ATTORNEYS FOR APPELLANT

Susan K. Carpenter

Public Defender of Indiana

John S. Sommer

Kathleen Cleary

Chris Hitz-Bradley

Deputy Public Defenders

Indianapolis, Indiana    

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

JOSEPH L. TRUEBLOOD,         		)

   						)

	Appellant (Petitioner below),	)	 

						)	

	v.					)	Supreme Court

 						)	Cause No. 79S00-9211-PD-887 

STATE OF INDIANA,	    		)	

						)

	Appellee (Respondent below).	)

	APPEAL FROM THE TIPPECANOE CIRCUIT COURT

	The Honorable Thomas K. Milligan, Special Judge

	Cause No. 79C01-8904-CF-12   

	ON DIRECT APPEAL FROM DENIAL OF POSTCONVICTION RELIEF

September 9, 1999

BOEHM, Justice.

	Joseph L. Trueblood pleaded guilty to the murders of Susan Bowsher and her two children.  He was sentenced to death for each of the three murders.  He appeals the denial of his petition for postconviction relief and raises eight issues, which we restate as four: (1)

ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) the

postconviction court’s summary disposition of claims and exclusion of evidence at the

postconviction hearing; and (4) the voluntariness and intelligence of the guilty pleas.

Factual and Procedural Background

	On August 15, 1988, Trueblood picked up his ex-girlfriend Susan Bowsher and her

two children and, while they were in his automobile, shot each of them in the head.  After

borrowing a shovel from his brother’s home, Trueblood took the bodies to a secluded area

and buried them in a shallow grave.  Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992). 

	Trueblood pleaded guilty to the murder of Susan on October 6, 1988.  More than a

year later he sought to withdraw that guilty plea, but his request was denied.  In February of

1990, a jury trial commenced for the murders of the two children.  After two days of trial,

Trueblood pleaded guilty to both murders and the trial court accepted those guilty pleas.  A

few days later, Trueblood sought leave to withdraw the last two guilty pleas and that leave

was also denied by the trial court.  Trueblood was sentenced to death on each of the three

counts.  On direct appeal this Court affirmed the trial court’s denials of the motions to

withdraw his guilty pleas.  The death sentences were also affirmed.  See id. at 110-11.

	Trueblood then filed a petition for postconviction relief.  Both parties moved for

summary judgment as to some issues, and the trial court denied Trueblood’s motion, granted

the State’s, and sua sponte dismissed some of Trueblood’s other claims.  After an evidentiary hearing that spanned five days, the postconviction court denied Trueblood’s remaining

claims.  This appeal ensued.

Standard and Extent of Review

	Trueblood bore the burden of establishing the grounds for relief by a preponderance

of the evidence.  Ind. Post-Conviction Rule 1(5).  Because he is now appealing from a

negative judgment, to the extent his appeal turns on factual issues Trueblood must convince

this Court that the evidence as a whole leads unerringly and unmistakably to a decision

opposite that reached by the postconviction court.  Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995)).  We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary

to the result of the postconviction court.  Id. at 774.

	Postconviction procedures do not afford a petitioner with a super-appeal, and not all

issues are available.  Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999).  Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the

postconviction rules.  Id.; P-C.R. 1(1).  If an issue was known and available but not raised on direct appeal, it is waived.  Rouster, 705 N.E.2d at 1003.  If it was raised on appeal but decided adversely, it is res judicata.  Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994)).1  If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a postconviction proceeding.  Woods v. State, 701 N.E.2d 1208 (Ind. 1998).  A claim of ineffective assistance of appellate counsel is also an appropriate issue for

postconviction.  As a general rule, however, most free-standing claims of error are not

available as such in a postconviction proceeding because of the doctrines of waiver and res

judicata.  Some of the same contentions, to varying degrees, may be properly presented in

support of a claim of ineffective assistance of trial or appellate counsel.  However,

postconviction counsel run the risk of waiving available claims of   ineffectiveness by

presenting them as free-standing claims.2  We address the issues Trueblood raises in this appeal primarily as claims of ineffective assistance of counsel, but also address those free-

standing claims that are not barred by res judicata or waiver.

I.  Ineffective Assistance of Trial Counsel

	Trueblood’s primary claim in this appeal is ineffective assistance of trial counsel in

both his guilty pleas and his sentencing hearing.  To establish a violation of the Sixth

Amendment right to effective assistance of counsel, the defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness based on

prevailing professional norms; and (2) there is 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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. at 694.  More recently, the Supreme Court of the United States held that prejudice resulting from ineffective

assistance is not established unless the error rendered the result of the proceeding

fundamentally unfair or unreliable.  Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). 	

	A. Guilty Pleas

	Six weeks after being charged with the three murders, Trueblood pleaded guilty

without a plea agreement to Susan’s murder (Count III).  His counsel at that time was

Tippecanoe County Public Defender George Wilder.  Wilder’s appearance was withdrawn

almost a year later when he left the public defender’s office.  Wilder was replaced by

Thomas O’Brien and Michael O’Reilly, and a motion to withdraw the guilty plea was filed

a few months later.  The trial court denied the motion, and two months later a jury trial began

for the murders of the children (Counts I and II).  After jury selection had been completed

and several witnesses had testified, Trueblood pleaded guilty, again without a plea

agreement, to the murders of the children. 

	A few days later Trueblood denied the factual bases of these pleas in a presentence

investigation interview with a probation officer.  Defense counsel moved for a competency

evaluation, and Trueblood was evaluated by a court-appointed psychologist and a

psychiatrist, both of whom concluded that he was competent to stand trial, make judgments

about a guilty plea, and  assist in his defense.  Trueblood then moved to withdraw the second

guilty plea.  Both of his counsel also filed a notice of perjured testimony and sought to withdraw their appearances on the basis that Trueblood had used them “as part of a scheme

to submit to the Court perjured testimony,” which broke down the attorney-client

relationship.  The trial court denied the motion to withdraw the guilty plea and the motion

to withdraw as counsel. 

	Trueblood argues that he was denied effective assistance of counsel in each of his

three guilty pleas.  Trueblood contends that “[c]ounsel should not have allowed Trueblood

to plead guilty to [Susan’s murder] prior to an adequate mental health evaluation, including

neuropsychological testing.”  He makes no further suggestion what “an adequate mental

health evaluation” would have entailed or how its results would have altered the decision to

plead guilty.  Defense counsel hired a licensed psychiatrist to examine Trueblood within

days of his arrest.  The psychiatrist’s report concluded that “Trueblood was fully sane at the

time of my interview with him and I have the evidence to suggest that he was also sane at the

time of the offense.  He is competent to stand trial . . . .”  In the face of this report, counsel’s

advice to plead guilty cannot be regarded as below acceptable performance.3

	Trueblood also argues that he had other “potential defenses” to Susan’s murder,

specifically that (1) he only fired a mercy shot at Susan only after she attempted to kill herself and

(2) that he was upset from a lover’s split and was acting under sudden heat when he killed her.  These “potential defenses” are problematic at best.  It is unlikely that a jury would have

bought the mercy killing story, especially in light of Trueblood’s brother’s trial testimony

that Trueblood confessed to the killings and asked for a shovel with which to bury the

bodies.  Moreover, pursuing a voluntary manslaughter defense would almost certainly have

required Trueblood to testify.  Although the State has the burden of disproving sudden heat

beyond a reasonable doubt, in order to inject that issue at all, the defendant must point to

some evidence supporting sudden heat.  See Wolfe v. State, 426 N.E.2d 647, 652 (Ind. 1981).  Because Trueblood was the only surviving occupant of the car at the time of the

killings, evidence of sudden heat could have come only from him.  The risk of a devastating

cross-examination was obvious, and the judgment not to expose Trueblood to this cannot be

the basis of ineffective assistance of counsel.

	Wilder did not testify at the postconviction hearing, but both Trueblood and the State

submitted affidavits from him.  The affidavit submitted by Trueblood indicated that the

decision to plead guilty was designed to (1) demonstrate Trueblood’s cooperativeness and

(2) possibly “anchor the case before Judge Thayer,” whom Wilder believed to be “the least

likely Judge to sentence Mr. Trueblood to death.”4  The affidavit submitted by the State noted that 

	[e]arly on and after a considerable amount of time advising Mr. Trueblood, a strategic 

	decision was made to cooperate as much as prudently possible in the hope of 

	convincing the State of Indiana to dismiss the death penalty or persuading the fact 

	finder--the jury or the judge--not to impose the death penalty.  In this regard, and upon

	the substantial completion of important aspects of the defense investigation, Mr. 

	Trueblood decided to plead guilty to Susan’s death because, among other reasons, 

	such a plea was consistent with his account of the events and the plea might enhance 

	the credibility of his case later at a trial as to the children or during the penalty phase 

	of the case by showing he sincerely accepted responsibility for what he had done. 

The decision to plead guilty was ultimately Trueblood’s.  However, that decision required

at least some reliance on the advice of Wilder.  The postconviction court found that the

decision to plead guilty to Count III was a matter of strategy and an informed tactical

decision made by Trueblood and his counsel.  We agree that Wilder’s advice to cooperate

and plead guilty was a reasonable judgment under the circumstances.

	Trueblood also argues ineffective assistance relating to the guilty pleas to Counts I

and II.  These pleas occurred after the State had presented several witnesses at trial.  The

decision to plead guilty was reached after a lengthy discussion on the evening of the second

day of trial testimony.  O’Reilly testified in his  postconviction deposition that the day before

the guilty plea “was the roughest day I personally had ever had in court. . . . [and] we knew

it wasn’t going to get any better. . . .  I was looking at that jury and their faces were sober and

very, very serious.”  According to O’Reilly, the decision to plead guilty was left up to

Trueblood, after counsel gave him an idea of how the trial was likely to proceed.  Counsel knew what evidence the State had yet to present and viewed it as “devastating.”  Moreover,

had the trial continued, Trueblood’s “defense was minimal at best.”  O’Brien stated in his

postconviction deposition that the fact that the victims were children also factored into

counsel’s thinking:  “We felt the nature of the case, being children, that the jury would

recommend [the death penalty] on a conviction and the judge would certainly follow the

jury’s recommendation.  I thought that his one opportunity may be to avoid the [death]

penalty would be to throw himself on the mercy of [Judge] Melichar.”  The guilty pleas

allowed trial counsel to devote their time and energy to mitigation rather than spending

several more days defending a guilt phase that appeared hopeless.  Trueblood told the

psychiatrist who evaluated his competency one week after this guilty plea that he shared his

attorneys’ bleak view of the trial.  According to the psychiatrist, Trueblood “stated that the

evidence presented in court made a strong impact upon him and when he appraised the

impact the evidence made on the jury and his impression of what his attorneys felt he states

that he decided he would not be acquitted and thus pleaded guilty.”  

	Trueblood contends that counsel were ineffective for “pressuring” him to plead guilty

after he had to witness “enormously gruesome” autopsy pictures and hear his twin brother

testify against him.  Trueblood also argues that trial counsel sought to rush a plea and points

to the affidavit of Judge Melichar, which states that one of Trueblood’s trial attorneys called

him at home “sometime after 9:00 p.m.” to ask him to convene court that evening for a guilty

plea hearing.  Judge Melichar declined and told the attorney to sleep on it.  In the same vein,

Trueblood cites his counsel’s failure to have him reexamined or assessed by the defense’s neuropsychological expert regarding the voluntariness of the plea.  These rather conclusory

allegations all relate to judgments that are required to be made under the pressures of a trial

and as to which there is no correct choice.  The postconviction court found that the guilty

pleas occurred after “very strong, highly persuasive evidence” was submitted to the jury.  It

found no deficient performance because Trueblood had conferred with counsel and family

members and 

	decided to try to cut his losses, short circuit the influence of the evidence on the jury 

	and through the jury to the Judge, and enter a plea of guilty continuing the effort to 

	appear cooperative and compliant and remorseful and attempting to avoid the 

	imposition of the death penalty. 

The postconviction court’s finding is fully supported by the record.

	B. Penalty/Sentencing Hearing

	Trueblood also contends that he was denied the effective assistance of counsel by the

alleged failure of trial counsel to investigate and present more mitigating evidence. 

Trueblood’s primary argument in this appeal is that trial counsel were ineffective for failing

to present evidence relating to his neurocognitive deficits.5  However, Trueblood’s trial counsel employed several experts who examined various aspects of his mental health.  These

included Dr. Larry Davis, a licensed psychiatrist;6 Dr. Diane Follingstad, a clinical psychologist;7 Dr. Thomas Curfman, a neurologist;8 Drs. Richard Loughead and Kathryn Black, both psychologists;9 and Dr. Raymond Horn, a clinical neuropsychologist.10  Drs. Follingstad and Loughead testified during the sentencing phase/hearing.  In addition, upon

oral motion of defense counsel the trial court appointed Dr. Richard Rahdert, a psychiatrist,

and Dr. Brian Primeau,11 a clinical psychologist, to examine Trueblood days after his second guilty plea to evaluate his competency to stand trial on the death counts.12  In addition to this expert testimony, trial counsel also called eleven other witnesses, most of whom were

Trueblood’s relatives.

	Trueblood’s brief summarizes with approval the postconviction court’s findings

relating to his brain dysfunction as affecting “his ability to problem solve, reason,

extrapolate, and understand. . . .  Trueblood has a problem with his visual spatial reasoning

and is more distractible than normal people.  Finally, . . . Trueblood has trouble seeing

options, difficulty weighing alternatives or options, difficulty generating alternative ideas.”

This finding was based on the testimony of Dr. Gelbort, who testified at postconviction about

various neurocognitive deficits, as well as Dr. Horn, who was hired by the defense before

trial but did not testify.  

	Trueblood argues that trial counsel should have presented the testimony of Dr. Horn

and related testimony dealing with his neuropsychological deficits.  Although he makes the

bold assertion that, “[h]ad this type of mitigation been presented, then the trial court would

have found both statutory and non-statutory mitigation related to mental health,” the

postconviction court, which heard this testimony, found the selection of witnesses to be a strategy call.  We agree.13  

	As noted above, trial counsel went to considerable time and expense in investigating

possible mental health mitigating evidence through several witnesses.  Trueblood contends

that the decision not to call Dr. Horn “was uninformed and could not be a matter of strategy,”

because it was based either on lack of knowledge or on the failure to conduct a proper

investigation.  Both trial counsel rebutted this.  Each testified that Dr. Horn’s testimony was

not presented because of an anticipated conflict with the testimony of Dr. Follingstad.14  Trueblood contends that trial counsel should have consulted the experts regarding the

potential conflict, concluded there was no conflict, and presented the testimony of Dr. Horn. 

This decision is plainly a judgment call that does not rise to the level of constitutionally deficient performance. 

	Trueblood also argues that trial counsel were ineffective for failing to present

evidence suggesting that he may have been suffering from post-traumatic stress disorder

(PTSD).  The postconviction court found

	[t]here is no evidence before the court that there was any indication to trial counsel 

	that they should have been aware of that issue, that they knew of that issue, or that it 

	was an issue which should be looked into . . . .  Other experts in the mental health 

	field who examined the Petitioner were not aware o[f] any post-traumatic stress 

	disorder or even any symptoms or indication that there might be a problem . . . .  Even

	if there might have been symptoms of post-traumatic stress disorder, there is no 

	evidence before the court that it substantively affected Petitioner’s ability to 

	participate in [his defense].

Trueblood asserts that the State presented no experts qualified to challenge his

postconviction expert’s finding of PTSD and that some of the expert testimony available to

trial counsel prior to sentencing suggested symptoms of PTSD.  As explained above, trial

counsel hired several experts to prepare mitigating evidence for the penalty phase and

sentencing hearing.  If none of those experts told trial counsel that Trueblood was, or may

be, suffering from PTSD, counsel cannot be declared ineffective for failing to pursue the

issue further. 

	Trueblood also contends that trial counsel were ineffective for failing to present

“eyewitness testimony” relating to an incident in which he saved a woman’s life by pulling

her from a burning building.15  Trial counsel presented evidence of this event in mitigation through the unverified hearsay testimony of both of Trueblood’s parents.  We held on direct

appeal that this testimony “was admissible under the evidentiary standards applicable to

sentencing hearings but the trial judge was not obliged to credit it.  The trial court did not err

in failing to find this as a mitigating circumstance.”  Trueblood v. State, 587 N.E.2d 105, 111 (Ind. 1992).  Trueblood argues in this appeal that counsel should have presented the

testimony of his wife who witnessed the rescue.16  However, he concedes that trial counsel did not know that she had witnessed the rescue.  Moreover, trial counsel presented

admissible evidence in support of this potentially mitigating factor.  The failure to discover

and present direct eyewitness testimony is not deficient performance.  Nor is there a

reasonable probability that its presentation would have changed the trial court’s decision to

impose the death sentences.

	Trueblood also contends that trial counsel should have sought a change of judge after

his unsuccessful attempt to withdraw his second guilty plea led the trial judge to state on the

record that he believed Trueblood was “lying” and his changed testimony was “a

counterfeit.”  However, Trueblood does not argue that, had a change of judge been

requested, it would have been granted.  More importantly, trial counsel O’Brien testified in

his postconviction deposition that he and O’Reilly wanted the case to remain before Judge

Melichar.  “We had a lot of faith in Melichar.”  Even after he called Trueblood a “counterfeit” and denied the motion to withdraw the second guilty plea, “we still felt that he

would be . . . our best opportunity or the best judge.”  Trueblood points to nothing rebutting

the presumption of competence in this evaluation.

	Trueblood next argues that trial counsel were ineffective for failing to “adequately

prepare the mitigation witnesses[.]”  He asserts that had trial counsel better prepared

witnesses who testified about his good conduct in jail while awaiting trial that this Court

would have not concluded “[t]his evidence does not compel a finding of good behavior as

mitigation.”  See Trueblood, 587 N.E.2d at 110.  Trueblood offers no specifics as to what should have been done differently.  Moreover, we reviewed this testimony on direct appeal

and noted that two of three corrections officers who testified had “had problems” with

Trueblood on one or two occasions.  Id.  Trueblood does not contend that calling other witnesses would have contradicted this negative testimony or that trial counsel could have

somehow prepared the witnesses in a manner to keep this information from the trial court. 

There is no deficient performance here.

	Trueblood also contends that trial counsel either did not interview, adequately

prepare, or present other witnesses.  Many of these witnesses were, however, interviewed

by either Trueblood’s mitigation expert or trial investigator.  Trueblood suggests that a more

thorough investigation or the presentation of additional witnesses would have revealed more

detailed information about Trueblood’s family background and abusive childhood. Trial

counsel presented a substantial body of evidence on this subject.  In addition to expert

testimony of Drs. Follingstad and Loughead, trial counsel presented the testimony of both of Trueblood’s parents, Trueblood’s sisters Elaine and Kelly, his brother David, his brother-

in-law, his “ex-brother-in law,” and a man who had known Trueblood since he was born.

The trial court’s sentencing order found as a mitigating circumstance that Trueblood “was

abused as a child and raised in an environment of physical and emotional abuse.”  Some

improvement can be found in hindsight in any trial presentation.  The deficiencies argued by

Trueblood in this appeal do not approach the showing necessary to overcome the strong

presumption of counsel’s competence.  Moreover, Trueblood points to nothing to lead us to

believe that more of this same sort of evidence would have affected the sentence.17

	Trueblood also asserts that trial counsel were ineffective for failing to object to the

State’s rebuttal testimony by a detective regarding Trueblood’s juvenile record.18  However, the sentencing order makes no mention of a juvenile record and even lists as a mitigating

circumstance that the “defendant has no significant history or prior criminal conduct.”  A few

weeks after the detective testified, the probation officer who prepared the presentence report

filed an addendum that stated he had found no juvenile criminal history in court records.19 In light of the trial court’s finding of a lack of criminal history, Trueblood has not

demonstrated any prejudice by counsel’s failure to object, even if the unspecified ground for

objection were valid.  Cf. Prowell v. State, 687 N.E.2d 563, 565 (Ind. 1997), cert. denied ___ U.S. ___, 119 S. Ct. 104, 142 L. Ed. 2d 83 (1998) (concluding that any error in admitting

victim impact evidence was harmless under Trial Rule 61 because the trial court’s sentencing

order did not refer to any victim impact evidence).

	Trueblood similarly argues that trial counsel were ineffective for failing to raise

objections to hearsay accounts of Trueblood’s prior domestic abuse of Susan.   He points to

two specific instances in which he alleges that trial counsel improperly elicited alleged

hearsay.  On the first of these, counsel asked a friend of Susan’s whether the friend’s

testimony of domestic abuse had been a recitation of what Susan had told her, rather than

something she had witnessed herself.  On the second, counsel asked Susan’s brother’s

girlfriend if Susan had ever related any threats against her or her children.  Trial counsel

asked both of these questions in an attempt to minimize the testimony of domestic abuse by

showing that (1) the witness had not directly witnessed the abuse but was relating it

secondhand and (2) although Trueblood may have abused Susan, he had not threatened her

or her children.  Moreover, hearsay testimony was admissible during sentencing hearings

under the law existing at the time of Trueblood’s sentencing hearing.  See, e.g., Letica v. State, 569 N.E.2d 952, 957 (Ind. 1991).20 

	Trueblood also provides a five page single-spaced list of “extensive mitigation” in his

case.  Much of the list relates to Trueblood’s childhood and was considered by the trial court

when it found as a mitigating circumstance that “[t]he defendant was abused as a child and

raised in an environment of physical and emotional abuse.”  Some of the additional factors

are not mitigating at all.21  Trueblood neither provides any citation to authority nor makes a cogent argument as to why the remaining circumstances should have been presented

differently or at all.  Any claim of error is waived.  See Ind. Appellate Rule 8.3(A)(7).

II.  Ineffective Assistance of Appellate Counsel

	Trueblood also argues that his appellate counsel rendered ineffective assistance on

direct appeal.  Trial counsel O’Brien and O’Reilly also served as appellate counsel. 

Trueblood alleges four errors: (1) failure to “compile and file an adequate record” of

proceedings; (2) failure to challenge the “gruesome” slides of the children that were

presented at trial; (3) failure to challenge the State’s use of hearsay testimony in rebuttal; and

(4) issues relating to sentencing including (a) the trial court’s failure to consider mitigating

evidence; (b) the absence of an aggravating circumstance to support the death sentence for

Susan’s murder; (c) failure to challenge adequately the trial court’s reliance on non-statutory aggravating circumstances; and (d) the proportionality and appropriateness of his sentence.22  Trueblood also asks that we consider the cumulative effect of these issues.

	The standard of review for a claim of ineffective assistance of appellate counsel is the

same as for trial counsel.  Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994).  As to the adequacy of the record, Trueblood’s argument consists of one sentence: “Appellate counsel

failed to compile and file an adequate record for this Court’s review.”  He expands only

slightly in his reply brief by quoting from a hearing on his trial counsel’s oral motion to

allow Trueblood to visit the victims’ gravesite.  It is unclear how this transcript relates to any

issue raised on direct appeal, and Trueblood does not explain how it gives rise to any other

issue that should have been raised.23 

	Trueblood next contends that appellate counsel should have challenged the State’s

presentation of “gruesome . . . slides of the decomposing and bloated nude children . . . .” 

Trueblood argues that the gruesomeness of the slides rendered him unable to sit through their

presentation a second time and their use “broke his will to challenge the State’s case.” 

Because Trueblood was not convicted at trial but rather pleaded guilty, whether or not these

photographs were properly admitted during a trial that was never completed is relevant only

to the extent that it bears on the voluntariness of Trueblood’s guilty plea.  This issue was properly raised for the first time at the postconviction hearing.  It could not have been raised

on direct appeal.  See Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997) (“when a defendant pleads guilty, he may challenge only sentencing errors on direct appeal, not alleged errors involving his guilty plea or conviction”) (citing Tumulty v. State, 666 N.E.2d 394 (Ind. 1996)) (emphasis in original).  Therefore, appellate counsel cannot be declared

ineffective for raising a claim that this Court would not have considered.

	Trueblood also argues that appellate counsel failed to challenge the State’s improper

use of hearsay in its rebuttal case.  He provides no citation to the record or authority and

develops no argument beyond referring us to his contentions as to his trial counsel’s failure

to object to evidence of domestic abuse.  This contention was resolved against him in Part

I.B. of this opinion.  For the same reasons, the failure to raise this claim on direct appeal was

not appellate ineffectiveness. 

	Trueblood also raises appellate counsel’s handling of some sentencing issues.24  First, he contends that if his “mitigation had been adequately presented at trial and on appeal, then

Trueblood would not be facing the death penalty.”  The claim of trial counsel ineffectiveness

for failing to present mitigating evidence was resolved against Trueblood in Part I.B. of this

opinion.  As a result, he cannot succeed in a claim of appellate ineffectiveness for failure to

argue that trial counsel were ineffective for failing to present more mitigating evidence. 

	Trueblood’s free-standing claim of sentencing error suggests that appellate counsel

should have argued the mitigating evidence presented at the sentencing hearing differently. 

Specifically, Trueblood argues that the trial court failed to consider his guilty plea as a

mitigating circumstance.25  Although the legislature has not identified a defendant’s decision to plead guilty as a statutory mitigating circumstance in either the death penalty statute or the

general sentencing statute, see Ind. Code §§ 35-50-2-9(c) & 35-38-1-7.1(c) (1998), Trueblood is correct that Indiana courts have recognized that a guilty plea is a significant

mitigating circumstance in some circumstances.  See, e.g., Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995); Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995); Singer v. State, 674 N.E.2d 11, 18 (Ind. Ct. App. 1996). 

	In an era of crowded court dockets and a limited number of judges to hear those

growing dockets, defendants who plead guilty save valuable judicial time and resources. 

Moreover, a guilty plea saves the State the time and expense inherent in a lengthy trial such

as this would have been.  It accordingly extends a benefit to the State and the victim’s family

by avoiding a full-blown trial, as well as demonstrating the defendant’s acceptance of

responsibility for a crime.  See Scheckel, 655 N.E.2d at 511.  Nevertheless, this determination is necessarily fact sensitive, and not every plea of guilty is a significant

mitigating circumstance that must be credited by a trial court. 

	After entering the pleas, Trueblood later sought to withdraw from both guilty pleas. 

The second guilty plea involved Trueblood’s recantation of the sworn version of events given

in court during the guilty plea hearing and did not occur until after several days were spent

selecting a jury and the State had presented several witnesses.  Although the guilty pleas

saved some trial court and State time and expense, it wasthe benefits were much less than that of

the typical guilty plea that occurs before a trial is scheduled to begin.  ItThe plea saved

virtually no preparation time for the State.  The variations in Trueblood’s story and attempts

to withdraw his guilty pleas understandably frustrated the trial judge.  Moreover, one of the

issues presented to this Court on direct appeal was that the trial court erred in refusing to

allow Trueblood to withdraw his guilty plea.  See Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992).  It would have been highly inconsistent to argue in the same brief that the same

guilty pleas that the trial court erroneously refused to vacate should be considered as a

mitigating circumstance.  Although Trueblood plainly had the right to challenge the guilty

pleas, in doing so he refused to take responsibility for the offenses.  In sum, appellate counsel

were not deficient for failing to raise this issue on direct appeal, and Trueblood has not

demonstrated any prejudice as a result of this omission.26

	Trueblood next argues that the trial court failed to specify at least one aggravating

circumstance in support of imposing the death penalty for Susan’s murder, and appellate

counsel were ineffective for failing to raise this issue.  The trial court’s sentencing order lists

only three aggravating circumstances, none of which applies to Susan’s murder.27  Although this issue was not raised on direct appeal, our direct appeal opinion noted that “[t]he

aggravator for the death sentence relative to Susan’s murder was apparently that Trueblood

had committed other murders (those of the children).”  Trueblood, 587 N.E.2d at 111 n.7 (citing Ind. Code § 35-50-2-9(b)(8)).  Although the sentencing order erroneously omitted that Trueblood had committed or been convicted of the murders of the children,28 the convictions were undisputed and plainly apparent on the face of the record.  Under these

circumstances, had this issue been raised on direct appeal, this Court could have remanded

the case to the trial court before issuing an opinion to require it to articulate the statutory

aggravator(s) in support of its decision to impose the death penalty for Susan’s murder.  See, e.g., Benirschke v. State, 577 N.E.2d 576, 579 (Ind. 1991) (this Court issued a writ of certiorari to trial court to articulate “its findings that it had made independent judgments as required” and to “indicate[] the evaluation given to mitigating circumstances”).  The trial

judge would certainly have rectified its omission, and this Court would have similarly

affirmed the death sentence as to Count III.  Trueblood has failed to demonstrate prejudice

as the result of appellate counsel’s failure to raise this issue on direct appeal.  

	Trueblood also contends that appellate counsel did not adequately challenge the trial

court’s reliance on non-statutory aggravating circumstances.  On direct appeal, Trueblood

challenged the trial court’s finding as an aggravating circumstance that the murders were

“cold-blooded and premeditated.”  Trueblood did not argue that it was improper to consider

this or any other non-statutory aggravating circumstances, but rather argued that this specific

factor was not supported by the record.  Trueblood, 587 N.E.2d at 111.  Nearly three years after we issued Trueblood’s direct appeal opinion, we held that “[w]hen the death sentence

is sought, courts must henceforth limit the aggravating circumstances eligible for

consideration to those specified in the death penalty statute, Indiana Code Section 35-50-2-

9(b).”  Bivins v. State, 642 N.E.2d 928, 955 (Ind. 1994).  Because our holding in Bivins was not based on statutory construction but rather was a new rule of state constitutional law, we

held that it would not be applicable to cases on collateral review.  Id. at 956.  Accordingly, Trueblood is not entitled to the retroactive benefit of Bivins.  Moreover, appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law. 

See Harrison v. State, 707 N.E.2d 767, 776 (Ind. 1999).

	Because Bivins is not retroactive, Trueblood’s claim that the trial “court found two mitigating circumstances and then expressly weighed them against non-statutory aggravators” is similarly without merit.  Under the law existing at the time of trial, the trial

court could have found Trueblood’s “acts of spousal abuse” and “acts of violence during his

adult life” as aggravating circumstances.29  See, e.g., Minnick v. State, 544 N.E.2d 471, 482 (Ind. 1989) (“as long as at least one of the aggravating circumstances from the death penalty

statute is proven and set forth in the sentencing statement, a trial court may find the existence

of other statutory aggravators and consider them in regard to capital sentencing”).  Therefore,

appellate counsel were not ineffective for failing to argue that the trial court erred when it

mentioned these acts during its description of mitigating circumstances.  Nor were appellate

counsel ineffective for failing to challenge the trial court’s finding as a mitigating

circumstance that Trueblood had “provided less than candid or honest assistance to law

enforcement authorities.”  We disagree with Trueblood’s conclusion that “this statement

must be considered as a finding of aggravation.”  Rather, this statement suggests the finding

of a mitigating circumstance -- “assistance to law enforcement authorities” -- tempered by

the fact that this assistance was less than candid at times.  It is consistent with our mandate

that trial courts not only identify mitigating circumstances but also state the facts and reasons

that support the mitigating circumstance.  Because raising this issue on direct appeal would

not have affected this Court’s affirmance of the death sentences, appellate counsel cannot

be held ineffective for omitting it.

	Nor were appellate counsel ineffective for failing to raise a claim that the trial court

“used lack of evidence for mitigation as an aggravating circumstance.”  After listing three

statutory aggravating circumstances and five mitigating circumstances, the sentencing order

states:

	The victims herein did not participate in the murders or consent thereto.  The murders 

	committed by defendant were entirely without provocation.  There is nothing in the 

	record to indicate defendant was under the influence of any mental, physical or 

	emotional disturbance when he committed the murders.  

The trial court then found that the previously mentioned aggravating circumstances

outweighed the mitigating circumstances and imposed the death sentences.  Trueblood

asserts that because the findings quoted above “cannot possibly be considered mitigating,

they can only be viewed as aggravating.”  Sentencing issues are especially fact sensitive and

black and white distinctions are oftentimes not possible.  It appears that the trial court was

merely being thorough by specifically finding that some of the delineated statutory mitigating

circumstances suggested by Trueblood at either the sentencing hearing or through his

amended version of the killings did not apply to his case.  See Ind. Code § 35-50-2-9(c)(3) (“[t]he victim was a participant in or consented to the defendant’s conduct”); id. § 35-38-1- 7.1(c)(5) (“[t]he person acted under strong provocation”); id. § 35-50-2-9(c)(2) (“[t]he defendant was under the influence of extreme mental or emotional disturbance when the

murder was committed”).  Appellate counsel were not ineffective for failing to challenge this

part of the sentencing order.

	As a final point, Trueblood contends that his death sentences are disproportionate under the Indiana Constitution30 and inappropriate under our case law.  These issues were available but not raised in his direct appeal.  Accordingly, they are waived on postconviction. 

Lowery, 640 N.E.2d at 1036-37.31  Although available as claims of ineffective assistance of appellate counsel, we cannot say that appellate counsel were ineffective for failing to raise

these claims.  As this Court recently observed in Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), appellate courts “should be particularly sensitive to the need for separating the wheat

from the chaff in appellate advocacy, and should not find deficient performance when

counsel’s choice of some issues over others was reasonable in light of the facts of the case

. . . .”  Appellate counsel raised two claims of sentencing error on direct appeal, and our

direct appeal opinion spent two pages of the North Eastern Reporter addressing them.  See Trueblood, 587 N.E.2d at 110-11.  Counsel were not deficient for failing to raise these issues that were unlikely to succeed in light of the severe nature of the killing of a woman and her

two children.  Cf. Harrison v. State, 659 N.E.2d 480, 483 (Ind. 1995) (affirming death sentence in case involving the killing of two children).32 

	We find no merit in the individual allegations of appellate counsel ineffectiveness. 

We similarly conclude the cumulative effect of these alleged errors did not deny Trueblood

his Sixth Amendment right to effective assistance of counsel on direct appeal.

III. Rulings by the Postconviction Court

	Trueblood argues that the postconviction court erred in its rulings on summary

judgment motions, its summary dismissal of some claims, and other rulings during the course

of the postconviction hearing. 

	A. The Summary Judgment Motions and Summary Dismissal of Claims

	Several months before the postconviction hearing was scheduled to begin, both the

State and Trueblood filed motions for summary judgment on certain issues.  After conducting

a hearing, the postconviction court granted the State’s motion and denied Trueblood’s.

	A postconviction proceeding is civil in nature, and the postconviction rules provide

for summary disposition when “there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.”  Ind. Post-Conviction Rule 1(4)(g); see also Ind. Trial Rule 56(C) (summary judgment is appropriate only when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law).  The burden is on the moving party to prove each element of its claim by admissible evidence and to

establish that there are no genuine issues of material fact and that the moving party is entitled

to judgment as a matter of law.  State v. Daniels, 680 N.E.2d 829, 832 (Ind. 1997).  Once the movant has met this burden, the opponent must respond by setting forth specific facts

showing a genuine issue for trial; the opponent may not simply rest on the allegations of the

pleadings.  Id.

	The State raised several issues in its summary judgment motion.33  Trueblood argues that the State’s summary judgment should have been denied but does not argue any specific

genuine issues of material fact and provides no citations to authority suggesting that the grant

of summary judgment was in any way improper as a matter of law.  Rather, his attack

focuses on alleged inadequacies of the State’s motion and its paucity of citations to authority. 

This is not enough.  On appellate review from a grant of summary judgment against a party,

the nonmoving party has the burden of demonstrating that the grant of summary judgment

was error.  Erie Ins. Co. v. George, 681 N.E.2d 183, 186 (Ind. 1997) (citing Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 280-81 (Ind. 1994)).  Although we carefully assess the trial court’s decision to ensure that the nonmoving party was not improperly denied its day in court, see id., Trueblood points to no genuine issues of material fact.  Accordingly, he has not met his burden of demonstrating that the postconviction court erred

in granting the State’s summary judgment motion. 

	Trueblood’s motion sought summary judgment on three issues.34  As we understand it, Trueblood’s argument in this appeal is not that the postconviction court erred by denying

him summary judgment, but rather that it erred by summarily dismissing these claims after

the denial of summary judgment.  Indeed, Trueblood does not allege the absence of a genuine

issue of material fact in relation to any of these issues, nor does he cite any authority or

otherwise suggest that he was entitled to judgment on these claims as a matter of law. 

Accordingly, we have no basis on which to find that the postconviction court erred by

denying Trueblood’s summary judgment motion.35

	Trueblood also asserts that the postconviction court erred by summarily dismissing

many of his other claims.36  Some of these were held barred either by waiver for the failure to raise them on direct appeal or by res judicata because they were adversely decided against

Trueblood on direct appeal.  See, e.g., Lowery v. State, 640 N.E.2d 1031, 1036-37 (Ind. 1994) (explaining waiver and res judicata). In the absence of any specific claim of error,

summary dismissal of these claims on the ground that they entitle Trueblood to no relief

presents no basis for reversal of the postconviction court.  See Ind. P-C.R. 1(4)(f) (“[i]f the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the

petition without further proceedings”); Robinson v. State, 493 N.E.2d 765, 767 (Ind. 1986) (“when the petition conclusively demonstrates that petitioner is entitled to no relief, a hearing

on the matter is unnecessary and the petition may be denied without further proceedings”). 

	B. Exclusion of Evidence at the Postconviction Hearing

	At the postconviction hearing, Trueblood attempted to introduce several affidavits from relatives and a family friend.  The State objected, and the postconviction court

sustained some of the objections to certain paragraphs, mostly on grounds of relevance or

cumulativeness.  Trueblood argues that the trial court erred in excluding these items, which

he contends contain potentially mitigating evidence.  

	Trueblood characterizes the excluded evidence as “concerning sexual

abuse/molestation of the Trueblood boys at the hands of a family friend and the effects of

that abuse.”37  The family friend briefly lived with his girlfriend in the Trueblood’s home in 1971.  The excluded part of the friend’s affidavit dealt with alleged encounters with

Trueblood’s brothers.  As such it was of minimal relevance to the claim of ineffective

assistance of counsel before the postconviction court.  Sexual abuse of Trueblood’s brothers

is not a mitigating factor, and the only mention of Trueblood in any of these affidavits is the

contention that the friend patted him and his brothers “on the head and on the ass.”  Under

these circumstances, the postconviction court did not abuse its discretion by excluding this

evidence.

	Trueblood also argues that the postconviction court erred by excluding two affidavits

offered by him in rebuttal.38  The first was from Dr. Michael Clark, the pathologist who supervised the autopsy of Susan.  The affidavit commented on the findings from the autopsy

report that there was semen in Susan’s vagina and no injury to the vaginal area.  Dr. Clark’s

affidavit concluded that there was no reliable way to determine whether the sperm found in

Susan’s vagina was deposited before or after death but that “[i]ntercourse occurring after

death usually causes some injury to the vaginal area.”  Trueblood contends that this affidavit

was offered to “discredit[ ] the State’s theory that the defense’s failure to test the semen was

a strategy decision.”  This referred to defense investigator Lindblom’s testimony at postconviction that defense counsel chose not to have the semen tested because (1) it might

not have been Trueblood’s and (2) if it turned out to be Trueblood’s the State could claim

that Trueblood had raped Susan or that the semen had been deposited post-mortem. 

Although this affidavit arguably negated the factual predicate for one of Lindblom’s

alternative reasons for concern, it left the other undisturbed.  The postconviction court was

within its discretion in ruling that this evidence did not rebut anything the State presented.

	The second excluded affidavit was from Dr. Follingstad who had testified for

Trueblood at his sentencing hearing.  The postconviction court denied admission of all but

one paragraph of the affidavit on the basis that it was not rebuttal.  Rather, in the

postconviction court’s view, it was “mainly submitted to supplement and support the theory

of post traumatic stress,” which was part of the case in chief.  Trueblood contends that the

affidavit was offered to rebut the testimony of Dr. Primeau and Dr. Rahdert who he contends

were called by the State to show that he did not exhibit signs of PTSD.  However, in an

earlier section of his brief he asserts that both observed PTSD symptoms.   

	[Dr.] Primeau acknowledged that Trueblood reported that he slept poorly because he 

	had nightmares, a symptom Primeau associated with PTSD.  Primeau wishes he had 

	explored the nightmares more with Trueblood. [Dr.] Rahdert also conceded that 

	Trueblood “must have had nightmares at the time, which some people with post-

	traumatic stress disorder do have.  The re-living of the event.”  The State’s witnesses 

	observed symptoms of PTSD in Trueblood.

We agree with the postconviction court that Dr. Follingstad’s affidavit should have been

submitted as part of the case in chief, if at all.  The postconviction court did not abuse its

discretion by excluding it.

IV. The Guilty Pleas were Voluntary and Intelligent

	As a final point Trueblood argues that the postconviction court erred when it did not

vacate his guilty pleas as involuntary.  This claim could not have been raised on direct appeal

and is properly raised through a petition for postconviction relief.  See Jones v. State, 675 N.E.2d 1084, 1089-90 (Ind. 1996).39 

	Broadly stated, Trueblood’s argument is that his “mental health deficits” impacted his

judgment and decision-making abilities to such an extent as to “profoundly undermine” his

ability to enter into a constitutionally adequate guilty plea.  He points to neuropsychological

deficits that he argues impact his ability to solve problems, reason, extrapolate and

understand.  He also relies on the postconviction testimony of Pamela Porter, who testified

that he was suffering from PTSD.  He argues that PTSD diminishes his ability to concentrate

and think clearly and profoundly impacts his ability to trust individuals.  He contends that

the combination of these deficits and the circumstances surrounding his guilty pleas rendered

the guilty pleas involuntary and unintelligent.

	Trueblood asserts that, at the time of the first guilty plea, defense counsel Wilder “had no idea of the State’s case,” due to a failure to investigate.  Moreover, he asserts that the

guilty plea was the product of Wilder’s “agenda” to persuade him to plead guilty

immediately and thus Wilder “exploited Trueblood’s deficits” in pursuing that agenda. 

Finally, Trueblood asserts that Wilder was unaware of the possibility of the death sentence,

and failed to convey that possibility to Trueblood, and that Trueblood believed, in light of

his conversations with others, that he would serve no more than fifteen years in prison if he

pleaded guilty to Susan’s murder.        

	Trueblood contends that the second guilty plea was involuntary because it occurred

immediately following two days of the State’s presentation of evidence, which included

several “very graphic” or “gruesome” crime scene and autopsy photographs.  Trueblood was

“visibly shaken” by these photographs and requested to be excused while the remaining

photographs were shown.  Trueblood argues that, because of his neurocognitive deficits, he

“did not have the mental and emotional capacity to deal with the quickly unfolding situation

before him.”  Moreover, his “PTSD impaired his ability to concentrate and think clearly

where the subject matter triggered sensations from the trauma.” 

	Indiana Code § 35-35-1-2(a) requires trial courts, before accepting a guilty plea, to

determine that the defendant (1) understands the nature of the charges; (2) has been informed

that his guilty plea effectively waives several constitutional rights including a public and

speedy trial by jury, confrontation of witnesses, compulsory process, and proof of guilt

beyond a reasonable doubt without self-incrimination; (3) has been informed of the

maximum and minimum sentences for the crime charged; and (4) has been informed that if the court accepts a plea agreement it is bound by its terms.  If this statute is followed in

textbook or near-textbook fashion, as it was in this case, a defendant faces a high burden in

establishing a lack of voluntariness.  State v. Moore, 678 N.E.2d 1258, 1267 (Ind. 1997), cert. denied ___ U.S. ___, 118 S. Ct. 1528, 140 L. Ed. 2d 678 (1998);  see also White v. State, 497 N.E.2d 893, 905 (Ind. 1986) (“A plea entered after the trial judge has reviewed the various rights which a defendant is waiving and made the inquiries called for in the

statute is unlikely to be found wanting in a collateral attack.”).  However, defendants who

can show they were coerced or misled into pleading guilty by the judge, prosecutor or

defense counsel present a colorable claim that their plea was not voluntary.  Moore, 678 N.E.2d at 1266 (citing White, 497 N.E.2d at 905-06)).  We review all the evidence before the postconviction court, including the testimony at the postconviction hearing, the transcript

of the petitioner’s original sentencing, and any plea agreement or other exhibits that are part

of the record.  White, 497 N.E.2d at 905.  

	 At both guilty plea hearings, Trueblood stated that he was not suffering from any

mental or emotional disability and that his pleas were free and voluntary.40  This satisfied the statutory requirement that a trial court may accept a plea of guilty only after determining

whether “any promises, force, or threats were used to obtain the plea.”  Ind. Code § 35-35-1- 3(a) (1998).  Moreover, as explained in Part I.B. supra, Trueblood was examined by Dr. Davis before the first guilty plea and several other mental health experts before the second plea.  The postconviction court found that

	[p]sychologists and psychoneurologists and others and a thorough examination of 

	the mental health of the Petitioner was conducted.  All of the issues were considered 

	that could be considered both in regard to the Petitioner’s mental health at the time 

	of the commission of the crimes and [at] the time of the submission of the guilty pleas. 

	There is nothing about any of the findings of any of the mental health experts which 

	either alone or in combination with other factors would render the Petitioner 

	incompetent to enter a plea or which would render any of his pleas unknowing, 

	involuntary, or unintelligent.

According to Trueblood’s brief, his “greatest difficulties lie in his complex reasoning,

especially processing non-verbal information.”  The guilty plea hearings and discussions with

counsel preceding those hearings were verbal.  There was no written plea agreement involved

in either guilty plea and the trial court orally advised Trueblood of the charges against him

and the rights being given up by pleading guilty.  Whatever the effects of Trueblood’s

exposure to graphic photographs and listening to his twin brother’s testimony against him,

he did not persuade the postconviction court that these events rendered him incapable of

entering into the second guilty pleas intelligently and voluntarily.  That determination is

certainly not clearly erroneous in light of the fact that this plea occurred the morning after

this evidence was presented and after lengthy discussion with counsel that evening. 

	In addition to the contentions addressed in Part I that trial counsel had not conducted

an adequate investigation at the time of the plea,41 Trueblood also suggests that Wilder’s actions coerced him into pleading guilty.  In support of this contention, Trueblood cites to

an in-chambers hearing regarding his request to visit the victims’ gravesite.  Without citation

to the record, he asserts that he asked to visit the cemetery to pay his last respects but that

Wilder instead had him taken to the place where he allegedly buried the bodies, which “re-

traumatized” him and caused his trust in Wilder to be “shattered.” Wilder’s affidavit refers

to the gravesite as “where the bodies had been buried,” and indicated that the visitation there

was necessary to meet Trueblood’s “urgent and at times emotional requests for such a

visitation.”  The affidavit clearly indicates that this request was in addition to any request to

visit the cemetery.  Moreover, defense investigator Lindblom testified at postconviction that

his recollection was that Trueblood wanted to visit the site “where he last had contact with

[the victims], which was the one where he buried them.” Trueblood’s contention is not

supported by the record and there is no other evidence that Wilder in any manner coerced

his guilty plea.  

	Trueblood also asserts that he believed, in light of his conversations with Wilder and

others, that he would be serving no more than fifteen years in prison as a result of the first

guilty plea.  However, a “mere hope for a certain outcome at sentencing, without more, does

not suffice to set aside a guilty plea for lack of voluntariness.”  Moore, 678 N.E.2d at 1267.  Rather, we look to the entire record and note that Trueblood was specifically advised at the

conclusion of the guilty plea hearing that he could be sentenced to death for Susan’s murder.42  This was consistent with the initial hearing on the death penalty counts at which Trueblood was advised that the State was seeking the death penalty for each of the three

murders for which he was charged. 

	In sum, the postconviction court concluded that the guilty pleas were voluntary and

intelligent and refused to vacate them.  That determination turned on factual issues and is

therefore entitled deference on appeal.  See Harrison v. State, 707 N.E.2d 767, 773 (Ind. 1999).  Because Trueblood has not convinced this Court that the evidence as a whole leads

unerringly and unmistakably to a decision opposite that reached by the postconviction court, see id. at 774, we affirm the postconviction court’s conclusion that the guilty pleas were voluntary and intelligent.

Conclusion

	The denial of postconviction relief is affirmed.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.