Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 1 of 15

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Victoria Christ

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mark A. Petry,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

June 18, 2018

Court of Appeals Case No.

18A-PC-18

Appeal from the

Pike Circuit Court

The Honorable

Jeffrey L. Biesterveld, Judge

Trial Court Cause No.

63C01-1409-PC-216

Kirsch, Judge.

[1] Following a jury trial, Mark A. Petry (“Petry”) was convicted of Class B felony 

criminal deviate conduct, Class D felony sexual battery, and Class D felony 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 2 of 15

criminal confinement. Petry admitted to being an habitual offender, and the 

trial court sentenced him. After this court affirmed Petry’s convictions on direct 

appeal, Petry filed a petition for post-conviction relief, asserting that his plea of 

guilty to the habitual offender allegation was not knowing, intelligent, and 

voluntary. The post-conviction court denied his petition, and he now appeals, 

raising the following restated issue: whether the post-conviction court erred 

when it determined that Petry failed to show, by a preponderance of the 

evidence, that he did not know he was waiving his Boykin rights when he

pleaded guilty to the habitual offender enhancement. 

[2] We affirm.

Facts and Procedural History

[3] The facts supporting Petry’s convictions, as set forth more fully by this court on 

direct appeal, are that Petry sexually molested his teenage daughter more than 

twenty times over the course of two years. Petry v. State, No. 63A01-1306-CR279, 2014 WL 729901, slip. op. at *1 (Ind. Ct. App. Feb. 25, 2014), trans. denied.

Among other things, he touched his penis to her vagina, used bungee cords to 

tie her to the bed, duct-taped her hands behind her back, put his tongue on her 

vagina, and forced her to perform oral sex. A bifurcated jury trial was held, and 

at the end of the first phase, Petry was found guilty of Class B felony criminal 

deviate conduct, Class D felony sexual battery, and Class D felony criminal

confinement. Id. at *3. 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 3 of 15

[4] The trial court recessed the jury, entered judgment of conviction, and moved to 

the habitual offender phase of the trial. Petry’s counsel told the trial court that

Petry “intends to waive jury trial on that issue and will admit to the habitual 

charge.” Appellant’s App. Vol. II at 64; Trial Tr. Vol. III at 531. Petry, still under 

oath, presented testimony to the trial court, regarding his decision to waive his 

right to a jury trial to determine habitual offender status: 

Q: Mr. Petry, you understand that you’ve been charged as an 

habitual offender? 

A: Yes. I have. 

Q: And that there are, because of prior felony convictions that 

you have received. You understand that? 

A: Yes. 

Q: And that the uh, you have the right to have this jury sit in 

judgment on whether or not you did, in fact, commit those 

offenses. 

A: Yes. 

Q: You understand that? 

A: Yes.

Q: And you understand the seriousness of, of the habitual status, 

as far as the enhancement and the penalties?
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 4 of 15

A: Yes.

Q: Alright. And knowing all that, do you wish to waive your 

right to have a jury determine those, the issue of your habitual 

status?

A: Yes.

Q: Alright. And you, you feel like you fully understand what 

you are doing here, in admitting to this?

A: Yes.

Q: Alright. You understand that that does not affect your right 

to appeal the verdict on the other...

A: Yes.

Q: . . . counts? You understand that? Okay. You, is that, is this 

decision your free will?

A: Yes.

Q: Anybody threaten you or force you to do this?

A: No.

Q: Okay.

Appellant’s App. Vol. II at 65-66. Next, the trial court asked Petry questions, 

confirming that Petry knew and understood the enhancement penalties that he 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 5 of 15

faced and that he had received adequate time to discuss it with his attorney. 

The prosecutor then established the factual basis for Petry’s guilty plea, asking 

Petry if he had the following convictions: (1) 2005 Class C felony burglary in 

Daviess County; (2) 2000 Class C felony burglary in Dubois County; and (3) 

1996 Class B felony arson in Knox County. Petry admitted to having the 

convictions, and the exhibits establishing these convictions were admitted into 

evidence. Appellant’s App. Vol. II at 69-71; State’s Trial Exs. 6, 7, 8. Petry had 

pleaded guilty to each. State’s Trial Exs. 6, 7, 8.

[5] The trial court then asked Petry’s counsel if he had “a motion in regard to your 

client’s former denial, not guilty plea as to the habitual offender count,” and 

Petry’s counsel withdrew the not guilty plea. Appellant’s App. Vol. II at 72. The 

trial court asked Petry “how do you plead to the habitual offender charge” and 

Petry replied, “guilty.” Id. The Court found, “[T]he defendant understands the 

nature of the charge to which he’s pleading guilty, that he understands the 

possible penalty for the offense, that his plea was freely and voluntarily made, 

and that a factual basis exists for the plea.” Id. The trial court concluded by 

stating, “[T]he Court will find that the defendant is an habitual offender 

pursuant to his plea,” and it dismissed the jury, ordered a presentence report, 

and scheduled a sentencing hearing. Id.

[6] The trial court later sentenced Petry to twenty years for criminal deviate 

conduct, three years for sexual battery, and three years for criminal 

confinement, all to run concurrently. The sentence was then enhanced twenty-
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 6 of 15

five years for the habitual offender status, for an aggregate sentence of forty-five 

years.

1

[7] Petry filed a direct appeal, claiming that the trial court should not have 

admitted certain evidence and that the State presented insufficient evidence to 

convict him, and this court affirmed Petry’s convictions. Petry, at *6. In 

September 2014, Petry filed a pro se petition for post-conviction relief, later 

amended in July 2017, when Petry was represented by a public defender, 

alleging that his decision to admit to the habitual offender enhancement was 

not knowing, intelligent, and voluntary because the trial court failed to advise 

him of two constitutional rights: the privilege against self-incrimination and the 

right to confront and cross-examine witnesses. Appellant’s App. Vol. II at 26-27.

[8] At the September 29, 2017 evidentiary hearing, Petry did not testify, but he

submitted the record, which consisted of the trial transcript, trial exhibits, 

appellate briefs and appendices. Pet’r’s Ex. 1. The State did not present 

evidence, but, in argument, conceded that the trial court did not advise Petry of 

the two specific rights at the habitual phase, arguing that those advisements 

1 We note that an habitual offender enhancement must be attached to a single conviction. State v. Arnold, 27 

N.E.3d 315, 321 (Ind. Ct. App. 2015) (citing Ind. Code § 35-50-2-8), trans. denied. Here, we note that the 

Sentencing Order reflects that the habitual offender enhancement “be served consecutive to Counts I, II, and 

III.” Appellant’s App. Vol. 2 Prior Appeal at 54 (also marked as p. 296). To the extent that Petry’s enhancement 

was attached to more than one conviction, that was improper. Arnold, 27 N.E.3d at 317 n.1 (noting that 

“[a]ttaching habitual offender enhancement to all three convictions was improper”).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 7 of 15

were given to Petry at his initial hearing, and he was represented by counsel 

throughout the proceedings. PCR Tr. at 6. 

[9] After the parties submitted proposed findings, the post-conviction court issued 

findings of fact and conclusions of law (“Order”). In denying Petry’s request 

for relief, the post-conviction court determined that “there is no evidence that 

Petry was unaware of his Boykin rights.” Appellant’s App. Vol. II at 56. In 

reaching its decision, the post-conviction court acknowledged that although 

Petry “was not formally advised prior to his plea of guilty to the Habitual 

Offender enhancement” of his rights against self-incrimination and the right to 

confront and cross examine witnesses, he “was advised by the Court” of those

rights at his initial hearing on January 24, 2012, he was represented by counsel, 

and he “was present during the entire three day jury trial while his Boykin rights 

were on full display.” Id. at 55-56.

[10] Petry now appeals, asking us to reverse the post-conviction court and vacate his

habitual offender enhancement.

Discussion and Decision

[11] Petry argues that his habitual offender guilty plea2 was not knowing, voluntary 

and intelligent because, prior to his plea, he was not advised that he was 

2 We note that our Supreme Court has determined that pleading guilty to the habitual offender adjudication 

is distinguishable from stipulating to the enhancement. See Hopkins v. State, 889 N.E.2d 314, 316-17 (Ind. 

2008) (holding that record indicated that defendant stipulated to being an habitual offender, but did not plead 

guilty, and the stipulation was not subject to attack as being involuntary for lack of Boykin rights). Pleading 

guilty to an habitual offender enhancement is also distinguishable from admitting only to the factual basis 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 8 of 15

waiving (1) his right to confront and cross-examine the witnesses and (2) the 

privilege against self-incrimination. He maintains that the post-conviction 

court’s conclusion that, when he pleaded guilty, he was aware of these rights 

and understood he was waiving them was not supported by the evidence. 

[12] “A post-conviction petitioner bears the burden of establishing his claims by a 

preponderance of the evidence.” Donnegan v. State, 889 N.E.2d 886, 891 (Ind.

Ct. App. 2008) (citing Ind. Post-Conviction Rule 1(5)), trans. denied. When a 

petitioner appeals a denial of post-conviction relief, he appeals a negative 

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. 

denied. The petitioner must establish that the evidence as a whole unmistakably 

and unerringly leads to a conclusion contrary to that of the post-conviction 

court. Id. 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. 

Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied.

underlying felonies. See Garrett v. State, 737 N.E.2d 388, 392 (Ind. 2000) (holding that it was not a guilty plea 

where defendant stipulated to the existence of prior offenses but the habitual allegation was still sent to the 

jury, and the stipulation did not require trial court to advise defendant of rights he would waive by pleading 

guilty). However, if the defendant, personally or through his attorney, goes beyond merely stipulating to the 

underlying convictions and also expressly admits to the habitual offender enhancement, such an admission is 

considered a guilty plea. See Vanzandt v. State, 730 N.E.2d 721, 726 (Ind. Ct. App. 2000). A defendant may 

challenge a guilty plea only in a petition for post-conviction relief. Id.; see also Saylor v. State, 55 N.E.3d 354, 

365 n.10 (Ind. Ct. App. 2016), trans. denied. Here, where Petry stated that he was pleading “guilty” to the 

habitual allegation, and the parties’ appellate arguments are based on the premise that Petry pleaded guilty, 

we proceed to address Petry’s claim on that basis that he did, in fact, plead guilty to the enhancement.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 9 of 15

[13] Where, as here, the post-conviction court makes findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we 

cannot affirm the judgment on any legal basis, but rather, must determine if the 

court’s findings are sufficient to support its judgment. Manzano v. State, 12 

N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct. 2376 

(2015). Although we do not defer to the post-conviction court’s legal 

conclusions, we review the post-conviction court’s factual findings under a 

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence 

or judge the credibility of witnesses, and we will consider only the probative 

evidence and reasonable inferences flowing therefrom that support the postconviction court’s decision. Id. 

[14] In Boykin v. Alabama, 395 U.S. 238, 242(1969), the United States Supreme 

Court held that it was reversible error for the trial court to accept a guilty plea 

without an affirmative showing that it was intelligent and voluntary. “More 

particularly, Boykin requires that the record must show, or there must be an 

allegation and evidence which show, that the defendant was informed of, and 

waived, three specific federal constitutional rights: the privilege against 

compulsory self-incrimination, right to trial by jury, and the right to confront 

one’s accusers.” Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006); see also Ind. 

Code § 35-35-1-2 (noting that the trial court shall not accept a plea of guilty 

without first determining that the defendant has been informed that he is 

waiving certain rights). 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 10 of 15

[15] In this case, Petry argues that his habitual offender enhancement must be 

vacated because “[d]uring the guilty plea colloquy, the judge didn’t mention the 

right to confront and cross-examine and the privilege against self-incrimination 

Petry would waive by pleading guilty.” Appellant’s Br. at 13. In support of his 

position, Petry relies on Ponce v. State, 9 N.E.3d 1265 (Ind. 2014), where the 

defendant, who was a non-native English speaker, pleaded guilty to one count 

of Class A felony delivery of cocaine. At his guilty plea hearing, he requested 

and received an interpreter. The trial court, through the interpreter, advised 

Ponce of his Boykin rights, and Ponce thereafter pleaded guilty. Ten years later,

Ponce filed a pro se petition for post-conviction relief, later amended by 

counsel, alleging that Ponce’s plea was not entered knowingly, intelligently, and 

voluntarily because the court-appointed interpreter failed to translate accurately 

Ponce’s Boykin rights. Our Supreme Court agreed and reversed the postconviction court’s denial of Ponce’s petition. Id. at 1274.

[16] In its decision, the Ponce court determined that the trial court’s advisements 

were properly given in English, but that the advisements were not accurately 

communicated to Ponce in Spanish during the guilty plea hearing and that 

“[w]e simply cannot infer . . . that Ponce understood an explanation given in a 

foreign language of his legal rights especially where the Spanish interpretation 

of the advisements was wholly inadequate.” Id. at 1272. Our Supreme Court 

continued:

That is not to say, however, that Ponce is automatically entitled 

to post-conviction relief. [O]nce a state prisoner has 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 11 of 15

demonstrated that the plea taking was not conducted in 

accordance with Boykin, the [S]tate may, if it affirmatively proves 

in a post-conviction hearing that the plea was voluntary and 

intelligent, obviate the necessity of vacating the plea. Stated 

somewhat differently, once the defendant demonstrates that the 

trial court did not advise him that he was waiving his Boykin

rights by pleading guilty, the burden shifts to the State to prove 

that the petitioner nonetheless knew that he was waiving such 

rights. And where the record of the guilty plea hearing itself does 

not establish that a defendant was properly advised of and 

waived his rights, evidence outside of that record may be used to 

establish a defendant’s understanding. 

Id. at 1272-73 (internal citations and quotation marks omitted). Ponce’s trial 

counsel testified at the post-conviction hearing that he, with the aid of the 

translator, discussed the Boykin rights with Ponce, and counsel believed that 

Ponce understood based on Ponce’s “level of contentedness” and because 

Ponce did not ask additional questions. Id. at 1273. The translator did not 

testify at the post-conviction hearing. The Ponce Court determined that Ponce 

“carried his initial burden of demonstrating that at the guilty plea hearing he 

was not properly advised of the constitutional rights he was waiving[,]” but that

“the State failed to show that the record as a whole nonetheless demonstrated 

that Ponce understood his constitutional rights and waived them.” Id. at 1274.

[17] Here, Petry argues on appeal that he met his threshold burden under Ponce, and 

that the burden then shifted to the State to prove that Petry understood the 

Boykin rights that he waived by pleading guilty. Appellant’s Br. at 13. He 

maintains that the State did not present any evidence and failed to affirmatively 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 12 of 15

prove Petry was aware he was waiving the two Boykin rights by his guilty plea, 

and, therefore, his habitual offender plea must be vacated.

[18] We agree with Petry that, before accepting Petry’s plea of guilty, the trial court 

did not advise him that he was waiving his right to confront and cross-examine 

witnesses and his right against self-incrimination. Indeed, the post-conviction 

court recognized that Petry “was not formally advised” of those rights. 

Appellant’s App. Vol. II at 55. However, subsequent to the Ponce decision, this 

court held, “Boykin does not require that the record of the guilty-plea 

proceeding show that the accused was formally advised that entry of his guilty 

plea waives certain constitutional rights, nor does Boykin require that the record 

contain a formal waiver of these rights by the accused.” Winkleman v. State, 22

N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Dewitt v. State, 755 N.E.2d 167, 

171 (Ind. 2001)), trans. denied. “Rather, Boykin only requires a conviction to be 

vacated if the defendant did not know or was not advised at the time of his plea that 

he was waiving his Boykin rights.” Id. (emphasis added). Here, the postconviction court determined that Petry did not establish by a preponderance of 

the evidence that he did not know that he was waiving the two rights, and we 

agree. 

[19] In denying Petry’s petition for post-conviction relief, the post-conviction court 

relied, in part, on Winkleman. In that case, during the first phase of his jury 

trial, but before the jury convicted him, Winkleman pleaded guilty to an

habitual offender enhancement. On appeal, Winkleman argued that the trial 

court failed to advise him of his Boykin rights before he pleaded guilty to the 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 13 of 15

habitual offender enhancement, and this failure required that his plea be 

vacated. The Winkleman court rejected the defendant’s claim. In so doing, the

court initially observed that Winkleman stated to the trial court that it was “not 

necessary” for the trial court to advise him of his rights. Id. at 851. 

Additionally, the Winkleman court relied on the fact that Winkleman admitted 

to the habitual offender enhancement “‘in the midst of a trial, where the Boykin

rights are on display for all to see.’” Id. at 852 (quoting Hopkins v. State, 889 

N.E.2d 314, 317 (Ind. 2008)). The Winkleman court concluded that

“Winkleman failed to establish on this record that he did not know he was 

waiving his Boykin rights.” Id. 

[20] Similar to Winkleman, where the defendant pleaded guilty to being an habitual 

offender in the “midst of trial,” Petry pleaded guilty to the habitual offender 

enhancement just after the completion of the first phase of his jury trial. Id. 

Petry did not testify at his post-conviction hearing that he was unaware of his 

Boykin rights, and, we note that Petry had pleaded guilty to charges at least 

several times before his admission to the habitual offender enhancement. State’s 

Trial Exs. 6, 7, 8. Based on this record, and on Winkleman, the post-conviction 

court determined that Petry failed to show that he did not know he was waiving 

his Boykin rights when he pleaded guilty to the habitual offender enhancement. 

We cannot say that the post-conviction court’s decision was contrary to law.

[21] Petry suggests that we should not follow Winkleman because it “implicitly 

shifted” the State’s burden under Ponce “to prove that the petitioner nonetheless 

knew that he was waiving such rights” onto him, and it thereby “contravened 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 14 of 15

[our] Supreme Court’s precedent” in Ponce. Appellant’s Br. at 16. We reject this 

argument for two reasons. First, we find that Ponce is distinguishable and does 

not control our decision today. Ponce involved review of a Class A felony drug 

dealing conviction based upon an uninformed guilty plea and, thus, was not in 

the context of a defendant admitting to an habitual offender sentencing 

enhancement immediately following a jury trial. An habitual offender 

adjudication is not the equivalent of a conviction of a crime. See Harris v. State,

964 N.E.2d 920, 927 (Ind. Ct. App. 2012) (“It is well settled that a habitual 

offender finding does not constitute a separate crime, nor does it result in a 

separate sentence. . . . Rather, a habitual offender finding results in a sentence 

enhancement imposed upon the conviction of a subsequent felony.”), trans. 

denied. 

[22] Second, to the extent that Petry’s claim is that Winkleman is not good law 

because it “contravenes” our Supreme Court’s precedent, Appellant’s Br. at 16,

we note that our Supreme Court denied the defendant’s request for transfer in 

Winkleman. “We are aware that when the [S]upreme [C]ourt denies a petition 

for transfer, it is not necessarily approving either the result or the reasoning in 

that case, because the petition may not place the issue in question squarely 

before the [S]upreme [C]ourt.” Roberts v. State, 725 N.E.2d 441, 446 (Ind. Ct. 

App. 2000), trans. denied. “Nevertheless, we may ascribe some meaning to the 

denial of transfer.” Id. In Winkleman, our colleagues stated that a defendant 

seeking to set aside an habitual offender guilty plea need do more than show 

only that he was not advised of his Boykin rights at the habitual phase of trial; 
Court of Appeals of Indiana | Memorandum Decision 18A-PC-18 | June 18, 2018 Page 15 of 15

he must show that he “did not know or was not advised” of the Boykin rights at 

the time of his habitual offender guilty plea, 22 N.E.3d at 851, and, in that case, 

Winkleman failed to do so. Our Supreme Court chose not to address that 

determination. 

[23] Similarly, in the present case, the post-conviction court determined that Petry 

had not shown by a preponderance of the evidence that he did not know he was

waiving his Boykin rights when he admitted to being an habitual offender. On 

appeal, Petry has not established that the evidence as a whole unmistakably and 

unerringly leads to a conclusion contrary to that of the post-conviction court, 

and, therefore, we affirm. See Dewitt, 755 N.E.2d at 170-71 (applying 

“rigorous” post-conviction standard of review, Supreme Court affirmed the 

post-conviction court’s decision that defendant knew he was waiving Boykin

rights when he pleaded guilty to burglary charge and held that “we cannot 

conclude that the evidence as a whole leads unerringly and unmistakably to a 

decision opposite that reached by the post-conviction court”). 

[24] Affirmed.

Baker, J., and Bradford, J., concur.