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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. ATTORNEY FOR APPELLANT: DONALD W. PAGOS Michigan City, Indiana

FILED
Jul 23 2008, 8:54 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

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

No. 46A04-0711-PC-652

APPEAL FROM THE LAPORTE SUPERIOR COURT The Honorable Kathleen B. Lang, Judge Cause No. 46D01-0108-CF-92

July 23, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Gregory M. Fleming appeals the denial of his petition for post-conviction relief. We affirm. ISSUES 1. 2. Whether the trial court erred when it accepted Fleming's guilty plea. Whether the State established a sufficient factual basis. FACTS On August 14, 2001, Fleming sold an OxyContin tablet to a confidential police informant. The transaction occurred at Fleming's home at 120 Grace Street in Michigan City. Fleming received a $20.00 bill of police pre-recorded drug buy money in payment, and when the police arrested him on August 21, 2001, the same $20.00 bill was still in his possession. On August 28, 2001, the State charged Fleming with one count of class B felony dealing in a schedule II controlled substance. Subsequently, the parties entered into a written but "open plea" 1 agreement under which Fleming agreed to plead guilty to the amended charge of maintaining a common nuisance as a class D felony. At

Fleming's guilty plea hearing on October 17, 2002, the trial court asked how he intended to plead to the amended charge of class D felony maintaining a common nuisance; Fleming responded, "Guilty." (Tr. 7). As the hearing proceeded, the following colloquy ensued between the trial court, Fleming, and his counsel: THE COURT: [O]n the 14th day of August of the year 2001, you were aware that controlled substances were sold at [your] residence?
1

An "open plea" is one in which the sentence to be imposed is left to the discretion of the court. Allen v. State, 865 N.E.2d 686, 689 (Ind. Ct. App. 2007).

2

[FLEMING]: Yes, sir. THE COURT: What type of controlled substances? *** [FLEMING]: OxyContin. *** THE COURT: And you understand that was an illegal substance? [FLEMING]: Yeah, Your Honor, but one thing I want to get cleared on this whole situation of this here case

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