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Judges order new PCR hearing on guilty plea issue

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The Indiana Court of Appeals reversed in part the denial of a man’s pro se petition for post-conviction relief, holding the post-conviction court’s findings didn’t support its rejection of the man’s claim his plea was illusory or involuntary.

Ricky Graham pleaded guilty to dealing in a narcotic drug as a Class B felony in exchange for the dismissal of other charges, including a habitual-offender charge. Graham argued that his plea was illusory and involuntary because it was motivated by the improper threat of a 30-year habitual-offender enhancement. The state conceded on appeal his dealing charge couldn’t have been enhanced under the general habitual-offender statute.

Graham also challenged whether there was a sufficient factual basis for his guilty plea and whether he received effective assistance of trial and appellate counsel.

In Ricky E. Graham v. State of Indiana, No. 22A01-1008-PC-392, the appellate judges address several procedural issues before turning to the merits of the case. They noted the state faulted Graham for not introducing the record related to his trial and guilty plea at the PCR hearing in support of his claims. But the trial court didn’t introduce any of the records Graham brought and said they could get the transcripts from the Superior Court records.

“It is true that Graham did not insist that the materials he brought to the hearing be introduced into evidence. Still, if a party in a PCR proceeding provides the original trial record (or a part thereof) to the PCR court, the PCR court should proactively ensure that the record is officially entered into evidence as an exhibit, so that the trial record is transmitted to this court in the event of an appeal and to avoid claims of waiver for failing to submit the trial record to the PCR court,” wrote Judge Michael Barnes. “Otherwise, there is the danger of converting a procedural technicality into a trap for unsuspecting litigants, which we emphatically discourage.”

Graham also alleged ineffective assistance of trial counsel and it was up to the PCR court to issue any subpoenas on his behalf. The judges declined to address his ineffective assistance of trial counsel claim because they ultimately remanded for further proceedings.

The judges affirmed there was a sufficient factual basis for Graham’s guilty plea and that he didn’t receive ineffective assistance of appellate counsel. But the appellate court remanded his case to the PCR court on the issue of whether his guilty plea was illusory and involuntary. The Court of Appeals relied on Segura v. State, 749 N.E.2d 496 (Ind. 2001), and Willoughby v. State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003), to hold that the standard they set out dealing with ineffective assistance of counsel claims is equally applicable to straightforward claims of an involuntary or illusory plea, wrote Judge Barnes.

“Ultimately, there is evidence here that the trial court itself advised Graham at the guilty plea hearing that he was facing a possible maximum fifty-year sentence if he did not plead guilty. Such an advisement arguably would overshadow any advice Graham had received from trial counsel regarding the validity of the habitual offender enhancement,” wrote the judge.

The judges found the PCR court’s findings don’t support its rejection of Graham’s claim his plea was illusory or involuntary. They remanded for consideration of whether there exist facts that meet the Segura standard for setting aside a guilty plea based on the clearly improper threat of a habitual-offender sentence enhancement. Also on remand, the PCR should consider the effectiveness of his trial counsel should Graham resubmit his subpoena request for his trial counsel to appear at the new hearing.
 

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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