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: ATTORNEYS FOR APPELLEE:

KEITH A. HARLOW GREGORY F. ZOELLER

Westville, Indiana Attorney General of Indiana

JOSPEH Y. HO

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KEITH A. HARLOW, )

)

Appellant-Defendant, )

)

vs. ) No. 06A01-1206-PC-296

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE BOONE CIRCUIT COURT

The Honorable Matthew C. Kincaid, Special Judge

Cause No. 06C01-1112-PC-412

January 31, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
2

Keith Harlow appeals the denial of his petition for post-conviction relief. Harlow 

presents multiple issues for our review, which we consolidate and restate as:

1. Whether Harlow’s trial counsel rendered ineffective assistance; and

2. Whether the trial court violated Harlow’s due process rights in allowing the 

State to proceed on various pre-trial motions and procedures.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 28, 2008, the State charged Harlow with Class B felony criminal 

confinement,1 Class C felony battery by means of a deadly weapon,2 Class B felony burglary,3

Class D felony theft,4 Class D felony domestic battery,5and Class A misdemeanor 

interference with the reporting of a crime.6 On October 7, 2009, Harlow agreed to plead 

guilty to Class B felony burglary and Class D felony domestic battery. The trial court took 

the plea under advisement, ordered a Presentence Investigation Report, and set a sentencing 

hearing for January 11, 2010.

Harlow did not appear, and the court issued a bench warrant for his arrest. The State 

rescinded the plea agreement on February 26. Harlow was arrested on the bench warrant on 

August 2. On December 8, the State requested permission to file a belated habitual offender 

 

1

Ind. Code § 35-42-3-3(b).

2

Ind. Code § 35-42-2-1(a)(3).

3

Ind. Code § 35-43-2-1(1).

4

Ind. Code § 35-43-4-2(a).

5

Ind. Code § 35-42-2-1.3(b).

6

Ind. Code § 35-45-2-5.
3

enhancement.7

On January 18, 2011, Harlow agreed to plead guilty to Class B felony burglary, Class 

D felony domestic battery, and the habitual offender enhancement. On March 8, the trial 

court sentenced Harlow to twelve years for Class B felony burglary, and three years for Class 

D felony domestic battery, to be served consecutively for an aggregate sentence of fifteen 

years, with ten years incarcerated and five years on probation. The trial court ordered those 

sentences served concurrent with a ten year habitual offender enhancement. Harlow did not 

pursue a direct appeal.

On December 12, 2011, Harlow, filed a pro se petition for post-conviction relief and a 

memorandum in support. On May 22, 2012, the post-conviction court held an evidentiary 

hearing and then took the matter under advisement. On June 15, the post-conviction court 

entered findings of fact and conclusions of law denying Harlow’s request for post-conviction 

relief.

DISCUSSION AND DECISION

Post-conviction proceedings afford petitioners a limited opportunity to raise issues 

that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 

N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the 

petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party 

appealing a negative post-conviction judgment must establish that the evidence is without 

conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to that 

 

7

Ind. Code § 35-50-2-8.
4

reached by the post-conviction court. Id. 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 do not defer to the court’s legal conclusions, but “the findings and judgment will be 

reversed only upon a showing of clear error – that which leaves us with a definite and firm 

conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 

2000), cert denied, 530 U.S. 830 (2001) (citation omitted).

We also note Harlow appears pro se. Pro se litigants are held to the same standards as 

licensed attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 

338, 344 (Ind. Ct. App. 2004).

1. Ineffective Assistance of Trial Counsel

Generally, when claiming ineffective assistance of counsel, a petitioner must show 

that counsel’s performance fell below an objective standard of reasonableness and there 

exists a reasonable probability that, but for counsel’s errors, the result of the proceeding 

would have been different. Strickland v. Washington, 466 U.S. 668, 687-688 (1984), reh’g 

denied. When a defendant has pled guilty, the remaining ineffective assistance of trial 

counsel claims fall into two categories. Segura v. State, 749 N.E.2d 496, 502-504 (Ind. 

2001). The first is where counsel’s error affected a possible defense – i.e., “those that 

overlook a defense, fail to develop available evidence for a defense, or impair a defense by 

inadequate legal analysis.” Id. at 502. The second occurs when the defendant’s lawyer 

incorrectly advises the defendant as to penal consequences. Id. at 504.

Thus, to prevail on a claim of ineffective assistance of counsel based on counsel’s 
5

failure to advise him of an issue, which failure impairs or overlooks a defense, Harlow must 

demonstrate that there is a reasonable probability a more favorable result would have been 

obtained if the case had gone to trial. In addition, Harlow must present specific facts 

regarding the penal consequences facing him that “establish an objective reasonable 

probability that competent representation would have caused the petitioner not to enter a 

plea.” Id. Merely alleging he would not have entered the plea, without presenting specific 

facts supporting one of the two types of ineffective assistance of counsel, is insufficient. Id.

Harlow argues his trial counsel, Michael Gross, was ineffective because he did not 

notice an alleged discrepancy between the probable cause affidavit and Harlow’s charging 

information and because Gross did not object to the State’s request to file a belated allegation 

that Harlow was an habitual offender. Harlow makes no argument regarding the factors set 

forth in Segura.

During the post-conviction hearing, Harlow’s trial counsel testified he was not aware 

the probable cause affidavit and the charging information were incongruent and he was under 

the impression the trial court had granted the State’s motion to file an habitual offender 

enhancement. Counsel testified he had explained “everything good, bad or indifferent” (Tr. 

at 7), regarding Harlow’s plea negotiations to Harlow throughout the process, that Harlow 

understood the State added an habitual offender charge, and that Harlow understood the 

charges to which he was pleading guilty and what type of sentence would result. Counsel 

noted he would have been unsuccessful if he had objected to the State’s belated filing of the 

habitual offender allegation because, pursuant to statute, the trial court had discretion to 
6

allow the State to amend.

Harlow has not demonstrated Gross performed so deficiently that Harlow would have 

fared better had he gone to trial. Harlow agreed to plead guilty to two of the six counts 

against him, the State agreed not to file felony charges for Harlow’s failure to appear, and 

Harlow’s sentence was capped at fourteen years despite his lengthy criminal history. In 

addition, the trial court ordered Harlow’s sentence for the habitual offender finding to be 

served concurrent with his other sentences and thus the finding added no additional penal 

consequence. Based on the factors set forth in Segura, Harlow has not shown his trial 

counsel was ineffective.

2. Due Process Arguments

Harlow asserts his due process rights were violated in three ways, as set forth in his 

Statement of the Issues:

1.) Whether the Appellant’s due process rights were violated by sentencing 

him under the Belated Habitual Offender Information without an order of the 

Court permitting the State to proceed, or being arraigned.

2.) Whether the Appellant’s substantial rights of due process were violated by 

State’s untimely filing of the Habitual Offender Information.

3.) Whether the Appellant was convicted of a charge of Burglary as a class B 

felony not supported by a probable cause affidavit by changing the identity of 

the charge listed in the probable cause affidavit, a charge not properly made.

(Br. of Appellant at i.) 

When a defendant enters a guilty plea, his right to collaterally attack the resulting 

conviction is limited by the provisions of Ind. Code § 35-35-1-4(c), which provides in 

relevant part:

(c) After being sentenced following a plea of guilty, or guilty but mentally ill at 
7

the time of the crime, the convicted person may not as a matter of right 

withdraw the plea. However, upon motion of the convicted person, the court 

shall vacate the judgment and allow the withdrawal whenever the convicted 

person proves that withdrawal is necessary to correct a manifest injustice. A 

motion to vacate judgment and withdraw the plea made under this subsection 

shall be treated by the court as a petition for postconviction relief under the 

Indiana Rules of Procedure for Postconviction Remedies. For purposes of this 

section, withdrawal of the plea is necessary to correct a manifest injustice 

whenever:

(1) the convicted person was denied the effective assistance of counsel;

(2) the plea was not entered or ratified by the convicted person;

(3) the plea was not knowingly and voluntarily made;

(4) the prosecuting attorney failed to abide by the terms of a plea 

agreement; or

(5) the plea and judgment of conviction are void or voidable for any 

other reason.

We have already determined Harlow has not demonstrated his trial counsel was ineffective. 

When attempting to attack on post-conviction a portion of the trial proceedings not related to 

the guilty plea, the defendant must provide evidence his guilty plea was either not counseled 

or involuntary. Ford v. State, 618 N.E.2d 36, 38 (Ind. Ct. App. 1993), reh’g denied. Harlow 

has argued neither, and therefore his collateral attack on his conviction based on allegations 

of pre-trial errors is foreclosed. Id. Accordingly, we hold the trial court did not err when it 

denied Harlow’s request for post-conviction relief based on allegations of pre-trial error.

CONCLUSION

Harlow did not demonstrate his counsel was ineffective, and he waived his allegations 

of pre-trial error by pleading guilty. Accordingly, we affirm the denial of his petition for 

post-conviction relief.
8

Affirmed.

ROBB, C.J., and PYLE, J., concur.