Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 1 of 8

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

Jeremy Schmitt

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jeremy Schmitt,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

August 14, 2015

Court of Appeals Case No.

83A05-1409-PC-425

Appeal from the Vermillion Circuit 

Court.

The Honorable John Rader, Special 

Judge.

Cause No. 83C01-1211-PC-3

Baker, Judge.
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[1] Jeremy Schmitt appeals the denial of his petition for post-conviction relief, 

arguing that the trial court erroneously accepted his guilty plea and that he 

received ineffective assistance of trial counsel. Finding no error, we affirm.

Facts

[2] In 2003, Schmitt entered into a romantic relationship with Teresa Cox. Cox 

was having custody issues with Scott Williams, who was the father of her 

daughter. On April 19, 2004, Schmitt and Cox broke into Williams’s residence 

while Williams was inside. Cox murdered Williams; the cause of his death was 

blunt force trauma. On April 28, 2004, the State charged Schmitt and Cox with 

murder and class A felony conspiracy to commit murder.

[3] At some point, the State filed a notice of immunity indicating that it had 

extended use and derivative use immunity to Schmitt such that any evidence he 

provided in the trial against Cox would not be used in any criminal proceeding 

against him. Schmitt testified at Cox’s trial on October 12, 2004.

[4] On February 9, 2005, Schmitt and the State filed a plea agreement, pursuant to 

which Schmitt agreed to plead guilty to conspiracy to commit murder in 

exchange for the dismissal of the murder charge. Sentencing was left to the trial 

court’s discretion. At the guilty plea hearing, which was held the same day, 

Schmitt stated that he understood the allegations, that he understood he was 

pleading guilty to conspiracy to commit murder, and that he understood he was 

telling the court that he had done what was alleged in the charging information. 

To establish the factual basis for the plea, Schmitt’s attorney elicited 
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information from Schmitt that he had testified during Cox’s trial and that the 

testimony he had given in that trial had been true and accurate. The trial court 

accepted the guilty plea and later sentenced Schmitt to fifty years incarceration.

[5] On November 30, 2012, Schmitt filed a petition for post-conviction relief. The 

post-conviction court held a hearing on the petition on April 17, 2014, and on 

August 22, 2014, the post-conviction court denied the petition. Schmitt now 

appeals.

Discussion and Decision

[6] The general rules regarding the review of a ruling on a petition for postconviction relief are well established:

“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). “When appealing from 

the denial of post-conviction relief, the petitioner stands in the position 

of one appealing from a negative judgment.” Id. 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. 

Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the 

post-conviction court in this case made findings of fact and 

conclusions of law in accordance with Indiana Post–Conviction Rule 

1(6). Although we do not defer to the post-conviction court’s legal 

conclusions, “[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).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
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I. Guilty Plea

[7] Schmitt makes two arguments with respect to his guilty plea. First, he contends 

that his testimony from Cox’s trial was improperly used to establish a factual 

basis for his plea. He complains that the State had provided him immunity for 

that testimony, and as such, it should not have formed the factual basis for his 

guilty plea. It was Schmitt, however, who offered the testimony as a basis for 

the plea. The State did not attempt to use that testimony against him. 

Consequently, the State abided by its immunity-related promises and there is no 

error on this basis.

[8] Second, Schmitt argues that he maintained his innocence during the guilty plea 

hearing and that, as such, the trial court should not have accepted the plea. 

The so-called “Ross/Harshman rule” provides that a trial court “may not accept 

a plea of guilty when the defendant both pleads guilty and maintains his 

innocence at the same time. To accept such a plea constitutes reversible error.” 

Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983); see also Harshman v. State, 232 

Ind. 618, 621, 115 N.E.2d 501, 502 (Ind. 1953). This rule “is explicitly 

contingent, however, upon the protestation of innocence occurring at the same 

time the defendant attempts to enter the plea.” Carter v. State, 739 N.E.2d 126, 129 

(Ind. 2000) (emphasis added).

[9] In this case, Schmitt admitted his guilt to the trial court multiple times during 

his guilty plea hearing. He also stated that he had testified truthfully during 

Cox’s trial. That testimony included the following admissions:
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 Schmitt knew that there was animus between Williams and Cox.

 Schmitt agreed to break into Williams’s residence for Cox.

 Schmitt, dressed in dark clothes and wearing a ski mask and gloves, used 

a pry bar and a knife to enter Williams’s residence.

 Schmitt walked quietly through the residence and unlocked the back 

door so that Cox could enter.

 Schmitt gave the pry bar to Cox and walked away, leaving her to commit 

the murder.

Appellant’s App. p. 130, 144, 152, 157, 167, 170, 172.

[10] Schmitt makes much of the fact that he testified at Cox’s trial that he did not 

enter into an agreement with her to kill Williams. He argues that this testimony 

constitutes a protestation of innocence triggering the Ross/Harshman rule. We 

disagree. This testimony occurred at a different, earlier proceeding. At the 

guilty plea hearing itself, Schmitt did not make a single protestation of 

innocence. Instead, he plainly and repeatedly admitted his guilt. Under these 

circumstances, the Ross/Harshman rule was not triggered and the postconviction court correctly determined that the trial court did not err by 

accepting the guilty plea.

II. Assistance of Trial Counsel

[11] Schmitt also argues that he received the ineffective assistance of trial counsel. 

A claim of ineffective assistance of trial counsel requires a showing that: (1) 

counsel’s performance was deficient by falling below an objective standard of 

reasonableness based on prevailing professional norms; and (2) counsel’s 

performance prejudiced the defendant such that “‘there is a reasonable 
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probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444 

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A 

reasonable probability arises when there is a ‘probability sufficient to undermine 

confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 

2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two 

prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. 

Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance 

claim based upon the prejudice prong, we may do so without addressing 

whether counsel's performance was deficient.” Baer v. State, 942 N.E.2d 80, 91 

(Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be 

resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824 

(Ind. 2002).

[12] Schmitt argues that his attorney was ineffective for introducing his testimony at 

Cox’s trial as the factual basis for his guilty plea. Specifically, Schmitt alleges 

that he did not consent to the use of this testimony as the factual basis. 

Schmitt’s attorney, however, testified at the post-conviction hearing that he and 

Schmitt had discussed the use of the Cox trial testimony as the factual basis for 

the guilty plea. Trial counsel testified that Schmitt willingly agreed to waive 

any immunity-related issues regarding the use of that testimony when he 

pleaded guilty. It was for the post-conviction court to weigh these conflicting 

accounts and make a determination. We will not second-guess its conclusion 

that Schmitt’s attorney was being truthful.
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[13] Schmitt also makes vague allegations that his attorney “did nothing to protect 

Schmitt’s rights, to prevent the State from using Schmitt’s immunized 

testimony against him, or to ensure that Schmitt understood the implications of 

the plea agreement.” Appellant’s Br. p. 12. Trial counsel, however, testified 

that he and Schmitt had “lengthy discussions” about all of Schmitt’s options 

before pleading guilty. PCR Tr. p. 15. Again, we will not second-guess the 

post-conviction court’s determination that counsel was being truthful.

[14] Early in the police investigation, Schmitt admitted to police that he had broken 

and entered Williams’s residence on the night of the murder. He also told 

police that he had admitted a person into Williams’s residence after breaking 

in.1 His own admissions to police constitute compelling evidence supporting a 

charge of felony murder. Despite this compelling evidence, Schmitt’s trial 

attorney negotiated a plea to the less serious crime of class A felony conspiracy 

to commit murder. It is evident that his counsel represented and protected him 

quite ably. Schmitt cannot establish that his attorney’s performance was 

deficient or that he suffered prejudice as a result of his attorney’s performance. 

Instead, the record reveals that his attorney aided him, quite significantly. The 

post-conviction court correctly determined that Schmitt did not receive 

ineffective assistance of appellate counsel.

 

1

Schmitt initially told police that he had let a man into the house.
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[15] The judgment of the post-conviction court is affirmed.

Bailey, J., and Mathias, J., concur.