Jon A. Arnold, Appellant-Petitioner,
State of Indiana, Appellee-Respondent.
from the Washington Circuit Court The Honorable Larry W.
Medlock, Judge Trial Court Cause No. 88C01-1506-PC-329
ATTORNEY FOR APPELLANT Bart M. Betteau Betteau Law Office,
LLC New Albany, Indiana.
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of
Indiana Monika Prekopa Talbot Deputy Attorney General
Jon A. Arnold appeals the denial of his petition for
post-conviction relief. He raises several issues for our
review, which we consolidate and restate as whether the
post-conviction court erred in denying his petition for
relief. We affirm.
and Procedural History
In November 2008, the State charged Arnold with buying timber
without a registration certificate as a class D felony under
cause number 88C01-0811-FD-181 ("Cause No. 181").
The information referenced Ind. Code § 25-36.5-1-10 and
alleged that Arnold did "engage in the business of
timber buying without securing a registration, and while
having a prior unrelated conviction for an offense under this
section." Petitioner's Exhibit 2. In September
2009, Arnold pled guilty to purchasing timber without
securing a registration certificate as a class A misdemeanor,
and the court sentenced him to one year, all of which was
On June 24, 2015, Arnold filed a petition for post-conviction
relief alleging that he was denied the effective assistance
of counsel, that but for his counsel's errors he would
not have pled guilty and insisted on going to trial, and that
his counsel overlooked defenses that would have likely
changed the outcome of the proceeding.
On March 3, 2016, the post-conviction court held a hearing at
which Arnold testified and presented exhibits and the
testimony of his trial counsel. Arnold requested the court to
admit the affidavits of Chad Anderson and Connie Burton, and
the court admitted the affidavits after striking several
paragraphs on the State's objection that the paragraphs
contained legal conclusions. In her affidavit, Burton stated
in part that no written contract existed for the sale of any
trees; that her agreement with Arnold was that he would
"cut the trees and after all bills were paid, the
profits [would be] split on a 50/50 basis"; that
"[a]t the time the agreement was made for Jon Arnold to
cut the trees, [she] did not know exactly how many trees were
to be harvested" and "Arnold was simply to cut all
harvestable trees in a predetermined area."
Petitioner's Exhibit 4. Burton further stated that she
did not know how much money she would receive; that
"[a]t the time of the agreement, Jon Arnold expressed
that he was unsure as to exactly how many trees would be cut
or what the proceeds would be"; that no money changed
hands between herself and Arnold "until after the trees
were bought by the sawmill"; and that she was paid
exactly as she should have been pursuant to their agreement.
Id. Anderson's affidavit stated in part that
Burton was his mother.
Arnold's trial counsel testified "we live in a small
community and I have known Jon Arnold for some time and he
has known me and I always knew him as a timber cutter/timber
buyer, " that "it seemed obvious on the face that
this gentleman whom I already knew, uh, did not have a
license to purchase timber, " and "I assumed and
today it appears to me wrongly, uh, that he was guilty of the
crime charged." Transcript at 13. Trial counsel
testified "my opinion has changed and I wished I had
done it differently and advised Mr. Arnold differently at the
time." Id. at 14. Trial counsel also testified
that he did not think Arnold is a well-educated person.
On cross-examination, Arnold's trial counsel stated that
he would have received and reviewed the probable cause
affidavit and a copy of Arnold's recorded statement to a
conservation officer. When asked whether Arnold
"admitted to the conservation officer that what he did
was illegal, " trial counsel replied: "I believe
that Mr. Arnold, at that time, operated under the same
illusion that I did that unless you had the piece of paper
that said, uh, licensed timber buyer that you, uh, you were
guilty of the crime, uh, on it's [sic] face."
Id. at 16-17. When asked "you said he was under
an illusion at the time, you believed, " trial counsel
testified "because neither [Arnold] nor I did the
analysis or even understood that, that analysis was available
with respect to who was a timber buyer and who was not.
Because his reputation is he, he buys and sells and cuts logs
and I, I just assumed that's who he was."
Id. at 17. He also testified "the analysis
that's been done by [Arnold's post-conviction
counsel] [ ] I did not do." Id. Trial counsel
indicated that Arnold was initially charged with a felony,
and when asked "[s]o, having a prior conviction and
admitting to the officer that what he was doing was illegal
you still got a misdemeanor agreement in that case, "
trial counsel answered "[w]e negotiated an agreement and
resolved the case, yes." Id. at 18. He further
testified: "It appears to me from reading the documents
that purchasing on shares so that no interest in property
transfers between the, uh, logger and the landowner does not
fit the statute." Id.
Arnold testified that Chad Anderson had asked him to cut some
trees on his mother's property and sell them to the
sawmills, that he said that he would "do it on a
fifty/fifty deal, " and that it was probably fewer than
fifty trees. Id. at 21. When asked "[w]hen the
conservation officer came up to talk to you about it did you
tell him immediately that, oh, as Ms. Campbell said, oh,
I'm guilty, I committed a crime, " Arnold stated
"[y]eah, I probably did, I, I mean, I don't know for
shore [sic], " "I been in a bigger business in the
past, " and "you know, I, so, I normally bought
trees so, I guess I figured that, you know, I probably had to
have a (Inaudible), you know." Id. at 21-22.
Arnold indicated that he had previously been found guilty of
tree buying without a license in Scott County and that, at
that time, he had a sawmill, bought trees, and "wrote
them a check for the trees or there was a certain amount . .
. [u]p front." Id. at 22. He testified that,
after that, he left the sawmill business, "went to doing
small little jobs like this . . . for the neighbors basically
to . . . cut just a few trees and sell them to other mills,
" and did the work "[o]n percentage."
Id. at 22-23. When asked "[d]id you think at
the time the way you were doing it required you to have a
license on shares, " Arnold answered "no, I
didn't figure I needed the license on the shares."
Id. at 23. When asked why he decided to plead
guilty, Arnold testified "I just thought it would be a
quick and easy deal, it would be done and over with, you
know. And pay 'em a fine and, and such as that."
Id. at 23-24. When asked "what did [trial
counsel] tell you about, " Arnold answered
"[p]retty much told me the same thing" and
"[h]e knew how the system would worked [sic] and would
just take care of it that way." Id. at 24. When
asked if his trial counsel ever discussed the legal
definitions of tree cutter or tree buyer, ever indicated that
he might have defenses, or indicated that he was not guilty
of the offense, Arnold answered "[n]o, sir."
On cross-examination, Arnold indicated that he had been in
the business for a long time. When asked if True Dimensions
Hardware, Inc., was his business, Arnold answered he
"was part owner, I was, yes." Id. at 25.
When asked "And the Jon Arnold Lumber Company, "
"And Jon Arnold Logging, " and "Jon Arnold
Lumber, " Arnold replied "Yes, ma'am."
Id. at 25-26. When asked "so, you've had
those separate logging business over the years, " Arnold
answered affirmatively. Id. at 26. He indicated that
he had previously had a license to buy timber and that he
"had it off and on over the years." Id. at
27. When asked if his license was expired when he entered the
guilty plea, he answered that he believed so. On re-direct,
Arnold indicated he had a high school education and no legal
training. The State requested the court to take judicial
notice of the probable cause affidavit and the plea hearing,
and the court did so.
Arnold's post-conviction counsel argued that Arnold was a
timber cutter and not a timber buyer, that he was not
required to have a license, and that Arnold was not in a
position to know whether or not he was, in fact, guilty of
the offense. His counsel noted that it was his trial
attorney's responsibility to advise him about the law,
and that trial counsel "wasn't able to provide that
legal analysis that was really . . . the crux of this."
Id. at 32. In response, the State argued that Arnold
told the conservation officer that he knew what he did was
illegal, that he had a conviction for buying timber without a
license in the past, and that he was well versed in what was
required of him. The State contended that "when you look
at the definition of a timber buyer and buying . . . he meets
the definitions." Id. at 34-35. The State also
asserted that, at the time, the judge, prosecutor, defense
attorney, and defendant all believed Arnold committed a
crime, that while trial counsel was gracious to talk about
how he maybe did not examine those issues, the burden is on
Arnold to show that he would have a likelihood of success at
his argument and Arnold had not demonstrated a likelihood of
The court raised an issue regarding Burton's neighbor,
Jackson Warren, and Arnold testified that there "was in
question whether we'd got over the line or not right
there, " that Warren believed that two trees were on his
property, that Arnold did not believe they were on
Warren's property but he paid Warren for those trees, and
that he never separated the trees from the Burton timber.
Id. at 39. Arnold indicated that he was not charged
with a timber theft.
The court issued an order dated March 10, 2016, denying
Arnold's petition for post-conviction relief. The order
states: "The Court finds that Jon A. Arnold did not
purchase timber without a license from Connie Burton.
However, the Court does find that pursuant to Mr.
Arnold's testimony at the PCR hearing he did purchase
timber from Jackson Warren without a license. Justice was
served." Appellant's Appendix at 9-10. On April 1,
2016, the State filed proposed findings of fact and
conclusion of law.
The court issued findings of fact and conclusions of law
dated April 11, 2016, which provided in part:
1. The Court took judicial notice of the plea and sentencing
hearing, as well as the probable cause affidavit from [Cause
* * * * *
3. [Arnold] filed the petition for post conviction relief to
challenge conviction in [Cause No. 181] only after having
been charged in 88D01-1504-F6-213 with Buying Timber without
a Registration Certificate, Level 6 felony, Theft, Level 6
felony, and Trespass, Class A misdemeanor, which is still
4. [Arnold] admitted under oath at the plea hearing in [Cause
No. 181] that on or about September 24, 2008, in Washington
County, Indiana, he engaged in the business of timber buying
without securing a registration.
5. [Arnold] admitted under oath at the plea hearing in [Cause
No. 181] that he was not working under someone else's
license when he purchased the timber in Washington County,
* * * * *
8. [Arnold's] plea of guilty was made knowingly,
intentionally and voluntarily.
9. [Arnold] was represented, prior to and at the time of his
plea, by [Arnold's trial counsel], who was hired by
10. [Trial counsel] testified in this matter that his
performance was deficient, however that is only accurate if
[trial counsel] incorrectly interpreted the law stated in
I.C. 25-36.5-1, et. seq., which the Court finds that he did
11. [Arnold's] attorney filed a discovery request and
received the discovery response prior to entry of the plea in
[Cause No. 181].
12. The probable cause affidavit made available to the
petitioner's attorney in assessing the criminal charges
in [Cause No. 181] indicated:
a. that [Arnold] engaged in buying timber from Jackson Warren
while not having a buyer's license when he knew he was
required to, additionally the petitioner admitted during the
post-conviction hearing he had paid Jackson Warren for timber
he had harvested from Jackson's real property.
b. that [Arnold] admitted to the investigating officer that
he had engaged in logging the property of Connie Burton and
sold three loads of logs to the Worley saw mill, while not
having a buy's [sic] license when he knew he was required
c. that [Arnold] admitted to the investigating officer that
he had a prior conviction for buying timber in Scott County;
d. that [Arnold] admitted to the investigating officer that
he had previously held a registration certificate allowing
him to be a timber buyer, but that it was no longer valid;
e. that [Arnold] admitted to the investigating officer that
he knew it was illegal to purchase timber without a license,
but did not know his prior conviction made the charge a
f. that [Arnold] admitted to the investigating officer that
he had written a check to Connie Burton for timber on
September 9, 2008 for $1, 000.00, as well as cash;
g. that [Arnold] admitted to the investigating officer that
he had sold the timber he had logged from the Connie Burton
property to the Worley saw mill ...