The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 13 2018, 8:21 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian R. Chastain Curtis T. Hill, Jr.
Dillman Chastain Byrd, LLC Attorney General of Indiana
Corydon, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Pumphrey, February 13, 2018
Appellant-Petitioner, Court of Appeals Case No.
88A04-1707-PC-1568
v. Appeal from the Washington
Superior Court
State of Indiana, The Honorable Frank Newkirk,
Appellee-Respondent. Jr., Judge
Trial Court Cause No.
88D01-1703-PC-202
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, James R. Pumphrey (Pumphrey), appeals the post-
conviction court’s denial of his petition for post-conviction relief.
[2] We affirm.
ISSUE
[3] Pumphrey raises one issue on appeal, which we restate as: Whether the post-
conviction court erred in denying Pumphrey’s petition for post-conviction relief.
FACTS AND PROCEDURAL HISTORY 1
[4] On March 20, 2015, the Washington County Sheriff’s Department received a
report from a citizen alleging that Pumphrey was in possession of a stolen
Polaris Sportsman all-terrain vehicle (ATV), which Pumphrey was urgently
attempting to sell. That same day, Raymond Hardin (Hardin) contacted the
Washington County Sheriff’s Department to report that a number of items had
been stolen from his hunting lodge, including a Polaris Sportsman ATV, a
chainsaw, an air compressor, camouflage clothing, and DVDs. When an
Indiana State Police trooper subsequently conducted a traffic stop of the vehicle
in which Pumphrey had earlier been observed as a passenger, two male
1
The post-conviction court specifically took judicial notice of the probable cause affidavit and charging
information, and we rely on the same for ascertaining the facts and procedural background of this case.
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occupants fled the vehicle. An inventory search resulted in recouping a chain
saw and an air compressor, both of which Hardin confirmed to be his.
[5] The next day, March 21, 2015, police officers received consent from
Pumphrey’s then-girlfriend, Melissa Sams (Sams), to search their shared
residence. The officers seized DVDs and hunting clothing, and Sams further
informed them that she had recently observed Pumphrey, along with Cody
Doyle (Doyle), to be in possession of an ATV, a chainsaw, and an air
compressor. Police officers thereafter interviewed Doyle, who admitted that he
and Pumphrey had entered Hardin’s hunting lodge and garage and stolen the
reported items. Pumphrey and Doyle sold the ATV to someone in Kentucky.
Doyle also confessed that he and Pumphrey had stolen metal from outside of
another dwelling on March 20, 2015, which was confirmed with the owner,
Stephen McClain. Further investigative interviews with Sams revealed that
Pumphrey had committed three additional burglaries in Washington County
since approximately November or December of 2014, stealing a flat screen
television from a dwelling belonging to Jason Hawkins; stealing copper piping,
mounted deer heads, and record albums from a supposedly abandoned home
owned by Kendra Floyd; and stealing Blu-Ray discs and pizzas from another
dwelling owned by Dave Andress. The owners of these three properties also
confirmed with law enforcement that the reported items had been stolen. It was
later discovered that, on January 16, 2015, Pumphrey had stolen tools, hunting
equipment, and musical equipment from Michael Wimmer, as well as a chain
saw and an air compressor from Todd Campbell.
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[6] On April 9, 2015, the State filed an Information, charging Pumphrey with
Count I, burglary as a Level 4 felony, Ind. Code § 35-43-2-1; Count II theft as a
Level 6 felony, I.C. § 35-43-4-2; Count III, burglary as a Level 5 felony, I.C. §
35-43-2-1; Count IV, theft as a Level 6 felony, I.C. § 35-43-4-2; Count V, aiding,
inducing, or causing a burglary as a Level 4 felony, I.C. §§ 35-41-2-4, -43-2-1;
Count VI, aiding, inducing, or causing a burglary as a Level 5 felony, I.C. §§
35-41-2-4, -43-2-1; Count VII, burglary as a Level 4 felony, I.C. § 35-43-2-1;
Count VIII, aiding, inducing, or causing a burglary as a Level 4 felony, I.C. §§
35-41-2-4, -43-2-1; Count IX, theft as a Level 6 felony, I.C. § 35-43-4-2; Count
X, burglary as a Level 5 felony, I.C. § 35-43-2-1; Count XI, aiding, inducing, or
causing a burglary as a Level 5 felony, I.C. §§ 35-41-2-4, -43-2-1; Count XII,
theft as a Level 6 felony, I.C. § 35-43-4-2; Count XIII, burglary as a Level 4
felony, I.C. § 35-43-2-1; Count XIV, aiding, inducing, or causing a burglary as a
Level 4 felony, I.C. §§ 35-41-2-4, -43-2-1; Count XV, theft as a Level 6 felony,
I.C. § 35-43-4-2; and Count XVI, theft as a Level 6 felony, I.C. § 35-43-4-2. On
April 20, 2015, the State added Count XVII, burglary as a Level 4 felony, I.C. §
35-43-2-1; and Count XVIII, theft as a Level 6 felony, I.C. § 35-43-4-2. On
June 3, 2015, the State also charged Pumphrey with Count XIX, theft as a
Level 6 felony, I.C. § 35-43-4-2. At the time the Information was filed,
Pumphrey had already accumulated a significant criminal history, including
prior convictions for burglary and theft. As a result, on September 14, 2015, the
State charged Pumphrey with a habitual offender sentence enhancement as
Count XX, I.C. § 35-50-2-8.
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[7] The trial court appointed a public defender to represent Pumphrey. The public
defender reviewed the evidence against Pumphrey, including the statements of
his co-defendants and Pumphrey’s recorded confession to at least one of the
burglaries, as well as Pumphrey’s substantial criminal record. Considering the
charges and the habitual offender enhancement, Pumphrey’s public defender
was “concerned that it would turn into . . . what is effectively a life sentence for
[Pumphrey].” (Tr. Vol. II, p. 28). Thus, the public defender sought to
negotiate a plea bargain. Initially, the State offered a plea agreement, whereby
Pumphrey would plead guilty to the Level 4 felony burglaries and would
receive a twenty-nine-year sentence, of which twenty-two years would be
executed and seven years would be suspended. Pumphrey rejected this deal
because it involved “too much time.” (Tr. Vol. II, p. 8).
[8] Thereafter, the State agreed to reduce the Level 4 felony burglary charges to
Level 5 felonies and to dismiss a number of charges, including the habitual
offender enhancement. The new offer called for a sixteen-year sentence.
Pumphrey’s public defender advised him to accept the plea agreement, opining
that it was “as good as it’s going to get.” (Tr. Vol. II, p. 31). Accordingly, on
November 6, 2015, Pumphrey agreed to plead guilty to Count I, burglary as a
Level 5 felony; Count VII, burglary as a Level 5 felony; Count X, burglary as a
Level 5 felony; Count XIII, burglary as a Level 5 felony; Count XVI, theft as a
Level 6 felony; Count XVII, burglary as a Level 5 felony; and Count XIX, theft
as a Level 6 felony in exchange for the dismissal of the remaining charges. On
December 1, 2015, the trial court accepted Pumphrey’s guilty plea—finding that
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it was supported by a factual basis, that it was “freely and voluntarily made,”
and that Pumphrey understood the nature of the charges against him and the
possible consequences thereof. (Appellant’s App. Vol. II, p. 53). The trial court
imposed an executed sentence of “[thirteen] years; an additional [three] years
shall be served if [Pumphrey] violates conditions of probation.” (Appellant’s
App. Vol. II, p. 54). Following his release, Pumphrey was to be “placed on
probation for a period of [four years].” (Appellant’s App. Vol. II, p. 54).
[9] At some point after commencing his term of incarceration in the Indiana
Department of Correction, Pumphrey—who has only an “eighth or ninth”
grade education—personally conducted legal research in the prison’s library
and concluded that he had been “pushed and tricked” into accepting a plea deal
with a higher sentence than he believed he deserved. (Tr. Vol. II, pp. 19, 22).
After retaining counsel, on March 27, 2017, Pumphrey filed a petition for post-
conviction relief. In his petition, Pumphrey alleged that he was entitled to post-
conviction relief because:
(a) [t]he charges were too vague to properly [d]efend the case[;]
(b) [t]he case was over charged as Level 5 Burglaries, making
[Pumphrey] improperly believe he was in danger of more prison
than he was[;]
(c) [s]entence [v]iolates [Indiana Code section] 35-50-1-2(2)
[b]ecause the most serious crime for which [Pumphrey] is
sentenced is a Level 5 felony, the total of the consecutive terms of
imprisonment may not exceed seven(7) years[; and]
(d) [Pumphrey’s] attorney aggressively encouraged [him] to take
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a plea agreement, against [his] better judgment. His attorney
continued to encourage [his] plea even after [he] asserted [his]
innocence multiple times. His attorney failed to review the
witness statement and failed to understand the facts of this case at
the time of his plea.
(Appellant’s App. Vol. II, p. 6).
[10] On May 11, 2017, the post-conviction court conducted a hearing on
Pumphrey’s petition. On June 9, 2017, the post-conviction court issued
Findings of Fact, Conclusions of Law, and Judgment Denying Post-Conviction
Relief. In particular, the post-conviction court determined that the charging
documents were “sufficiently specific to have advised [Pumphrey] of the
charges being lodged against him.” (Appellant’s App. Vol. II, p. 35).
Furthermore, the post-conviction court found that “the offenses to which
[Pumphrey] pled were not a connected series of offenses closely related in time,
place and circumstance” that would have required capping the consecutive
sentences at seven years as it would have otherwise done for an episode of
criminal conduct. (Appellant’s App. Vol. II, p. 35). The post-conviction court
also found that Pumphrey was not denied the effective assistance of counsel
and that his guilty plea was entered knowingly, intelligently, and voluntarily.
[11] Pumphrey now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Standard of Review
[12] A post-conviction proceeding provides a petitioner with the “opportunity to
raise issues that were unknown or unavailable at the time of the original trial or
the direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)
(citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.
1164 (2002)), trans. denied. A post-conviction proceeding, however, is not “a
super appeal,” as it “provide[s] only a narrow remedy for subsequent collateral
challenges to convictions.” Id. (citing Ben-Yisrayl, 738 N.E.2d at 258). A
conviction imposed as a result of a guilty plea is “not an issue that is available
to a defendant on direct appeal[;] any challenge to a conviction thus imposed
must be made through the procedure afforded by the Indiana Rules of
Procedure for Post–Conviction Remedies.” Hall v. State, 849 N.E.2d 466, 472
(Ind. 2006).
[13] In reviewing the judgment of a post-conviction court, our court considers only
the evidence and reasonable inferences supporting the post-conviction court’s
judgment. Id. at 468. The post-conviction court “is the sole judge of the
evidence and the credibility of the witnesses.” Id. at 468-69. When appealing
the denial of a petition for post-conviction relief, “the petitioner stands in the
position of one appealing from a negative judgment.” Willoughby v. State, 792
N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. Because post-conviction
proceedings are civil in nature, the petitioner bears the burden of establishing
his grounds for relief by a preponderance of the evidence. Stevens v. State, 770
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N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003); see Ind. Post-
Conviction Rule 1(5). To prevail on appeal, the petitioner must demonstrate
“that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite to that reached by the post-conviction court.” Hall, 849
N.E.2d at 469. Where, as here, the post-conviction court enters findings and
conclusions pursuant to Indiana Post-Conviction Rule 1(6), we will reverse
“upon a showing of clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl, 729 N.E.2d
at 106). “Only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion,
will its findings or conclusions be disturbed as being contrary to law.” Id.
II. Withdrawal of Guilty Plea
[14] On appeal, Pumphrey’s sole claim is that he did not knowingly, intelligently,
and voluntarily plead guilty. Specifically, Pumphrey insists that he would not
have entered into a plea agreement that provided for a sixteen-year sentence if
he had “known the facts involving the level of felony charged and the crime
spree/concurrent eligibility.” (Appellant’s Br. p. 10). At the outset, we note
that Pumphrey’s argument wholly fails to comply with Indiana Appellate Rule
46(A)(6) and (8), and our court would be justified in finding that Pumphrey has
waived appellate review of his case. Nevertheless, notwithstanding Pumphrey’s
inadequate recitation of facts and lack of a cogent, well-supported argument, we
discern from the record that Pumphrey is essentially arguing that his charges
could have been deemed to constitute a single episode of criminal conduct,
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which, pursuant to Indiana Code section 35-50-1-2(d)(2), would have required a
sentence cap of seven years. Furthermore, Pumphrey also contends “that he
was misled in to thinking that all charges were [L]evel 4 felonies and that he
was facing at least twenty-nine (29) years.” (Appellant’s Br. p. 10). He
maintains that the State’s evidence did not support initially charging him with
seven Counts of Level 4 felony burglary; rather, Pumphrey argues that while
Count I could properly have been a Level 4 felony, the rest were “likely [L]evel
5 felonies.” (Appellant’s Br. p. 10). Accordingly, he requests that we either
“vacate his convictions” or “remand the case back for additional evidence
regarding whether the facts and circumstances of the case involve an episode of
criminal conduct.” (Appellant’s Br. p. 11).
[15] “A post-conviction petitioner must be allowed to withdraw his previous guilty
plea whenever the withdrawal ‘is necessary to correct [a] manifest injustice’ that
occurred because ‘the plea was not knowingly and voluntarily made.’”
Richardson v. State, 800 N.E.2d 639, 643 (Ind. Ct. App. 2003), trans. denied; see
I.C. § 35-35-1-4(c). While Pumphrey’s petition for post-conviction relief did not
specify that he was seeking to withdraw his guilty plea, at the post-conviction
relief hearing, Pumphrey’s attorney questioned whether Pumphrey believed that
he had suffered a manifest injustice. Although Pumphrey did not understand
that specific terminology, he did answer “[y]es sir” when his attorney
questioned whether Pumphrey understood that he was “not asking that
everything be dismissed and you walk away, but that just the plea essentially is
withdrawn.” (Tr. Vol. II, pp. 10-11). To the best we are able to decipher his
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assertions, we will treat Pumphrey’s claim on appeal as seeking a withdrawal of
his guilty plea because it was not knowing, intelligent, and voluntary. I.C. § 35-
35-1-4(c)(3). 2
[16] “A valid guilty plea is a confession of guilt made directly to a judicial officer
and necessarily admits the incriminating facts alleged.” Carter v. State, 739
N.E.2d 126, 128 (Ind. 2000). Because “[a] guilty plea constitutes a waiver of
constitutional rights,” the trial court must “evaluate the validity of every plea
before accepting it.” Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). In order
for a guilty plea to be valid, “the defendant’s decision to plead guilty must be
knowing, voluntary[,] and intelligent.” Id. (citing Boykin v. Alabama, 395 U.S.
238, 242-44 (1969)). Indiana law provides that a trial court cannot accept a
guilty plea “without first determining that the defendant understands the nature
of the charges against him and that pleading guilty waives a number of valuable
constitutional rights.” Id. (citing I.C. § 35-35-1-2(a)). “[C]oncerns about
injustice carry greater weight when accompanied by credible evidence of
involuntariness, or when the circumstances of the plea reveal that the rights of
the accused were violated.” Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). In
general, if a trial court undertakes the steps set forth in Indiana Code section 35-
2
Although the term “ineffective assistance of counsel” was not mentioned in his petition for post-conviction
relief, it was suggested at the post-conviction hearing that Pumphrey’s public defender had been ineffective by
failing to adequately advise Pumphrey of the parameters of his guilty plea and/or negotiate a better plea
agreement. The post-conviction court specifically found that Pumphrey’s public defender did not render
ineffective assistance. On appeal, Pumphrey has not developed an argument regarding ineffective assistance
of counsel and the same is therefore waived.
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35-1-2 to ensure that a plea is voluntary—i.e., determining that the defendant
understands the nature of the charges against him and has been informed of
certain rights, “a post-conviction petitioner will have a difficult time
overturning his guilty plea on collateral attack.” Richardson, 800 N.E.2d at 643.
[17] The post-conviction court, in concluding that Pumphrey’s guilty plea was
knowing, intelligent, and voluntary, specifically found that Pumphrey “entered
a plea of guilty to the charges contained in the plea agreement; . . . initialed and
signed the plea agreement that was filed with the [trial court][;] . . . [and]
testified truthfully at the plea hearing in regard to his guilt to the charges for
which he was sentenced.” (Appellant’s App. Vol. II, p. 36). Additionally, the
post-conviction court found that Pumphrey “chose to accept the offer based
upon advice of counsel that if he went to trial that he could receive a much
greater sentence;” and that Pumphrey advised his public defender “prior to his
acceptance of the plea agreement that he was guilty of the crimes for which he
was sentenced.” (Appellant’s App. Vol. II, p. 36). Pumphrey does not now
challenge these findings; nor does he contend that he was not adequately
advised of the rights he was surrendering by pleading guilty. Rather, Pumphrey
now claims that his plea was not knowing and voluntary because he did not
know at the time he signed the plea deal that he could have received a lesser
sentence if the trial court had determined that his crimes were part of an episode
of criminal conduct.
[18] Trial courts are vested with authority to “determine whether terms of
imprisonment shall be served concurrently or consecutively” based on a
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consideration of aggravating and mitigating circumstances. I.C. § 35-50-1-2(c).
However, “the total of the consecutive terms of imprisonment . . . to which the
defendant is sentenced for felony convictions [that do not include crimes of
violence] arising out of an episode of criminal conduct shall not exceed” seven years
“[i]f the most serious crime for which the defendant is sentenced is a Level 5
felony.” I.C. § 35-50-1-2(c),(d)(2) (emphasis added). An “episode of criminal
conduct” is defined as “offenses or a connected series of offenses that are
closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b).
“Whether certain offenses constitute a ‘single episode of criminal conduct’ is a
fact-intensive inquiry to be determined by the trial court.” Slone v. State, 11
N.E.3d 969, 972 (Ind. Ct. App. 2014) (internal quotation marks omitted)
(quoting Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002)). The trial court
may consider “the timing of the offenses and the simultaneous and
contemporaneous nature, if any, of the crimes.” Williams v. State, 891 N.E.2d
621, 631 (Ind. Ct. App. 2008). “[A]dditional guidance on the question can be
obtained by considering whether the alleged conduct was so closely related in
time, place, and circumstance that a complete account of one charge cannot be
related without referring to the details of the other charge.” Id. (internal
quotation marks omitted) (quoting Reed v. State, 856 N.E.2d 1189, 1200 (Ind.
2006)).
[19] Ultimately, Pumphrey’s argument that he did not knowingly plead guilty boils
down to an assertion that his public defender did not thoroughly explain the
sentencing scheme for an episode of criminal conduct in advising him to plead
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to the terms outlined in the plea agreement. Although we are addressing this
case in the context of a “straightforward claim[] of an involuntary . . . plea”
rather than ineffective assistance of counsel, our courts have determined that
[w]hether viewed as ineffective assistance of counsel or an
involuntary plea, the postconviction court must resolve the
factual issue of the materiality of the bad advice in the decision to
plead, and postconviction relief may be granted if the plea can be
shown to have been influenced by counsel’s error. However, if
the postconviction court finds that the petitioner would have
pleaded guilty even if competently advised as to the penal
consequences, the error in advice is immaterial to the decision to
plead and there is no prejudice.
Graham v. State, 941 N.E.2d 1091, 1101-02 (Ind. Ct. App. 2011) (quoting Segura
v. State, 749 N.E.2d 496, 504-05 (Ind. 2001)). During the post-conviction relief
hearing, Pumphrey testified that he had specifically inquired with his public
defender “about a crime spree,” to which his public defender answered that “it
doesn’t qualify for a crime spree cause there’s a lapse in date and times. . . .
[B]asically I more or less got shut down.” (Tr. Vol. II, p. 10). Pumphrey’s
public defender similarly testified at the post-conviction hearing that her
opinion had been that, because Pumphrey’s crimes involved different victims
and were committed at different times and places, the trial court would not
have found there to be an episode of criminal conduct and would have imposed
consecutive sentences—especially in light of Pumphrey’s criminal record.
Accordingly, the public defender advised Pumphrey to accept the plea
agreement to avoid a harsher sentence.
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[20] The post-conviction court determined that “[b]ased upon the facts of the case,
the crimes to which [Pumphrey] pled were not an ‘episode of criminal conduct’
and [Pumphrey] was not entitled to concurrent sentencing.” (Appellant’s App.
Vol. II, p. 37). We agree. Looking to the probable cause affidavit, it is clear
that Pumphrey committed multiple burglaries and thefts from at least seven
properties over the course of several months. The burglaries and thefts “were
not simultaneous or continuous,” and “a complete account of” each
burglary/theft could “be given without referring to the other offense[s].” Slone,
11 N.E.3d at 972; Hope v. State, 834 N.E.2d 713, 716 (Ind. Ct. App. 2005).
Thus, Pumphrey would not have received a seven-year sentence cap had he
forgone the plea deal, and his public defender rendered correct advice.
Moreover, Pumphrey admitted that his public defender had provided essentially
the same explanation about his crimes not qualifying as a “crime spree” in
encouraging him to accept the plea agreement. (Tr. Vol. II, p. 10). Thus, we
find no basis for Pumphrey’s contention that he lacked knowledge of the
consequences of pleading guilty.
[21] Finally, we find no merit in Pumphrey’s arguments regarding being misled into
believing “that all charges were [L]evel 4 felonies and that he was facing at least
twenty-nine (29) years.” (Appellant’s Br. p. 10). Despite the State initially
charging him with twenty Counts, including several Level 4 felonies and a
habitual offender enhancement, Pumphrey pled guilty only to five Level 5
felonies for burglary and two Level 6 felonies for theft. All other charges were
dismissed. A Level 5 felony is punishable by “a fixed term of between one (1)
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and six (6) years, with the advisory sentence being three (3) years.” I.C. § 35-
50-2-6(b). A Level 6 felony is punishable by “a fixed term of between six (6)
months and two and one-half (2 ½) years, with the advisory sentence being one
(1) year.” I.C. § 35-50-2-7(b). Thus, for the charges to which Pumphrey agreed
to plead, he was facing a possible maximum sentence of thirty-five years if all
terms were imposed consecutively. Instead, his public defender negotiated a
sixteen-year term, which ultimately resulted in Pumphrey receiving an executed
sentence of thirteen years, with an additional three years to be served in the
event of a probation violation. Pumphrey acknowledged his understanding of
the terms of his plea agreement, and he fails to explain how he was misled, let
alone how he was misled to his detriment. Rather, the facts of this case clearly
establish that Pumphrey, who had been facing a plethora of serious charges,
willingly entered into a beneficial plea agreement with full knowledge of the
rights that he was surrendering and the consequences that he was facing. The
post-conviction court did not err in determining that Pumphrey’s guilty plea
was knowing, intelligent, and voluntary; therefore, Pumphrey did not suffer a
manifest injustice that would require a withdrawal of his guilty plea.
CONCLUSION
[22] Based on the foregoing, we conclude that the post-conviction court did not err
in denying Pumphrey’s petition for post-conviction relief because his guilty plea
was knowing, intelligent, and voluntary.
[23] Affirmed.
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[24] Baker, J. and Brown, J. concur
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