from the St. Joseph Superior Court, No. 71D03-1301-PC-1 The
Honorable Jerome Frese, Judge
Petition To Transfer from the Indiana Court of Appeals, No.
Attorneys for Appellant Stephen T. Owens Public Defender of
Indiana Tracy Anne Nelson Deputy Public Defender
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Eric Parker Babbs Deputy Attorney General
appeals the denial of post-conviction relief contending his
plea of guilty to four class A felony offenses was invalid
because at the time Petitioner entered the plea he also
professed his innocence. We agree and reverse the judgment of
the post-conviction court.
and Procedural History
November 9, 2010, the State charged eighteen-year-old Demajio
Ellis and his sixteen-year-old cousin, Shawn Alexander, with
two counts of attempted murder as class A felonies and two
counts of attempted robbery resulting in serious bodily
injury also as class A felonies. As alleged by the State, the
essential facts supporting the charges are
these. In the evening hours of November 6, 2010,
three young men-Jerry Atwood, Jason Kleinrichert, and Chad
Nickerson- were present at a McDonald's restaurant in
South Bend when they were confronted by two other young men
who identified themselves as members of a street gang and
accused Nickerson of belonging to a rival gang. Nickerson
denied the accusation and the confrontation ended without
further incident. The trio proceeded to Nickerson's house
and left him there.
time later Atwood and Kleinrichert began walking towards
Kleinrichert's house when they saw the same two young men
whom they had encountered earlier at McDonald's. One of
the young men was later identified as Alexander and the other
as Ellis. The two approached Atwood and Kleinrichert and
demanded cigarettes. When they responded they did not have
any cigarettes Alexander and Ellis forced the two young men
into a nearby abandoned building and began searching their
pockets. The only thing the assailants found was a small
pocketknife in Kleinrichert's pocket, which they took.
The assailants then forced Atwood and Kleinrichert to step
outside the building and made them kneel down. Again
identifying themselves as members of a street gang and after
demanding information about Nickerson, the assailants began
choking Atwood and Kleinrichert from behind. As the two young
men began losing consciousness, the assailants slashed their
throats from behind and fled on foot. Both Atwood and
Kleinrichert made it to Nickerson's house which was
nearby. Medics and police responded to the house and the
young men were transported to a local hospital for treatment.
Thereafter police showed a photo lineup to Kleinrichert who
identified Alexander saying, "That's him! That's
the one who slashed my throat!" Appellee's App. at
entered an agreement with the State that called for him to
plead guilty to all four class A felony offenses. Except for
a cap of fifty years on any executed term, the parties were
free to argue sentencing which was otherwise left to the
discretion of the trial court. The agreement also provided
that Ellis would agree to testify at the trial of his cousin,
Shawn Alexander, and that the State would not file additional
charges stemming from two unrelated South Bend Police
Department investigations. At the change of plea hearing
conducted May 11, 2011, the trial court advised Ellis of the
offenses with which he was charged, the rights he was
forfeiting by a plea of guilty, and that his maximum exposure
absent the benefit of an agreement was 116 years.
See Tr. at 8-13. Although pleading guilty to all
four counts, when asked about his involvement in the events
leading to charged crimes, Ellis stated in part: "I
didn't do nothing, you know, sir. I was involved to the
point that I did hit somebody, but I didn't cut nobody. I
did not rob nobody, sir." Tr. at 23. And when
specifically asked about his knowledge of and participation
in the assaults that Alexander committed against the victims,
Ellis affirmed: "I did tell him don't do it, sir,
you know." Tr. at 25. The trial court took the plea
22, 2011, the trial court conducted a sentencing hearing at
which Ellis again expressed his innocence and indicated that
he wished to withdraw his plea of guilty. After an extended
back and forth colloquy with the trial court, Ellis reversed
course and decided not to withdraw his guilty plea. Pursuant
to the terms of the agreement the trial court sentenced Ellis
to one hundred years imprisonment with sixty years suspended
to probation for an aggregate sentence of forty years
Ellis filed a pro se petition for post-conviction
relief that was later amended by counsel. The amended
petition challenged Ellis' plea in three respects: (1) it
was not entered knowingly, intelligently, and voluntarily;
(2) the plea lacked a factual basis; and (3) the trial court
erred in accepting the plea in light of Ellis'
protestations of innocence. After a hearing at which Ellis
testified on his own behalf, the post-conviction court
ultimately entered an order denying relief. It issued no
findings of fact and conclusions thereon with respect to
Ellis' third claim. On appeal Ellis raised a single
issue, namely whether the trial court committed reversible
error in accepting Ellis' guilty plea in light of his
protestation of innocence. In a memorandum decision the Court
of Appeals affirmed the judgment of the post-conviction
court. See Ellis v. State, 50 N.E.3d 154
(Ind.Ct.App. 2016) (Table). Having previously granted
transfer, we now reverse the judgment of the post-conviction
court. Additional facts are set forth below.
petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence." Fisher v. State, 810 N.E.2d 674, 679
(Ind. 2004) (citations omitted). When appealing the denial of
post-conviction relief, the petitioner stands in the position
of one appealing from a negative judgment. Id. To
prevail on appeal from the denial of post-conviction relief,
a petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. Graves v.
State, 823 N.E.2d 1193, 1197 (Ind. 2005). Where the
post-conviction court makes findings of fact and conclusions
of law as required by Post-Conviction Rule 1(6) we will reverse
its findings only upon a finding of clear error, namely
"that which leaves us with a definite and firm
conviction that a mistake has been made."
Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.
2000). However where, as here, the post-conviction court
fails to enter specific findings of fact, but the facts
underlying the claim are not in dispute, the issues are
sufficiently clear, and both parties address the merits in
their briefs, then we review the claim de novo.
Allen v. State, 749 N.E.2d 1158, 1170 (Ind. 2001).
appeal Ellis abandons his claim that his plea of guilty was
not entered knowingly, intelligently, and voluntarily as well
as his claim that there was no factual basis to support the
plea. Instead Ellis focuses on a single allegation of error:
the trial court's acceptance of Ellis' plea in light
of his protestation of innocence.
half a century ago, we declared: "[A] plea of guilty
tendered by one who in the same breath protests his
innocence, or declares he actually does not know whether or
not he is guilty, is no plea at all. Certainly it is not a
sufficient plea upon which to base a judgment of
conviction." Harshman v. State, 115 N.E.2d 501,
502 (Ind. 1953). We later expounded that as a matter of law,
"a judge may not accept a plea of guilty when the
defendant both pleads guilty and maintains his innocence at
the same time. To accept such a plea constitutes reversible
error." Ross v. State, 456 N.E.2d 420, 423
(Ind. 1983). In other words, a trial court errs in accepting
a guilty plea to a charge when the defendant protests his
innocence while simultaneously attempting to enter the plea.
the issue has not been pressed on appeal, we do not rest our
conclusion of the impropriety of Ellis' plea based on the
adequacy of the factual basis for acceptance of the plea.
However, the evidence introduced to establish the factual
basis informs our discussion of Ellis' protestation
Court has held that "[a] proper factual basis for the
entry of a guilty plea is established where the court asks
the prosecutor to state the facts and the prosecutor reads
the factual allegations contained in the information, the
judge asks the defendant whether he admits the alleged acts,
and the defendant admits the truth of the
information." Silvers v. State, 499 N.E.2d 249,
253 (Ind. 1986) (citing Lowe v. State, 455 N.E.2d
1126, 1129 (Ind. 1983)). Nevertheless, the trial court may
base its decision on the testimony given by the defendant on
an inquiry alone, so long as the questions asked are
sufficiently detailed to show the defendant's guilt, but
those questions requiring only a yes or no reply may be found
insufficient. Butler v. State, 658 N.E.2d 72, 77
n.14 (Ind. 1995) (citing State v. Durham, 498 P.2d
149, 151 (Ariz. 1972); John L. Barkai, Accuracy Inquiries
for all Felony and Misdemeanor Pleas: Voluntary Pleas but
Innocent Defendants?, 126 U. Pa. L. Rev. 88, 135-36
evidence presented at the change of plea hearing to establish
the factual basis for Ellis' plea is as follows:
Trial Court: Can we have a factual here?
[Defense Counsel]: Mr. Ellis, back on November the 6th of
last year you were with Shawn Alexander; is that right?
Mr. Ellis: Yes, sir.
[Defense Counsel]: And sometime during that night you two met
up with guys named Jerry and Jason at McDonald's
originally on South Michigan Street; is that right?
Mr. Ellis: Yes, sir.
[Defense Counsel]: And then later when you guys were walking
along by Riley High School you saw those two again?
Mr. Ellis: Yes, sir.
[Defense Counsel]: Now we know part of what you're
charged with is that you aided Shawn in doing things, that
he's the main one who was involved in doing this; is that
Mr. Ellis: Yes, sir.
[Defense Counsel]: And the first thing that was done I guess
is he somewhat forced these guys to go into a vacant house;
is that right?
Mr. Ellis: Yes, sir.
[Defense Counsel]: And then later out into an alley I ...