time limitation for decision 

set forth in this rule shall not apply; or

(2) The time limitation for decision has been extended by 

the Supreme Court pursuant to Trial Rule 53.1(D).

* * * * *

2 Harris argues that Indiana Trial Rule 63(A), which pertains to the disability or unavailability of a judge 

after the trial or hearing, should apply. Rule 63(A) provides, in part, that if the special judge “is satisfied 

that he cannot perform those [post-trial or post-hearing] duties because he did not preside at the trial or for 

any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part.” We need 

not address the application of Rule 63(A) because Harris waived this argument.
6

Special Judge’s ability to rule on the ‘cold record’ and there is no evidence that the 

parties stipulated that the Special Judge could so rule.” Id. Our review of the record 

reveals that, although Harris filed other motions after the special judge was appointed, he 

did not request that the special judge hold a new evidentiary hearing. The right to have a 

special judge rehear evidence to make an evaluation of the credibility of witnesses and 

weight of the evidence may be waived. Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct. 

App. 1985). Harris waived this argument.

II. Involuntary Guilty Plea

Harris argues that the post-conviction court erred by finding that his guilty plea 

was voluntary. This claim relates to Harris’s alleged belief that he could appeal the 

denial of his motion to suppress despite his guilty plea. However, “[a] trial court lacks 

the authority to allow defendants the right to appeal the denial of a motion to suppress 

evidence when a defendant enters a guilty plea, even where a plea agreement maintains 

that such an appeal is permitted.” Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009). 

Voluntariness in Indiana practice “focuses on whether the defendant knowingly 

and freely entered the plea, in contrast to ineffective assistance, which turns on the 

performance of counsel and resulting prejudice.” Cornelious v. State, 846 N.E.2d 354, 

358 (Ind. Ct. App. 2006), trans. denied. A guilty plea entered after the trial court has 

reviewed the various rights that a defendant is waiving and has made the inquiries called 

for by statute is unlikely to be found wanting in a collateral attack. Id. at 357 (citing State 

v. Moore, 678 N.E.2d 1258, 1265 (Ind. 1997), cert. denied). “However, defendants who 

can show that they were coerced or misled into pleading guilty by the judge, prosecutor 
7

or defense counsel will present colorable claims for relief.” Id. (quoting Moore, 678 

N.E.2d at 1266). In assessing the voluntariness of a plea, we review all of the evidence 

before the post-conviction court, including testimony given at the post-conviction 

hearing, the transcript of the petitioner’s original sentencing, and any plea agreements or 

other exhibits that are a part of the record. Id. at 357-58. 

At the post-conviction hearing, Harris argued that his guilty plea was “not given 

voluntarily because he believed he had a right to appeal the denial of the Motion to 

suppress after he was sentenced.” Appellant’s App. p. 19. The post-conviction court 

noted in its findings that Harris had previously been convicted of several felonies, that his 

statement that he believed he could appeal the motion to suppress despite the guilty plea 

was “self serving and not corroborated,” that Harris understood the terms of the plea 

agreement, that Harris was satisfied with the terms of the plea at the time of sentencing, 

and that Harris did not express any dissatisfaction until after sentencing. Id. The postconviction court concluded that Harris failed to show by a preponderance of the evidence 

that his plea was not voluntary. 

On appeal, Harris relies on Cornelious and Lineberry v. State, 747 N.E.2d 1151 

(Ind. Ct. App. 2001), for the proposition that his guilty plea was involuntary. However, 

both Cornelious and Lineberry are distinguishable. In both of those cases, the defendants 

pled guilty and were specifically advised that they could appeal the denial of a pre-trial 

motion. Cornelius, 846 N.E.2d at 356-57; Lineberry, 747 N.E.2d at 1154. Here, 

although Harris and his counsel briefly talked about appealing the denial of his motion to 

suppress, Harris’s counsel never informed him that an appeal was in process. In fact, his 
8

counsel had no intention of filing an interlocutory appeal. Tr. pp. 42-43. More 

importantly, Harris was never advised that he could appeal the denial of his motion to 

suppress despite his guilty plea. To the contrary, at the guilty plea hearing, the trial court 

advised Harris of his rights, including the following advisement: “If you were to have a 

trial and you were to be found guilty you would have the right to appeal your conviction 

to the Indiana Supreme Court or the Court of Appeals, but by pleading guilty you’re 

giving up that right.” Petitioner’s Exhibit 2 p. 3. Harris indicated that he understood his 

rights and did not have any questions. Harris did not raise the issue of appealing the 

denial of the motion to suppress until he had already pled guilty and been sentenced. 

Further, Harris received a substantial benefit from the plea agreement—including the 

dismissal of several other charges and an habitual offender allegation. Even if Harris was 

mistaken in his belief that he could still appeal the denial of his motion to suppress, that is 

not the same as showing that he was coerced or misled into pleading guilty. Harris has 

failed to meet his burden of demonstrating that his guilty plea was involuntary, and the 

post-conviction court’s findings and conclusion on this issue are not clearly erroneous.

III. Ineffective Assistance of Counsel

In a related claim, Harris appeals the post-conviction court’s denial of his claim of 

ineffective assistance of counsel. Harris contends that his trial counsel was ineffective 

for failing to advise him that he could not appeal the denial of the motion to suppress if 

he pled guilty. To prevail on a claim of ineffective assistance of counsel, a petitioner 

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

petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 
9

102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984)), cert. denied. We need not determine whether Harris’s counsel was 

deficient because we conclude that Harris failed to demonstrate prejudice. 

In analyzing prejudice in the context of a guilty plea, we review such ineffective 

assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura

created two categories of claims and enunciated different treatments of each respective 

category, depending upon whether the ineffective assistance allegation related to (1) an 

unutilized defense or failure to mitigate a penalty, or (2) an improper advisement of penal 

consequences. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing 

Segura, 749 N.E.2d at 507), trans. denied. Segura further divided the “penal 

consequences” category into two subcategories. Id. The first subcategory concerns 

claims of promised leniency. Segura, 749 N.E.2d at 504-05. The second subcategory 

concerns claims of incorrect advice as to the law regarding the range of penal 

consequences. Segura, 749 N.E.2d at 504.

Harris claims that his argument relates to the second category of Segura claims—

”defense trial counsel’s failure to advise the Appellant that one of the penal consequences 

of his guilty plea would be that he could not further appeal his Motion to Suppress.” 

Appellant’s Br. p. 15. However, we view Harris’s claim as falling in the first category of 

Segura claims, i.e., Harris’s counsel’s alleged error or omission had the effect of 

overlooking or impairing a defense. See Helton v. State, 907 N.E.2d 1020, 1023-24 (Ind. 

2009) (holding that trial counsel was not ineffective for failing to file a motion to 

suppress where the defendant pled guilty and the defendant was required to show “a 
10

reasonable probability that he would have succeeded at trial if a motion to suppress had 

been made and sustained”). When a post-conviction allegation of ineffective assistance 

relates to trial counsel’s failure to raise a defense, Segura requires that the prejudice from 

an impaired or omitted defense be measured by evaluating the probability of success of 

the impaired or omitted defense at trial. Willoughby, 792 N.E.2d at 563. Harris makes 

no argument regarding the probability of success if he had appealed the denial of the 

motion to suppress, and he failed to meet his burden of demonstrating prejudice. The 

post-conviction court’s conclusion on this claim is not clearly erroneous.

Conclusion

Harris waived his claim that the special judge should have held a second 

evidentiary hearing, and the post-conviction court’s denial of Harris’s petition for postconviction relief is not clearly erroneous. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.