The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 15 2019, 8:38 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Anne C. Kaiser George P. Sherman
Deputy Public Defender Supervising Deputy Attorney
Indianapolis, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Benjamin Darrell Keen, January 15, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-1104
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jennifer E.
Appellee-Respondent Newton, Judge
Trial Court Cause No.
35D01-1508-PC-17
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1104 | January 15, 2019 Page 1 of 10
[1] Benjamin Keen pled guilty to Class B felony dealing methamphetamine and
admitted to being a habitual substance offender. His plea agreement provided
for a sentencing cap of twenty years executed, which is the sentence he
ultimately received. Keen filed a petition for post-conviction relief claiming
that he received ineffective assistance of trial counsel and that his guilty plea
was not knowing, voluntary, and intelligent because his trial counsel
misadvised him about his eligibility for the habitual-substance-offender
enhancement. Following a hearing, the post-conviction court denied Keen’s
request for relief. On appeal, Keen presents several issues for our review, which
we consolidate and restate as whether the post-conviction court erred in
denying his petition.
[2] We affirm.
Facts & Procedural History
[3] On August 10 and August 17, 2013, Keen sold methamphetamine to a
confidential informant working for the Huntington Police Department. On
March 3, 2014, the State charged Keen with two counts of Class B felony
dealing methamphetamine. The State also alleged that Keen was a habitual
substance offender based on his prior convictions for Class A misdemeanor
possession of paraphernalia and Class D felony possession of
methamphetamine.
[4] On June 6, 2014, Keen pled guilty to one count of Class B felony dealing in
methamphetamine and admitted to being a habitual substance offender, and the
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State dismissed the second Class B felony charge. The plea agreement provided
for a sentencing cap of twenty years executed, and, while the State agreed to
remain silent at sentencing, Keen was free to argue for a lesser sentence. At a
sentencing hearing on June 24, 2014, two witnesses testified on Keen’s behalf,
informing the court of Keen’s efforts to overcome his addiction. Keen also gave
a statement regarding his participation in rehabilitation and requested that the
court consider purposeful incarceration. The trial court noted Keen had seven
prior felony convictions, nineteen prior misdemeanor convictions, and nineteen
probation violations. The court sentenced Keen to fifteen years for the Class B
felony and enhanced such by five years based on Keen’s status as a habitual
substance offender.
[5] Keen filed a pro se petition for post-conviction relief in 2015, which was
amended twice by counsel in 2017 and 2018. Keen alleged that he received
ineffective assistance of trial counsel and that his guilty plea was not entered
knowingly, voluntarily, and intelligently. Both arguments were based on
Keen’s claim that his counsel “performed deficiently by failing to recognize that
Keen did not qualify as a habitual substance offender.” Appellant’s Appendix Vol.
II at 28.
[6] The post-conviction court held an evidentiary hearing on January 16, 2018.
Scott Harter, Keen’s trial counsel, testified that he had practiced law for thirty-
five years and that he had served as a public defender “throughout all [of his]
career.” Transcript Vol. II at 22. Attorney Harter maintained that because the
two methamphetamine deals took place with the same informant, he advised
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Keen that the sentences thereon would have to be served concurrently and
therefore, he faced a maximum sentence of twenty years for the Class B felony
dealing charges1 and up to an additional eight years for the habitual substance
offender allegation.2 Given the strength of the evidence against Keen, Attorney
Harter advised Keen to accept the plea agreement because it called for a cap of
twenty years on the executed sentence and permitted Keen to argue for a lesser
sentence in light of his efforts to overcome his drug addiction.
[7] Attorney Harter testified that he did not believe there was a valid defense to
challenge Keen’s conviction for possession of paraphernalia as a qualifying
offense for the habitual-substance-offender enhancement. He also testified that
he was aware that Keen had another conviction that was a qualifying substance
offense, although he did not know the details of that offense. At the post-
conviction hearing, the State presented evidence to show that Keen had a 2001
conviction in Florida for possession of cannabis.3
[8] Keen also testified at the post-conviction hearing. He claimed that Attorney
Harter told him he could receive up to forty-eight years—twenty years on each
Class B felony dealing offense and eight years for being a habitual substance
offender. Having been so informed, Keen decided to accept a plea agreement
1
See Ind. Code § 35-50-2-5.
2
See Ind. Code § 35-50-2-10(f) (repealed effective July 1, 2014).
3
Keen does not dispute that his conviction for possession of cannabis is a qualifying offense for a habitual
offender allegation.
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that provided for a twenty-year cap on sentencing and dismissed one of the
dealing offenses. Keen maintains that Attorney Harter did not advise him that
the sentences for the dealing offenses would have to be served concurrently or
that the habitual-substance-offender allegation was not supported by two
qualifying substance offenses. Keen testified that he would have gone to trial
and preserved his right to appeal if he had known that the maximum sentence
he faced if he went to trial was twenty years, thus negating any benefit to
pleading guilty. On April 12, 2018, the post-conviction court entered its
findings of fact and conclusions of law denying Keen post-conviction relief.
Keen now appeals. Additional evidence will be provided as necessary.
Discussion & Decision
[9] 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); Ind. Post-Conviction Rule 1(5). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On
review, we will not reverse the judgment unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. Further, the post-conviction court in this case
entered findings of fact and conclusions thereon in accordance with P-C.R.
1(6). Id. “A post-conviction court’s findings and judgment will be reversed
only upon a showing of clear error—that which leaves us with a definite and
firm conviction that a mistake has been made.” Id. In this review, we accept
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findings of fact unless clearly erroneous, but we accord no deference to
conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
[10] Keen first argues that he was denied the effective assistance of counsel. Claims
of ineffective assistance of trial counsel are generally reviewed under the two-
part test announced in Strickland v. Washington, 466 U.S. 668 (1984); that is, a
defendant must demonstrate that his counsel’s performance fell below an
objective standard of reasonableness based on prevailing professional norms
and that counsel’s deficient performance resulted in prejudice. Id. at 687-88.
Because a petitioner must prove both deficient performance and prejudice to
prevail on a claim of ineffective assistance of counsel, the failure to prove either
component defeats such a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind.
2001).
[11] Keen argues that his trial counsel rendered ineffective assistance because he did
not advise him of a potential defense to the habitual-substance-offender
enhancement. Specifically, Keen argues his conviction for possession of
paraphernalia could not support the habitual-substance-offender enhancement
because such conviction did not qualify as a “substance offense” under the
now-repealed habitual-substance-offender statute.4
4
Effective July 1, 2014, the legislature made significant changes to the criminal code, including repeal of the
habitual-substance-offender statute. Now, substance offenses are included under the general habitual-
offender statute.
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[12] In considering counsel’s performance, we have observed that “‘[c]ounsel is
afforded considerable discretion in choosing strategy and tactics, and we will
accord that decision deference. A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind.
2009) (alteration in original) (quoting Lambert v. State, 743 N.E.2d 719, 730
(Ind. 2001)).
[13] Here, while there may have been some debate at the time of Keen’s plea as to
the applicability of the habitual substance offender statute to certain offenses, no
court in this State had held that possession of paraphernalia was not a
qualifying substance offense. Although this court had held that a conviction for
possession of precursors was not a substance offense for purposes of proving a
habitual-substance-offender enhancement, see Murray v. State, 798 N.E.2d 895,
903 (Ind. Ct. App. 2003), such did not necessarily dictate that a conviction for
possession of paraphernalia would fall in the same category. Indeed, after
Murrary, another panel of this court noted that “a conviction for paraphernalia
possession would merit the HSO enhancement.” Aslinger v. State, 2 N.E.3d 84,
92 n.4 (Ind. Ct. App. 2014), clarified on reh’g, No. 35A02-1303-CR-296 (May 7,
2014).
[14] In addition, Attorney Harter testified that in his experience as a criminal public
defender in the county, a conviction for possession of paraphernalia was
considered a valid substance offense for purposes of the habitual offender
enhancement. He also testified that even if Keen’s possession of paraphernalia
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conviction was not a qualifying substance offense, he was aware that Keen had
another qualifying conviction that would have supported the habitual substance
offender enhancement. Finally, Attorney Harter stated that even assuming
Keen’s possession of paraphernalia conviction did not qualify as a substance
offense, he still would have advised Keen to plead guilty given the strength of
the State’s evidence and because the State agreed to remain silent at sentencing
and permit Keen to argue for a lesser sentence. In light of the state of the law
coupled with counsel’s experience, Keen’s trial counsel rendered adequate
assistance in light of his reasonable professional judgment. The post-conviction
court did not err in finding that Keen was not denied the effective assistance of
counsel.
[15] Keen also challenges the validity of his guilty plea. He argues that his guilty
plea was illusory because he was not advised of a possible defense to the
habitual substance offender allegation in that his conviction for possession of
paraphernalia was not a qualifying substance offense, and thus, he “was
motivated to accept the State’s plea due to the threat of an illegal sentence of
twenty-eight years.” Appellant’s Brief at 25. Keen maintains that “[h]ad he not
been misled about the benefit of his plea, it would have been reasonable for him
to go to trial.” Id.
[16] “The long-standing test for the validity of a guilty plea is ‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010)
(quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162
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(1970)). In furtherance of this objective, the Indiana Code provides that the
court accepting the guilty plea determine that the defendant: (1) understands
the nature of the charges; (2) has been informed that a guilty plea effectively
waives several constitutional rights, including trial by jury, confrontation and
cross-examining of witnesses, compulsory process, and proof of guilt beyond a
reasonable doubt without self-incrimination; and (3) has been informed of the
maximum and minimum sentences for the crime charged. Ind. Code § 35-35-1-
2. When a petition for post-conviction relief claims that “an error in advice
supports a claim of intimidation by exaggerated penalty, a petitioner must
establish specific facts that lead to the conclusion that a reasonable defendant
would not have entered a plea had the error in advice not been committed.”
Roberts v. State, 953 N.E.2d 559, 564 (Ind. Ct. App. 2011) (quoting Willoughby v.
State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003), trans. denied), trans. denied.
[17] Keen has failed to establish that any error in advice regarding the habitual
substance offender allegation was material to his decision to plead guilty. Even
if his trial counsel had informed him that he had a possible defense to the
habitual offender allegation, the totality of the circumstances was that (1) no
court had ever held that possession of paraphernalia was not a qualifying
offense; (2) in trial counsel’s experience, such conviction had been used to
support a habitual substance offender determination, (3) an appellate opinion
had recently noted that a conviction for possession of paraphernalia would
support a habitual substance offender enhancement; and (4) even if the
possession of paraphernalia conviction was not a qualifying offense, the State
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could have amended the allegation to add the Florida drug conviction that even
Keen does not dispute was a substance offense. Keen has not established that
had he been advised of all of the above, he would not have pled guilty and gone
to trial.
[18] The post-conviction court’s denial of Keen’s request for post-conviction relief is
not clearly erroneous.
[19] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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