Marco Lamar Webster, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] In 1995, Marco Webster pleaded guilty to burglary and carrying a handgun without a license. In 2016, Webster, pro se, petitioned for post-conviction relief. His petition was denied after an evidentiary hearing. Webster appeals and raises several issues for review, which we consolidate and restate as whether the post-conviction court clearly erred when it found Webster failed to show ineffective assistance of counsel. We affirm.

Facts and Procedural History

[2] In October 1994, Webster was charged with possession of a controlled substance and carrying a handgun without a license under 49G06-9410-CF-131214 (“Cause 131214”). On the night of November 30—while on bond in Cause 131214—Webster entered an apartment unit and stole, among other things, jewelry and a plaid jacket. For those crimes he was charged with burglary and theft in 49G06-9412-CF-173764 (“Cause 173764”). Then, around the night of December 3, he entered a different residence in the same apartment complex and stole several items including a watch, a pager, and a gym bag. Webster was later arrested while wearing some of the items he had stolen, including the plaid jacket and watch. For the crimes of December 3, he was charged with burglary and theft in 49G06-9412-CF-173763 (“Cause 173763”).

[3] On March 31, 1995, Webster pleaded guilty to both charges under Cause 173764, and his sentence was left to the trial court. On April 21, 1995, Webster entered into an agreement with the State to resolve the other two cases in a single plea. He agreed to plead guilty to burglary in Cause 173763 and carrying a handgun without a license in Cause 131214. In exchange, the State agreed to dismiss the other charges in Cause 131214 and Cause 173763. The plea agreement recommended a two-year sentence for possession of the handgun; the agreement did not specify a sentence for burglary in Cause 173763, except that the sentence be concurrent with Cause 173764. The agreement included a list of rights Webster waived and which he acknowledged by signing his initials. The plea agreement also included the following paragraph:

The defendant additionally acknowledges satisfaction with defense counsel's representation and competency in this matter[,] and the defendant believes this agreement to be in the defendant's best interest ․

Appellant's App. Vol. 2 at 49. Webster initialed this paragraph.

[4] On April 28, the trial court held a hearing and accepted the plea. The trial court advised Webster about the rights he was relinquishing and found a factual basis. The trial court determined Webster understood the rights he was giving up and concluded he willingly waived those rights. On the same day, Webster signed a document entitled “Guilty Plea Proceedings,” certifying “that [he was] assisted by counsel and [had] no complaints against counsel in the handling of this case.” Id. at 53. Similarly, in the same document, Webster's trial counsel certified as follows:

As Attorney for ․ [Webster] ․ I have read and fully explained to the defendant all the accusations against him[.] I have discussed the written Plea Agreement with the defendant and [believe] that the plea of Guilty as offered by the defendant accords with my understanding of the facts as related to me by the defendant. In my opinion the plea of Guilty as offered by the defendant is voluntarily and understandingly made, and is in the best interest of the defendant, and I recommend to the Court that such plea of Guilty be now accepted and entered on behalf of the defendant.

Id.

[5] Webster later moved to consolidate all three cases to one courtroom before sentencing. At the combined sentencing hearing, the trial court sentenced Webster to fifteen years for burglary in 173763, fifteen years for burglary and three years for theft in Cause 173764, and two years for possession of a handgun without a license in Cause 131214. The two burglary sentences and the theft sentence ran concurrently; the two-year sentence for possession of a handgun without a license ran consecutively to all other sentences. Webster did not file a direct appeal in Cause 173763.

[6] In May 2016, in Cause 173763, Webster filed a petition for post-conviction relief, which he amended in November 2019. In the amended petition, Webster alleged he had been denied effective assistance of counsel. He argued trial counsel “allowed” him to sign a plea agreement “that was erroneous in that charges that were supposed to be dismissed were not and where [he] was actually found guilty and sentenced for those said charges constituted double jeopardy.” Id. at 44. He maintained defense “counsel failed to object to [the] prosecutor's fact finding during [the] plea agreement hearing where fact-finding did not distinguish the elements of each charge separately.” Id. Webster claimed trial counsel's deficiency led him to unwittingly accept a plea agreement that violated double jeopardy. See id.

[7] The post-conviction court held an evidentiary hearing on May 1, 2024. The court took judicial notice of records in Causes 131214, 173763, and 173764. Webster's trial counsel, Novella Nedeff, testified at the hearing. She described her long experience as a public defender. Responding to questions from Webster, Nedeff elaborated regarding the process of advising clients on plea agreements:

Well, it's to evaluate the case, the allegations, to interview the client and get to know ․ the client. But you evaluate the facts of the case and the law of course and try to evaluate the risk of going to trial and what is offered and advise the client and ultimately the decision is up to the client. But you make a recommendation.

Tr. Vol. 1 at 5. She acknowledged having advised Webster on the plea agreement and that her signature appears on the agreement alongside that of Webster and the trial court judge. Nedeff stated there had been nothing “unusual” about her representation of Webster. Id. at 25.

[8] On September 12, 2024, the post-conviction court denied Webster's petition. The court found Webster “presented no evidence ․ Nedeff was ineffective in her legal representation of him by committing any errors concerning the plea agreement[ ], or at any other stage of his cases.” Appellant's App. Vol. 2 at 24. The post-conviction court also found Webster did not provide “any evidence of how the outcome of his cases would have been different and how he was prejudiced by Nedeff's actions as his counsel.” Id. Finally, the court rejected Webster's double jeopardy claim. See id. at 25.

Webster has not shown he is entitled to relief.

[9] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Ind. Post-Conviction Rule 1(1)(b); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied. The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal. See Gibson, 133 N.E.3d at 681. “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. (quoting Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012)). It is the defendant's burden to establish his claims by a preponderance of the evidence. See P.-C.R. 1(5). When, as here, a defendant appeals from a negative judgment denying post-conviction relief, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied). We will affirm the post-conviction court's denial of relief when the defendant fails to meet this “rigorous standard of review.” Id. (quoting DeWitt v. State, 755 N.E.2d 167, 169 (Ind. 2001)).

[10] When the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we will reverse the findings and judgment “only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). We do not reweigh evidence or judge witness credibility. See Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (explaining the post-conviction court is the “sole judge of the evidence and the credibility of the witnesses”) (citation omitted), cert. denied. And we do not defer to the post-conviction court's legal conclusions. See Bobadilla, 117 N.E.3d at 1279.

Webster failed to show trial counsel was deficient.

[11] When reviewing a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). First, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). Second, “the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (quoting McCary, 761 N.E.2d at 392)). The failure to establish either part will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002).

[12] In this case, the post-conviction court determined Webster presented no evidence showing trial counsel Nedeff was ineffective “in her legal representation of him by committing any errors concerning the plea agreement[ ], or at any other stage of his cases.” Appellant's App. Vol. 2 at 24. “A valid guilty plea is a confession of guilt made directly to a judicial officer and necessarily admits the incriminating facts alleged.” Nix v. State, 212 N.E.3d 194, 202 (Ind. Ct. App. 2023) (quoting Carter v. State, 739 N.E.2d 126, 128 (Ind. 2000)), trans. denied. During the evidentiary hearing, Nedeff testified she advised Webster on the plea agreement. Nedeff maintained she advised Webster to the best of her abilities, and there had been nothing “unusual” about his case. Tr. Vol. 1 at 25. At the time of her representation, Nedeff had a little over a decade of experience as a public defender.

[13] There “is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Nix, 212 N.E.3d at 203. Here, Nedeff helped Webster navigate “among the alternative courses of action” before him. Gibson, 133 N.E.3d at 697. Faced with a litany of charges—including possession of a controlled substance, possession of a handgun without a license, burglary, and theft—Webster pleaded guilty to burglary in Cause 173763 and possession of a handgun without a license in Cause 131214. As a benefit of his bargain, the two remaining counts were dismissed.

[14] When he signed the plea agreement, Webster acknowledged his satisfaction with Nedeff's performance. The day of the plea hearing, he certified on the “Guilty Plea Proceedings” document he had “no complaints against counsel in the handling of this case.” Appellant's App. Vol. 2 at 53. Nedeff similarly certified, in the same document, she “discussed” the plea agreement with Webster; she believed the plea was “voluntarily and understandingly made”; and she recommended the trial court accept the plea for the sake of Webster's “best interest.” Id. The evidence supporting the post-conviction court's decision demonstrates Nedeff competently advised Webster. And because Webster did not show deficient performance, his claim cannot succeed. See Nix, 212 N.E.3d at 207 (“When we review a post-conviction decision, we do not reweigh the evidence or judge the credibility of witnesses, and we consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision.”).¹

[15] Webster's claim that counsel contributed to a double jeopardy violation likewise fails. The post-conviction court found there was no double jeopardy violation, and we agree. See Appellant's App. Vol. 2 at 25. The “crucial inquiry” in claims of double jeopardy is “whether one charged offense is the ‘same’ as another charged offense to trigger the constitutional protection.” Wadle v. State, 151 N.E.3d 227, 239 (Ind. 2020) (citation omitted). Here, Webster committed two distinct burglaries at two separate residences on two separate dates. He pleaded guilty to burglary and theft in Cause 173764, and to burglary in Cause 173763. His sentence in Cause 173763 was to run concurrently with 173764. Webster presented no cognizable claim for a double jeopardy violation entitling him to relief. See id. at 249 (“If the facts show two separate and distinct crimes, there's no violation of substantive double jeopardy”).²

Conclusion

[16] Webster has not demonstrated deficient performance entitling him to post-conviction relief.

[17] Affirmed.

FOOTNOTES

1.   As Webster fails to show deficiency in trial counsel's performance, we need not consider the prejudice prong under Strickland. See French, 778 N.E.2d at 824. Further, any claims Webster raises regarding issues known or available but not raised on direct appeal—such as missing witnesses—are waived. See Ward, 969 N.E.2d at 51.

2.   To the extent Webster argues he was placed in double jeopardy because the trial court allegedly vacated a guilty plea hearing in one of his cases, we find no support in the record for this claim. At any rate, because he raises the issue for the first time on appeal, the issue is waived. See Stevens v. State, 770 N.E.2d 739, 753 (Ind. 2002); see also P.-C.R. 1(8).

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.