MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[1] Shannon Leake appeals the denial of her petition for post-conviction relief, which challenged her convictions for Conspiracy to Commit Dealing in Methamphetamine, as a Level 2 felony,
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and Dealing in Methamphetamine, as a Level 4 felony.
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We affirm.
Issues
[2] Leake presents three issues for review:
I. Whether a sufficient factual basis supports her plea of guilty to the conspiracy count when only language pertaining to a dealing count was used at the guilty plea hearing;
II. Whether she was denied effective assistance of counsel; and
III. Whether her plea is involuntary as the product of attorney coercion.
Facts and Procedural History
[3] In 2017, the undercover narcotics investigation team of Marshall County (“UNIT”) was investigating the activities of Charles Taylor, who was suspected of bringing large quantities of methamphetamines from Florida to Indiana. On September 11, officers were informed that two ounces of methamphetamine were available for sale at a residence on Rose Road in Plymouth for $2,000. Taylor lived there with his girlfriend, Lisa ODonnell.
[4] UNIT dispatched an undercover informant to purchase two ounces of methamphetamine, providing the informant with $1300 in marked bills.
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The informant parked in the driveway and Taylor delivered methamphetamine to the informant. Taylor returned to his residence with the cash, expressed suspicion that it was short, and asked Leake – who was inside the residence – to count it.
[5] Shortly thereafter, UNIT officers entered the residence with a search warrant and arrested Taylor, Leake, and Leakes friend, Michael Heims. Taylor gave a statement to officers advising that Leake had brought methamphetamine to the Rose Road residence and that Leake and Heims had contacted the informant and set up that transaction. Taylor described himself as a middleman. Leake and Heims claimed that they had been at Taylors residence for the sole purpose of purchasing furniture.
[6] On September 15, 2017, Leake was charged with four felonies and one misdemeanor, related to the September 11 transaction and a search of Leakes vehicle. She also faced pending drug related charges in Marshall County and in a neighboring county. Burke Richeson was appointed to represent Leake on the pending charges in both counties.
[7] The State offered Leake a plea agreement to resolve the three cases in Marshall County. Leake would plead guilty to a Level 2 felony of Conspiracy to Commit Dealing in Methamphetamine in one case and Level 4 Dealing in Methamphetamine in another case. The remaining charges in those cases would be dismissed and a third case would be dismissed altogether. Leakes aggregate sentence would be fixed at 7,300 days with 912 days suspended to probation (inclusive of a concurrent sentence of 4,380 days for the Level 4 felony). Leake and her attorney discussed the plea offer, which Leake was reluctant to accept. Leakes attorney requested, and was granted, a continuance to allow further attorney-client consultation.
[8] On July 11, 2018, Leake pled guilty in accordance with the terms of the plea agreement. On August 8, the trial court sentenced Leake accordingly. On May 22, 2019, Leake filed a pro-se petition for post-conviction relief, which was later amended with the assistance of counsel. On September 20, 2023, an evidentiary hearing was conducted. On October 31, Leake was denied postconviction relief.
Discussion and Decision
Post-Conviction Standard of Review
[9] The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of postconviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment of the post-conviction court unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. A post-conviction courts 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, findings of fact are accepted unless they are clearly erroneous, and no deference is accorded 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.
Factual Basis
[10] At the guilty plea hearing, an error occurred when the trial court read aloud from the charging information a dismissed count charging Dealing in Methamphetamine as opposed to the count charging Conspiracy to Commit Dealing in Methamphetamine. According to Leake, she was never specifically advised as to what constitutes a conspiracy, and she never admitted to obtaining ten grams of methamphetamine for Taylor to deliver to the confidential informant.
[11] Indiana Code Section 35-35-1-3(b) provides:
The court shall not enter judgment upon a plea of guilty or guilty but mentally ill at the time of the crime unless it is satisfied from its examination of the defendant or the evidence presented that there is a factual basis for the plea.
The requirement of a factual basis ensures that when a plea is accepted there is sufficient evidence that a court can conclude that the defendant could have been convicted had he or she stood trial. Butler v. State, 658 N.E.2d 72, 76 (Ind. 1995).
[12] An adequate factual basis is established:
(1) by the States presentation of evidence on the elements of the charged offenses; (2) by the defendants sworn testimony regarding the events underlying the charges; (3) by the defendants admission of the truth of the allegations in the information read in court; or (4) by the defendants acknowledgment that he understands the nature of the offenses charged and that his plea is an admission of the charges.
Oliver v. State, 843 N.E.2d 581, 588 (Ind. Ct. App. 2006), trans. denied. The fourth category is implicated here.
[13] Attached to Leakes plea agreement was an acknowledgement of rights. Leake initialed Paragraph 13, which provides “A factual basis exists for my plea to the crime charged. That factual basis is supported by the allegations contained in the charging information and the probable cause affidavit. I admit that I committed the offense as charged.” (App. Vol. II, pg. 106.) Pursuant to Indiana Code Section 35-41-5-2, “[a] person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony.” The State must allege and prove “that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.” Id.
[14] The probable cause affidavit described the circumstances of the controlled buy made at the Taylor-ODonnell residence on September 11, 2017. The affidavit also recited the substance of Taylors statement to police, which is: Taylor advised that Leake and Heims had brought the methamphetamine to the residence and Leake and Heims “ha[d] used his phone to make contact with and set up the deal with the informant.” (App. Vol. II, pg. 99.) The affidavit also included information on items recovered from Leakes vehicle, specifically: multiple plastic baggies, two cell phones, numerous “schedule two narcotics,” a digital scale with residue, and a plastic bag containing a “white crystal-like substance.” (Id. at 100.)
[15] Leake stated that she understood the nature of the charges against her, and she admitted to the veracity of the probable cause affidavit. The probable cause affidavit revealed that Leake agreed with Taylor to deal methamphetamine and that she performed an overt act in furtherance of the conspiracy. There is sufficient evidence to permit the trial court to conclude that Leake could have been convicted had she stood trial. See Butler, 658 N.E.2d at 76.
[16] As Leake observes, the trial court mistakenly read aloud a Level 2 charge that was dismissed rather than the Level 2 charge to which Leake was pleading guilty. Also consistent with Leakes observations, there was no explicit in-court description of the overt act or explanation of what constitutes conspiracy. But such omissions do not automatically entitle Leake to post-conviction relief. “[P]rejudice must be established before post-conviction relief can be granted on grounds of failure to establish a factual basis for a guilty plea.” State v. J.E., 723 N.E.2d 863, 864 (Ind. 2000). Claims regarding omissions in the factual basis “have been unavailing when the omissions do not seem to demonstrate doubt about actual guilt.” State v. Cooper, 935 N.E.2d 146, 150 (Ind. 2010). Leake has not established prejudice in this context. The post-conviction court properly denied relief on this basis.
Effectiveness of Trial Counsel
[17] To establish a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsels performance was deficient.” Id. at 687. This requires a showing that counsels representation fell below an objective standard of reasonableness and that “counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.” Id. “Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial,” that is, a trial where the result is reliable. Id. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, we “strongly presume” that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002).
[18] Leake claims that trial counsel performed deficiently in two respects. First, Leake claims that counsel “failed to investigate and discuss exculpatory evidence.” Appellants Brief at 25. Second, Leake contends that counsel misrepresented to her the terms of the plea agreement, specifically as to the length of the lesser, concurrent sentence.
[19] Leake argues that evidence inculpatory to Taylor would have been exculpatory as to her. She points to incriminating items found in ODonnell’s vehicle, to which Taylor had access, suggesting that he brought back methamphetamine from Florida. She also points to letters she deems corroborative of Taylors role as a supplier. After Leakes arrest, Heims had written a letter asserting that he and Leake had been present at Taylors property only to purchase furniture for sale; Taylor was the methamphetamine supplier; and Taylor had wrongly implicated Leake. Tonya Mullins also had written a letter on Leakes behalf. Mullins had been incarcerated with ODonnell and ODonnell had purportedly led Mullins to believe that Taylor was wrongfully placing all the blame on Leake. Leake contends that her counsel ignored the letters and failed to follow up by interviewing Mullins, ODonnell, and Heims.
[20] At the post-conviction hearing, Leake asserted that her counsel had been overly focused on her telephone records, had advised her that she had no viable defenses, and strenuously urged her to take the plea that had been offered. Leake testified: “My defenses were like he said none, because I own the phone.” (P-C.R. Tr., pg. 102). Leake produced the letters as post-conviction exhibits. Notably, she did not submit into evidence her cell phone records of September 11, 2017, although these had been provided to her trial counsel during discovery preceding plea negotiations.
[21] At the post-conviction hearing, Leakes counsel testified that he had contemplated a defense to the charges against Leake. Counsel initially believed there to be “a plausible defense” that Leake didnt know about the controlled buy, but then “the texts came in” from the forensic examination of Leakes cell phone. (Id. at 16.) According to counsel, his hopes for a viable defense “evaporated” when he examined those records. (Id. at 40.) Counsel testified that he and Leake had discussed her cell phone usage, and she had advised him that she didnt author some of the texts. However, counsel had formed the opinion – which he conveyed to Leake – that a jury would not likely find it persuasive that texts sent from one phone within minutes of each other would be authored by different individuals. Counsel also opined that the letters were inadmissible hearsay. He disagreed that any viable defense had been overlooked.
[22] The testimony from Leake and her counsel regarding advisement as to the concurrent sentence for the Level 4 felony was also directly contradictory. Leake testified that she had learned only after her plea was entered that she had “signed for twelve [years] not five.” (Id. at 127.) Counsel testified that he “would have represented the number of days that was written on the piece of paper” and that he had “no reason to believe that she would misunderstand.” (Id. at 23-24.) The post-conviction court found that counsel had reviewed the evidence and engaged in a reasonable strategy. The evidence does not lead solely to a conclusion opposite that reached by the post-conviction court. Because Leake did not show that her counsels performance was deficient, she did not establish ineffectiveness of counsel. Strickland, 466 U.S. at 687.
Voluntariness
[23] Finally, Leake contends that “counsels performance made the plea involuntary.” Appellants Brief at 31. Leake argues that “coercion” led to her plea, in that “counsel convinced Leake that there were two choices: go to trial against his advice and get 73 years or take the plea agreement and get 20 years.” Id. Leake points out that she lacks a high school diploma, was addicted to drugs, and has a history of mental illness. Also, she insists that counsel failed to properly explain the charges, such that she could understand the concepts of an overt act and conspiracy. At the post-conviction hearing, Leake testified to her subjective belief that “conspiracy was because that I owned the phone and there was messages from Charlie Taylor to my phone. Period.” (P-C.R. Tr., pg. 120.)
[24] Indiana Code Section 35-35-1-2(a) provides that a court “shall not” accept a plea of guilty “without first determining that the defendant ․ understands the nature of the charge” and without first determining that the defendant has been informed that she is waiving certain rights. Our Indiana Supreme Court has explained:
We emphasize that a plea hearing conducted in accordance with Ind. Code § 35-35-1-2 is the best way to assure that a defendants plea is made voluntarily and intelligently. A defendant fully armed with all the information outlined in the statute is most able to make the voluntary and intelligent decision which the Indiana and U.S. Constitutions entitle him to make. 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. On the other hand, pleas entered after coercion, judicial or otherwise, will be set aside. Defendants who can prove that they were actually misled by the judge, the prosecutor, or defense counsel about the choices before them will present colorable claims for relief.
White v. State, 497 N.E.2d 893, 905-06 (Ind. 1986).
[25] At the guilty plea hearing, Leake received the requisite advisements and a factual basis for her plea was established. Leake confirmed to the trial court that she read, understood, and signed the plea agreement and the acknowledgment of rights. The trial court affirmatively asked Leake if she understood what she was charged with and she responded that she did.
[26] Leakes and her counsels testimony at the post-conviction hearing revealed her initial shock at the length of the sentence offered and her reluctance to sign the agreement. Leake testified that she “didnt want to sign” the plea agreement but she “was scared” and so she “signed.” (P-C.R. Tr., pgs. 99, 113.) According to Leake, she would not have done so “if told she had defenses.” (Id. at 126.) But Leake did not establish in post-conviction proceedings that she had a viable defense. She did not establish coercion on the part of her attorney. Thus, the trial court did not clearly err in concluding that Leakes guilty plea was entered voluntarily.
Conclusion
[27] A factual basis supports Leakes guilty plea; Leake was not denied the effective assistance of counsel; and Leake has not demonstrated that her plea was involuntary. As such, the post-conviction court did not clearly err in denying Leake post-conviction relief.
[28] Affirmed.
FOOTNOTES
1
. Ind. Code §§ 35-48-4-1.1, 35-41-5-2.
2
. I.C. § 35-48-4-1.1.
3
. The record does not explain why the informant was provided with less cash than the offer price.
Memorandum Decision by Judge Bailey
Judges Crone and Pyle concur.
Crone, J., and Pyle, J., concur.