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Ellis v. State

Supreme Court of Indiana

January 26, 2017

Demajio Ellis, Appellant (Defendant below),
v.
State of Indiana, Appellee (Plaintiff below).

         Appeal from the St. Joseph Superior Court, No. 71D03-1301-PC-1 The Honorable Jerome Frese, Judge

         On Petition To Transfer from the Indiana Court of Appeals, No. 71A05-1511-PC-1845

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana Tracy Anne Nelson Deputy Public Defender Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Eric Parker Babbs Deputy Attorney General Indianapolis, Indiana

          RUCKER, JUSTICE.

         Petitioner 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.

         Facts and Procedural History[1]

         On 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.[2] 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.

         A short 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 8.

         Ellis 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 under advisement.

         On June 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 executed.[3]

         In 2013 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.

         Standard of Review

         "The 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)[4] 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).

         Discussion

         I.

         In this 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.

         Over 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.

         Because 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 claim.

         This 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."[5] 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 (1977)).

         The 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 right?
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 ...

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