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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.

APPELLANT PRO SE: JAMES E. WILHELM, JR. Carlisle, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

FILED
Feb 18 2011, 10:15 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
JAMES E. WILHELM, JR., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 92A05-1006-PC-365

APPEAL FROM THE WHITLEY CIRCUIT COURT The Honorable Michael D. Rush, Special Judge Cause No. 92C01-0611-PC-171

February 18, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

James E. Wilhelm, Jr. pleaded guilty to burglary and robbery as class A felonies, criminal confinement as a class B felony, and admitted being a habitual offender. Upon petition for post-conviction relief (PCR), Wilhelm, pro se, sought to set aside his guilty plea. He appeals the denial of his PCR petition, presenting the following restated issues for review: 1. 2. 3. Did the trial court improperly enhance Wilhelm's sentence? Did the State err in failing to respond to Wilhelm's discovery motion? Did the officer who prepared the probable cause affidavit commit perjury therein? Did the State improperly charge, convict, and sentence Wilhelm of burglary as a class A felony? Was Wilhelm denied due process? Did Wilhelm receive ineffective assistance of counsel in advising Wilhelm to plead guilty?

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5. 6.

We affirm. On December 16, 1994, Wilhelm pleaded guilty to burglary as a class A felony, robbery as a class A felony, criminal confinement as a class B felony, and admitted to being a habitual offender. The trial court sentenced Wilhelm to concurrent sentences of forty-five years for burglary, twenty years for robbery, and ten years for criminal confinement and enhanced the sentence for burglary by twenty-five years for being a habitual offender. Further facts will be supplied where relevant. On November 10, 2006, Wilhelm filed a PCR petition seeking to set aside his guilty plea. He submitted affidavits in support of the petition and the matter ultimately proceeded

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to a March 18, 2010 telephonic hearing based upon Wilhelm's affidavits. The postconviction court denied Wilhelm's PCR petition, entering the following relevant findings of fact and conclusions of law: Findings of Fact * * * * * 9. The facts underlying the convictions in this case were set out in the Information, Probable Cause Affidavit, guilty plea hearing and sentencing hearing. The sentencing judge was well aware that the petitioner "was not armed nor was the victim present during the commission of the Burglary phase." 10. The crimes of burglary and robbery happened distinctly in this case. The burglary was complete when the Petitioner broke into the house with the intent to commit theft therein. Not until the victim and her child arrived home sometime later was the Petitioner given the opportunity to commit, and did commit, the offense of robbery. Conclusions of Law 11. Defense Counsel was not ineffective for failing to specifically argue certain facts that were well known to the trial judge. The sentence would not have been different had defense counsel simply reminded the judge of some of the less heinous aspects of the crimes. 12. The single larceny rule does not apply in this case.

13. Blakely v. Washington, 542 U.S. 296 (2004) does not apply in this case. In Smiley v. State, 823 N.E.2d 679 (Ind. [] 2005), the Indiana Supreme Court found that this rule was not applicable to cases that were not currently on direct appeal at the time the Blakely case was decided in 2005. Because the present case was resolved in 1995, Blakely is not applicable. 14. The Petitioner makes passing reference to other alleged errors in his case (e.g. "Investigating officer committed perury (sic) in Affidavit of Probable Cause" (Motion to Amend Post-Conviction), "State failed to respond to Defendant's Discovery Motion" (Motion to Amend Post-Conviction)). As to these allegations there is an absolute lack of proof or coherent argument.

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15. To the extent these arguments were available when the Defendant first appealed this matter in 1995, by foregoing the arguments at that time, the Defendant forever waived them. 16. To the extent that the Petitioner's arguments overlap those made in his Appeal in 1995, those arguments have already been rejected, and are unavailable to him pursuant to the doctrine of res judicata. Appellant's Brief at 26-27. In a post-conviction proceeding, the petitioner bears the burden of establishing his claims for relief by a preponderance of the evidence. Overstreet v. State, 877 N.E.2d 144 (Ind. 2007), cert. denied, 129 S.Ct. 458 (2008). When appealing from the denial of a PCR petition, the petitioner stands in the position of one appealing from a negative judgment and therefore must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. We further observe that the post-conviction court is the sole judge of the weight of the evidence and credibility of witnesses. J.J. v. State, 858 N.E.2d 244 (Ind. Ct. App. 2006). 1. Wilhelm contends the trial court improperly enhanced his sentence in contravention of Blakely. In Smylie v. State, 823 N.E.2d 679, 690-91 (Ind. 2005), cert. denied, 546 U.S. 976, our Supreme Court determined that Blakely would apply "retroactively to all cases on direct review at the time Blakely was announced." Blakely was decided in 2004. Wilhelm's direct appeal was decided on December 29, 1995 (see Wilhelm v. State, No. 92A05-9505-CR-170 (Ind. Ct. App. December 29, 1995))

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