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: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

MARIO JOVEN JUSTIN F. ROEBEL

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL COCHRAN, )

)

Appellant-Petitioner, )

)

vs. ) No. 04A03-1201-PC-20

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE BENTON CIRCUIT COURT

The Honorable Rex W. Kepner, Judge

Cause No. 04C01-0711-PC-226

August 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

Michael Cochran appeals from the denial of his petition for post-conviction relief, 

claiming that his guilty plea to a habitual offender allegation must be vacated because the 

trial court failed to advise him of his constitutional right against self-incrimination and his 

right to confront and cross-examine witnesses against him before he entered his plea. 

Because Cochran failed to establish by a preponderance of the evidence that he did not know 

that he was waiving those rights before he entered his plea, we affirm.

Facts and Procedural History

On January 3, 2005, in cause number 04C01-0501-FC-4 (“Cause 4”), the State 

charged Cochran with four counts of class C felony forgery and one count of class D felony 

attempted obstruction of justice. The State also sought to have Cochran sentenced as a 
3

habitual offender pursuant to Indiana Code Section 35-50-2-8.

1

 As required by Indiana law, 

Cochran‟s trial was to be a bifurcated proceeding: the jury would first determine his guilt on 

the forgery and attempted obstruction counts, and then it would determine whether he had 

accumulated two prior unrelated felony convictions for habitual offender sentencing 

purposes.

The first phase of Cochran‟s trial began on November 28, 2005, and lasted two days. 

During jury deliberations, the trial court held an evidentiary hearing regarding Cochran‟s 

 

1

 When Cochran committed his crimesin 2004, Indiana Code Section 35-50-2-8 read in pertinent part 

as follows:

(a) Except as otherwise provided in this section, the state may seek to have a person 

sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of 

the charging instrument, that the person has accumulated two (2) prior unrelated felony 

convictions.

....

(c) A person has accumulated two (2) prior unrelated felony convictions for purposes 

of this section only if:

(1) the second prior unrelated felony conviction was committed after sentencing for 

the first prior unrelated felony conviction; and

(2) the offense for which the state seeks to have the person sentenced as a habitual 

offender was committed after sentencing for the second prior unrelated felony 

conviction.

....

(f) If the person was convicted of the felony in a jury trial, the jury shall reconvene for 

the sentencing hearing. If the trial was to the court or the judgment was entered on a guilty 

plea, the court alone shall conduct the sentencing hearing under IC 35-38-1-3.

(g) A person is a habitual offender if the jury (if the hearing is by jury) or the court (if 

the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt 

that the person had accumulated two (2) prior unrelated felony convictions.

(h) The court shall sentence a person found to be a habitual offender to an additional 

fixed term that is not less than the presumptive sentence for the underlying offense nor more 

than three (3) times the presumptive sentence for the underlying offense. However, the 

additional sentence may not exceed thirty (30) years.
4

alleged violation of probation in cause number 04C01-0405-FA-173 (“Cause 173”) and took 

the matter under advisement. The jury found Cochran guilty on three of the forgery counts 

and the attempted obstruction count. After the verdicts were announced, Cochran‟s counsel 

informed the trial court that Cochran had “agreed to admit to” the habitual offender 

allegation. Trial Tr. vol. 2 at 76. The trial court asked Cochran the following questions:

COURT: .... Mr. Cochran, is it your desire to in fact plead guilty or admit 

the habitual enhancement, sir?

MR. COCHRAN: Yes.

COURT: And you are waiving the right to have a jury decide the habitual 

offender enhancement or the bifurcated phase?

MR. COCHRAN: Yes.

COURT: We have a jury here and you understand that you have a right ... 

to the jury and have them decide whether or not you uh, are a habitual 

criminal. Do you understand that, sir?

MR. COCHRAN: Yes.

COURT: And you understand you‟re waiving the right to do that?

MR. COCHRAN: Yes.

COURT: You have discussed that at least to some extent with Mr. 

Howard, your attorney, sir?

MR. COCHRAN: Yes.

COURT: You understand that the jury would also have to find beyond a 

reasonable doubt that you have at least those two prior felony convictions?

MR. COCHRAN: Yes.

Id. at 78-79.
5

The court then informed Cochran about the habitual offender sentencing ramifications 

and asked if he had “any questions about the possible penalties” or “any questions about the 

rights [he was] waiving by admitting to the habitual offender enhancement,” to which 

Cochran replied, “Nope.” Id. at 84. The court then placed Cochran under oath, and the 

prosecutor elicited a “factual basis for the habitual offender enhancement.” Id. at 85. 

Cochran admitted to having two prior unrelated felony convictions and to being a habitual 

offender. The prosecutor then offered into evidence certified copies of documents regarding

those prior convictions, which the trial court admitted without objection “for purposes of 

establishing [a] factual basis.” Id. at 88. The trial court then said,

Okay, Court will find that [Cochran] has provided an adequate factual 

basis, that he has voluntarily waived uh, his right to have the jury decide the 

habitual offender enhancement portion of his trial ... Mr. Cochran decided to 

admit or plead guilty to [the] habitual offender enhancement rather than 

putting that in front of the jury.

Id. at 90. The court did not formally accept Cochran‟s plea, however. The court then found 

that Cochran had violated his probation in Cause 173 and set a hearing for sentencing in 

Causes 4 and 173.

At that hearing, on January 10, 2006, the parties submitted a written plea agreement 

that included sentencing provisions for Causes 4 and 173 and also disposed of a third case, 

cause number 04C01-0503-FB-79 (“Cause 79”), that had been set for trial in February 2006. 

The court questioned Cochran in pertinent part as follows:

COURT: With respect to this new case that [you‟re] pleading guilty to as a 

part of this plea agreement, referring to [Cause 79], the case containing 6 

Counts, I guess 7 Counts and then Habitual Offender Enhancement, all file 

marked December 1, 2005, I am going to make sure that you understand the 
6

rights that you are waiving by pleading guilty to Count 2 [class C felony 

prisoner possessing a deadly weapon], 3 [class D felony battery of a police 

officer] and the Habitual Offender. Do you understand, sir?

MR. COCHRAN: Yes.

COURT: By pleading guilty you are giving up the right to a public and 

speedy trial by jury or trial to the Court, do you understand that?

MR. COCHRAN: Yep.

COURT: The right to confront and cross examine uh, cross examine the 

witnesses, State‟s witnesses, do you understand that?

MR. COCHRAN: Yes.

COURT: The right to make the State prove the case beyond a reasonable 

doubt at trial, do you understand that?

MR. COCHRAN: Yes.

COURT: You are giving up the right to have subpoenas issued through the 

Clerk‟s Office to make others come in here and testify and that would be at no 

expense to you, do you understand that?

MR. COCHRAN: Yes.

COURT: You also could not be compelled to be forced to testify at trial, 

do you understand that, sir?

MR. COCHRAN: Yea.

....

COURT: Any questions about any of those rights that you‟re giving up or 

waiving by pleading guilty?

MR. COCHRAN: Nope.
7

Id. at 103-04. The prosecutor then elicited a factual basis for Cochran‟s plea in Cause 79. 

Afterward, the trial court announced that it would “accept the Plea Agreement” and “impose 

sentence and disposition as outlined in the Plea Agreement.” Id. at 114.

In November 2007, Cochran filed a pro se petition for post-conviction relief, which 

was amended twice by counsel. The second amended petition reads in pertinent part as 

follows:

9(a): A defendant must be advised of three federal constitutional 

rights which the record must disclose that the defendant knew he was waiving 

before a reviewing court can affirm a finding that the plea was voluntary and 

intelligent: the right to a trial by jury, the right to confront one‟s accusers, and 

the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S. 

Ct. 1709, 23 L. Ed. 2d 274 (1969). See also White v. State, 497 N.E.2d 893, 

897 (Ind. 1986). When Cochran pled guilty to the habitual offender [allegation 

in Cause 4], the trial court failed to advise him of all his Boykin rights. 

Specifically, the trial court did not advise Cochran of his right against selfincrimination and his right to confront his accusers. The absence of proper 

advisements constitutes error and requires Cochran‟s guilty plea to be vacated.

Appellant‟s App. at 61-62.

The post-conviction court held a hearing on the second amended petition and denied it 

on December 27, 2011, finding that Cochran “was aware of his rights prior to his guilty plea 

to the Habitual Offender Enhancement, even if no advi[c]e of rights was given immediately 

before his plea.” Id. at 70. This appeal ensued.

Discussion and Decision

“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, inter alia, Ind. Post-Conviction Rule 1(5)), trans. denied.
8

When reviewing the denial of a petition for post-conviction relief, we will 

neither reweigh the evidence nor judge the credibility of the witness. Thus, to 

prevail on appeal from the denial of post-conviction relief, the petitioner must 

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

conclusion opposite to that reached by the post-conviction court. We will 

disturb the post-conviction court‟s decision only if the evidence is without 

conflict and leads to but one conclusion and the post-conviction court has 

reached the opposite conclusion.

Id. (citations omitted).

The Indiana Supreme Court has explained,

According to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.

Ed. 2d 274 (1969), a trial court must be satisfied that an accused is aware of 

his right against self-incrimination, his right to trial by jury, and his right to 

confront his accusers before accepting a guilty plea. Id. at 243, 89 S. Ct. 1709. 

However, 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. State v. Eiland, 

707 N.E.2d 314, 318 (Ind. Ct. App. 1999) (quotation omitted), reh’g denied, 

opinion expressly adopted by 723 N.E.2d 863 (Ind. 2000); Barron v. State, 164 

Ind. App. 638, 330 N.E.2d 141, 144 (1975). 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. Davis v. State, 675 

N.E.2d 1097, 1103 (Ind. 1996); see also United States ex rel. Miller v. 

McGinnis, 774 F.2d 819, 824 (7th Cir. 1985) (holding that a defendant must be 

“fully cognizant” that he is waiving his Boykin rights by pleading guilty).

Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001).

Cochran argues that the trial court‟s failure to advise him of his Boykin selfincrimination and confrontation rights before he pled guilty to the habitual offender 

allegation requires that his plea be vacated.

2

 We disagree. We first observe that Cochran

 

2

 To the extent Cochran also argues that the trial court failed to ascertain that he understood those 

rights, we agree with the State that Cochran has waived this argument because he failed to raise it in his 

petition for post-conviction relief. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in 

the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”).
9

cites no authority for the proposition that Boykin applies to habitual offender allegations, as 

opposed to actual crimes such as the death-eligible robberies at issue in Boykin. Cf. 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.”) (citation omitted), trans. denied; Hopkins v. State, 889 N.E.2d 314, 

317 (Ind. 2008) (observing that such was an open question not addressed by the parties in 

that case).

3

 Assuming for argument‟s sake that it does, we also observe that Cochran pled 

guilty “in the midst of a jury trial, where the Boykin rights are on display for all to see.” 

Hopkins, 889 N.E.2d at 317. Moreover, Cochran admitted during his jury trial that he had 

pled guilty on at least one and perhaps two prior occasions. Trial Tr. vol. 1 at 210, 216. 

Given all this, it cannot seriously be argued, let alone established by a preponderance of the 

evidence, that Cochran did not know that he was waiving all three Boykin rights when he 

entered his plea. Therefore, we affirm the denial of his petition for post-conviction relief.

4

 

3

 In Hopkins, the issue was whether the defendant pled guilty to the habitual offender allegation or 

merely stipulated to it and thus was not entitled to the protections of Boykin. 889 N.E.2d at 317. Although a 

colorable argument could be made that Cochran merely stipulated to the habitual offender allegation in this 

case, the State has made no such argument here. Consequently, for purposes of this appeal we presume that

Cochran pled guilty to the allegation.

4

 The State observes that the trial court “did not accept the guilty plea and enter the convictions until 

after explicit advisements were acknowledged in the written guilty plea agreement and after the oral 

advisements at the sentencing hearing” and further observes that in Dewitt, our supreme court said that “the 

trial court‟s duty is to „be satisfied that an accused is aware of his right[s] ... before accepting a guilty plea.‟” 

Appellee‟s Br. at 9 (quoting Dewitt, 755 N.E.2d at 171) (emphasis Appellee‟s). Although both Dewitt and 

Boykin use this terminology, this Court has said that “in determining whether a defendant was properly 

informed of his rights, formal acceptance of the guilty plea is not the proper focus for determining the trial 

court‟s authority to accept that plea. Instead, the proper focus should be on the time the defendant actually 

pled guilty.” Fisher v. State, 878 N.E.2d 457, 467 (Ind. Ct. App. 2007) (citation and quotation marks omitted), 

trans. denied (2008).
10

Affirmed.

RILEY, J., and BAILEY, J., concur.