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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. ATTORNEYS FOR APPELLANT: MICHAEL G. SHANLEY PAUL J. PAGE Baker, Pittman, & Page Indianapolis, Indiana

FILED
Nov 14 2011, 9:08 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana IAN MCLEAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHARLES MULLEN, Appellant- Petitioner, vs. STATE OF INDIANA, Appellee- Respondent, ) ) ) ) ) ) ) ) )

No. 49A02-1012-PC-1415

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Linda E. Brown, Judge Cause No. 49F10-8803-CM-29647

November 14, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues In 1987, Charles Mullen pleaded guilty to operating while intoxicated, a Class C misdemeanor. In 2010, Mullen petitioned for post-conviction relief, and the trial court denied his petition. Mullen raises two issues for our review, which we restate as whether the factual basis presented to the trial court in Mullen's guilty plea and sentencing hearing was sufficient for the trial court to accept his plea, and whether Mullen is estopped from seeking post-conviction relief. Concluding the factual basis is sufficient, we need not reach the State's argument that Mullen is estopped from seeking post conviction relief. Accordingly, we affirm the trial court's denial of Mullen's petition for post-conviction relief. Facts and Procedural History In November of 1987, Officer Gary Newbold of the Indianapolis Police Department responded to a report of a vehicle collision on South Meridian Street after a car struck a parked vehicle. Officer Newbold encountered two people at the scene, Mullen and Jayne Diekhoff. Officer Newbold was informed that Diekhoff was driving the vehicle when the accident occurred. Diekhoff was arrested and charged with

operating a vehicle while intoxicated ("OVWI"). Mullen was also arrested and charged with public intoxication because he appeared intoxicated, smelled of alcohol, and displayed slurred speech, blood-shot eyes, and unsteady balance. A few days after the accident, Mullen went to the police and confessed that he had been driving the vehicle on the night of the accident. Diekhoff's charge was dismissed, and Mullen pleaded guilty and was convicted of operating while intoxicated as a Class C misdemeanor. Prior to accepting Mullen's guilty plea, the trial court explained his rights
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and Mullen confirmed that he had read and voluntarily signed the trial court's waiver of rights form after discussing the form with his attorney. After reading the charge, the trial court asked Mullen if anyone forced him to plead guilty, and he said no. The trial court heard testimony from the arresting officer, Officer Newbold, and accepted Mullen's guilty plea. In 2001 and 2010, Mullen was convicted of two more driving under the influence of alcohol offenses. He then filed his Petition for Post-Conviction Relief, alleging that during his 1987 guilty plea hearing his due process rights were violated, his plea was not voluntarily and intelligently made, and a factual basis did not exist for his guilty plea. The trial court denied Mullen's petition for Post-Conviction Relief. Mullen now appeals. Discussion and Decision A post-conviction relief petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1,

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