HENSLEY v. STATE (2025)

MEMORANDUM DECISION

[1] Ryan Keith Hensley (“Hensley”) appeals the denial of his petition for post-conviction relief (“PCR”), presenting two issues for our review, which we restate as follows:

I.  Whether Hensley received ineffective assistance of trial counsel; and

II. Whether the State made an illusory threat of prosecution.

[2] We affirm.

Facts and Procedural History

[3] Hensley filed a pro se PCR petition on June 14, 2021. The Indiana Public Defender's Office later appeared on behalf of Hensley. Through counsel, on August 8, 2023, Hensley filed an amended PCR petition that focused on the circumstances surrounding his decision to plead guilty pursuant to a plea agreement (“the Agreement”). Hensley claimed there was a flaw in the charging instrument seeking a habitual offender enhancement and that, had he known, he would not have entered into the Agreement. Hensley alleged (1) trial counsel was ineffective for failing to inform him of the flaw and (2) the State made an improper illusory threat of prosecution for the enhancement such that Hensley's plea of guilty was not knowing, intelligent, and voluntary.

[4] In April 2024, the PCR court held an evidentiary hearing. Hensley presented evidence that, on March 6, 2012, in cause 82C01-1203-FB-298 (“FB-298”), the State charged him with Class B felony criminal confinement, Class C felony battery resulting in serious bodily injury, and Class D felony strangulation. The State later sought a habitual offender enhancement, alleging Hensley “ha[d] accumulated at least two (2) prior unrelated [f]elony convictions[.]” Ex. Vol. 3 p. 7. In support of the enhancement, the State specifically identified prior convictions in 2001 and 2009. Hensley and the State reached an initial plea agreement, which the trial court rejected. Thereafter, Hensley and the State entered into the Agreement whereunder he would plead guilty to Class C felony battery resulting in serious bodily injury, the remaining allegations would be dismissed, and Hensley would receive a fixed sentence of six years in the Indiana Department of Correction. Hensley pleaded guilty and was sentenced pursuant to the Agreement. As agreed, the remaining allegations against Hensley were dismissed, including the habitual offender enhancement.

[5] At the PCR hearing, Hensley pointed out that the charging instrument for the habitual offender enhancement alleged he was a habitual offender due to (1) a conviction for burglary in 2001 and (2) a conviction for failure to return to lawful detention in 2009 under cause number 19C01-0812-FD-293 (“FD-293”), where Hensley committed the offense on or about December 4, 2008. See id. Hensley asserted that his conviction in FD-293 was not a felony conviction, but instead a Class A misdemeanor conviction, and therefore, the State failed to allege predicate offenses that would support a habitual offender enhancement. As to the FD-293 conviction, Hensley acknowledged that “the sentencing order ․ seems to indicate it's a felony [conviction]” but he pointed out that, “if you actually look at the plea agreement, the sentencing transcript[,] the guilty plea transcript, it's actually a misdemeanor [conviction].” Tr. Vol. 2 p. 37. He argued that the State made an “illusory threat” because “the documents and the cases [the State was] relying on did not support the [enhancement],” and it “could not have proceeded with the [enhancement] as the case had been filed.” Id. at 37–38.

[6] Documents related to FD-293 were entered into evidence, including Hensley's plea agreement, transcripts of pertinent hearings, and the sentencing order. The sentencing order exclusively referred to the failure to return to lawful detention as a Class D felony conviction. That is, the sentencing order stated that “[t]he parties ha[d] filed [a] written Plea Agreement” in the FD-293 cause and that Hensley “move[d] to withdraw his former plea of not guilty and enter[ed] a plea of guilty to the crime of Failure to Return to Lawful Detention, Class D felony[.]” Ex. Vol. 3 p. 96. The order later stated: “The Court accepts the plea of guilty and accepts the plea agreement and finds [Hensley] guilty of Failure to Return to Lawful Detention, Class D felony[.]” Id. The order further stated: “IT IS NOW ORDERED AND ADJUDGED by the Court that [Hensley] is guilty of the crime of Failure to Return to Lawful Detention, Class D Felony[.]” Id. at 97. Moreover, the order reflects that, for the pertinent count, Hensley was “[c]ommitted to the custody of the Dubois County Sheriff's Department for a period of one (1) year,” with the one-year sentence fully suspended. Id.

[7] Although the trial court's sentencing order in FD-293 did not refer to a Class A misdemeanor conviction, the underlying plea agreement stated that Hensley “desire[d] to enter a plea of guilty to ․ Failure to Return to Lawful Detention, a Class D felony to be sentenced as a Class A misdemeanor.” Id. at 69–70 (emphasis added). In FD-293, the trial court considered the plea agreement at a hearing on March 6, 2009, where it stated: “[I]t says you're going to enter a plea of guilty to count one in [FD-293], failure to return to lawful detention, [C]lass D felony[,] and be sentenced as a [C]lass A misdemeanor. That you'll receive one year in jail, all suspended to probation.” Id. at 76. The trial court advised Hensley of his rights and established a factual basis for the offense. At that point, the trial court said: “All right. That's a D felony which has the maximum sentence of three years in jail, a minimum of six months[,] and a maximum fine of ten thousand dollars.” Id. at 80. Later, the trial court stated that it would “accept the plea agreement” and proceed to sentencing. Id. at 82. The trial court later continued the sentencing hearing to explore placement options. At the ensuing hearing in March 2009, the court referred to “count one in [FD-293], [C]lass A misdemeanor[.]” Id. at 92 (emphasis added).¹

[8] At the instant PCR hearing, there was testimony from Hensley's trial counsel in FB-298 (“Trial Counsel”), who negotiated the plea agreement that resulted in dismissal of the habitual offender enhancement. Trial Counsel testified it was his practice to “[a]lways” review a defendant's criminal history during the plea agreement process. Tr. Vol. 2 p. 17. Trial Counsel did not recall his specific investigation into Hensley's criminal history and noted that the physical case file was destroyed in a flood. The State asked about Trial Counsel's experience with defects “on the habitual offender document itself,” where “[i]t lists two felonies” but “[o]ne of the felonies somehow discovered later is not actually a felony.” Id. at 16. The State asked whether, in his experience, it was “possible for the State to have filed an amended habitual offender enhancement document to reflect and correct the mistake such that the document now reflects two actual felonies[.]” Id. Trial Counsel said: “Before trial, yes.” Id. at 17.

[9] Hensley testified that, when he decided to enter into the Agreement, his understanding was that he faced “[a] greatly enhanced sentence” due to the habitual offender enhancement, where the enhancement could add “all the way up to 30 years.” Id. at 21–22. Hensley said he viewed the dismissal of the enhancement as a benefit to him because it “felt like [he] was gettin[g] [his] life back” and getting “[a] chance at life.” Id. at 24. Hensley testified that, had he not been facing the enhancement, he would have “[c]hallenged” the allegations and “go[ne] all the way to trial and put the accuser up there[.]” Id. On cross-examination, Hensley agreed that he had three prior felony convictions the State could have used to support the enhancement. That is, in addition to the 2001 burglary conviction alleged in the enhancement, he had been convicted of Class D felony burglary in 1998 and Class D felony intimidation in 2000.

[10] At the end of the PCR hearing, Hensley argued he was entitled to relief because the State improperly “threatened [him] with the [enhancement]” and “but for that threat of the [enhancement], he would not have plead[ed] guilty and would've gone to trial.” Id. at 38. The PCR court took the matter under advisement and invited the parties to file proposed findings, which they did.

[11] On May 6, 2025, the PCR court entered its findings, conclusions, and judgment denying the PCR petition. The court determined that Hensley failed to establish Trial Counsel's performance was deficient with respect to the habitual offender enhancement. The court found that Trial Counsel's “testimony regarding how he conducted investigation of cases with habitual offender allegations le[d] [it] to believe that his representation was reasonable.” Appellant's App. Vol. II p. 119. The court added that Trial Counsel “could have reasonably relied on the [sentencing] order in [FD-293] ․ indicating that the Failure to Return to Lawful Detention [w]as a Class D felony, had [T]rial [C]ounsel had access to this document.” Id.² The court further determined that Hensley failed to establish he was prejudiced by the allegedly deficient performance of counsel or otherwise motivated by an illusory threat in entering into the Agreement. In making this determination, the court noted that Hensley had other felony convictions that would have supported the enhancement and, as Trial Counsel acknowledged, the State could have “amend[ed] the charging information to incorporate th[ose] acknowledged prior offenses.” Id. at 122. Hensley now appeals.

Discussion and Decision

[12] Hensley challenges the denial of his PCR petition. Below, Hensley “ha[d] the burden of establishing his grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule 1(5). Thus, in challenging the denial of his petition, Hensley is appealing from a negative judgment. See Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022). To prevail on appeal, Hensley “must show that ‘the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.’ ” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)). In other words, “[t]he post-conviction court's decision will be disturbed ‘only if the evidence is without conflict and leads only to a conclusion contrary to the result of the postconviction court.’ ” Id. (quoting Timberlake, 753 N.E.2d at 597). When reviewing factual matters, we “examine only the probative evidence and reasonable inferences that support the postconviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses.” Id. But we review pure legal questions de novo. See State v. Stidham, 157 N.E.3d 1185, 1190 (Ind. 2020).

I. Ineffective Assistance of Counsel

[13] Hensley argues the PCR court erred in rejecting his claim of ineffective assistance of counsel. Ineffective assistance of counsel claims are evaluated under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Conley, 183 N.E.3d at 282. To prevail, the PCR petitioner must establish that (1) “counsel's performance was deficient based on prevailing professional norms” and (2) “the deficient performance prejudiced the defense.” Id. “Failure to satisfy either prong will cause the claim to fail.” Id. at 283 (quoting French v. State, 778 N.E.2d 816, 824 (Ind. 2002)).

[14] Here, we focus on the second prong, which concerns whether the allegedly deficient performance prejudiced the defense. “To demonstrate prejudice, ‘the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).

[15] Hensley claims that, but for the allegation that he was a habitual offender, he would not have pleaded guilty. It is worth pointing out that Hensley faced a maximum sentence exposure of sixty years with the enhancement and thirty years without the enhancement.³ By entering into the Agreement—which called for a sentence of six years—Hensley eliminated fifty-four years of exposure with the enhancement and twenty-four years of exposure without it. Thus, irrespective of the enhancement, Hensley avoided twenty-four years of exposure by entering into the Agreement, which is not an insubstantial benefit.

[16] In any case, to obtain a habitual offender enhancement in 2012, the State was obligated to prove a person “ha[d] accumulated two (2) prior unrelated felony convictions.” Ind. Code § 35-50-2-8 (2005). Hensley's claim is premised on a scenario where the State either (1) did not amend the charging instrument and, thus, failed to prove he was a habitual offender because it relied on evidence of the FD-293 offense; (2) was not permitted to amend the charging instrument because the amendment was prejudicial; or (3) dismissed the enhancement altogether. But these are unlikely scenarios. As the PCR court found—and the law and testimony supports—the State could have “amend[ed] the charging information to incorporate th[ose] acknowledged prior offenses.” Appellant's App. Vol. II p. 122. Indeed, Indiana Code section 35-34-1-5 (2007) governed the amendment of charges and generally allowed pre-trial amendments where the amendment did not affect the defendant's substantial rights. As to the amendment of charges, here, the evidence did not unerringly and unmistakably indicate that the State would have failed to seek an amendment or would have sought such a late amendment so as to prejudice Hensley's substantial rights. Nor is there any indication the State would have dismissed the enhancement.

[17] Moreover, to the extent Hensley suggests the State lacked evidence he committed other prior felonies, this is also an unlikely scenario.⁴ At the evidentiary hearing, Hensley admitted he had felony convictions in 1998, 2000, and 2001 associated with specific cause numbers. The evidence does not support a reasonable inference that the State was unaware of the additional prior felony convictions or that the State was unable to prove their existence. As a result, even if Trial Counsel had discovered the defect in the habitual offender charging information, the State would have been able to cure the defect by substituting one of Hensley's other prior felony convictions. This would have left Hensley in the same position—i.e., facing additional exposure due to the habitual offender enhancement and deciding whether he would accept the Agreement, with its six-year sentence, or instead proceed to trial.

[18] All in all, we cannot say the evidence is without conflict and leads only to a contrary conclusion on the issue of prejudice. Rather, the evidence supports the PCR court's determination that Hensley did not establish prejudice from the allegedly ineffective assistance of counsel. Because Hensley did not establish prejudice, the PCR court properly denied the ineffective assistance claim.⁵

II. Illusory Threat

[19] We turn to Hensley's claim that his guilty plea was improperly procured through an illusory threat of prosecution. As our Supreme Court has explained, “a bargained plea, motivated by an improper threat, is to be deemed illusory and a denial of substantive rights.” Champion v. State, 478 N.E.2d 681, 683 (Ind. 1985); see also Kistler v. State, 936 N.E.2d 1258, 1262 (Ind. Ct. App. 2010), trans. denied. “At the moment the plea is entered, the State must possess the power to carry out any threat which was a factor in obtaining the plea agreement which was accepted.” Daniels v. State, 531 N.E.2d 1173, 1174 (Ind. 1988); Kistler, 936 N.E.2d at 1262. “The lack of that real power is what makes the threat illusory and causes the representation to take on the characteristics of a trick.” Kistler, 936 N.E.2d at 1262 (quoting Daniels, 531 N.E.2d at 1174).

[20] Hensley argues the State made an illusory threat of prosecution because the charging instrument listed the FD-293 conviction as one of two convictions that allegedly supported the enhancement. Critically, however, Hensley does not dispute that his criminal history contained sufficient felony convictions to support an allegation that he was a habitual offender. Moreover, as earlier discussed, the State had the power to seek an amendment to the charging instrument to identify different predicate offenses. Hensley points out that, pursuant to statute, the State needed the trial court's approval to amend its allegations, and he speculates that the trial court might have denied the State's motion. See I.C. § 35-34-1-5 (2007) (governing the amendment of charges). Yet, regardless of the need for court approval, we cannot say the State made an empty, illusory threat with regard to the habitual offender enhancement where—as here—it is undisputed that the defendant's overall criminal history satisfied the criteria for the enhancement. Cf. Kistler, 936 N.E.2d at 1262 (involving circumstances where the defendant “was improperly charged” as a habitual offender and “was not eligible for the habitual offender charge”).

[21] For these reasons, Hensley did not establish that he was improperly induced into entering into a plea agreement calling for dismissal of the enhancement.

Conclusion

[22] Hensley failed to establish that he received ineffective assistance of counsel or that his plea was compromised by an illusory threat of prosecution. We, therefore, conclude that the PCR court properly denied Hensley's petition.

[23] Affirmed.

FOOTNOTES

1.   At the time, Indiana Code section 35-50-2-7(b) generally provided that “if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly,” so long as the court “enter[ed] in the record, in detail, the reason for its action[.]”

2.   The record does not indicate whether an Abstract of Judgment was issued, which might have revealed an issue.

3.   Hensley was charged with Class B felony criminal confinement, Class C felony battery resulting in serious bodily injury, and Class D felony strangulation, along with the habitual offender enhancement. See Ex. Vol. 3 pp. 4–9. A Class B felony carried a sentencing range of six to twenty years with an advisory sentence of ten years; a Class C felony was two to eight years with an advisory of four years; and a Class D felony was six months to three years with an advisory of one and one-half years. See Ind. Code §§ 35-50-2-5, -6, -7 (2005). For the enhancement, a court was to impose “an additional fixed term that [was] not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense,” with a maximum “additional sentence [of] ․ thirty (30) years.” I.C. § 35-50-2-8(h) (2005).Our analysis applies a sentencing cap for a single episode of criminal conduct, which provided that, irrespective of the enhancement term, the consecutive sentences “for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.” I.C. § 35-50-1-2(c) (2008). Here, the advisory sentence for a Class A felony was thirty years. See I.C. § 35-50-2-4 (2005).

4.   Hensley points out that, in a subsequent criminal cause, the State again relied on the FD-293 conviction in seeking a habitual offender enhancement.

5.   Having resolved the ineffective assistance claim on these grounds, we do not address additional arguments.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.