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 S 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 Indiana polis, 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 , Judg e Cause No. 04C01

- 0711

- PC

- 226

August 21, 2012

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge2 Case Summary

Michael Cochran appeals from the denial of his petition for post

- conviction relief,

claiming that his guilty plea to a habitual off ender 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 es tablish by a preponderance of the evidence that he did not know

that he was waiving those rights before he entered his plea, w e 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 a3

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 wheth er he had

accumulated two prior unrelated felony convictions for habitual offende r 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 crimes in 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 f or any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrela ted felony convictions.

.... (c) A person has accumulated two (2) prior unrelated felony convictions for pu rposes of this section only if: (1) the second prior unrelated felony conviction was committed after sentencing for the first prior unrelated felony convi ction; and (2) the offense for which the state seeks to have the person sentenced as a habitual offender was co mmitted 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 underl ying 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

- 040 5

- FA

- 173 (“Cause 173”) and took

the matter under advisement. T he 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 o r 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 attorn ey, 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 habit ual 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. Th e court then placed Cochran under oath, and the

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

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

offender. The prosecutor th en 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 enhance ment 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 an d 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 Cause s 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 Februa ry 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 Ha bitual Offender Enhancement, all file marked December 1, 2005, I am going to make sure that you understand the6

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 po lice 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 f actual 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 pet iti on 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 defenda nt 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. 23 8, 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 self

incrimination 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 Offend er Enhancement, even if no advi[c] e of rights was given imm ediately

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 de nial 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 di sturb 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,

A ccording to Boykin v. Alabama , 395 U.S. 238, 89 S. Ct. 17 09, 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. H owever, 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. Mc Ginnis , 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 adv ise him of his Boykin self

incrimination 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 unders tood 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

- c onviction 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 con stitute 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.2 d 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 occasion s

. 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 protection s o f 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 advisem ents 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 , 7 55 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 pr operly informed of his rights, formal acceptance of the guilty plea is not the proper focus f or determining th e 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.2 d 457, 467 (Ind. Ct. App. 2007) (citation and quotation marks omitted)

, trans. denied (2008)

.10

Affirmed.

RILEY, J., a nd BAILEY, J., concur.