Herbert Johnson, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] Herbert Johnson pled guilty to murder and Class B felony robbery and later sought post-conviction relief. The post-conviction court denied relief, and Johnson now appeals. We affirm.

Facts and Procedural History

[2] The following facts are taken largely from this Court's opinion on direct appeal, Johnson v. State, No. 49A02-0707-CR-634, 2008 WL 466786 (Ind. Ct. App. Feb. 22, 2008). On the night of August 2, 2006, cab driver Clarence Hoosier was shot and killed during a robbery. The State filed charges against Jamaar Bess, Rodney Harris, and seventeen-year-old Johnson in connection with the shooting and robbery. Specifically, the State charged Johnson with murder, felony murder, Class A felony robbery, Class A felony conspiracy to commit robbery, and Class B felony criminal confinement.

[3] On May 31, 2007, a few days before Johnson's trial date, his counsel filed an emergency motion to continue and a motion for specific discovery, alleging that there was “newly discovered evidence” relating to other robberies in which Bess and Harris were implicated “that may exonerate or contribute to Mr. Johnson's defense.” Appellant's Direct Appeal App. Vol. II pp. 65, 70. The court denied the motion to continue but granted the discovery motion. Then on June 1, defense counsel filed a notice to the court of incomplete discovery and requested an order to comply. The court did not rule on this motion.

[4] On June 4, the morning Johnson's case was set for trial, defense counsel filed another motion to continue, contending that she hadn't received all the requested discovery related to the other robberies and that she “cannot properly represent Mr. Johnson and would be ineffective if prevented from investigating those cases.” Id. at 86. That same day, before the court ruled on the motion to continue, Johnson and the State entered into a plea agreement under which Johnson agreed to plead guilty to murder and robbery as a Class B felony and the State agreed to dismiss the remaining charges and “not to pursue any possible robbery charges against” Johnson in four other pending investigations. Id. at 89. Sentencing was left to the discretion of the trial court.

[5] At the plea hearing, the following factual basis was established:

THE COURT: ․ According to the charging information I have, you, Herbert Johnson, on or about August the 2nd of 2006, knowingly killed another human being, specifically, Clarence Hoosier, and you did that by shooting a deadly weapon, that is, a handgun at against [sic] the person of Clarence Hoosier, inflicting mortal injuries on Mr. Hoosier, causing Mr. Hoosier to die. Is that, in fact, what you did in this case?

THE DEFENDANT: No, sir.

․

[DEFENSE COUNSEL]: Herbert, on August 2nd of last year, you were committing a robbery with some other guys. Right?

THE DEFENDANT: Yes, ma'am.

THE COURT: And that robbery was a of a [sic] cab driver Mr. Clarence Hoosier; right?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: And during that robbery, Mr. Hoosier got shot; right?

THE DEFENDANT: Yes.

THE COURT: And you knew what was going on; right?

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: You were there? You were participating in the robbery?

THE DEFENDANT: Yes.

THE COURT: So that you understand, sir, that whether or not you pulled the trigger or not, in you knew [sic] what was going on and you were part of that robbery and you were responsible for everybody's actions there. Is that correct? Even though you didn't do it yourself do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right. I mean, because you were an accomplice. You were a confederate. A codefendant with these guys. All right? Your guys’ plan was to kill -- was to rob. Right?

THE DEFENDANT: It was to rob him, yeah.

THE COURT: Right. But understand that when you have that intent to rob, during the course of that robbery, if you commit a murder, you're good for that murder even if you didn't kill the person. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right․ The only issue I have, [State], he's charged with the straight murder, and it looks like to me he's making a factual basis for a felony murder, which would be Count 2. What's your position on that?

[THE STATE]: As far as the murder goes. Judge, I believe the facts -- and counsel can confirm this -- would indicate that all three knew that there was a gun -- felony murder would more be if the gun suddenly showed up at the scene and then one of them shot the -- the shot was --

THE COURT: Right. So this is -- they knew there was a gun there.

[THE STATE]: But my evidence would show he knew before they ever left Rodney Harris’ house, that there was a gun and the gun was loaded and they were taking the gun to use in the robbery of the cab driver, which makes them all guilty of murder irrespective of who pulled the trigger.

THE COURT: All right. Do you agree with that, Mr. Johnson?

[DEFENSE COUNSEL]: We talked about it.

THE COURT: Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right. So that you are, in fact, guilty of murder; is that correct?

THE DEFENDANT: Yes, sir.

․

THE COURT: All right. And you knew there was a gun there; right? I mean, otherwise how are you going to get the property; right?

THE DEFENDANT: Yes, sir.

THE COURT: And so that when the three of you when [sic] there together, that you used this gun, all three of you, or together, all three of you, one of you did, and that was the plan. And you took this man's money. Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And during the course of that he gets injured; right? In fact, he gets killed; correct, sir?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And so that you are guilty not only of the murder, but you're guilty of the robbery as well. Is that correct, sir?

THE DEFENDANT: Yes, sir.

Guilty Plea Tr. pp. 28-33. The court accepted Johnson's guilty plea.

[6] At the sentencing hearing, the court found two mitigators: (1) Johnson was seventeen when he committed the offenses and (2) Johnson's lack of criminal history, although the court did not “give that as great weight” because of the “other uncharged robberies” that Johnson avoided as part of the plea agreement. Id. at 67. The court found “the nature and circumstances of the crime” to be “aggravating,” specifically noting that “the other two co-Defendants have said that Mr. Johnson was the shooter” and that the “lying-in wait” was “a very aggravating circumstance.” Id. at 68, 69. Finding the aggravators to outweigh the mitigators, the court sentenced Johnson to a maximum term of sixty-five years for murder and ten years for robbery, to be served consecutively, for a total of seventy-five years.

[7] On direct appeal, we found that the trial court abused its discretion in considering as an aggravator its belief that Johnson was the shooter because this belief was based on evidence the court heard in the proceedings of Johnson's co-defendants. We remanded for resentencing but noted, “It may well be that there is evidence which would support ordering Johnson to serve the maximum sentence for murder and to run the sentence for robbery consecutive thereto.” Johnson, 2008 WL 466786, at *5.

[8] At the resentencing hearing, the trial court incorporated the testimony from Johnson's previous sentencing. The State asked the trial court to give Johnson the same seventy-five-year sentence it imposed at the prior hearing, noting:

At the time the Court found lack of criminal history to be mitigating but didn't give it great weight because of the uncharged robberies that were a part of the plea agreement ․ I believe that's appropriate, it was part of the plea agreement and in fact the Court also considered it an aggravating circumstance that there were these four other robberies, while uncharged, were enough of a concern to Mr. Johnson to be part of the plea agreement that the State wouldn't pursue those in his case.

Resentencing Tr. p. 54. Defense counsel argued for a reduced sentence, asking the court to “reconsider the fact that -- for one thing, you can't look at these uncharged crimes and say, oh, well, he probably did it and then use it as an aggravator.” Id. at 57. After the parties’ arguments, the trial court identified the following aggravators and mitigators:

In sentencing the Defendant the Court's going to find as mitigating his young age. Court is also going to find as mitigating the fact that he has a minimal criminal history and Court is going to find as mitigating the fact that he accepted his responsibility for his own actions, I'm going to give that little weight because I believe that he got the benefit of his plea agreement to the extent that the State could have filed four additional robbery charges and they did not in this case. I find as aggravating the nature and the circumstances of the crime committed, it's based on the totality of the circumstances. This evidence[d] by the testimony here today ․ that this Defendant was the planner, the instigator and the shooter. And Court also as stated originally based on the evidence it has heard here ․ three of these individuals were lying-in-wait and did in fact ambush Mr. Hoosier ․

Id. at 58-59. Finding the aggravators to outweigh the mitigators, the court imposed the same sentence of sixty-five years for murder and ten years for robbery, to be served consecutively. Johnson again appealed his sentence, and we affirmed. Johnson v. State, No. 49A02-0809-CR-839, 2009 WL 1176491 (Ind. Ct. App. Apr. 30, 2009), trans. denied.

[9] In 2021, Johnson petitioned for post-conviction relief, claiming that his trial counsel was ineffective for advising him to plead guilty without completing a full investigation and failing to object to improper aggravating circumstances at the resentencing hearing, and that his sentence should be reduced given State v. Stidham, 157 N.E.3d 1185 (Ind. 2020). In August 2022, Johnson amended his petition to add another ineffective-assistance-of-counsel claim, alleging that his trial counsel was ineffective “when she advised and allowed” him to plead guilty to murder “while he maintained his innocence.” Appellant's App. Vol. II p. 29.

[10] A hearing on Johnson's petition was held in December 2022. Johnson testified that when he was charged, he didn't understand the difference between murder and felony murder. He believed his trial counsel didn't adequately explain the difference to him, that “she failed to give [him] the right language about [his] plea agreement,” and that “[t]here were stipulations in the plea that w[ere]n't explained to [him].” P-C Tr. p. 65. Johnson explained that he pled guilty even though he “sa[id] that [he] didn't kill Mr. Hoosier” because he “felt pressured into the plea,” “felt manipulated by [his] attorney,” and “w[as] afraid ․ [b]ecause [he] felt they were going to file other cases” against him for the four other robberies. Id. at 64, 66.

[11] The post-conviction court denied relief in January 2024, concluding that Johnson failed to prove his trial counsel was ineffective and that Stidham does not support revision of his sentence.

[12] Johnson now appeals.

Discussion and Decision

[13] Johnson appeals the denial of post-conviction relief. A defendant who petitions for post-conviction relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). A petitioner appealing from the denial of post-conviction relief must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 269. “Although we do not defer to the post-conviction court's legal conclusions, 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. (quotation omitted).

I. The post-conviction court did not err in concluding that Johnson failed to prove his trial counsel was ineffective

[14] Johnson asserts the post-conviction court erred in finding that his trial counsel was not ineffective. When evaluating a defendant's ineffective-assistance-of-counsel claim, we apply the well-established, two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant must prove: (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms, and (2) counsel's deficient performance prejudiced the defendant—but for counsel's errors, the result of the proceeding would have been different. Id. “The Strickland standard is not limited to the trial or appellate phases in criminal proceedings, but also applies when defendants allege ineffective assistance during the guilty plea phase.” Id. In making a claim of ineffective assistance of counsel in the guilty-plea phase, a defendant shows prejudice by demonstrating there is a “reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 1285.

A. Plea agreement before completion of discovery

[15] Johnson first argues his trial counsel was ineffective for advising him to plead guilty before discovery was completed. He contends that “[a]dvising a client to enter a plea agreement is unconstitutional and illegal when discovery, especially exculpatory discovery supporting factual innocence, is outstanding.” Appellant's Br. p. 28. But Johnson doesn't identify any “exculpatory discovery supporting factual innocence” that his trial counsel would have uncovered had she continued investigating. He points to his trial counsel's motion for specific discovery, notice of incomplete discovery, and motions to continue to highlight that there was outstanding discovery related to the uncharged robberies, but he doesn't explain how this discovery, had his trial counsel obtained it, would have affected his decision to plead guilty. In other words, Johnson has failed to show prejudice. See Reeves v. State, 174 N.E.3d 1134, 1141 (Ind. Ct. App. 2021) (“Establishing failure to investigate as a ground for ineffective assistance of counsel requires ․ show[ing] what an investigation, if undertaken, would have produced ․ because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result.” (citations and quotation omitted)), trans. denied.

[16] As the post-conviction court found, Johnson “failed to produce any evidence to show that, had trial counsel obtained” additional discovery before the trial date, “he would have chosen to go to trial.” Appellant's App. Vol. II p. 93. At the post-conviction hearing, Johnson testified that he pled guilty because he “felt pressured,” “felt manipulated by [his] attorney,” and “w[as] afraid” that the State was going to file additional charges against him for the four other robberies. Johnson never claimed that, but for his trial counsel's failure to complete discovery, he would not have pled guilty and would have insisted on going to trial. The post-conviction court did not err in concluding that Johnson failed to prove his trial counsel was ineffective for advising him to plead guilty before the completion of discovery.

B. Alleged improper aggravator at resentencing

[17] Johnson next claims his trial counsel was ineffective for failing to object to an improper aggravator at his resentencing hearing. When a petitioner contends that trial counsel was ineffective for failing to make an objection, in order to show prejudice, the petitioner must prove that the trial court would have sustained the objection. Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).

[18] Johnson contends his trial counsel should have objected when the State mentioned the four uncharged robberies in arguing for an aggravated sentence and when the trial court referenced the robberies in its sentencing statement. This failure to object, Johnson claims, “resulted in the Court relying upon inappropriate aggravating factors in its sentencing decision” and effectively “rendered the plea agreement null and void” because the State was allowed to “use ․ the prior uncharged crimes that [it] promised to drop as part of the plea agreement.” Appellant's Br. pp. 31, 32. But Johnson has not shown that an objection by his trial counsel would have been sustained. As the post-conviction court noted, “the trial court did not rely on uncharged robberies as an aggravator, but to minimize reliance on accepting responsibility as a mitigator.” Appellant's App. Vol. II p. 93. The trial court determines the weight afforded to mitigating factors, and a guilty plea may not be entitled to significant mitigating weight when the defendant receives a substantial benefit in return. McElroy v. State, 865 N.E.2d 584, 591-92 (Ind. 2007). The trial court here explained that it was giving “little weight” to the mitigator that Johnson accepted responsibility for his actions because “he got the benefit of his plea agreement to the extent that the State could have filed four additional robbery charges.” The trial court acted within its discretion in referencing the uncharged robberies in this manner, and Johnson has failed to prove that any objection to this reference by his trial counsel would have been sustained. The post-conviction court did not err in rejecting this claim.

C. Guilty plea to murder

[19] Finally, Johnson argues his trial counsel was ineffective for “mis-advis[ing] [him] to tender an Alford plea to Count I while he maintained his innocence to knowing and intentional murder.” Appellant's Br. p. 33. An “Alford plea” is a guilty plea accompanied by a protestation of innocence. Norris v. State, 896 N.E.2d 1149, 1152 (Ind. 2008) (citing North Carolina v. Alford, 400 U.S. 25, 38 (1970)). “Indiana law has long refused to accept such ‘Alford’ pleas.” Id.

[20] This argument fails for several reasons. First, Johnson presented no evidence that his trial counsel “advised” him to tender (or attempt to tender) an Alford plea—to plead guilty but maintain his innocence. At the post-conviction hearing, Johnson testified that his trial counsel didn't adequately explain the terms of his plea agreement to him and that he pled guilty because he “felt pressured into the plea” and “felt manipulated by [his] attorney.” He never stated that his trial counsel told him to enter a guilty plea yet maintain that he was innocent. To the extent Johnson is arguing that his counsel was ineffective for “allow[ing]” him to tender an Alford plea, Appellant's Br. p. 36, this argument is unconvincing because, as the post-conviction court found, “Johnson did not profess his innocence while pleading guilty as is contemplated in Alford,” Appellant's App. Vol. II p. 99. At his plea hearing, while Johnson denied shooting Hoosier, he admitted that he, Bess, and Harris planned to use a gun to rob Hoosier, that he “knew there was a gun there,” that he “participat[ed] in the robbery,” and that Hoosier was killed during the robbery. Although Johnson maintained that he wasn't the shooter, he did not maintain that he was innocent, so his guilty plea was not an Alford plea.¹

II. The post-conviction court did not err in concluding that Johnson's sentencing claim is barred by res judicata

[21] Johnson also contends his sentence should be reconsidered given State v. Stidham, 157 N.E.3d 1185 (Ind. 2020). “As a general rule, when a reviewing court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). In Stidham, the petitioner, who was seventeen when he committed murder and other crimes, challenged the appropriateness of his sentence in a post-conviction proceeding, and our Supreme Court observed that because it had considered his sentencing challenge on direct appeal, “res judicata would normally apply and bar our consideration of the issue now.” 157 N.E.3d at 1191. But the Court explained that “[n]otwithstanding res judicata, a court has the power to revisit prior decisions of its own or of a coordinate court,” a power which “should be exercised only in extraordinary circumstances.” Id. (quotations omitted). The Court found that the extraordinary circumstances necessary to reconsider Stidham's appropriateness argument were present due to two major shifts in the law since his direct appeal: (1) the change from the “manifestly unreasonable” standard for sentencing review to the appropriateness standard under Appellate Rule 7(B) and (2) developments in U.S. Supreme Court and Indiana case law limiting the applicability of the harshest sentences to juveniles.

[22] As the post-conviction court found, the extraordinary circumstances identified in Stidham are not present here. Our Supreme Court implemented the appropriateness standard for sentencing review in 2003, see Stidham, 157 N.E.3d at 1193, several years before Johnson's crimes, so Johnson has already received review of his sentence under this standard, see Johnson, 2009 WL 1176491, at *4-5. And unlike Stidham, whose 138-year sentence “all but guaranteed he would die behind bars,” Stidham, 157 N.E.3d at 1197, Johnson received a total term of seventy-five years. Because he committed his crimes before July 1, 2014, he earns one day of good-time credit for each day he is imprisoned. I.C. § 35-50-6-3. Johnson was eighteen at the time of sentencing, so with good-time credit, he will be eligible for release in his mid-fifties. Unlike Stidham, Johnson's sentence gives him a chance of some life outside prison. The post-conviction court did not err in concluding that Johnson's sentencing challenge does not involve the extraordinary circumstances necessary to circumvent the bar by res judicata.

[23]

[24] Affirmed.

FOOTNOTES

1.   In making his Alford argument on appeal, Johnson also claims that the facts he admitted at the plea hearing “did not establish a factual basis for knowing and intentional murder.” Appellant's Br. p. 35. In the post-conviction court, Johnson did not challenge the sufficiency of the factual basis to support his guilty plea to murder; he argued only that his trial counsel was ineffective for allowing him to plead guilty to murder while he (allegedly) maintained his innocence. See Appellant's App. Vol. II pp. 28-30, 59, 68-69. To the extent Johnson is making a factual-basis argument separate from his Alford argument, it is waived. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.”), reh'g denied.

Vaidik, Judge.

Judges DeBoer and Scheele concur. DeBoer, J., and Scheele, J., concur.