Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016 Page 1 of 31

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

Sam Milligan

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Sam Milligan,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 13, 2016

Court of Appeals Case No.

02A04-1602-PC-263

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D04-8509-CF-393

Brown, Judge.
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[1] Sam Milligan appeals the denial of his successive petition for post-conviction 

relief. Milligan raises seven issues which we consolidate and restate as whether 

the post-conviction court erred in denying his petition. We affirm. 

Facts and Procedural History

[2] On September 20, 1985, Milligan was involved in a domestic dispute that 

resulted in a double homicide and an attempted murder of a third person. On 

September 25, 1985, the State charged Milligan with the murders of Margaret 

Milligan and Nkosana Ncube and the attempted murder of Thandeka Ncube. 

In October 1985, the State filed an application for death sentence, citing Ind. 

Code § 35-50-2-9(b)(8), and alleging that Milligan committed the murder of 

Margaret and Nkosana on September 20, 1985.1

 

[3] At some point, Donald C. Swanson, Jr., filed an appearance on Milligan’s 

behalf.2

 On October 28, 1985, Attorney Swanson filed a Notice of Defense of 

Mental Disease or Defect requesting that the court appoint three disinterested 

psychiatrists to examine Milligan, and the court granted the request.3

 On 

 

1 At the time of the offense, Ind. Code § 35-50-2-9(a) provided that the State “may seek a death sentence for 

murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one 

(1) of the aggravating circumstances listed in subsection (b),” and subsection (b)(8) provided: “The defendant 

has committed another murder, at any time, regardless of whether the defendant has been convicted of that 

other murder.” (Subsequently amended).

2 The Appellant’s Appendix contains a chronological case summary for the underlying cause number 02D04-

8509-CF-393, but the first entry occurs in 1993. 

3 The order granting the request appointed Dr. Robert L. Greenlee, Dr. Ronald L. Pancner, and Dr. Joseph 

Fiacable. The order contains a handwritten notation near the date associated with Dr. Fiacable which states 

“canceled.” Appellant’s Appendix at 25.
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November 25, 1985, Attorney Swanson filed a motion to withdraw appearance 

and requested that the court appoint a public defender. 

[4] In a letter to the court dated November 13, 1985, Dr. Robert L. Greenlee stated 

that he found no history of psychiatric treatment or hospitalization, found 

Milligan to be oriented as to time, place, and person, found no evidence of 

delusional thinking, and observed that Milligan denied hallucinations and drug 

use at the time of the alleged offense. Dr. Greenlee concluded that Milligan 

was sane at the time of the alleged offense, able to understand the nature of the 

charges against him, and able to assist his counsel in preparation of his defense. 

[5] In a letter to the court dated December 10, 1985, Dr. Ronald J. Pancner stated 

that he reviewed the probable cause affidavit4 and concluded that Milligan was 

competent to stand trial and understood the charges and that the act of killing is 

illegal and morally wrong. He concluded that Milligan was verbal and able to 

answer questions and able to assist his counsel in the preparation of his defense. 

He also concluded that Milligan was sane at the time of the offense, that he 

demonstrated no signs of any major psychiatric disorder, and that he denied 

any history of serious psychiatric symptoms such as delusions or hallucinations. 

 

4 The probable cause affidavit alleged in part that the police discovered Milligan had suffered an apparent 

self-inflicted gunshot wound. 
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[6] On December 11, 1985, Jerry E. Levendoski filed an appearance for Milligan.5 

In February 1986, Attorney Levendoski filed a motion requesting the court to 

order an encephalogram examination of Milligan and to appoint a psychiatrist 

or psychologist for the purpose of developing a complete psychological profile 

of Milligan in order to assist counsel in the development and presentation of 

Milligan’s defense in both phases of the trial. He also filed a Motion to Dismiss 

Count IV State’s Motion for the Death Penalty, arguing that it would be a 

violation of due process and the Fourteenth Amendment to the United States 

Constitution to try Milligan for both charges of murder before the same jury 

and then use one of the charged murders as an aggravating circumstance to 

impose the death penalty in the other charged murder. 

[7] On February 11, 1986, Attorney Swanson again filed an appearance for 

Milligan. On February 12, 1986, the court entered an order stating that, at the 

request of Attorney Swanson, the court arranged a third psychiatric evaluation 

of Milligan by Dr. Herbert Trier. 

[8] In a letter to the court dated March 17, 1986, Dr. Trier wrote that he examined 

Milligan and found that he was able to assist in his own defense, was able to 

understand the nature of the charges against him, and was sane at the time of 

the offense. 

 

5 The appearance filed by Attorney Levendoski requested that he appear as co-counsel. Some of the motions 

filed by Attorney Levendoski were filed with Attorney Bruce S. Cowen, who filed a motion to withdraw in 

February 1986. 
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[9] On July 10, 1986, Milligan filed a “Motion to Withdraw Former Plea of Not 

Guilty and Enter a Plea of Guilty to Count I, ‘Murder’, Count II, ‘Murder’, and 

Count III, ‘Attempt-Murder.’” Appellant’s Appendix at 45. The motion, 

which was signed by Milligan and his counsel, stated in part that the guilty plea 

was being made “knowingly and voluntarily pursuant to a plea agreement 

which has been marked Exhibit ‘A-1’” and that “I represent that I have read the 

plea agreement or I have had it read to me, and that I fully understand it.” Id.

at 48. That same day, the State filed a Notice of Recommendation by State on 

Plea of Guilty which recommended the sentence for each count of murder be 

sixty years, that the sentence for attempted murder be fifty years, and that the 

sentences be served consecutive to each other for an aggregate sentence of 170 

years. The notice also stated that a specific condition of the plea agreement was 

that Milligan agreed that his stepdaughter, Thandeka T. Ncube, desired to 

maintain her residence in the United States, that Milligan’s cooperation would 

be needed from time to time to help to minimize the possibility that Thandeka 

would be deported to South Africa, that Milligan agreed to execute all papers 

and documents prepared on behalf of Thandeka by her attorney, and that he 

pledged good faith cooperation in all matters related thereto.6

 

[10] On July 10, 1986, the court held a guilty plea hearing at which Milligan was 

present and represented by counsel, and the following exchange occurred:

 

6 The prosecutor and Thandeka signed this notice. 
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[Milligan’s Counsel:] Your Honor, at this time, the defendant 

would tender to the court a Motion to Withdraw Former Pleas of 

Not Guilty and enter a plea of guilty to Count I, Count II and 

Count III, pursuant to a plea agreement. The plea agreement is 

attached to those motions. The motions are signed by myself 

and my client, Mr. Milligan.

[Prosecutor:] Your Honor, in light of the defendant and his 

attorney’s written motion, the State would file in open court, a 

written recommendation upon a plea of guilty to Counts I, II, 

and III. 

Appellee’s Appendix at 5. 

[11] During questioning by the court, Milligan provided his name and age. The 

following exchange then occurred:

[The Court:] Mr. Milligan, before this court can accept your 

pleas of guilty, I must be satisfied that you fully understand your 

constitutional rights; that your pleas of guilty are made freely, 

voluntarily, and that you are, in fact, guilty. It will, therefore, be 

necessary that I ask you certain questions and hear some 

evidence. If you do not understand the questions or the words 

that I use, please let me know and I will explain them to you. 

You may also talk with your attorney at any time. Have you 

ever been treated for any mental illness or, to your knowledge, do 

you now suffer from any mental or emotional disability?

A I haven’t been treated for any, but I don’t know what I’m 

suffering – probably suffered some.

[Milligan’s Trial Counsel:] Your Honor, my client has, pursuant 

to our notice of intention to file an insanity plea, been examined 

by two court appointed psychiatrists, both of whom found him 
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not only sane at the time of the commission of these incidents, 

but also competent to assist his counsel in his representation. 

Other than that, I know of no other psychiatric or psychological 

counseling or problems that he has had in the past.

Q Okay. Is that correct, Mr. Milligan?

A Yes.

Id. at 6-7. The court then asked Milligan questions regarding whether he was 

under the influence of alcohol or drugs, his intention to plead guilty, and 

whether he understood his rights, and answered the questions. 

[12] The court then read the charging informations, and Milligan indicated that he 

understood that pleading guilty constituted an admission of the truth of the 

material facts. The court asked Milligan if he understood that the sentence for 

Counts I and II could include a death sentence because the State filed a motion 

for the death penalty, and Milligan indicated that he understood. He indicated 

that he read the plea agreement and discussed it with his attorney, and 

responded affirmatively when asked if his pleas were of his own free and 

voluntary acts. 

[13] The following exchange occurred between the court and Milligan:

Q I have before me a plea agreement. Did you read it?

A Yes.

Q Did you discuss it with your attorney?
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A Well, yes.

Q It reads as follows, omitting formal parts: It says, “That you 

would be convicted and sentenced in Count I of Murder, a 

felony, Count II Murder, a felony. Count III, Attempted 

Murder, a Class A felony. That the sentence in Count I would be 

sixty years to serve. That the sentence in Count II would be sixty 

years to serve, consecutive to the sentence in Count I, for a total 

of 120 years. The sentence in Count III would be 50 years to 

serve consecutive to the sentences imposed in Counts I and II for 

accumulative [sic] sentence of 170 years on all three counts. As a 

specific condition of this plea agreement, the defendant agrees 

that his . . . stepdaughter Thandeka T. Ncube, desires to maintain 

her residence in the United States of America. That the 

defendant’s cooperation will be needed from time to time to help 

to minimize the possibility that said Thandeka T. Ncube will be 

deported to South Africa. That the defendant is aware that the 

prosecuting attorney’s office has solicited the aid of attorney, . . . 

to aid the victim in this cause and the prosecuting attorney’s 

office is securing permanent residence status for said Thandeka 

T. Ncube. That the defendant specifically agrees that he will 

execute all papers and documents prepared on behalf of 

Thandeka T. Ncube by her attorney and that the defendant will 

also pledge good faith cooperation in all matters related thereto.” 

Is that what you understand the agreement to be?

A Yes.

Id. at 15-17. The court asked Milligan how he pled as to each count, and 

Milligan responded “Guilty” each time. Id. at 19-20.

[14] The prosecutor then asked Milligan if he read his written motion and that he 

was asking the court to take into account all the things that he and his attorney

went over and filed in open court, and Milligan answered: “Yes.” Id. at 20. 
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The prosecutor introduced video taped statements from Pearl Washington, 

Violet Washington, and Thandeka Ncube.7

 Milligan’s counsel stated that he 

had no objection and stipulated to the exhibits. The prosecutor also introduced 

a police report, and Milligan’s counsel also stipulated to that exhibit. The court 

admitted the coroner’s reports and the psychiatric evaluations without 

objection.8

 

[15] The court found that Milligan understood the nature of the charges against him 

and the possible sentences, that his pleas were freely and voluntarily made, and 

that there was a factual basis for the pleas, and took the pleas under advisement. 

[16] On August 5, 1986, the court sentenced Milligan to sixty years for each count of 

murder and fifty years for attempted murder and ordered that the sentences be 

served consecutive to each other. 

[17] On January 26, 1996, Milligan filed a pro se petition for post-conviction relief.9 

On June 12, 1996, the post-conviction court denied the petition.10 

 

7 The record does not contain a copy of the statements.

8 The record appears to contain only the coroner’s report related to Margaret Milligan. 

9 The record does not contain a copy of this petition.

10 The record does not contain a copy of this order.
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[18] On April 25, 2000, this court granted Milligan permission to file a successive 

petition for post-conviction relief. In May 2000, Milligan, pro se, filed a form 

successive post-conviction relief petition. 

[19] On May 30, 2000, the State filed an answer to Milligan’s petition. On February 

11, 2015, the State filed a Motion to Require Petitioner to Submit Case by 

Affidavit pursuant to Post-Conviction Rule 1(9)(b),11 and the court granted the 

motion and gave Milligan until June 15, 2015 to submit his case by affidavit. 

On June 15, 2015, Milligan filed his affidavit in support of his verified petition 

for post-conviction relief. In October 2015, Milligan filed a motion to 

incorporate exhibits, and the court granted the motion. On January 7, 2016, 

the court denied Milligan’s petition. 

Discussion 

[20] Before addressing Milligan’s allegations of error, we observe that Milligan is 

proceeding pro se. Such litigants are held to the same standard as trained 

counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. 

We also note the general standard under which we review a post-conviction 

 

11 Ind. Post-Conviction Rule 1(9)(b) provides in part:

In the event petitioner elects to proceed pro se, the court at its discretion may order the 

cause submitted upon affidavit. It need not order the personal presence of the petitioner 

unless his presence is required for a full and fair determination of the issues raised at an 

evidentiary hearing. If the pro se petitioner requests issuance of subpoenas for witnesses at 

an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the 

witness’ testimony is required and the substance of the witness’ expected testimony. If the 

court finds the witness’ testimony would be relevant and probative, the court shall order 

that the subpoena be issued. If the court finds the proposed witness’ testimony is not 

relevant and probative, it shall enter a finding on the record and refuse to issue the 

subpoena.
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court’s denial of a petition for post-conviction relief. The petitioner in a postconviction 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); 

Ind. Post-Conviction Rule 1(5). When appealing from the denial of postconviction relief, the petitioner stands in the position of one appealing from a 

negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse 

the judgment unless the evidence as a whole unerringly and unmistakably leads 

to a conclusion opposite that reached by the post-conviction court. Id. “A postconviction 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.” Id. In this review, we accept findings of fact unless 

clearly erroneous, but we accord no deference to conclusions of law. Id. The 

post-conviction court is the sole judge of the weight of the evidence and the 

credibility of witnesses. Id.

A. Competency

[21] Milligan argues that he was incompetent to enter a plea of guilty. He asserts 

that despite the number of psychiatric evaluations, the court failed to conduct a 

hearing on the issue of competency or declare a determination of competency. 

He contends that the written evaluations by Dr. Greenlee and Dr. Trier did not 

address the issue of his attempted suicide. He argues that the evidence of his 

attempted suicide and statements made by him as to his mental state and 

uncertainty about understanding the charges filed against him seriously 

undermined his competency at the change of plea hearing. 
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[22] The State argues that the trial court implicitly found that no competency 

hearing was needed, points out that defense counsel stated in open court that 

the appointed psychiatrists found Milligan to be not only sane at the time of the 

crimes but also competent to assist counsel in the proceedings, and asserts that 

it did not appear that any of Milligan’s words or actions at the plea hearing cast 

any doubt upon his competency. 

[23] With respect to this argument, the post-conviction court concluded in part:

3. It is evident that the Court’s reason for not conducting a 

competency hearing was that the Court found a competency 

hearing was not needed, in view of [defense counsel’s] 

representations and the Court’s own observations, especially with 

regard to Mr. Milligan’s acknowledged understanding of his 

rights, the charges, the possible penalties, and the provisions of 

the plea agreement. This was an adequate basis for the decision 

not to hold a competency hearing. . . .

4. . . . . Mr. Milligan expressed no uncertainty about his 

understanding of the charges, but rather specifically stated with 

respect to each charge that he understood he was admitting the 

truth of all material facts alleged in the charging informations. 

He did state that he had probably suffered from some mental or 

emotional disability, but acknowledged that he had been found 

competent and sane by the psychiatrists. His assertion that he 

had attempted to commit suicide does not appear to be 

corroborated by independent evidence. A convicted defendant’s 

uncorroborated, self-serving statements do not suffice to support 

a claim for post-conviction relief. McChristion v. State, 511 

N.E.2d 297, 301 (Ind. 1987). Furthermore, even if he did 

attempt suicide, this would not establish that he lacked the ability 

to understand the proceedings and to consult with counsel. See 

Weedman v. State, 21 N.E.3d 873, 881 (Ind. Ct. App. 2014), trans. 
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denied (defendant Weedman was found competent to stand trial 

although he had attempted suicide). Even facts having a greater 

tendency than a single suicide attempt to cast doubt upon a 

defendant’s mental functioning, such as the defendant’s delusion 

that there is an organized, systematic conspiracy against him, do 

not necessarily establish that the defendant is incompetent. 

Matheney v. State, 688 N.E.2d 883, 891-892 (Ind. 1997)[, reh’g 

denied, cert. denied, 525 U.S. 1148, 119 S. Ct. 1046 (1999)].

Appellant’s Appendix at 11-13 (some citations omitted).

[24] A guilty plea constitutes a waiver of constitutional rights and this waiver 

requires a trial court to evaluate the validity of every plea before accepting it. 

Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For the plea to be valid, the 

defendant’s decision to plead guilty must be knowing, voluntary and intelligent. 

Id. (citing Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S. Ct. 1709, 1711-1713 

(1969)). A competency hearing is required only when there is evidence before 

the trial court that creates a reasonable and bona fide doubt as to the 

defendant’s competency. Evans v. State, 489 N.E.2d 942, 948 (Ind. 1986). The 

presence of indicators sufficient to require the court to hold a hearing lies within 

the province of the trial judge and will not be disturbed absent an abuse of 

discretion. Id. (citing Perry v. State, 471 N.E.2d 270 (Ind. 1984)).

[25] Based upon the three psychiatric evaluations all of which concluded that 

Milligan was competent to stand trial and Milligan’s responsive and coherent 

exchanges with the trial court at the guilty plea hearing, we cannot say that the 

evidence as a whole unerringly and unmistakably leads to a conclusion opposite 

that reached by the post-conviction court. See Underhill v. State, 477 N.E.2d 
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284, 287-288 (Ind. 1985) (rejecting the petitioner’s argument that the trial court 

erred when it accepted his guilty plea without first holding a competency 

hearing where three doctors agreed that the petitioner was competent to stand 

trial and the trial court was in an excellent position to observe the demeanor of 

the appellant during the hearing).

B. Written Plea Agreement

[26] Milligan argues that that trial court erroneously accepted his plea based upon a 

non-existent written plea agreement. The State argues that Milligan has no 

basis for asserting that the written plea agreement was non-existent or otherwise 

invalid, and that his motion to withdraw his former plea of not guilty and enter 

pleas of guilty and the notice of recommendation constitute the written plea 

agreement. 

[27] At the time that Milligan pled guilty, Ind. Code § 35-35-3-3(a) provided: 

No plea agreement may be made by the prosecuting attorney to a 

court on a felony charge except:

(1) in writing; and

(2) before the defendant enters a plea of guilty.

The plea agreement shall be shown as filed, and if its contents 

indicate that the prosecuting attorney anticipates that the 

defendant intends to enter a plea of guilty to a felony charge, the 

court shall order the presentence report required by IC 35-38-1-8 

and may hear evidence on the plea agreement.
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(Subsequently amended by Pub. L. No. 136-1987, § 4). 

[28] Milligan filed a “Motion to Withdraw Former Plea of Not Guilty and Enter a 

Plea of Guilty to Count I, ‘Murder’, Count II, ‘Murder’, and Count III, 

‘Attempt-Murder,’” which was dated July 10, 1986. Appellant’s Appendix at 

45-48. This motion was signed by Milligan and his counsel and stated in part:

I represent to the Court that this guilty plea is being made 

knowingly and voluntarily pursuant to a plea agreement which 

has been marked Exhibit “A-1” and attached to this document as 

an intricate part hereof. I represent that I have read the plea 

agreement or I have had it read to me, and that I fully understand 

it. 

Id. at 48. The Notice of Recommendation by State of Plea of Guilty was dated 

July 10, 1986, and detailed the State’s recommendation for sentencing. At the 

beginning of the guilty plea hearing, Milligan’s counsel stated “at this time, the 

defendant would tender to the court a Motion to Withdraw Former Pleas of 

Not Guilty and enter a plea of guilty to Count I, Count II and Count III, 

pursuant to a plea agreement. The plea agreement is attached to those 

motions.” Appellee’s Appendix at 5. The trial court stated that it had a plea 

agreement, and Milligan indicated that he read it and discussed it with his 

attorney. The court then stated it would read an excerpt from the plea 

agreement and this excerpt appears to come from the Notice of 

Recommendation by State of Plea of Guilty. Milligan then indicated that that 
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was what he understood the agreement to be. Under these circumstances, we 

cannot say that Milligan has demonstrated that reversal is warranted.12

C. Factual Basis

[29] Milligan argues that the trial court failed to establish a sufficient factual basis for 

the guilty plea. He asserts that he never made an evidentiary admission of the 

facts or admitted to the element of intent. Without citation to authority, he 

asserts that the video taped statements could not represent evidence toward a 

factual basis or to establish the necessary mens rea. 

[30] The State argues that the adequacy of the factual basis was res judicata, not 

subject to relitigation in a successive post-conviction proceeding. The State also 

notes that even if this claim is available for review, an adequate factual basis 

can be established where the defendant acknowledges that he understands the 

nature of the offenses and that his plea is an admission of the charges. 

[31] As to Milligan’s assertion that a sufficient factual basis had not been 

established, the post-conviction court’s order states:

 

12 Milligan also argues that the plea agreement exceeded the penal consequences for the offense and should 

be voided because it contained an illegal term that required him to cooperate with the attorneys of Thandeka 

T. Ncube, constituted a separate civil penalty not authorized by the legislature, and represented a cumulative 

punishment prohibited by double jeopardy. Milligan does not cite to specific authority that this type of 

provision is improper nor does he develop a cogent argument as to this issue. Accordingly, we conclude that 

this argument is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the 

defendant’s contention was waived because it was “supported neither by cogent argument nor citation to 

authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument 

on appeal by failing to develop a cogent argument).
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9. Mr. Milligan asserts that the factual basis is insufficient to 

support his guilty plea. This issue was decided against Mr. 

Milligan in his first post-conviction proceeding. Conclusions of 

Law, June 12, 1996, ¶ 2. Repetitious litigation of essentially the 

same dispute is not permitted. Hughes v. State, 880 N.E.2d 1186, 

1188 (Ind. 2008); Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998), 

cert. denied, 527 U.S. 1035[, 119 S. Ct. 2393 (1999)]. Mr. Milligan 

therefore cannot raise the same issue again in this successive 

post-conviction proceeding.

10. Furthermore, even if Mr. Milligan could now raise that 

issue, he would not be entitled to prevail. A factual basis is 

sufficiently established when the defendant, after having been 

read the charging information, admits that the allegations of the 

information are true. Melton v. State, 611 N.E.2d 666, 669 (Ind. 

Ct. App. 1993), trans. denied, and cases cited therein; see also Butler 

v. State, 658 N.E.2d 72, 77 (Ind. 1995). Mr. Milligan was read 

the charging informations; he expressed his understanding that, 

by pleading guilty, he was admitting the truth of all material facts 

alleged in the informations; and, having this understanding, he 

explicitly entered a plea of guilty to each count. Plea, at 6-8. 

This was sufficient to establish a factual basis.

11. Finally, in order to obtain post-conviction relief on the 

ground of inadequate factual basis for a guilty plea, a convicted 

defendant must show that he suffered prejudice as a result of the 

lack of a proper factual basis. State v. Eiland, 707 N.E.2d 314, 

316-317 (Ind. Ct. App. 1999), [reh’g denied,] adopted, 723 N.E.2d 

863, 864-865 (Ind. 2000). Mr. Milligan has made no showing of 

prejudice resulting from the allegedly inadequate factual basis.

Appellant’s Appendix at 15-16.

[32] Even assuming that Milligan could raise this issue in his successive petition for 

post-conviction relief, we cannot say that it warrants reversal. Trial court 
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determinations of adequate factual bases, like other parts of the plea process, 

arrive here on appeal with a presumption of correctness. Butler v. State, 658 

N.E.2d 72, 77 (Ind. 1995). The Indiana Supreme Court has held that a factual 

basis exists when there is evidence about the elements of the crime from which 

a court could reasonably conclude that the defendant is guilty. Id. Relatively 

minimal evidence has sometimes been held adequate. Id. (citing Lowe v. State, 

455 N.E.2d 1126, 1129 (Ind. 1983) (defendant’s admission of guilt after 

prosecutor read all allegations adequately established factual basis)).

[33] At the guilty plea hearing, the court read the charging informations, and 

Milligan indicated that he understood that pleading guilty constituted an 

admission of the truth of the material facts. Specifically, the following 

exchange occurred between the court and Milligan:

Q Do you understand that the charges to which you are pleading 

guilty: Count I, Murder; Count II, Murder; and, Count III, 

Attempted Murder, and that in order to be guilty of these crimes, 

the State must prove each of the following elements beyond a 

reasonable doubt. First, in regard to Count I, the charge of 

Murder, “That on or about the 20th day of September, 1985, in 

Allen County, Indiana, that you did, knowingly or intentionally 

kill Margaret Milligan, another human being, to-wit: By shooting 

at and against the body of Margaret Milligan with a deadly 

weapon, to-wit: a gun, thereby inflicting a mortal wound in and 

upon the body of Margaret Milligan, causing her to die on 

September 20, 1985, being contrary to the form of the statute in 

such case made and provided.” Do you understand that pleading 

guilty to this charge, you are admitting the truth of all material 

facts that I just related to you?
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A Yes.

Q Count II, the charge of Murder: “On or about the 20th day of 

September, 1985, in Allen County, Indiana, that you did 

knowingly or intentionally kill Nkosoma[13] Ncube, another 

human being, to-wit: by shooting at and against the body of 

Nkosoma Ncube, with a deadly weapon, to-wit: a gun, thereby 

inflicting a mortal wound in and upon the body of Nkosoma 

Ncube, causing him to die on September 20, 1985, being contrary 

to the form of the statute in such case made and provided.” Do 

you understand that by pleading guilty to this charge, you are 

admitting the truth of all material facts that I just related to you?

A Yes.

Q In regard to Count III, the information for Attempted Murder. 

“That on or about the 20th day of September, 1985, in Allen 

County, Indiana, that you did attempt to commit the crime of 

Murder of Thandeka Ncube, another human being, in that said 

Sam Milligan did knowingly or intentionally attempt to kill said 

Thandeka T. Ncube, by shooting at and against the body of 

Thandeka T. Ncube, with a deadly weapon, to-wit: a gun, 

inflicting serious bodily injury which conduct constituted a 

substantial step toward the commission of the crime of murder 

against Thandeka T. Ncube, being contrary to the form of the 

statute in such case made and provided.” Do you understand 

that by pleading guilty to this charge, you are admitting the truth 

of all material facts that I just related to you?

A Yes.

 

13 The charging information spelled the name “Nkosana.” Appellant’s Appendix at 20.
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Appellee’s Appendix at 9-11. We also note that the motion to plead guilty, 

which was signed by Milligan, stated that he had either been provided with a 

copy of the charging informations or that he had the charging informations read 

to him, that he understood the nature of the charges against him, and that a 

plea of guilty is an admission of the truth of the material facts set forth in the 

charging information. Further, the coroner’s report, which was admitted 

without objection, indicated the cause of death of Margaret Milligan to be 

multiple gunshot wounds to the head. 

[34] Under the circumstances, we cannot say that reversal is warranted on this basis. 

See Butler, 658 N.E.2d at 77 (observing that the petitioner told the trial judge 

that the allegations of the information were accurate and that the Court could 

not say that all the evidence pointed unmistakably to a conclusion opposite that 

reached by the post-conviction court.) 

D. Ineffective Assistance

[35] Milligan argues that he received ineffective assistance of counsel because his 

counsel failed to conduct a reasonable and adequate factual investigation into 

his mental history and competency, failed to challenge the perfunctory 

examination reports dealing with his competency, failed to request a 

competency hearing, failed to request the court to make a declaration on his 

competency prior to accepting his guilty plea, advised him to accept a plea 

agreement that contained the clause regarding Thandeka, and allowed the 

factual basis to be established in such a manner absent evidence or admission by 
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Milligan on the statutory element of intent as the requisite mens rea for 

acceptance of the plea. Milligan also argues that his guilty plea was not made 

knowingly and intelligently because it was induced by an unconstitutional 

death penalty aggravating factor and that his counsel was ineffective for failing 

to challenge the constitutionality of Ind. Code § 35-50-2-9(b)(8) as applied to 

him. 

[36] The State contends that Milligan has not established error with respect to any 

issue and has failed to establish that his counsel’s performance was deficient. 

The State also asserts that there is no claim that Milligan had any affirmative 

defenses, that this appears to be a case where the surviving victim was a witness 

to the crimes and provided direct evidence of Milligan’s guilt, and that pleading 

guilty by an agreement that dismissed the State’s death penalty request appears 

to be a fundamentally fair and reliable outcome. 

[37] To the extent that Milligan suggests he would not have pled guilty if his trial 

counsel had not committed the alleged errors and omissions, we observe that, 

with respect to the voluntariness of his guilty plea, the Indiana Supreme Court 

has held that a plea entered after the trial judge has reviewed the various rights 

which a defendant is waiving and made the inquiries called for by statute is 

unlikely to be found wanting in a collateral attack. State v. Moore, 678 N.E.2d 

1258, 1265 (Ind. 1997), reh’g denied, cert. denied, 523 U.S. 1079, 118 S. Ct. 1528

(1998). However, defendants who can show that they were coerced or misled 

into pleading guilty by the judge, prosecutor or defense counsel will present 

colorable claims for relief. Id. at 1266. In assessing the voluntariness of the 
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plea, we review all the evidence before the court which heard his postconviction petition, including the transcript of the petitioner’s original 

sentencing, and any plea agreements or other exhibits which are a part of the 

record. Id. In Moore, the Court held that “[v]oluntariness is also distinct from 

ineffective assistance of counsel, despite some references in our cases to pleas as 

involuntary” and that voluntariness “focuses on whether the defendant 

knowingly and freely entered the plea, in contrast to ineffective assistance, 

which turns on the performance of counsel and resulting prejudice.” Id. 

[38] Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

must demonstrate both that his counsel’s performance was deficient and that 

the petitioner was prejudiced by the deficient performance. French v. State, 778 

N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls 

below an objective standard of reasonableness based on prevailing professional 

norms. Id. To meet the appropriate test for prejudice, the petitioner must show 

that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. Id. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. 

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong 

will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective 

assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. 

[39] When considering a claim of ineffective assistance of counsel, a “strong 

presumption arises that counsel rendered adequate assistance and made all 
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significant decisions in the exercise of reasonable professional judgment.” 

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance 

is presumed effective, and a defendant must offer strong and convincing 

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will 

not support a claim of ineffective assistance of counsel. Clark v. State, 668 

N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. 

Ct. 1438 (1997).

[40] Because Milligan was convicted pursuant to a guilty plea, we analyze his claims 

under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main 

types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d 290, 

295 (Ind. 2002). The first category relates to “an unutilized defense or failure to 

mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 

2003), trans. denied. The second relates to “an improper advisement of penal 

consequences,” and this category has two subcategories: (1) “claims of 

intimidation by exaggerated penalty or enticement by an understated maximum 

exposure;” or (2) “claims of incorrect advice as to the law.” Id. Milligan 

appears to raise claims under both categories.

[41] In Segura, the Court held “in order to establish that the guilty plea would not 

have been entered if counsel had performed adequately, the petitioner must 

show that a defense was overlooked or impaired and that the defense would 

likely have changed the outcome of the proceeding.” 749 N.E.2d at 499. The 

Court stated that “in the case of claims related to a defense or failure to mitigate 
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a penalty, it must be shown that there is a reasonable probability that a more 

favorable result would have obtained in a competently run trial.” Id. at 507. If 

a petitioner is convicted pursuant to a guilty plea “and later claims that his 

counsel rendered ineffective assistance because counsel overlooked or impaired 

a defense, the petitioner must show that a defense was indeed overlooked or 

impaired and that the defense would have likely changed the outcome of the 

proceeding.” Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007).

[42] With respect to claims of exaggerated penalty, the Segura Court stated:

Whether viewed as ineffective assistance of counsel or an 

involuntary plea, the postconviction court must resolve the factual 

issue of the materiality of the bad advice in the decision to plead, 

and postconviction relief may be granted if the plea can be shown 

to have been influenced by counsel’s error. However, if the 

postconviction 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.

Segura, 749 N.E.2d at 504-505. 

[43] In light of Milligan’s trial counsel’s filing of a Notice of Defense of Mental 

Disease or Defect requesting that the court appoint three disinterested 

psychiatrists to examine him which was granted by the trial court, and the three 

letters that all concluded that Milligan was competent, as well as his trial 

counsel’s filing of the motion requesting the court to order an encephalogram 

examination of Milligan, we cannot say that his trial counsel were ineffective 

regarding challenging his competency or the trial court’s handling of the issue. 
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As for Milligan’s argument that his trial counsel was ineffective for advising 

him to accept a plea agreement that contained the clause regarding Thandeka, 

we noted earlier that we cannot say that he develops a cogent argument as to 

this issue. With respect to his argument regarding the factual basis, we 

concluded above that a sufficient factual basis existed. 

[44] To the extent that Milligan asserts that his trial counsel failed to challenge the 

constitutionality of Ind. Code § 35-50-2-9(b)(8) as applied to him or that his plea 

was not made knowingly and intelligently because it was induced by an 

unconstitutional death penalty aggravating factor, he discusses State v. 

McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979), and Conner v. State, 580 

N.E.2d 214 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S. Ct. 1501 (1992), reh’g 

denied, and asserts that the “narrowing process set forth under subsection (b)(8) 

is capricious and arbitrary under those decisions.” Appellant’s Brief at 13.

[45] The State argues that the aggravator could properly have applied to Milligan 

because he committed two murders at the same time and that, while Milligan 

acknowledges McCormick and Conner, he improperly claims those decisions are 

capricious and arbitrary. 

[46] We observe that Milligan’s trial counsel filed a Motion to Dismiss Count IV, 

State’s Motion for the Death Penalty, arguing that it would be a violation of 

due process and the Fourteenth Amendment to the United States Constitution 

to try Milligan for both charges of murder before the same jury and then use 

one of the charged murders as an aggravating circumstance to impose the death 
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penalty in the other charged murder. Moreover, as explained below, we cannot 

say that McCormick or Conner require reversal or that the aggravator pursuant to 

Ind. Code § 35-50-2-9(b)(8) constituted an illusory threat. 

[47] At the time of the offense, Ind. Code § 35-50-2-9 provided:

(a) The state may seek a death sentence for murder by alleging, 

on a page separate from the rest of the charging instrument, the 

existence of at least one (1) of the aggravating circumstances 

listed in subsection (b). In the sentencing hearing after a person 

is convicted of murder, the state must prove beyond a reasonable 

doubt the existence of at least one (1) of the aggravating 

circumstances alleged.

(b) The aggravating circumstances are as follows:

* * * * *

(8) The defendant has committed another murder, at any 

time, regardless of whether the defendant has been 

convicted of that other murder.

[48] In McCormick, Count I alleged that Jesse A. McCormick strangled a man on 

October 5, 1978, resulting in his later death. 272 Ind. at 275, 397 N.E.2d at 

278. Count II set forth an allegation which allegedly constituted one of the 

statutory aggravating circumstances. Id. Specifically, Count II was brought 

under Ind. Code § 35-50-2-9(b)(8) and alleged that McCormick murdered 

another man on May 17, 1977. Id. In a separate cause, McCormick also stood 

charged with the murder of the man on May 17, 1977, and McCormick had not 

been tried on that charge. Id. The State and McCormick stipulated that the 
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two killings were not related or connected in any way. Id. The Court held that 

the effect of the statutory procedure would be that the defendant would be fully 

tried on two separate and unrelated charges before the same jury and that he 

would be tried on the second count to a jury which had been undeniably 

prejudiced by having convicted him of an unrelated murder. Id. at 278, 397 

N.E.2d at 280. The Court held that Ind. Code § 35-50-2-9(b)(8) denied due 

process as applied to the defendant and confined its holding to those cases in 

which the murder alleged as an aggravating circumstances is not related to the 

principal murder charge. Id. at 280, 397 N.E.2d at 281.

[49] In Conner, the defendant was convicted of three counts of murder and sentenced 

to death. 580 N.E.2d at 216. The Court addressed the defendant’s argument 

that the prosecutor’s discretion to charge the death penalty count renders the 

penalty arbitrary and capricious and, therefore, cruel and unusual, by holding 

as follows:

Under our State’s system of criminal justice, the prosecutor 

always has been allowed broad discretion in representing the 

people of the State in determining what crimes to prosecute and 

in requesting the imposition of various sentences. We reject the 

argument that the legislature’s continued placement of such 

discretion on the prosecutor to determine which cases warrant 

the request for the imposition of the death penalty renders the 

penalty unconstitutional. Coleman v. State (1990), Ind., 558 

N.E.2d 1059, 1065, cert. denied (1991), 501 U.S. 1259, 111 S. Ct. 

2912, 115 L.Ed.2d 1075; Games [v. State], 535 N.E.2d [530, 537 

(Ind. 1989), cert. denied, 493 U.S. 874, 110 S. Ct. 205 (1989), reh’g 

denied]. There is nothing in this record which leads us to believe 
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that the prosecutor abused his discretion in seeking the death 

penalty for a triple murder.

Id. at 218. In an opinion concurring in result, Justice DeBruler observed that all 

three killings were on the same morning within approximately a two hour 

period and at different locations on the south side of Indianapolis and stated 

that Ind. Code § 35-50-2-9(b)(8) was applicable in cases involving double or 

multiple murders for which the defendant is tried in a single proceeding. Id. 

[50] We cannot say that McCormick or Conner require reversal or that the aggravator 

pursuant to Ind. Code § 35-50-2-9(b)(8) constituted an illusory threat. See Judy 

v. State, 275 Ind. 145, 171, 416 N.E.2d 95, 109 (1981) (“As the jury here 

considered the sentence to be imposed on Judy for each of the four murders, 

they had before them their own finding of guilt beyond a reasonable doubt of 

the other three murders involved in the entire incident. Therefore, they could 

properly consider these convictions as aggravating circumstances in deciding to 

recommend the death penalty.”). Accordingly, we cannot say that Milligan has 

demonstrated that he was prejudiced or that his plea was involuntary. 

Conclusion

[51] For the foregoing reasons, we affirm the denial of Milligan’s successive petition 

for post-conviction relief. Affirmed.

Vaidik, C.J., concurs.

Robb, J., concurs in result with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 02A04-1602-PC-263 | October 13, 2016 Page 29 of 31

IN THE

COURT OF APPEALS OF INDIANA

Sam Milligan,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 13, 2016

Court of Appeals Case No.

02A04-1602-PC-263

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, Jr., 

Judge

Trial Court Cause No.

02D04-8509-CF-393

Robb, Judge, concurring in result.

[52] I concur with the majority that the post-conviction court did not err in denying 

Milligan’s successive petition for post-conviction relief. I write only to note the 

following with respect to Milligan’s allegation that there was an insufficient 
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factual basis for his plea: on this record, we have no reason to disbelieve the 

post-conviction court’s finding that res judicata precluded consideration of this 

issue and even if we did, Milligan has waived the issue. 

[53] As the majority notes, the record does not include Milligan’s first petition for 

post-conviction or the order denying that petition. However, the State’s answer 

to Milligan’s successive petition for post-conviction relief alleges any issue 

regarding the factual basis for his plea has “been decided against [him] in the 

original post-conviction proceeding and may not be relitigated in a successive 

post-conviction proceeding according to the doctrine of res judicata.” 

Appellant’s Appendix at 73. The successive post-conviction court ordered the 

case submitted by affidavit; in response to Milligan’s affidavit, the State alleges 

the factual basis issue “was decided against Mr. Milligan in his first postconviction proceeding,” citing paragraph 2 of the post-conviction court’s June 

12, 1996, conclusions of law. Id. at 93. Although Milligan alleges in his reply 

brief that the State has failed to show evidence that he presented the same issue 

in his prior petition, see Reply Brief of Appellant at 3, he did not include a copy 

of the prior petition or order in his appendix, and he does not actually refute 

that he raised the factual basis issue therein.

[54] On this record, I would say Milligan, who bears the burden of establishing 

grounds for relief, has not shown any error in the post-conviction court’s 

finding that consideration of the factual basis issue was precluded by res judicata. 

Further, presuming the initial post-conviction decision decided the factual basis 

issue against Milligan, he has not shown that the initial post-conviction decision 
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was manifestly unjust in order to avoid res judicata when seeking successive 

post-conviction relief. See Annes v. State, 789 N.E.2d 953, 954 (Ind. 2003). And 

finally, regardless of whether or not Milligan raised the factual basis issue in his 

first petition for post-conviction relief, he could have raised it in his first petition, 

and has therefore waived its consideration as a standalone claim (as opposed to 

an ineffective assistance of counsel claim) in a successive petition. See P-C.R. 

1(8); Kirk v. State, 632 N.E.2d 776, 779 (Ind. Ct. App. 1994) (noting the 

“established rule that a petitioner raise all available grounds for relief in his 

original petition unless they were not available or were unknown to him at that 

time”).