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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: SUSAN CARPENTER Public Defender of Indiana JEFFREY R. WRIGHT Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana KELLY A. MIKLOS Deputy Attorney General Indianapolis, Indiana

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

No. 49A04-0512-PC-722

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jeffrey L. Marchal, Master Commissioner The Honorable Jane Magnus-Stinson, Judge Cause No. 49G06-0209-PC-206534

October 16, 2006 OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Corey Mills appeals the denial of his petition for post-conviction relief ("PCR petition"). We affirm. Issue Mills raises two issues, which we consolidate and restate as whether Mills received ineffective assistance of counsel before pleading guilty, which caused his plea to be unknowing, unintelligent, and involuntary. Facts In 1989, Mills was convicted of robbery, and in 1995, he was convicted of voluntary manslaughter. On September 6, 2002, the State charged Mills with Class A misdemeanor possession of a handgun without a license, Class C felony possession of a handgun without a license, and Class B felony possession of a firearm by a serious violent felon ("SVF") for having allegedly possessed a handgun on or about June 28, 2002. On November 1, 2002, the State filed an additional information alleging that Mills was an habitual offender. The 1995 voluntary manslaughter conviction was both the basis for the SVF charge and one of the alleged prior unrelated felonies in the habitual offender information. On March 3, 2003, Mills pled guilty to the SVF charge and the habitual offender enhancement. 1 Before sentencing, however, Mills sought to withdraw his guilty plea, asserting that the State could not enhance his Class B felony SVF sentence under the

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Mills also pled guilty to a charge in a separate case. He petitioned for post-conviction relief in that case, which was granted.

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general habitual offender statute by using a prior felony that also was the basis for the SVF charge. The trial court did not allow Mills to withdraw his plea, and on March 28, 2003, it proceeded to sentence him. The plea agreement called for a twenty-year cap on executed time. Although the record before us is not entirely clear, it appears the trial court sentenced Mills to ten years for the SVF conviction, enhanced by ten years for his habitual offender status. Mills did not appeal the denial of his motion to withdraw his guilty plea. On January 6, 2004, Mills filed a pro se PCR petition, later amended by counsel, which alleged in part that he was misinformed as to the total penalty he faced if he did not accept a plea agreement. Specifically, he contended that his SVF sentence could not be enhanced under the habitual offender statute and that trial counsel had incorrectly advised him that the State could seek such an enhancement. Thus, Mills contended, he was erroneously advised that he faced a potential total sentence of fifty years, rather than twenty, which helped induce him to plead guilty under an agreement that limited his executed sentence to twenty years. On October 24, 2005, the post-conviction court denied Mills's petition. He now appeals. Analysis Mills contends trial counsel performed deficiently by failing to advise him that the State could not enhance his SVF sentence under the general habitual offender statute by relying in part upon the same felony--the 1995 voluntary manslaughter conviction--that also supported Mills's SVF conviction. Similarly, he claims his guilty plea was not intelligent, voluntary, and knowing, because he was misinformed that he faced a possible 3

penalty of fifty years--twenty for the Class B felony SVF conviction and thirty for an habitual offender enhancement--when in fact no habitual offender enhancement could apply to his SVF sentence. 2 The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Walker v. State, 843 N.E.2d 50, 56 (Ind. Ct. App. 2006), trans. denied. When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions of law. A post-conviction court's findings and judgment will be reversed only upon a showing of clear error that leaves us with a definite and firm conviction that a mistake has been made. Id. We review claims of ineffective assistance of counsel under the two-part test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied. First, the defendant must show that counsel's performance was deficient--that counsel's representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Id.

Mills could have directly appealed the denial of his motion to withdraw his guilty plea. See Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). That motion presented essentially the same argument we address today. We see nothing in the record, however, indicating the trial court advised Mills that he could appeal the denial of his motion to withdraw his guilty plea, nor does the State argue that Mills's failure to directly appeal the denial of his motion resulted in waiver of the arguments he makes today.

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Second, the defendant must show that he or she was prejudiced by the deficient performance. Id. "To establish prejudice, a defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. If a defendant claims that he or she pled guilty because trial counsel gave erroneous advice regarding the maximum penalty the defendant faced, a finding of prejudice requires evidence demonstrating a reasonable probability that the erroneous or omitted advice materially affected the decision to plead guilty. Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001). Clearly, to succeed on such a claim, the defendant must establish in the first place that counsel's advice regarding the maximum penalty was, in fact, erroneous. In 2001, this court held "that a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a `serious violent felon.'" Conrad v. State, 747 N.E.2d 575, 595 (Ind. Ct. App. 2001), trans. denied. The habitual offender statute at the time Conrad was

convicted and sentenced read in part, "The state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions." Ind. Code

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