Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 1 of 7

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

John Jay Lacey

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John Jay Lacey,

Appellant,

v.

State of Indiana,

Appellee.

August 17, 2020

Court of Appeals Case No.

19A-CR-2715

Appeal from the Boone County 

Superior Court

The Honorable Matthew C. 

Kincaid, Judge

Trial Court Cause No.

06D01-1606-F3-149

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 2 of 7

[1] John Jay Lacey, pro se, appeals the trial court’s denial of his motion to vacate a 

plea agreement. We reverse and remand.

Facts and Procedural History

[2] On June 22, 2016, the State charged Lacey with aggravated battery as a level 3 

felony. The State later alleged he was an habitual offender. On November 18, 

2016, the State and Lacey entered into a plea agreement in which Lacey agreed 

to plead guilty as charged and the State agreed not to file any additional charges 

arising out of “the fact situation on which these charges are based.” Appellant’s 

Appendix Volume II at 36. The plea agreement provided for an open sentence 

but limited the habitual offender enhancement to fourteen years.

[3] On February 15, 2017, the court accepted the plea and sentenced Lacey to 

fifteen years for aggravated battery and enhanced the sentence by thirteen years 

for an aggregate sentence of twenty-eight years. On August 13, 2018, Lacey 

filed a Motion to Correct Erroneous Sentence asserting in part that the two 

previous crimes in the State of Florida were insufficient to support the habitual 

offender enhancement. On September 9, 2018, the court denied Lacey’s 

motion.

[4] On appeal, this Court held there was insufficient evidence to support the 

thirteen-year habitual offender enhancement, reversed the judgment of the trial 

court on the habitual offender finding, and remanded to the trial court for 

resentencing. Lacey v. State, 124 N.E.3d 1253, 1257 (Ind. Ct. App. 2019). On 

July 17, 2019, the trial court held a sentencing hearing and entered a 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 3 of 7

resentencing order which vacated its earlier finding that Lacey was an habitual 

offender and sentence enhancement of thirteen years and ordered that the 

executed sentence of fifteen years for aggravated battery as a level 3 felony 

would remain. 

[5] On September 11, 2019, Lacey filed a pro se Motion to Vacate Conviction, 

which asserted “[c]urrently, there exists no plea agreement governing Count I: 

Aggravated Battery . . . .” Appellant’s Appendix Volume II at 151. On 

September 17, 2019, the court denied the motion.

[6] On September 25, 2019, Lacey filed a Motion to Vacate Plea Agreement

asserting that the habitual offender allegation was the determining factor and 

benefit in signing the plea agreement, he was not advised by counsel that the 

habitual offender enhancement was erroneous, and he was no longer receiving 

the benefit of the sentence cap on the habitual offender enhancement. On 

October 23, 2019, the court denied Lacey’s motion.

Discussion

[7] Before addressing Lacey’s argument, we observe that although he is proceeding 

pro se, such litigants are held to the same standards as trained attorneys and are 

afforded no inherent leniency simply by virtue of being self-represented. See 

Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Lacey argues that his plea 

is not constitutionally valid, he received ineffective assistance of trial counsel, 

his due process rights were violated by the court’s failure to inform him of his 

lack of eligibility for the habitual offender allegation, the State erred in filing the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 4 of 7

habitual offender enhancement, the plea agreement is void and improper under 

Federal Criminal Procedure Rule 11(a)(2), and he is wrongfully incarcerated as 

a result of the partially vacated plea agreement. He requests that this Court

vacate the plea agreement and conviction. The State asserts that we should 

remand this cause for proceedings under the Indiana Rules of Post-Conviction 

Remedies. In reply, Lacey argues that “Appellees [sic] should be denied their 

request for remand to proceed in accordance with I.C. 35-35-1-4(c) due to the 

trial court’s procedural errors and statutory violations which are clear and 

blatant violations of the Appellant’s due process rights.” Appellant’s Reply 

Brief at 12. 

[8] Ind. Code § 35-35-1-4(c) provides:

After being sentenced following a plea of guilty, or guilty but mentally 

ill at 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;
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 5 of 7

(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.

The motion to vacate the judgment and withdraw the plea need 

not allege, and it need not be proved, that the convicted person is 

innocent of the crime charged or that he has a valid defense.

(Emphases added).

[9] The record reveals that Lacey filed both his September 11, 2019 Motion to 

Vacate Conviction and his September 25, 2019 Motion to Vacate Plea 

Agreement more than two years after the trial court’s February 15, 2017 

sentencing order and more than one month after the court’s July 17, 2019 

resentencing order. Thus, the trial court was required to treat Lacey’s motions

challenging the judgment and plea as a petition for post-conviction relief 

pursuant to Ind. Code § 35-35-1-4(c).

[10] Ind. Post-Conviction Rule 1(5) provides:

The petition shall be heard without a jury. A record of the 

proceedings shall be made and preserved. All rules and statutes 

applicable in civil proceedings including pre-trial and discovery 

procedures are available to the parties, except as provided above 

in Section 4(b). The court may receive affidavits, depositions, 

oral testimony, or other evidence and may at its discretion order 

the applicant brought before it for the hearing. The petitioner has 

the burden of establishing his grounds for relief by a 

preponderance of the evidence.
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[11] Ind. Post-Conviction Rule 1(4)(g) provides: 

The court may grant a motion by either party for summary 

disposition of the petition when it appears from the pleadings, 

depositions, answers to interrogatories, admissions, stipulations 

of fact, and any affidavits submitted, that there is no genuine 

issue of material fact and the moving party is entitled to 

judgment as a matter of law. The court may ask for oral 

argument on the legal issue raised. If an issue of material fact is 

raised, then the court shall hold an evidentiary hearing as soon as 

reasonably possible.

[12] Ind. Post-Conviction Rule 1(6) provides that “[t]he court shall make specific 

findings of fact, and conclusions of law on all issues presented, whether or not a 

hearing is held.”

[13] Based upon the record, we cannot say that the trial court treated Lacey’s 

motion to vacate judgment and withdraw the plea as a petition for postconviction relief. The court did not set the matter for hearing, and neither party 

moved for summary disposition of the petition. The record includes only a 

summary entry denying Lacey’s motion, and no findings of fact or conclusions 

of law were entered. In light of Ind. Code § 35-35-1-4(c), we remand for the 

trial court to treat Lacey’s motion as a petition for post-conviction relief. See

generally State v. Oney, 993 N.E.2d 157, 166 (Ind. 2013) (observing “the 

Legislature’s specific directive that[] ‘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,’”) (quoting Ind. Code § 33-35-1-4(c))

(emphasis added in Oney); Hayes v. State, 906 N.E.2d 819, 821 n.1 (Ind. 2009) 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2715| August 17, 2020 Page 7 of 7

(holding that “[t]he proper avenue for challenging one’s conviction pursuant to 

a guilty plea is through filing a petition for post-conviction relief and presenting 

evidence at a post-conviction proceeding”) (quoting Tumulty v. State, 666 

N.E.2d 394, 395-396 (Ind. 1996)); Collins v. State, 676 N.E.2d 741, 743 (Ind. Ct. 

App. 1996) (holding that “[i]t is basic to and idiosyncratic in Indiana law that 

error premised upon a guilty plea must be brought by a petition for postconviction relief under Ind. Rules of Procedure, Post-Conviction Rule 1”).

[14] For the foregoing reasons, we reverse and remand.

[15] Reversed and remanded.

Robb, J., and Crone, J., concur.