ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Deidre R. Eltzroth

Deputy Public Defender

Indianapolis, 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

Willie D. Williams,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 7, 2015

Court of Appeals Case No.

35A02-1412-PC-864

Appeal from the Huntington Superior 

Court

The Honorable Jeffrey Heffelfinger, 

Judge

Case No. 35D01-1107-PC-14

Vaidik, Chief Judge.

Case Summary

[1] Willie D. Williams pled guilty to a Class C felony, a Class D felony, a Class A 

misdemeanor, and being a habitual substance offender; in exchange, the State 

dismissed a Class B felony and a Class D felony. Although sentencing was left 

to the discretion of the trial court, the maximum sentence Williams faced under 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 1 of 13
the plea agreement was twenty years; in contrast, he faced a maximum sentence 

of thirty-two years under the original charges. The trial court ultimately 

sentenced Williams to an aggregate term of sixteen years. 

[2] Williams later filed a petition for post-conviction relief alleging that his plea was 

not knowing, voluntary, and intelligent because defense counsel misadvised 

him about whether he was actually eligible for the habitual-substance-offender 

enhancement. But even assuming that Williams was ineligible for the habitualsubstance-offender enhancement, because Williams benefited from his plea 

agreement and the specific facts do not establish an objective reasonable 

probability that competent representation would have caused him not to enter a 

plea, we conclude that Williams is not entitled to relief on his claim that his 

guilty plea was not knowing, voluntary, and intelligent. We therefore affirm 

the post-conviction court. 

Facts and Procedural History

[3] On September 1, 2009, Williams exited I-69 in Huntington County at the 

Markle exit. Ex. D (factual basis contained in plea agreement). When 

Williams failed to stop at a stop sign at US 224, a police officer pulled him over. 

The officer approached Williams’ van and asked for his driver’s license and 

registration; Williams, however, drove off. As Williams continued driving on 

US 224, he threw a plastic bag containing pills out his van window. Williams 

eventually stopped his van again. When the officer ordered Williams out of his 

van, he refused to get out. The officer therefore unlocked the van door through 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 2 of 13
the window, removed Williams from the van, and handcuffed him. Williams 

told the officer that he did not have a driver’s license. The police found $150 in 

cash inside Williams’ van and 504 pills—including methadone and 

alprazolam—packaged for sale inside the bag that Williams had thrown out his 

van window. 

[4] The State charged Williams with five counts: Count I: Class B felony dealing in 

a schedule I, II, or III controlled substance; Count II: Class C felony dealing in 

a schedule IV controlled substance; Count III: Class D felony possession of a 

controlled substance; Count IV: Class D felony resisting law enforcement; and 

Count V: Class A misdemeanor driving while suspended. Ex. A. 

[5] In October 2009 the State extended to Williams the following offer: Williams 

would plead guilty to Counts I, IV, and V; in exchange, the State would dismiss 

Counts II and III and “not file a habitual substance offender enhancement.” 

Ex. 1. In addition, the State agreed to a sentence of eighteen years with no 

probation. Id. Williams, however, rejected this offer because he believed that 

the State could not prove Count I: Class B felony dealing in a schedule I, II, or 

III controlled substance. P-C Tr. p. 18. The matter was set for a jury trial. 

[6] Based on Williams’ rejection of the offer, in December 2009 the State added a 

new count alleging that Williams was a habitual substance offender because he 

had committed two prior unrelated substance offenses. Ex. B. The State 

amended this count in May 2010 to add a third prior unrelated substance 

offense. Ex. C. Specifically, the State alleged that Williams was a habitual 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 3 of 13
substance offender because he had accumulated the following prior unrelated 

substance offenses:

1. Possession of Paraphernalia as a class A misdemeanor, committed 

on October 29, 2005, conviction entered on October 31, 2005, in the 

Allen Superior Court under Cause No. 02D04-0510-CM-007929.

2. Possession of Cocaine as a class C felony, committed on April 4, 

1995, conviction entered on October 27, 1995, in the Marion Superior 

Court under Cause No. 49G02-9504-CF-046076.

3. Possession of Cocaine as a felony, committed on February 21, 1992, 

conviction entered on November 15, 1999, in the 16th Judicial District 

Court, in the Parish of St. Martin, in the State of Louisiana under 

docket no. 127,610.

Id. Williams filed an objection to this amendment, see Appellant’s App. p. 7 

(CCS entry dated May 10, 2010), but the record does not reveal the grounds for 

the objection.

1

 

[7] On May 13, 2010, the day Williams’ jury trial was scheduled to start, Williams 

and the State entered a plea agreement in which Williams pled guilty to Count 

II: Class C felony dealing in a schedule IV controlled substance, Count IV: 

Class D felony resisting law enforcement, Count V: Class A misdemeanor 

driving while suspended, and being a habitual substance offender. Ex. D. In 

exchange, the State agreed to dismiss Count I (a Class B felony) and Count III

(a Class D felony). Id. Although sentencing was left to the discretion of the 

1 Defense counsel wrote a letter to Williams in June 2010 in which counsel opined that Williams would 

receive “8 to 12 years” at sentencing but that had he gone to trial, a jury would have convicted him on all 

counts and he would have faced “well beyond 20 years up to over 30 years.” Ex. E. Defense counsel also 

told Williams that he had “preserved our objection to the amendment on the habitual substance offender.” 

Id. But again, the letter does not reveal the grounds for the objection. 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 4 of 13

 
trial court, see id., the maximum sentence Williams faced under the plea 

agreement was twenty years.2

 

[8] At the sentencing hearing, the trial court commented as follows:

Mr. Williams your record is one of the worst ones that I’ve seen in 

quite a while. This makes your ninth and tenth (9th and 10th) felony 

offenses. By the Probation’s count you have a[t] least eleven (11) prior 

misdemeanor offenses[,] you have three (3) Petitions to Revoke[,] 

you’ve committed a Battery offense while you [were] awaiting 

sentencing for these offenses[,] your record shows that you have at 

least two (2) prior Batter[ies] and one (1) prior Strangulation.

Ex. G, p. 39. The court sentenced Williams to eight years for Count II, 

enhanced by eight years for being a habitual substance offender; one and onehalf years for Count IV; and one year for Count V. The court ordered the 

sentences to run concurrently, for an aggregate term of sixteen years. 

[9] In July 2011 Williams, pro se, filed a petition for post-conviction relief, which 

was amended by counsel in February 2014. Specifically, Williams alleged that 

his guilty plea was not knowing, voluntary, and intelligent and that his trial 

counsel was ineffective because the three convictions the State used to support 

his habitual-substance-offender enhancement were improper. At the hearing on 

his petition for post-conviction relief, Williams testified that he was never 

advised that he was ineligible for the habitual-substance-offender enhancement 

2 Because Williams pled guilty to one crime of violence—Class D felony resisting law enforcement—the 

consecutive-sentencing limitation in Indiana Code section 35-50-1-2 did not apply. See Johnson v. State, 749 

N.E.2d 1103, 1110 (Ind. 2001) (“However, the limitations the statute imposes on consecutive sentencing do 

not apply between crimes of violence and those that are not crimes of violence.”). 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 5 of 13

 
and that had he known he was ineligible, “I wouldn’t have pled guilty. I would 

have insisted on going to trial.” P-C Tr. p. 16. When asked why he would 

have chosen to go to trial, Williams explained:

I feel the State couldn’t prove intent to deliver a controlled substance 

without a reasonable doubt. The State could only prove uh, a 

possession of a controlled substance which is a lesser included offense 

and knowing that without the habitual I would have insisted on going 

to trial and asked my attorney to negotiate a better plea bargain.

Id.

[10] Following the hearing, the post-conviction court denied relief. See Appellant’s 

App. p. 99-104 (post-conviction court’s order). 

[11] Williams now appeals.

Discussion and Decision 

[12] Williams contends that the post-conviction court erred in denying him relief. In 

post-conviction proceedings, the petitioner bears the burden of proof by a 

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State,

881 N.E.2d 639, 643 (Ind. 2008). When appealing from the denial of postconviction relief, the petitioner stands in the position of one appealing from a 

negative judgment, and the standard of review is rigorous. Fisher v. State, 810 

N.E.2d 674, 679 (Ind. 2004); see also Trujillo v. State, 962 N.E.2d 110, 113 (Ind.

2011). “To prevail on appeal from 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 of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 6 of 13
court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010), reh’g denied. Here, 

the post-conviction court made findings of fact and conclusions of law 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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation 

omitted), reh’g denied. “The post-conviction court is the sole judge of the weight 

of the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 

1208, 1210 (Ind. 1998), reh’g denied. Accordingly, we accept the post-conviction

court’s findings of fact unless they are clearly erroneous, but we do not defer to 

the post-conviction court’s conclusions of law. Wilson v. State, 799 N.E.2d 51, 

53 (Ind. Ct. App. 2003).

[13] Williams first contends that the three convictions the State used to support his 

habitual-substance-offender enhancement were improper. Specifically, he 

alleges that his conviction for possession of paraphernalia does not qualify as a 

“substance offense” under the habitual-substance-offender statute and that the 

other two convictions—both for possession of cocaine—“are not in the proper 

sequence.” Appellant’s Br. p. 6. 

[14] On appeal, the State does not challenge Williams’ assertion that his two 

possession-of-cocaine convictions are not in the proper sequence. See Ind. Code 

Ann. § 35-50-2-10 (West 2012) (“After a person has been convicted and 

sentenced for a substance offense committed after sentencing for a prior 

unrelated substance offense conviction, the person has accumulated two (2) 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 7 of 13
prior unrelated substance offense convictions.”).

3

 Instead, the State argues that 

Williams’ conviction for possession of paraphernalia indeed qualifies as a 

“substance offense” under the habitual-substance-offender statute, and when 

that conviction is combined with one of Williams’ possession-of-cocaine 

convictions, “the State had the necessary number of prior convictions, namely 

two.” Appellee’s Br. p. 14. 

[15] At the time of the offenses, Indiana’s habitual-substance-offender statute 

provided, in part:

(a) As used in this section:

(1) “Drug” means a drug or a controlled substance (as defined 

in IC 35-48-1).

(2) “Substance offense” means a Class A misdemeanor or a felony in 

which the possession, use, abuse, delivery, transportation, or 

manufacture of alcohol or drugs is a material element of the crime. The 

term includes an offense under IC 9-30-5 and an offense under IC 9-11-

2 (before its repeal).

(b) The state may seek to have a person sentenced as a habitual 

substance offender for any substance offense by alleging, on a page 

separate from the rest of the charging instrument, that the person has 

accumulated two (2) prior unrelated substance offense convictions.

(c) After a person has been convicted and sentenced for a substance 

offense committed after sentencing for a prior unrelated substance 

3 Indeed, the dates contained in the habitual-substance-offender charging information confirm that Williams’ 

two possession-of-cocaine convictions are not in the proper sequence. That is, Williams committed the 

possession offense in the Louisiana case in 1992 but was not sentenced until 1999. Williams committed the 

possession offense in the Indiana case in 1995 and was sentenced that same year. Because Williams was not 

sentenced in the Louisiana case before he committed the possession offense in the Indiana case, the Louisiana 

conviction cannot be used to support Williams’ habitual-substance-offender enhancement. 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 8 of 13

 
offense conviction, the person has accumulated two (2) prior unrelated 

substance offense convictions. . . . 

* * * * *

(f) The court shall sentence a person found to be a habitual substance 

offender to an additional fixed term of at least three (3) years but not 

more than eight (8) years imprisonment, to be added to the term of 

imprisonment imposed under IC 35-50-2 or IC 35-50-3. . . . 

Ind. Code Ann. § 35-50-2-10 (West 2012) (emphasis added). Both parties 

concede that there are no appellate cases directly addressing whether possession 

of paraphernalia qualifies as a “substance offense” under the habitualsubstance-offender statute. See Appellant’s Br. p. 7 (“No appellate cases address 

this issue directly.”); Appellee’s Br. p. 14 (“Unsurprisingly, although case law 

on the specific issue is lacking . . . .”).4

 

[16] Indiana, however, made significant changes to its criminal code effective July 1, 

2014. One of those changes was to repeal the habitual-substance-offender 

statute effective July 1, 2014. See P.L. 158-2013. Now, drug felonies are 

included under the general habitual-offender statute. See Peoples v. State, 929 

N.E.2d 750, 751-52 (Ind. 2010) (explaining that in 2001 the legislature limited 

when drug offenses could be counted under the general habitual-offender 

statute); compare Ind. Code Ann. § 35-50-2-8(b)(3)(C), (d)(3)(C) (West 2012) 

4 In Aslinger v. State, another panel of this Court noted in a footnote that the defendant’s possession-ofparaphernalia conviction “would merit the HSO enhancement.” 2 N.E.3d 84, 92 n.4 (Ind. Ct. App. 2014), 

clarified on reh’g, Aslinger v. State, No. 35A02-1303-CR-296 (Ind. Ct. App. May 7, 2014), trans. not sought. 

However, the Court did not directly address whether possession of paraphernalia satisfied the statutory 

definition of “substance offense.”

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 9 of 13

 
(limiting the number of drug offenses that could be used to support the general 

habitual-offender enhancement) with Ind. Code Ann. § 35-50-2-8 (West 2014 

Supp.) (new statute containing no such limits). Accordingly, whether 

possession of paraphernalia qualifies as a “substance offense” under the nowrepealed habitual-substance-offender statute is not a pressing issue in light of the 

recent changes to our criminal code.

[17] But even assuming that Williams’ possession-of-paraphernalia conviction did 

not qualify as a “substance offense” under the now-repealed habitual-substanceoffender statute and therefore Williams did not have two prior unrelated 

substance-offense convictions, we find that Williams is still not entitled to relief 

on his claim that his guilty plea was not knowing, voluntary, and intelligent. 

“The long-standing test for the validity of a guilty plea is ‘whether the plea 

represents a voluntary and intelligent choice among the alternative courses of 

action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)

(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In furtherance of this 

objective, the Indiana Code provides that the court accepting the guilty plea 

must determine that the defendant, among other things: (1) understands the 

nature of the charges; (2) has been informed that a guilty plea effectively waives 

several constitutional rights—including trial by jury, confrontation and crossexamination of witnesses, compulsory process, and proof of guilt beyond a 

reasonable doubt without self-incrimination; and (3) has been informed of the 

maximum and minimum sentences for the crimes charged. Id.; see also Ind.

Code § 35-35-1-2. In assessing the voluntariness of the plea, we review all the 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 10 of 13
evidence before the post-conviction court, including testimony given at the postconviction trial, the transcript of the petitioner’s original sentencing, and any 

plea agreements or other exhibits that are part of the record. Diaz, 934 N.E.2d 

at 1094.

[18] However, a defendant may not enter a plea agreement calling for an illegal 

sentence, benefit from that sentence, and then later complain that it was an 

illegal sentence. Russell v. State, --- N.E.3d ---, --- (Ind. June 29, 2015); see also 

Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987). This is because defendants 

who plead guilty to achieve favorable outcomes in the process of bargaining 

give up a plethora of substantive claims and procedural rights. Lee v. State, 816 

N.E.2d 35, 40 (Ind. 2004); Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001). 

Therefore, where a defendant “knowingly, intelligently, and voluntarily enters a 

plea agreement, there is no compelling reason to set aside the conviction on the 

grounds that the sentence is later determined to be invalid or to have contained 

a mistake of law.” Russell, --- N.E.3d at --- (emphasis and quotation omitted). 

[19] Williams asserts that he was “misadvised” about the penal consequences of his 

plea and “[h]ad he known he was actually ineligible [for the habitual-substanceoffender enhancement], he would not have pled to it and would have insisted 

on trial.” Appellant’s Br. p. 10. With respect to a claim that a defendant has 

received incorrect advice as to the penal consequences of a plea:

Whether viewed as ineffective assistance of counsel or an involuntary plea, the 

post-conviction court must resolve the factual issue of the materiality 

of the bad advice in the decision to plead, and post-conviction relief 

may be granted if the plea can be shown to have been influenced by 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 11 of 13
counsel’s error. However, 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.

Roberts v. State, 953 N.E.2d 559, 563 (Ind. Ct. App. 2011) (emphasis added) 

(quoting Segura v. State, 749 N.E.2d 496, 504-05 (Ind. 2001)), trans. denied. That 

is, a petitioner must 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. “‘Merely alleging that the petitioner 

would not have pleaded is insufficient. Rather, specific 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. at 563-64 (quoting Segura, 749 N.E.2d at 507). 

[20] Although Williams said that had he known he was ineligible for the habitualsubstance-offender enhancement he would not have pled guilty and would have 

gone to trial, the objective facts show otherwise. Williams initially faced a 

Class B felony, a Class C felony, a Class D felony,5 and a Class A 

misdemeanor, for a maximum possible sentence of thirty-two years. Williams 

eventually pled guilty to a Class C felony, a Class D felony, a Class A 

misdemeanor, and being a habitual substance offender, for a maximum possible 

sentence of twenty years. In addition, defense counsel, a very experienced 

5 Williams was actually charged with two Class D felonies, including Class D felony possession of a 

controlled substance. However, as the post-conviction court found, the possession and dealing charges 

would have merged for sentencing. See Appellant’s App. p. 103 n.1. 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 12 of 13

 
criminal lawyer, objected to the State’s motion to amend the habitualsubstance-offender enhancement and advised Williams that “the jury would 

have convicted [him] on all counts as charged.” Ex. E. Finally, although 

Williams claimed that the State could not prove Count I: Class B felony dealing 

in a schedule I, II, or III controlled substance, there is no evidence in the record 

that this charge was weak. These objective facts do not support the conclusion 

that Williams’ decision to plead guilty was driven by defense counsel’s alleged 

erroneous advice about Williams’ eligibility for the habitual-substance-offender 

enhancement. Accordingly, because Williams benefited from his plea 

agreement and the specific facts do not establish an objective reasonable 

probability that competent representation would have caused him not to enter a 

plea, we conclude that Williams is not entitled to relief on his claim that his 

guilty plea was not knowing, voluntary, and intelligent.

6

[21] Affirmed. 

May, J., and Mathias, J., concur. 

6 Williams also raises this issue under ineffective assistance of counsel. See Appellant’s Br. p. 11 (“[C]ounsel 

misadvised Williams regarding his eligibility for [the] habitual substance offender enhancement . . . .”). 

However, for the same reasons discussed above, Williams’ ineffective-assistance-of-counsel claim also fails. 

See Segura, 749 N.E.2d at 504-05 (noting that the test for evaluating an attorney’s incorrect advice as to penal 

consequences is the same “[w]hether viewed as ineffective assistance of counsel or an involuntary plea . . . 

.”). 

Court of Appeals of Indiana | Opinion 35A02-1412-PC-864 | August 7, 2015 Page 13 of 13