Gerald L. Doll v. State of Indiana (mem. dec.)
Date Filed2017-12-29
Docket91A05-1704-PC-912
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 29 2017, 10:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Gerald Lee Doll Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald L. Doll, December 29, 2017
Appellant-Defendant, Court of Appeals Case No.
91A05-1704-PC-912
v. Appeal from the White Superior
Court
State of Indiana, The Honorable Rex W. Kepner,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
91D01-1610-PC-1
Mathias, Judge.
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[1] Gerald L. Doll (āDollā) appeals the post-conviction courtās denial of his
petition for post-conviction relief. Doll raises five issues for our review, which
we consolidate and restate as the following three issues:
I. Whether Doll voluntarily accepted the Stateās plea offer;
II. Whether Doll received ineffective assistance of counsel; and
III. Whether the sentence imposed by the plea agreement was
erroneous.
[2] We affirm.
Facts and Procedural History
[3] On September 4, 2012, Doll pleaded guilty to Class B felony robbery resulting
in bodily injury, Class C felony robbery, and Class D felony resisting law
enforcement. By accepting the plea agreement, the State agreed it would not file
any additional charges, and it dropped count IV and count V. 1
[4] During the guilty plea hearing held on the same day, Doll admitted that he
understood the plea agreement, that no promises had been made to convince
him to plead guilty, that he had read over and discussed the plea agreement
with his attorney, that he personally signed the plea agreement, that he freely
and voluntarily accepted the plea agreement, and that he agreed with the
1
The materials provided to us on appeal do not contain the charging information, Dollās petition for post-
conviction relief, or the plea agreement; therefore, we do not know the substance of his claim to the post-
conviction court, the particulars of his plea agreement, or what the charges were for count IV and count V.
Additionally, we note that Doll has run afoul of Indiana Appellate Rule 50(F) by reproducing the transcript
in his appendix.
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factual basis provided by the State for each of the three offenses. Appellantās
App. pp. 62ā76.
[5] The trial court accepted the plea agreement at Dollās sentencing hearing on
October 2, 2012. Pursuant to the plea agreement, the court imposed sentences
of twenty years for the Class B felony, eight years for the class C felony, and
two years for the Class D felony, all to run consecutively, resulting in a thirty-
year sentence executed in the Department of Correction.
[6] Doll filed a petition for post-conviction relief on October 27, 2016. An
evidentiary hearing was held on March 10, 2017, where Doll questioned the
prosecutor from his original case as well as his trial counsel. The post-
conviction court denied Dollās petition on March 31 and stated in relevant part:
The Petitioner has failed to present adequate evidence to show
his guilty plea was not voluntarily and knowingly entered.
Although there was a possibility of a habitual filing or charge,
there was not sufficient evidence presented for that reason or any
other reason to support a legal basis to set aside the conviction. It
certainly seems logical and realistic that a Defendant should
consider other charges or enhancements that could be filed when
determining whether to accept a plea offer. That fact alone is not
coercion, nor does it make a plea involuntary; it is just a realistic
evaluation of the circumstances.
Mr. Doll has also raised an issue of ineffective assistance of
counsel. Assuming [Dollās trial counsel] did not take depositions
or do an independent investigation, approximately 80-90% of
cases resolved by Plea Agreement do not involve depositions or
independent investigations. There has not been adequate
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evidence that [Dollās trial counsel] failed to perform to the
normal and reasonable standards as an attorney.
Appellantās Br. at 33. Doll now appeals.
Discussion and Decision
[7] The post-conviction petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,
562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a
petition for post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On appeal, we do not reweigh evidence
nor judge the credibility of witness; therefore, to prevail, Doll must show that
the evidence in its entirety leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id. When the post-
conviction court makes findings of fact and conclusions of law in accordance
with Indiana PostāConviction Rule 1(6), we do not defer to the courtās legal
conclusions, but the āfindings and judgment will be reversed only upon a
showing of clear errorāthat which leaves us with a definite and firm conviction
that a mistake has been made.ā Henley v. State, 881 N.E.2d 639, 644 (Ind.
2008).2
2
Doll notes that in his motion to correct error he requested that the post-conviction court rule in full on āall
issues that were presented inā his original petition for post-conviction relief and his amended petition.
Appellantās Br. at 29ā30. Doll contends that the post-conviction erred because it failed to address the
sentencing issues he allegedly raised. We initially note that Doll filed his motion to correct error on April 20,
2017, and then filed a notice of appeal on May 8, 2017; the post-conviction court concluded that it lacked
jurisdiction to enter a ruling on the motion to correct error once the notice of appeal was filed. Appellantās
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I. Voluntariness of Plea
[8] Doll contends that his guilty plea was not knowingly, voluntarily, and
intelligently made. Specifically, Doll alleges that he did not voluntarily accept
his plea because the State improperly held out the potential of a habitual
offender enhancement as leverage, which, he argues, amounted to coercion,
duress, and an unsubstantiated threat. Appellantās Br. at 13.
[9] Although Doll intersperses the two arguments, the voluntariness of a plea is
distinct from a claim of ineffective assistance of counsel and the two claims are
reviewed under different standards. Hanks v. State, 71 N.E.3d 1178, 1189 (Ind.
Ct. App. 2017), trans. denied. Voluntariness in Indiana āfocuses on whether the
defendant knowingly and freely entered the plea, in contrast to ineffective
assistance, which turns on the performance of counsel and resulting prejudice.ā
State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997). A plea is unlikely to be found
involuntary on collateral attack where the plea is entered after the trial court has
App. p. 54; see also Indiana Appellate Rule 8 (āThe Court on Appeal acquires jurisdiction on the date the
Notice of Completion of Clerk's Record is noted in the Chronological Case Summary.ā). Here, notice of
completion of clerkās record is noted in the CCS on May 9, and therefore, this is the date the trial court
lacked jurisdiction. Additionally, because the record does not contain Dollās original petition for post-
conviction relief or his amended petition, we are unable to review whether the post-conviction court erred by
not addressing all issues Doll allegedly raised. See Ind. Appellate Rule 46(8)(A) (āThe argument must contain
the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention
must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal
relied on, in accordance with Rule 22.ā). Accordingly, we find this argument waived. Weaver v. Niederkorn, 9
N.E.3d 220, 223 (Ind. Ct. App. 2014) (failure to present cogent argument with citation to authority results in
waiver); see also Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004) (explaining that pro se litigants without
legal training are held to the same standard as trained counsel and are required to follow procedural rules), trans.
denied.
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reviewed the various rights which the defendant is waiving and has made the
necessary inquires called for by statute. Id. at 1265; Ind. Code Ā§ 35-35-1-2.
[10] Here, a voluntariness hearing was conducted before Dollās plea was accepted,
with his trial counsel present and by his side. The trial court methodically
explained to Doll all of the rights he waived by pleading guilty, as well as the
possible sentencing consequences. Doll acknowledged that he understood the
plea agreement, that no promises had been made to convince him to plead
guilty, and that no one forced him to plead guilty. Additionally, Doll readily
admitted to the factual basis of the plea. The post-conviction court found Doll
failed to present sufficient evidence to show that his guilty plea was not
voluntarily and knowingly entered and it stated:
Although there was a possibility of a habitual filing or charge,
there was not sufficient evidence presented for that reason or any
other reason to support a legal basis to set aside the conviction. It
certainly seems logical and realistic that a Defendant should
consider other charges or enhancements that could be filed when
determining whether to accept a plea offer. That fact alone is not
coercion, nor does it make a plea involuntary; it is just a realistic
evaluation of the circumstances.
Appellantās Br. at 33. We agree.
[11] At the post-conviction hearing, Doll never questioned his trial counsel about the
decision to plead guilty. Dollās trial counsel acknowledged that although he
could not specifically remember it, he would have had discussions with Doll
about the potential for a habitual offender enhancement, and he would have
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had negotiations with the State about the potential enhancement. This is
evidence of trial counsel doing his job, and is not indicative of duress, coercion,
or threats. Based on these facts and circumstances, the post-conviction court
properly concluded that Dollās guilty plea was knowingly and voluntarily made.
II. Ineffective Assistance of Counsel
[12] Doll contends his trial counsel was ineffective: (1) for failing to depose any
witnesses listed in the pre-trial conference notice, (2) for failing to adequately
explain the ramifications of Dollās sentence and why he was eligible for a thirty-
year sentence, and (3) for failing to raise an alleged defect with the Stateās
threatened filing of a habitual offender enhancement. A claim of ineffective
assistance of trial counsel here requires a showing that: (1) Dollās trial counselās
performance was deficient by falling below an objective standard of
reasonableness; and (2) that the deficient performance prejudiced Doll such that
āthere is a reasonable probability that, but for counselās unprofessional errors,
the result of the proceeding would be different.ā Strickland v. Washington, 466
U.S. 668, 694 (1984). Failure to satisfy either of the two elements will cause the
claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). āIsolated
mistakes, poor strategy, or bad tactics do not necessarily amount to ineffective
assistance of counsel.ā Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997)
(citations omitted).
[13] Because Dollās claims are based on his contention that he received ineffective
assistance of counsel as part of his guilty plea, we examine his claims under our
supreme courtās decision in Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura
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categorizes two types of ineffective assistance of trial counsel claims made in
the context of guilty pleas: (1) the failure to advise the defendant on an issue
that impairs or overlooks a defense, and (2) an incorrect advisement of penal
consequences. Id. at 500. Dollās claims here fall within Seguraās first category,
and in analyzing claims under the first category, our supreme court has
explained:
As to those claims, we remain of the view that in order to
establish that the guilty plea would not have been entered if
counsel had performed adequately, the petitioner must show that
a defense was overlooked or impaired and that the defense would
likely have changed the outcome of the proceeding. Similarly, if
counselās shortcomings are claimed to have resulted in a lost
opportunity to mitigate the penalty, in order to obtain a new
sentencing hearing, the petitioner must show a reasonable
probability that the oversight would have affected the sentence.
Id. at 499.
[14] We initially note that Doll has failed to point to any evidence demonstrating
anything other than that his trial counsel both logically and realistically
evaluated the circumstances at the time when he advised Doll with respect to
the Stateās plea offer. His trial counsel was able to negotiate a plea bargain with
the State whereby the State would accept Dollās admission of guilt to the first
three counts, and in return it would drop two other unidentified counts, and not
file for a habitual offender enhancement. These negotiations significantly
reduced Dollās potential sentence.
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[15] With regard to Dollās trial counselās alleged failure to depose any witnesses or
take part in any independent investigation, the post-conviction court observed:
Assuming [Dollās trial counsel] did not take depositions or do an
independent investigation, approximately 80-90% of cases
resolved by Plea Agreement do not involve depositions or
independent investigations. There has not been adequate
evidence that [Dollās trial counsel] failed to perform to the
normal and reasonable standards as an attorney.
Appellantās Br. at 33. Doll does not identify what, if any benefit, he would have
gained had his trial counsel deposed witnesses or conducted independent
investigation prior. Even in the context of a trial, the failure to depose witnesses
does not in and of itself demonstrate ineffective assistance of counsel. Herrera,
679 N.E.2d at 1326. During his guilty plea hearing, Doll readily admitted to the
factual basis for each of the counts in which he pleaded guilty. Therefore, Doll
fails to allege how he was prejudiced by his trial counselās failure to depose
witnesses, and as a result, his claim fails.3
3
Doll also contends that his trial counsel āsubmitted none of the Stateās case to any form of meaningful or
substantive adversarial testing as required under the Cronic analysis.ā Appellantās Br. at 12 (alteration in font).
Doll refers to the United States Supreme Courtās decision in United States v. Cronic, 466 U.S. 648 (1984),
where the Court held āif counsel entirely fails to subject the prosecutionās case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself
presumptively unreliable.ā Id. at 659. We first note that Doll did not proceed through trial, as did the
defendant in Cronic. Additionally, Dollās counsel was able to negotiate a plea bargain with the State whereby
the State agreed to drop two charges and agreed not to file for a habitual offender enhancementā
significantly reducing Dollās potential sentence. Simply put, the Cronic presumption of prejudice is
inapplicable here.
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[16] Doll also argues his trial counsel was ineffective for failing to fully explain the
plea agreement to him and for failing to explain how Doll was eligible for a
thirty-year sentence. At his guilty plea hearing, Doll admitted in open court that
he had read the plea agreement, understood the plea agreement, and discussed
the plea agreement with his trial counsel before signing it. Doll also
acknowledged that he understood that by pleading guilty he waived the right to
appeal any sentence imposed.
[17] The length of Dollās sentence does not render his plea involuntary either. At the
time Doll pleaded guilty, the advisory sentencing range for the crimes he
committed were six to twenty years for the Class B felony, two to eight years for
the Class C felony, and one-half year to three years for the Class D felony. The
trial court explained to Doll during sentencing that by accepting the plea
agreement, it was imposing sentences of twenty years for the Class B felony,
eight years for the Class C felony, and two years for the Class D felony, all to
run consecutively for an aggregate term of thirty years. Thus, the plea
agreement Doll entered into was within the sentencing range for each felony
Class, and Doll received a significant benefit from the State by deciding to plead
guilty because the State dropped two charges and agreed not to file for a
habitual offender enhancement. Counselās performance is presumed effective,
Hanks, 71 N.E.3d at 1184, and Doll has failed to show that his trial counselās
performance here was deficient. And even if it was, Doll has failed to establish
that he was subject to prejudice based on the alleged lack of advisement about
sentencing and the thirty-year term contained in his plea agreement.
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[18] Finally, Doll contends that his counselās performance was deficient for failing
to object to the Stateās threatened late filing of a habitual offender charge and
that deficiency allowed the State to use the prospect of a habitual offender
enhancement for leverage during plea negotiations. Under Indiana Code
section 35-34-1-5(e) (2012), an amendment of an indictment to add a habitual
offender charge must be made ānot later than ten (10) days after the omnibus
date.ā However, on a showing of good cause, the trial court has discretion to
permit the filing of the habitual offender charge any time before trial. Id.
[19] The State never filed a habitual offender information in Dollās case; Doll merely
alleges that the potential for a habitual offender enhancement played an
improper role in his plea negotiations. However, Dollās trial counsel testified
that although he could not remember specifically discussing the potential
enhancement, it āwould be normal for negotiations at pre-trial.ā Tr. p. 19. And
Dollās counsel testified, āitās my understanding that so long as it wasnāt just out
of the blue and never discussed and they filed it and it was appropriate - - or you
know there was grounds to do so, that they could file it and we could ask for an
extension of time.ā Id. at 20.
[20] We have consistently held that the purpose of Indiana Code section 35-34-1-
5(e) is to allow a defendant sufficient time to prepare a defense for the habitual
offender charge. E.g., Jackson v. State, 938 N.E.2d 29, 39 (Ind. Ct. App. 2010),
trans. denied. Here, that purpose was served. Doll and his trial counsel were well
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aware of the potential of the habitual offender charge,4 and it was used by the
prosecutor in plea negotiations that culminated in a deal that benefited Doll.
Additionally, Doll has failed to explain how he was prejudiced by the prospect
of a charge that was never brought and that both he and his counsel were aware
of as a possibility. Simply said, the prosecutor could have sought a habitual
offender enhancement until the time of trial on a showing of good cause. Dollās
trial counsel was not ineffective for failing to raise an objection to the Stateās
alleged threat of a late filing habitual offender enhancement, and even if he was,
Doll has failed to demonstrate any resulting prejudice. See Falls v. State, 797
N.E.2d 316, 319 (Ind. Ct. App. 2003) (holding that the defendant could not
show prejudice as a result of a late habitual offender charge where the State
filed it late as a result of the partiesā ongoing plea negotiations), trans. denied.
III. Erroneous Sentence
[21] Doll also argues that during sentencing, the trial court erred when it imposed
āunsubstantiated aggravators,ā and that Doll was denied his right āto have a
jury determine all the factual subject matter legally essential to his sentence.ā
Appellantās Br. at 24, 27. Doll states that the trial courts alleged errors violate
4
At the time Doll committed the offenses at issue in this appeal, Indiana Code section 35-50-2-8(a) (2012)
stated, āthe state may seek to have a person sentenced as a habitual offender for any felony by alleging . . .
that the person has accumulated two (2) prior unrelated felony convictions.ā Because Dollās criminal history
is not part of the materials provided on appeal, we cannot say whether or not Doll was eligible for the
habitual offender enhancement. However, during his guilty plea hearing, Doll admitted to prior convictions
for attempted theft, theft, trafficking stolen property, escape, and theft using transportation. Appellantās App.
p. 70. He also testified that his last felony conviction was in 2000. Id.
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the United States Supreme Courtās decisions in Apprendi v. New Jersey, 530 U.S.
466(2000) and Blakely v. Washington,542 U.S. 296
(2004). Doll is mistaken.
[22] In Apprendi, the Court held that except for a prior conviction, any fact that
increases a defendantās penalty beyond the statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490.
Four years later in Blakely, the Court explained that a trial court may not
enhance a sentence based on additional facts, unless those facts are either (1) a
prior conviction; (2) facts that are found by a jury beyond a reasonable doubt;
(3) facts admitted by the defendant; or (4) facts that are found by the sentencing
judge after the defendant has waived Apprendi rights and consented to judicial
fact-finding. 542 U.S. at 310. As a result, our supreme court in 2005 held that
Indianaās sentencing scheme did not comport with Blakely, and was therefore
unconstitutional. Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005).
[23] After Smylie, our legislature revised Indianaās sentencing scheme, and on
appeal, we now apply the sentencing scheme in effect at the time of a
defendantās offense. See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). Doll
committed the offenses at issue in this appeal in 2012, well after Indianaās
current āadvisoryā sentencing scheme was enacted. Our supreme court has
explained that ā[c]ourts may now impose any sentence within the statutory
range for the crime; a sentence at the high end of the range under the present
scheme is not an āenhanced sentenceā for Blakely and Smylie purposes.ā Marbley-
El v. State, 929 N.E.2d 194, 195 (Ind. 2010). Although all the trial court did here
was enforce the sentence contained in Dollās plea agreement, none of the three
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sentences imposed fell outside of the sentencing range for the particular Class of
felony.5 Accordingly, the trial court did not err when it sentenced Doll pursuant
to his plea agreement.
Conclusion
[24] Doll has failed to carry his heavy burden on appeal of showing that the post-
conviction court clearly erred in determining that his plea was not involuntary,
and that he was not denied the effective assistance of trial counsel. In addition,
his sentence was not erroneous, and therefore, we affirm.
Vaidik, C.J., and Crone, J., concur.
5
Doll received the maximum twenty years for the Class B felony conviction, the maximum eight years for
the Class C felony conviction, and two years for the Class D felony conviction.
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