Archie Lee Parker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Archie Lee Parker appeals the denial of his petition for post-conviction relief. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Parker's direct appeal follow:

Allison Skelton and Raelene Stinson were neighbors. John Jackson was Skelton's boyfriend and the father of one of Skelton's children, and Parker was Stinson's boyfriend. In early November 2015, Jackson asked Parker to move Parker's broken-down vehicle that had been parked in front of Skelton's residence for months to another location because it was impacting Skelton's and his ability to park near Skelton's home. Parker indicated that “he was fine with that” and that it would be “no problem.” A couple hours later, Parker was yelling obscenities and stating that he would not move his vehicle. Parker left for a short time, and when he returned, he continued screaming profanities and saying that he was going to kill Skelton, Jackson, and their children.

Two weeks later, on November 23, 2015, Jackson was taking trash out the back door at Skelton's house when Parker approached him and said, “I got you now,” and then Jackson felt a punch or touch “like somebody pinched [him]” below his left chest. Jackson threw two punches to gain separation from Parker. Jackson did not feel right and then observed that his shirt was ripped and that there was “trickling blood.” He picked up the trashcan and threw it at Parker, who appeared to be holding something “shiny.”

Skelton was on her way toward the back door when she heard commotion outside. When she looked through the kitchen window, she saw Jackson coming toward the house and observed that there was blood on his shirt. Skelton ran outside and saw Parker holding something and watched as Jackson threw the trashcan at him. When Parker saw Skelton, he ran from the scene. Skelton helped Jackson into the house and called 911. She helped Jackson apply pressure to his wound until emergency personnel arrived.

Parker v. State, 2019 WL 7044708, at *1 (Ind. Ct. App. Dec. 23, 2019) (citations omitted).

[3] On November 24, 2015, the State charged Parker with Count I, battery by means of a deadly weapon as a level 5 felony, which alleged that Parker “punched” Jackson in the stomach, Jackson “saw Parker reach for something in his pocket that he thought was a blade,” Jackson “looked down and saw he was bleeding from his stomach,” and Skelton “said she saw Parker slash at Jackson's midsection and cutting him.” Direct Appeal Appendix Volume II at 36. On February 1, 2016, the State filed an habitual offender enhancement. On February 11, 2016, the State charged Parker with Count II, aggravated battery as a level 3 felony. The State also charged Parker with Count III, bribery as a level 5 felony. On January 24, 2017, the State filed an amended Count II, aggravated battery as a level 3 felony, alleging that Parker “did knowingly or intentionally inflict injury on John Jackson that created a substantial risk of death and/or caused serious permanent disfigurement, to wit: stabbing John Jackson in the chest and/or torso resulting in a scar.” Id. at 62. On December 6, 2018, the State filed an amended habitual offender enhancement.

[4] A two-day jury trial commenced on February 28, 2019, at which Attorney Jacklyn Buente represented Parker. Parker, 2019 WL 7044708, at *1. The jury was unable to reach a verdict on Count I and rendered a guilty verdict on Count II and a not guilty verdict on Count III. Id.

[5] During a bench conference, the prosecutor stated that “[t]here is the Habitual Offender phrase [sic].” Trial Transcript Volume II at 192. The court stated, “Well I know but do you wanna go on the – you want to resolve Count 1 first before we do that?” Id. Parker's counsel answered, “I think we have to.” Id. The court excused the jury and entered judgment on Count II.

[6] Attorney Barry Blackard filed an appearance for Parker on March 22, 2019. On May 23, 2019, the court held a hearing at which Attorney Blackard stated that “[w]e'll have a written plea agreement as to the Habitual Offender Enhancement ․ when we come back for plea and sentencing.” Id. at 197-198. After some discussion, the court informed Parker that the State had alleged that he had three prior felony convictions unrelated to the charged felony and that he was convicted of dealing cocaine, a felony, in 1999 under cause number 82C01-9904-CF-420 (“Cause No. 420”), he was convicted of residential entry, a felony, in 2008 under cause number 82C01-0712-FD-1360 (“Cause No. 1360”), and he was convicted of dealing in marijuana, a felony, in 2012 under cause number 82C01-1103-FC-319 (“Cause No. 319”). Upon questioning by the court, Parker indicated that he understood the nature of the habitual offender allegation, it was his intention to withdraw his plea of not guilty and enter a plea to the habitual offender enhancement, and that he understood that he was admitting the truth of all the facts alleged in the information based upon his plea of guilty. The court informed Parker of his rights including the right to a trial and to present evidence. Parker indicated that he understood those rights and that he would be giving up those rights by pleading guilty. Parker then admitted that he was convicted of dealing cocaine under Cause No. 420 in 1999, residential entry under Cause No. 1360 in 2008, and dealing in marijuana under Cause No. 319 in 2011. The court informed Parker that the plea agreement would be put in writing. The court informed Parker that he faced a sentence enhancement of between six and twenty years for the habitual offender enhancement, and Parker indicated that he understood. The court asked, “Do you fully understand these proceedings and have you discussed it with your attorney?” Id. at 203. Parker answered, “Yes.” Id. The court stated, “We'll show that he's been advised of his constitutional rights and he acknowledges those rights and a factual basis has been established to this Habitual Offender Enhancement, and that his plea is knowingly, voluntarily, and intelligently made.” Id. The court asked, “where does that leave – and then the other count at sentencing will be dismissed. Do you understand that – that 3827?”¹ Id. Parker answered, “Yes.” Id.

[7] On June 13, 2019, the court held another hearing. Attorney Blackard stated that Parker brought to his attention that one of his convictions listed in the habitual offender enhancement was over ten years old and Parker believed that the habitual offender enhancement did not apply to him. Parker's counsel acknowledged that “I think it's pretty clear that, that they're either – either you're talking about Murder or a Level 1 to Level 4 Felony. Um, clearly include the Level 3 Felony at which he's been convicted of.” Id. at 207. He also stated, “So I don't believe that the time period applies and the time period would only apply if the conviction were a Level 5 or a Level 6 Felony, and here we're talking about a Level 3 Felony.” Id. Parker's counsel also stated, “Mr. Parker I understand your ․ contention that the Habitual here does not apply based upon that time period, but due to the fact that you were convicted of a Level 3 Felony anywhere between a Level 1 and a Level 4, which a Level 3 Felony is included that time period by statute does not apply.” Id. He also stated, “So based upon my reading of the statute and understanding of the law I think it is in your best interest to admit the Habitual Offender Enhancement ․” Id. at 207-208.² Attorney Blackard asked Parker if he wanted to move forward with the agreement, and Parker answered affirmatively.

[8] Upon questioning by the court, Parker indicated that he read the agreement and understood the terms. He acknowledged his prior convictions and asserted that he understood that he faced an enhancement of between six and twenty years.³ He also indicated that he entered the admission voluntarily and of his own free will and he had a chance to discuss his cases and the plea agreement with his counsel. The court found a factual basis and that Parker knowingly, intentionally, and voluntarily waived his rights and freely admitted the habitual offender allegation.

[9] That same day, the parties filed a plea agreement which stated that Parker indicated in open court on June 13, 2019, that he intended to plead guilty to the habitual offender enhancement. It also provided that Parker agreed to be sentenced to a period of time determined by the court and that “Count 1 ․ and all counts in cause number 82D03-1607-F5-3827” (“Cause No. 3827”) would be dismissed.⁴ Direct Appeal Appellant's Appendix Volume II at 171. The plea agreement, which was signed by Parker, also stated:

I, Archie Lee Parker, ․ do hereby swear and affirm under oath that I have received a copy of the above and foregoing Plea Agreement and after having fully discussed the same with my attorney, do hereby acknowledge that I understand the same and do hereby accept the conditions contained herein, and I further understand that the Court can either accept this agreement or can reject it․

Id. at 173.

[10] On June 18, 2019, the trial court held a sentencing hearing. At the beginning of the hearing, Parker asserted that “throughout the proceedings that when they enhanced the charges you never made me aware that they new [sic] can – uh, charges carried six to twenty. You always said two to eight. You never, ever said six to twenty.” Trial Transcript Volume II at 217. Attorney Blackard clarified that Parker's contention was that he was never advised that the potential penalty for the habitual offender enhancement was a period of six to twenty years. The court stated, “I'd have to go back and check the tape. I mean I may have missed spoke [sic]. Does that change anything? Do you want to withdraw from the plea agreement?” Id. at 218. Parker answered, “No I just wanted to make it aware that I was never aware of the penalties.” Id. Upon questioning by the court, Parker indicated that he was aware of the range of penalties and that he wanted to “stick with the plea agreement.” Id.

[11] Attorney Blackard argued that the court consider the fact that Parker pled guilty and admitted to “those prior convictions.” Id. at 223. The court dismissed Count I, battery by means of a deadly weapon, and all of the charges in Cause No. 3827. The trial court identified Parker's criminal history and the circumstances of the offense as aggravating circumstances and found no mitigating factors. Parker, 2019 WL 7044708, at *2. The court sentenced Parker to ten years for aggravated battery enhanced by ten years for Parker's status as an habitual offender. Id. On direct appeal, Parker argued that his sentence was inappropriate, and this Court affirmed. Id. at *2-*3.

[12] On April 27, 2020, Parker filed a pro se verified petition for post-conviction relief. On May 11, 2020, the State filed an answer to Parker's petition. On May 19, 2020, a public defender filed an appearance for Parker. On December 7, 2022, Parker, by counsel, filed an amended petition for post-conviction relief alleging that he received ineffective assistance of trial counsel when she failed to request: an instruction on the lesser included offense of battery, a directed verdict or judgment notwithstanding the verdict, and a specific jury unanimity instruction. Parker also alleged that he was denied the effective assistance of appellate counsel because his counsel failed to argue his conviction for aggravated battery was not supported by sufficient evidence and lack of jury unanimity. He also argued that his guilty plea was invalid because he protested his innocence, his plea was not knowing, intelligent, and voluntary, he was denied the effective assistance of “plea counsel,” his guilty plea was invalid because it lacked a factual basis, and his conviction for aggravated battery was obtained in violation of due process. Appellant's Appendix Volume II at 169.

[13] On April 12, 2024, the post-conviction court held a hearing. Parker's counsel introduced numerous exhibits related to the trial and presented the testimony of Parker's trial counsel, Attorney Buente, and his appellate counsel, Attorney John Goodridge. The court then stated that Attorney Blackard “is in another proceeding in Princeton but he does have his phone if you want to take his testimony that way.” Transcript Volume II at 18. Parker's post-conviction counsel asked, “It's not ideal, is it?” Id. The court stated, “No.” Id. Parker's counsel stated that her preference would be to obtain “an Affidavit from him and keep the evidence ․ open ․ and submit it afterward ․” Id. The court stated, “Well let's try that and if that doesn't work and we can't make that work then I'll arrange another time when you're down on another case perhaps.” Id. at 19.

[14] Parker's post-conviction counsel then presented Parker's testimony. When asked if he ever discussed with his trial counsel, Attorney Buente, whether to request a lesser included offense jury instruction for aggravated battery, Parker answered, “No. I never seen her until the day of the trial.”⁵ Id. at 22. When asked if he agreed to enter a guilty plea to the habitual offender enhancement at some point after he hired Attorney Blackard, Parker answered, “No, not really. He said it was in my best interest.” Id. Parker acknowledged that he signed the plea agreement and went to the guilty plea hearing and that the State agreed to dismiss the charge of battery with a deadly weapon in exchange for his plea to the habitual offender enhancement. He indicated that he believed that the State could convict him and sentence him for both aggravated battery and battery with a deadly weapon. He testified that Attorney Blackard never advised him that he could not be convicted of and sentenced for both aggravated battery and battery with a deadly weapon. He also indicated that the dismissal of the battery with a deadly weapon charge was a motivating factor in his decision to plead guilty. He indicated he would not have pled guilty had he known he could not have been convicted and sentenced for both aggravated battery and battery with a deadly weapon “[b]ecause it was no advantage for [him].” Id. at 23.

[15] On May 21, 2024, Parker filed a Notice to the Court Regarding Affidavit of Barry Blackard and Proposed Timeline for Findings of Fact and Conclusions of Law, which asserted that the parties had agreed that Parker would submit testimony of Attorney Blackard via affidavit but had determined “that he intends to proceed only on the evidence submitted at the April 12, 2024 evidentiary hearing and forego submission of an affidavit.” Appellant's Appendix Volume II at 210. On April 2, 2025, the court entered a thirteen-page order denying Parker's petition.

Discussion

[16] 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. “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 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.

[17] Parker argues that his trial counsel was ineffective for failing to request a lesser included offense instruction for aggravated battery, failing to move for a directed verdict, and failing to request a specific jury unanimity instruction. He contends that his appellate counsel was ineffective for failing to argue that his conviction for aggravated battery was not supported by sufficient evidence and the lack of jury unanimity. He also argues that his guilty plea to the habitual offender enhancement must be vacated because he protested his innocence, the guilty plea lacked an adequate factual basis, and his plea was not knowing, intelligent, and voluntary.

[18] To the extent that Parker raises freestanding claims, the Indiana Supreme Court has held that “[t]he post-conviction procedures do not provide a petitioner with a ‘super-appeal’ or opportunity to consider freestanding claims that the original trial court committed error.”⁶ Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001), reh'g denied, cert. denied, 534 U.S. 1136, 122 S. Ct. 1082 (2002). “Post-conviction proceedings are civil proceedings that provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal.” Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh'g denied, cert. denied, 531 U.S. 829, 121 S. Ct. 81 (2000)), reh'g denied, cert. denied, 552 U.S. 1314, 128 S. Ct. 1871 (2008). “Thus, if an issue was known and available but not raised on direct appeal, the issue is procedurally foreclosed.” Id. (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh'g denied, cert. denied, 537 U.S. 839, 123 S. Ct. 162 (2002)). “A petitioner for post-conviction relief cannot avoid the application of the waiver doctrine by arguing that it does not apply because the challenge raises fundamental error.” State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (citing Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997) (stating that the availability of fundamental error as an exception to the waiver rule is limited in post-conviction proceedings), reh'g denied, cert. denied, 524 U.S. 906, 118 S. Ct. 2064 (1998)). “In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Id. (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)).

A. Trial Counsel

[19] To prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh'g denied). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[20] When considering a claim of ineffective assistance of counsel, a “strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh'g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).

1. Lesser Included Instruction

[21] Parker asserts the trial court would have given lesser included offense instructions had his trial counsel requested them. He does not specify what instruction should have been given but asserts that “Class A misdemeanor, Level 6 felony, and Level 5 felony battery are inherently included offenses of aggravated battery.” Appellant's Brief at 18.

[22] To prevail on this claim, Parker has the burden to show that counsel unreasonably failed to request a proper instruction and that he was prejudiced by the failure. See Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997). The Indiana Supreme Court has held that “a tactical decision not to tender a lesser included offense does not constitute ineffective assistance of counsel, even where the lesser included offense is inherently included in the greater offense.” Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). In Autrey, the Court held that trial counsel was not ineffective for failing to request lesser-included offense instructions on a charge of murder because it represented a reasonable “all or nothing” tactical choice by defense counsel to obtain a full acquittal for the defendant by placing the blame for the victim's death on another person and highlighting the “discordant” testimony of the witnesses. Id. at 1141-1142. See also Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991) (holding that it was not ineffective assistance not to request voluntary manslaughter instruction on a murder charge because it might have undermined defense of self-defense and/or lessened chance of the defendant's acquittal).

[23] In its order, the post-conviction court stated that, while Attorney Buente “testified at the Post-Conviction Evidentiary Hearing that she couldn't recall why she didn't ask for the lesser included,” “it appears she was going for an all or nothing strategy.” Appellant's Appendix Volume III at 30. During cross-examination by Parker's trial counsel, Jackson acknowledged that he did not have a blood transfusion, did not lose consciousness, and did not stay overnight at the hospital. During closing argument, Parker's trial counsel argued, “[W]hen [the prosecutor] says that he has to prove each and every single one of those [elements] beyond a reasonable doubt that means that if he proves three of the four to you beyond a reasonable [doubt] and you're firmly convinced of those three but you're not convinced of number four you can't find him guilty.” Trial Transcript Volume II at 181. She also argued, “We all have scars on our body from various different things and various different severities. Is that enough – is that enough to convict somebody of Aggravated Battery?” Id. at 184. We also note that lesser included instructions would have conflicted with Parker's testimony that he “never got a blow off.” Id. at 133. We cannot say that reversal is warranted on this basis. See Wright v. State, 836 N.E.2d 283, 295 (Ind. Ct. App. 2005) (addressing a petitioner's argument that his trial counsel was ineffective for failing to include instructions regarding lesser included offenses; observing that counsel did not discuss lesser included offense instructions with petitioner and testified she could not remember why she did not tender any such instructions; holding that a review of the transcript revealed that trial counsel's strategy was apparent; and concluding that counsel was not ineffective for failing to request lesser included offense instructions), on reh'g, 845 N.E.2d 263 (Ind. Ct. App. 2006), trans. denied; see also Autrey, 700 N.E.2d at 1141 (holding that “[t]he record contains numerous indications that trial counsel made the decision not to tender lesser included offenses as part of an ‘all or nothing’ trial strategy”).

2. Directed Verdict

[24] To the extent Parker argues that his trial counsel failed to move for a directed verdict because there was not sufficient evidence of aggravated battery, we note that “a motion for a directed verdict should be granted only where there is a total lack of evidence on some essential element and where the State has failed to establish a prima facie case.” Canaan v. State, 541 N.E.2d 894, 905 (Ind. 1989), reh'g denied, cert. denied, 498 U.S. 882, 111 S. Ct. 230 (1990).

[25] Ind. Code § 35-42-2-1.5 provides that “[a] person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes: (1) serious permanent disfigurement; (2) protracted loss or impairment of the function of a bodily member or organ; or (3) the loss of a fetus; commits aggravated battery, a Level 3 felony.” The State alleged in Count II that Parker “did knowingly or intentionally inflict injury on John Jackson that created a substantial risk of death and/or caused serious permanent disfigurement, to wit: stabbing John Jackson in the chest and/or torso resulting in a scar.” Direct Appeal Appellant's Appendix Volume II at 62.

[26] At trial, Evansville Police Patrol Supervisor James Magary testified that he observed Jackson's wound briefly and the wound was “a few inches long.” Trial Transcript Volume II at 10. Skelton testified that “there was a lot of blood from the backdoor to the dining room on the – you know, on the floor coming out of” Jackson. Id. at 24. Jackson testified that he told Skelton that Parker “stabbed me or something” and he lifted his shirt and you “could see [his] open meat.” Id. at 50. He also testified that he attempted to control his breathing because he “was bleeding so much that [he] didn't wanna accelerate that.” Id. at 51. He described certain exhibits as photographs of his “stab wound.” Id. at 52. He indicated that he had a scar after the incident and showed the scar to the jury. He testified he received “thirteen staples” at the hospital. Id. at 61. When asked if he still had physical pain as a result of the injury, Jackson answered, “[I]f I bend over – or I can't – it's nothing that I do every single time, but it's like a spasm I get like, ahhh (groans) and you just gotta wait for it to release and it'd be fine after that.” Id. The court also admitted photographs taken at the hospital of Jackson and his injury to his chest. In light of the record, we cannot say that the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court.

3. Jury Unanimity Instruction

[27] Parker asserts that “it is possible that some jurors convicted [him] of aggravated battery because they believed Jackson's injury caused serious permanent disfigurement while others convicted him because they believed the injury caused a substantial risk of death.” Appellant's Brief at 31. In Indiana, a guilty verdict in a criminal case “must be unanimous.” Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011), reh'g denied. We require unanimity “as to the defendant's guilt,” but not as to the “theory of the defendant's culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006). To address problems that sometimes arise regarding jury unanimity, the Indiana Supreme Court in Baker held that where “evidence is presented of a greater number of separate criminal offenses than the defendant is charged with,” and the State does not “designate a specific act (or acts) on which it relies to prove a particular charge,” the jurors “should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” 948 N.E.2d at 1175-1177. The phrase “a greater number of separate criminal offenses than the defendant is charged with” refers to situations where evidence “is presented of entirely separate criminal incidents, each of which could be used to support a conviction.” Baker v. State, 223 N.E.3d 1142, 1146 (Ind. Ct. App. 2023).

[28] By contrast, “the State may allege alternative means or ‘theories of culpability’ when prosecuting the defendant for a single offense.” Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010), reh'g denied, trans. denied. “In essence the State is permitted to ‘present[ ] the jury with alternative ways to find the defendant guilty as to one element.’ ” Baker, 948 N.E.2d at 1175 (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996), reh'g denied); see also Taylor, 840 N.E.2d at 333-334 (“It is settled that as long as each juror is convinced beyond a reasonable doubt that [the] defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty.”) (citation omitted). In other words, although there must be jury unanimity “as to the defendant's guilt,” jury unanimity “is not required as to the theory of the defendant's culpability.” Taylor, 840 N.E.2d at 333. Although the State alleged that Parker “did knowingly or intentionally inflict injury on John Jackson that created a substantial risk of death and/or caused serious permanent disfigurement, to wit: stabbing John Jackson in the chest and/or torso resulting in a scar,” Direct Appeal Appellant's Appendix Volume II at 62 (emphasis added), a specific unanimity instruction was not required because the State did not present evidence of entirely separate criminal incidents.⁷

B. Appellate Counsel

[29] Parker argues that his appellate counsel was ineffective for failing to argue that his conviction for aggravated battery was not supported by sufficient evidence and for failing to argue the lack of jury unanimity. We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh'g denied, cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013). Parker's claims fall under the second category of waiver of issues. To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Id. To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are clearly stronger than the raised issues. Id. If the analysis under this test demonstrates deficient performance, then we evaluate the prejudice prong which requires an examination of whether the issues which appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Id.

[30] When asked if he considered raising a claim that Parker's conviction for aggravated battery lacked sufficient evidence, Parker's appellate counsel answered that he remembered Parker and the “fact pattern” and stated that he believed “that would have been in my analysis of issues, but that issue isn't one that I would typically pursue or at least not at that time.” Transcript Volume II at 14. When asked to explain, he mentioned in part that the issue had “a low probability of success on appeal kind of like incredible dubiosity.” Id. He also stated that “typically when you find those issues on appeal you run into the brick wall of the Court of Appeals stating it will ․ not entertain reweighing the evidence or invade the province of the jury so in my opinion that requires” that the defense is “well developed at trial in the same way, you know, incredible dubiosity would have to be very well developed at trial.” Id. at 14-15. When asked if he considered arguing that the trial court erred by failing to require the jury to decide unanimously which harm the victim suffered, either a substantial risk of death or a serious permanent disfigurement, Parker's appellate counsel answered, “I reviewed that in your PCR because I reviewed the PCR and I thought as hard as I could about that and I do not recall that.” Id. at 16. In light of the record, we cannot say that Parker has demonstrated that these issues were significant and obvious from the face of the record or that the unraised issues were clearly stronger than the raised issues or that the post-conviction court erred. Accordingly, Parker has not shown that his appellate counsel was ineffective.

C. Habitual Offender Guilty Plea

[31] Parker also argues that his guilty plea to the habitual offender enhancement must be vacated because he protested his innocence, the guilty plea lacked an adequate factual basis, and his plea was not knowing, intelligent, and voluntary because it was motivated by an improper threat with respect to the State's agreeing to dismiss the charge of battery as a level 5 felony because he could not have been convicted and sentenced for both battery with a deadly weapon and aggravated battery based upon double jeopardy grounds.

[32] In his brief, Parker phrases the first issue as whether he “received ineffective assistance of trial counsel when trial counsel failed to request lesser included offense instructions, failed to request a specific unanimity jury instruction, and failed to move for a directed verdict.” Appellant's Brief at 11. He phrases the third issue as whether his “guilty plea to the habitual offender enhancement must be vacated where [he] protested his innocence, the plea lacked a factual basis, and [his] decision to plead guilty was motivated by an improper threat.” Id. Thus, Parker does not appear to suggest that Attorney Blackard was ineffective with respect to the advice regarding the plea agreement. However, in his argument for the third issue, Parker cites Bobadilla v. State, 117 N.E.3d 1272 (Ind. 2019), which addressed ineffective assistance in the context of a plea agreement. To the extent Parker raises ineffective assistance in this respect, “[t]he 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.” Bobadilla, 117 N.E.3d at 1280. For the prejudice component, Parker must demonstrate a “reasonable probability that he would have rejected the guilty plea and insisted on going to trial instead.” See id. at 1284. In making this showing, Parker “cannot simply say [he] would have gone to trial, [he] must establish rational reasons supporting why [he] would have made that decision.” Id.

[33] Generally, a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Ellis v. State, 67 N.E.3d 643, 646 (Ind. 2017). A judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. Id. A proper factual basis for the entry of a guilty plea is established where the court asks the prosecutor to state the facts and the prosecutor reads the factual allegations contained in the information, the judge asks the defendant whether he admits the alleged acts, and the defendant admits the truth of the information. Id. at 646-647. The trial court may base its decision on the testimony given by the defendant on an inquiry alone, so long as the questions asked are sufficiently detailed to show the defendant's guilt.⁸ Id. at 647. A guilty plea constitutes a waiver of constitutional rights, and this waiver requires a trial court to evaluate the validity of every plea before accepting it. Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For the plea to be valid, the defendant's decision to plead guilty must be knowing, voluntary, and intelligent. Id. “Prior to the acceptance of a guilty plea, a trial court must determine that such plea is voluntarily made.” Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996), abrogated on other grounds by Hall v. State, 849 N.E.2d 466, 470 (Ind. 2006).

[34] The record reveals that the trial court informed Parker of the assertions in the habitual offender allegation at the May 23, 2019 hearing. Upon questioning by the court, Parker indicated that he understood the nature of the habitual offender allegation, it was his intention to withdraw his plea of not guilty and enter a plea to the habitual offender enhancement, and he understood that he was admitting the truth of all the facts alleged in the information based upon his plea of guilty.⁹ Parker admitted that he was convicted of dealing cocaine under Cause No. 420 in 1999, residential entry under Cause No. 1360 in 2008, and dealing in marijuana under Cause No. 319 in 2011. The court informed Parker that he faced a sentence enhancement between six and twenty years for the habitual offender enhancement, and Parker indicated that he understood. Parker also indicated that he understood the proceedings and discussed it with his attorney.

[35] At the June 13, 2019 hearing, while there was some discussion regarding whether the habitual offender enhancement applied, Parker's counsel indicated that he believed the enhancement applied, and Parker indicated that he wished to move forward with the plea agreement. Upon questioning by the court, Parker indicated that he read and understood the agreement. He again acknowledged his prior convictions and also asserted that he understood that he faced an enhancement of between six and twenty years.¹⁰ He indicated that he entered the admission voluntarily and of his own free will and he had a chance to discuss his cases and the plea agreement with his counsel.¹¹

[36] The plea agreement, which was signed by Parker, indicated that he intended to plead guilty to the habitual offender enhancement, that the charges in Cause No. 3827, which included charges of a level 5 felony, a level 6 felony, a class A misdemeanor, and a class C misdemeanor, would be dismissed, and that Parker “fully discussed” the agreement with his counsel. Direct Appeal Appellant's Appendix Volume II at 173. At the June 18, 2019, sentencing hearing, Parker erroneously asserted that the trial court never said that he could receive six to twenty years for the habitual offender enhancement and confirmed, upon questioning by the court, that he wanted to “stick with the plea agreement.” Trial Transcript Volume II at 218. We cannot say that Parker has demonstrated that he protested his innocence, the guilty plea lacked an adequate factual basis, his plea was not knowing, intelligent, and voluntary, or that he received ineffective assistance.¹²

[37] For the foregoing reasons, we affirm the post-conviction court's order.

[38] Affirmed.

FOOTNOTES

1.   As discussed below, this appear to be a reference to cause number 82D03-1607-F5-3827.

2.   In its allegation that Parker was an habitual offender, the State asserted that Parker was “an Habitual Offender in violation of” Ind. Code § 35-50-2-8(d), he had accumulated at least three prior felony convictions unrelated to the felonies in Counts I, II, and III, and that he “was convicted and sentenced on December 23, 1999 in [Cause No. 420] of a Felony, to wit: Dealing Cocaine, which felony was committed on or about April 26, 1999,” he “was convicted and sentenced on February 19, 2008, in [Cause No. 1360] of a Felony, to wit: Residential Entry, which felony was committed on or about September 18, 2007,” and he “was convicted and sentenced on January 19, 2012, in [Cause No. 319] of a Felony, to wit: Dealing in Marijuana, which felony was committed on or about March 7, 2011.” Direct Appeal Appellant's Appendix Volume II at 99. At the time of the underlying offense specified in Count II, Ind. Code § 35-50-2-8(d) provided that “[a] person convicted of a felony offense is a habitual offender if the state proves beyond a reasonable doubt that: (1) the person has been convicted of three (3) prior unrelated felonies; and (2) if the person is alleged to have committed a prior unrelated: (A) Level 5 felony; (B) Level 6 felony; (C) Class C felony; or (D) Class D felony; not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.” (Subsequently amended by Pub. L. No. 12-2017, § 1 (eff. July 1, 2017); Pub. L. No. 37-2023, § 2 (eff. July 1, 2023)).

3.   Specifically, the court stated: “The Habitual Offender count could add between three and – or no excuse me, six and twenty years ․” Trial Transcript Volume II at 211. It later stated, “The Habitual Offender count that you've admitted to, again as I said can add up to six to twenty years to a Level 3 Felony you've been convicted of. You understand how that works?” Id. at 212. Parker answered, “Yeah.” Id.

4.   The plea agreement observed that the charges under Cause No. 3827 included: Count I, operating a motor vehicle after forfeiture of license for life as a level 5 felony; Count II, resisting law enforcement as a level 6 felony; Count III, resisting law enforcement as a class A misdemeanor; and Count IV, reckless driving as a class C misdemeanor.

5.   On appeal, the State asserts that, despite Parker's statement that he never spoke with his trial counsel until the day of the trial, the record reveals that Parker and his trial counsel were present for several hearings prior to trial. Indeed, the chronological case summary indicates that Attorney Buente filed an appearance in July 2018, and Attorney Buente and Parker appeared together at hearings in December 2018 and January 2019.

6.   Parker cites Newcomb v. State in which, “[d]espite an absence of evidence that either Newcomb or a phantom accomplice had begun to manufacture methamphetamine, Newcomb was convicted of Dealing in Methamphetamine, as a Class B felony.” 194 N.E.3d 131, 134 (Ind. Ct. App. 2022), trans. denied. In an appeal from the denial of post-conviction relief, another panel of this Court held that “we are not compelled to ignore the very rare case in which a petitioner is convicted of a crime that the State has not shown was committed” and that “[t]he evidence showed, and the State conceded, that there had been no actual manufacturing of methamphetamine.” Id. at 143. The Court remanded with instructions to vacate the conviction for dealing in methamphetamine and enter a conviction for possession of precursors with intent to manufacture. Id. at 144. Parker asserts that “the State failed to present evidence that Jackson's injury created a substantial risk of death and/or serious permanent disfigurement” and “[a]llowing [his] conviction to stand where there is not sufficient evidence to sustain it violates due process and requires reversal.” Appellant's Brief at 51. Even assuming that we should consider Parker's claim, in light of our discussion below including that Jackson suffered a wound to his chest that was a few inches long, Jackson “could see [his] open meat,” and he received “thirteen staples” at the hospital, we cannot say reversal is warranted. Trial Transcript Volume II at 50, 61.

7.   To the extent Parker cites Castillo v. State, in that case, the defendant argued that it was error to allow the jury to hear evidence of two separate episodes of dealing in cocaine when he was charged with only one. 734 N.E.2d 299, 303 (Ind. Ct. App. 2000), reh'g denied, summarily aff'd, 741 N.E.2d 1196 (Ind. 2001). This Court observed that “[i]t is possible, given these facts, that some jurors believed that Castillo committed the earlier dealing crime at Garcia's home while other jurors believed that Castillo committed the dealing violation at his home later that same day.” Id. at 304-305. We held that “it is possible that the jury's verdict of guilty regarding the charge of dealing in cocaine was not unanimous,” concluded that “Castillo's conviction for dealing in cocaine should be vacated,” and remanded for further proceedings. Id. at 305. Given that Castillo addressed an argument regarding two separate episodes of dealing in cocaine when the State charged only one, we find that case distinguishable.

8.   In Ellis, the Court noted:This Court has recognized four methods for eliciting evidence to prove a factual basis to support a guilty plea. Rhoades v. State, 675 N.E.2d 698, 700 n.3 (Ind. 1996) (quoting Minor v. State, 641 N.E.2d 85, 89 (Ind. Ct. App. 1994) (citations omitted), trans. denied). First, the State may present evidence on the elements of the charged offenses. Id. Second, the defendant's admission of the truth of the allegations in the information read in open court would suffice. Id. Third, the defendant's acknowledgment that he/she understands the nature of the crimes charged and that his/her plea is an admission of those charges. Id. And fourth, the defendant's sworn testimony regarding the events underlying the charges may likewise show his/her commission of the acts giving rise to the charged crimes. Id.Ellis, 67 N.E.3d at 647 n.5.

9.   After reading the habitual offender enhancement, the trial court asked Parker if he understood that “by your plea of guilty you're admitting the truth of all the facts alleged in that Information and upon entry of the plea the Court will proceed with judgment and sentence. Do you understand?” Trial Transcript Volume II at 200. Parker answered, “Yes.” Id.

10.   The following exchange occurred:THE COURT: Okay. All right the Habitual Offender count in 7252 alleges prior convictions from December of 1999 in the Vanderburgh Circuit Court for Dealing in Cocaine, uh, a felony conviction for Resisting Law Enforcement from February 2008 in Vanderburgh Circuit Court, uh, and that's for Resisting Law Enforcement and a felony conviction for Dealing in Marijuana from January of 2012. Again, these are all from the Vanderburgh Circuit Court. You acknowledge that those are true is that correct?[Parker]: Yeah.Trial Transcript Volume II at 209.

11.   On appeal, Parker asserts that his trial counsel's “statements make clear that Parker did not believe he was guilty of the habitual offender enhancement and operate as a protestation of innocence on Parker's behalf.” Appellant's Brief at 43. Parker did not dispute that he was convicted of the offenses listed in the habitual offender information before the trial court. On appeal, Parker does not develop an argument as to how the habitual offender allegation did not apply to him.

12.   We note that, while the court and the parties agreed on attempting to obtain Attorney Blackard's affidavit, which was the preferred option presented by Parker's post-conviction counsel, the record does not contain an affidavit of Attorney Blackard. Indeed, Parker filed a Notice to the Court Regarding Affidavit of Barry Blackard and Proposed Timeline for Findings of Fact and Conclusions of Law, which asserted that the parties had agreed that Parker would submit testimony of Attorney Blackard via affidavit but had determined “that he intends to proceed only on the evidence submitted at the April 12, 2024 evidentiary hearing and forego submission of an affidavit.” Appellant's Appendix Volume II at 210. It is well established that when trial counsel does not testify in post-conviction proceedings, it is the court's prerogative to “infer that trial counsel would not have corroborated appellant's allegations.” Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989) (citations omitted).

Brown, Judge.

Felix, J., and Scheele, J., concur.