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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.

FILED
Jul 29 2008, 10:12 am
of the supreme court, court of appeals and tax court

CLERK

PRO SE APPELLANT: CHARLES CHRISTIAN Michigan City, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES CHRISTIAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0801-PC-24

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge The Honorable Jeffrey L. Marchal, Master Commissioner Cause No. 49G06-0311-PC-202576

July 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Charles Christian, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Specifically, he contends that his trial counsel was ineffective and that his guilty plea was not knowing and voluntary. Although Christian's plea agreement did not call for any probation, the trial court, before accepting the agreement, advised him that Indiana law required some probation because a portion of his fifty-oneyear sentence was suspended. After advising Christian that it was inclined to impose a single day of non-reporting probation to satisfy the law, Christian said that he understood. The court then accepted the plea agreement and sentenced Christian accordingly. Based upon these facts, Christian cannot establish ineffective assistance of counsel or that his guilty plea was unknowing or involuntary. We therefore affirm the post-conviction court. Facts and Procedural History The underlying facts of this case, taken from this Court's opinion on Christian's direct appeal, are as follows: On September 24, 2003, Defendant Charles Christian entered the home of John Stewart, located at 7047 West 10th Street. At Mr. Stewart's home was his eighteen-year-old son, Chad Stewart, and the victim, Angelique McBride, who is the ex-girlfriend of Charles Christian. While Mr. Christian was in the home, he went into the bedroom occupied by John Stewart and Angelique McBride. He then put handcuffs on John Stewart and bound his feet leaving him in the bedroom where he was unable to get out of the bedroom due to being confined with the handcuffs and the bindings on the leg. At the time that he bound Mr. Stewart he was armed with a handgun on his waistband and the defendant went upstairs and bound Chad Stewart with handcuffs and bindings on his feet thereby restricting his movement as well. And at the time he was once again armed with a handgun, which was on his waistband. The Defendant then proceeding downstairs where he went into the living room with the victim Angelique McBride and while he had the handgun still in his waistband and 2

then later within reach of him, he then had sexual intercourse with Angelique McBride against her will. Christian v. State, No. 49A04-0408-CR-422 (Ind. Ct. App. Apr. 26, 2005), slip op. at 2. The State charged Christian with Class A felony criminal deviate conduct, Class A felony rape, Class B felony burglary, three counts of Class B felony criminal confinement, and two counts of Class D felony pointing a firearm. In June 2004, Christian entered into a plea agreement under which he pled guilty to rape and two counts of criminal confinement and the State dismissed the remaining charges. The plea

agreement called for an aggregate sentence of fifty-one years with ten years suspended. The agreement was silent regarding probation. At the guilty plea hearing, an issue arose concerning whether Christian would have to be placed on probation because of the portion of his sentence that was suspended. The following colloquy took place: THE COURT: . . . The plea in and of itself does not contemplate, doesn't speak to probation. MS. ABEL [defense counsel]: We've dealt with that. No probation. He's doing an extra year executed in lieu of any probation. THE COURT: Okay. M[S]. ERATO [the State]: Mr. Christian will be sixty-five years old approximately when he gets out. Ms. Korobov has agreed that he does not have to do probation. THE COURT: Okay. It will be---I just want to make this clear for the record. I'll have to put him, the ten years will really be just be a ten-year insurance policy that he not commit any other crimes, correct? MS. ABEL: Correct. MS. ERATO: Right. THE COURT: All right. I'll have to---you understand that's the point of that ten-year suspended sentence, Mr. Christian? MR. CHRISTIAN: Yes. THE COURT: I'm going to have to figure out how to effectuate that in terms of making that valid, and it may be a day of non-reporting probation 3

or something like that, but that will be probably how I do it, okay? Do you understand what I just said? MR. CHRISTIAN: Yes, I do. THE COURT: The law requires some probation if there's a suspended sentence and we understand, I understand what this is dealing with. Frankly it could also deal with the no-contact order, which the court has [the] authority to order that you can't have any contact with Ms. McBride while you're incarcerated and if you were to violate the order while incarcerated the court could impose that suspended sentence, and I wanted to get that on the record before we completed this hearing; do you understand that? MR. CHRISTIAN: Yes. THE COURT: All right. Then the court does find that the defendant understands the possible sentence and fines under the plea, that his plea was freely and voluntarily made and that there is a factual basis for it and the court will accept the plea and find the defendant guilty . . . . Ex. p. 24-26. Christian later sought to withdraw his guilty plea on grounds that the State had used the threat of filing a habitual offender count to coerce him into accepting it, but the trial court denied this motion. The trial court sentenced Christian to an aggregate term of fifty-one years with ten years suspended and placed him on a single day of non-reporting probation. Christian filed a direct appeal challenging the trial court's denial of his motion to withdraw his guilty plea as well as his sentence on Blakely grounds, and this Court affirmed. Christian, No. 49A04-0408-CR-422. In August 2005, Christian filed a pro se petition for post-conviction relief alleging ineffective assistance of trial counsel and that his guilty plea was not knowing and voluntary. 1 Following a hearing, the trial court issued findings of fact and conclusions of law. The findings provide, in pertinent part:

According to the post-conviction court's findings of fact and conclusions of law, the postconviction court found that Christian raised only one issue in his petition for post-conviction relief,

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5. . . . The Court finds that [Christian] was properly advised that [he] would have to be placed on probation for a period of time--even for just a single day. The Court finds [Christian] understood and agreed to this provision. ***** 10. On August 2, 2007, an evidentiary hearing was held on the postconviction relief petition. [Christian's] trial counsel, Diane Abel, testified as did [Christian]. The Court finds attorney Abel's testimony persuasive on the issue of what plea terms [Christian] agreed to. [Christian] advised his counsel that he was opposed to being on probation and told Abel that he did not want to undergo a lengthy period of probation. In fact, he rejected an earlier plea offer from the State and, at [Christian's] request, attorney Abel negotiated a new plea agreement which called for an additional year in the Department of Correction in lieu of a standard probationary term. When advised by the trial court of the likelihood of a period of non-reporting probation, he did not object or express any concerns to counsel. 11. The reasons why [Christian] now objects to a one day period of non-reporting probation are not known to the Court nor does it appear such concerns were ever voiced to the trial court or to defense counsel. Moreover, in light of the trial court[']s discussion of the necessity for some period of probation due to the suspended portion of the sentence, and [Christian's] acquiescence to the same, [Christian] has failed to show that he either misunderstood or did not agree to such a term. Appellant's App. p. 315-17. As such, the court concluded: It is clear from the record that the trial court recognized the parties did not wish for [Christian] [to] be placed on probation within the standard meaning of the term, i.e. regularly reporting to an officer, restrictions on personal freedoms, payment of probationary costs, etc. However, in order to give full effect to the terms of the plea while still adhering to the requirements of I.C. 35-50-2-2,[2] the sentencing court was required to give some period of probation. The trial court chose the least restrictive option
ineffective assistance of counsel. However, it appears that Christian really raised two issues. We find that Christian raises two issues on appeal. Indiana Code

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