PAYNE v. STATE (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Brian S. Payne appeals from the post-conviction court's order denying his petition for post-conviction relief. Concluding that Payne has not met his burden of establishing error, we affirm.

Issues

[2] We restate the issues presented in this appeal as follows:

I. Whether the post-conviction court clearly erred by denying Payne relief on his ineffective assistance of counsel claim;

II. Whether the post-conviction court clearly erred by denying Payne's claim that his guilty plea was not knowingly or voluntarily made; and

III. Whether Payne's ex post facto and due process claims are either waived, unavailable, or meritless.

Facts and Procedural History

A. Trial Court Proceedings

[3] The State filed five molest charges against Payne, all of which were alleged to have occurred between December 23, 2019, and August 5, 2020. Payne was born on October 5, 1989. The first four charges alleged that, as to victim one, Payne committed one count of Level 2 felony child molesting and three counts of Level 4 felony child molesting when the victim was nine years old. Appellant's Supp. App. Vol. II, pp. 92-95. The fifth charge alleged that, as to victim two, Payne committed Level 4 felony child molest when the victim was eight years old. Victim one and victim two are Payne's daughters.

[4] On October 20, 2022, Payne pleaded guilty to Counts Two and Five, Level 4 felony child molest charges, one count for each victim. His written plea agreement stated that the other three counts would be dismissed, and he would receive a sixteen-year aggregate sentence in which the court would have discretion as to how the first ten years would be served. Id. at 63. The plea, which Payne signed, also provided that “Defendant shall be required to comply with all requirements set forth under I.C. 11-8-8 et. seq. ‘Sex Offender Registration.’ ” Id. at 63-64 (signed plea agreement).

[5] During the guilty plea and sentencing hearing, the trial court asked Payne if he had read the plea. He responded that he had. After reading through the charges and sentence, the court stated, “Additionally, you would be required to comply with all requirements regarding sex offender registration under Indiana Code 11-8-8,” along with other provisions of the plea, and then asked if that was the agreement Payne was asking the court to accept. Tr. Vol. 3, p. 6.¹ Payne responded, “Yes, ma'am.” Id. During the rights advisement portion of the plea agreement hearing, the court stated, “Mr. Payne, if you—if you need a moment with your attorney at any point let me know. All right?” Id. at 7. The court also asked Payne whether he had sufficient time to consult with his attorney, to which, Payne responded yes. The court also asked whether his plea was voluntary, and whether he had been threatened or made any offers to induce his guilty plea. He responded that his plea was voluntary and that he had not been threatened or offered anything in exchange for his plea. Prior to Payne's guilty plea and the establishment of the factual basis, his trial counsel stated, “He's also been advised of the sex offender registry requirement going forward.” Id. at 12.

[6] The court accepted the plea after Payne admitted molesting his daughters. Immediately thereafter, the court proceeded to the sentencing hearing. The court sentenced Payne to sixteen years pursuant to his plea agreement, ordering that ten years of the sentence be executed in the Department of Correction and the remainder suspended to probation. The court informed Payne that he was “ordered to comply with all requirements for sex offender registration and Probation will be ordered to review the probation terms with Mr. Payne before he is transferred to DOC, file a copy of those signed terms with the Court.” Id. at 42-43. Payne signed his probation condition form the same day as his plea and sentencing hearing. Appellant's Supp. App. Vol. II, pp. 57-61. The sections of that form, pertaining to sexually violent predators, were crossed out. Id.

B. Post-Conviction Proceedings

[7] Payne, pro se, filed a petition for post-conviction relief raising multiple issues, including whether trial counsel was ineffective for failing to advise him that he would be designated a sexually violent predator, whether his guilty plea was knowing and voluntary, and whether his due process rights were violated. Id. at 9-18 (Petition For Post-Conviction Relief). After the State answered, the post-conviction court ordered Payne to submit a more definite statement. Payne complied and raised the same claims.

[8] Next, the post-conviction court ordered that the evidence must be submitted by affidavit. Payne filed a document titled “SWORN AFFIDAVIT” which referenced attached documents. Id. at 36-50. That affidavit and another affidavit subsequently filed by Payne contained legal conclusions or argument, which are not properly considered as assertions of fact that would support relief. See Adams v. State, 539 N.E.2d 985, 989 n.3 (Ind. Ct. App. 1989) (affidavit containing statements by third parties, legal conclusions not considered on appeal; affidavit should be statement of facts personally known to affiant). The post-conviction court denied Payne's petition, and Payne, pro se, now appeals.

Discussion and Decision

I. Ineffective Assistance of Counsel Claim

[9] As an initial matter, we agree with the State's observation that the post-conviction court's order was a general order written without the benefit of specific findings of fact or conclusions of law as required by PCR Rule 1(6). See Appellant's Supp. App. Vol. 2, p. 85. However, Payne has not raised this issue in his initial brief, thus waiving any claim of error as to it. Dunn v. State, 202 N.E.3d 1158, 1165 n.3 (Ind. Ct. App. 2023) (argument raised for first time in reply brief is waived), trans. denied. Additionally, we will not reverse for “failure to enter specific findings of fact and conclusions of law” if “the issues are sufficiently presented for review and addressed by the parties.” Adcock v. State, 22 N.E.3d 720, 724 (Ind. Ct. App. 2014). Such is the case here. Thus, we need not remand for findings to comply with PCR Rule 1(6).

[10] “ ‘Post-conviction procedures do not afford the petitioner with a super-appeal.’ ” Thies v. State, 273 N.E.3d 131, 137 (Ind. Ct. App. 2025) (quoting Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999)), trans. denied. “ ‘Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.’ ” Id. “A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal.” Thies, 273 N.E.3d at 137.

[11] “Post-conviction proceedings are civil in nature.” Id. “Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence.” Id. “When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, ‘leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.’ ” Id. (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002)). “ ‘In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.’ ” Id. “ ‘It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.’ ” Id. (quoting Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004)), trans. denied. “ ‘The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.’ ” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)).

[12] Payne contends that the post-conviction court erred in rejecting his claim that his trial counsel had rendered ineffective assistance. “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[13] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). For the first component, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “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. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this component, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[14] For the second component, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “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. (italics added, internal quotation omitted).

[15] Payne contends that his trial counsel was ineffective because he did not advise Payne of the collateral consequences of his guilty plea; namely that he would bear the sexually violent predator designation and have to fulfill the sex offender registry requirements. Payne offered an affidavit in which he included his assertions about the lack of advisement of the collateral consequences of his plea. See Appellant's Supp. App. Vol. 2, pp. 51-53.

[16] However, the record reveals that the trial court ensured that Payne understood English and had read through his plea agreement. The court read through the terms of the plea agreement with him, including the provision that he would be required to comply with Indiana Code Chapter 11-8-8 (sex offender registry). The court said, “you would be required to comply with all requirements regarding sex offender registration under Indiana Code 11-8-8.” Tr. Vol. 3, p. 6. Payne affirmed that he was asking the court to accept the plea agreement containing that term. Id. at 13. Next, the court asked Payne if he had sufficient time to consult with his attorney and discuss the plea agreement. Payne affirmed that he had sufficient time to consult with his attorney. Furthermore, Payne's trial counsel stated that he had advised Payne of the sex offender registry requirements. When the court asked Payne if he understood that there would be a “higher and different level of supervision and different requirements,” Payne affirmed that he did. Id. at 12-13.

[17] There is no question that Payne qualifies as a sexually violent predator. Indiana Code section 11-8-8-6 states that a “ ‘sexually violent predator’ has the meaning set forth in IC 35-38-1-7.5.” That statute states that “A person who: ․ being at least eighteen (18) years of age,, commits an offense described in: ․ (C) IC 35-42-4-3 as ․ a Level 1, Level 3, or Level 4 felony (for a crime committed after June 30, 2014);” is a sexually violent predator. Ind. Code § 35-38-1-7.5(b) (2018). The charging information showed that Payne was charged with two counts of child molesting under I.C. 35-42-4-3 as a Level 4 felony, and he admitted to committing those crimes when he was over the age of eighteen, making him a sexually violent predator by operation of law. See Appellant's Supp. App. Vol. 3, pp. 93, 96 (both charges); Tr. Vol. 3, pp. 15-16 (admission to charges).

[18] We conclude that Payne has not met his burden of establishing deficient performance on the part of his trial counsel.²

[19] Although our review is satisfied by our determination of this part of the analysis, and Payne's claim fails, we turn to briefly discuss the second component, the prejudice component. For the prejudice component, Payne would be required to show a reasonable probability that, absent the alleged misadvice, he would have rejected the guilty plea and insisted on going to trial. See State v. Hamilton, 197 N.E.3d 356, 363 (Ind. Ct. App. 2022) (quotation omitted), trans. denied. We “should not upset a plea solely because of post hoc assertions from a [petitioner] about how he would have pleaded ․” Id. (quotation omitted).

[20] Looking at the circumstances here, we conclude that Payne has not established the prejudice component. By accepting the plea and pleading guilty, he avoided a Level 2 felony and two additional Level 4 felony charges. Additionally, he received a cap on his potential exposure to executed time. And the record supports his counsel's advisements about the benefits and requirements of the plea agreement.

[21] We conclude that the post-conviction court did not err by concluding that Payne did not meet his burden of establishing ineffective assistance of counsel.

II. Knowing and Voluntary Plea

[22] Payne argues that the post-conviction court should have granted him relief because his guilty plea was not knowingly and voluntarily made. He claims he did not know the consequences of his plea, thus entitling him to relief.

[23] “[T]he voluntariness of a plea ‘focuses on whether the defendant knowingly and freely entered the plea, in contrast to ineffective assistance, which turn on the performance of counsel and resulting prejudice.’ ” Nix v. State, 212 N.E.3d 194, 203 (Ind. Ct. App. 2023) (quoting Moore v. State, 678 N.E.2d 1258, 1266 (Ind. 1997)) trans. denied. “ ‘On review of a guilty plea, we look at all the evidence before the post-conviction court.’ ” Francisco v. State, 273 N.E.3d 524, 529 (Ind. Ct. App. 2025) (quoting Harris v. State, 762 N.E.2d 163, 166 (Ind. Ct. App. 2002), trans. denied)). “ ‘If the evidence exists to support the court's determination that the guilty plea was voluntary, intelligent[,] and knowing, we will not reverse.’ ” Id.

[24] Here, there is evidence to support the court's determination that Payne is not entitled to relief on this ground. At the guilty plea hearing, the court went over the terms of the plea with Payne, including the citation to Indiana Code Chapter 11-8-8, and that his attorney advised him of the consequences. The court confirmed that Payne's guilty plea was voluntary and that he had not been forced to accept the agreement. When Payne signed his plea agreement, the document referenced the statute designating him as a sexually violent predator, thus supporting the conclusion that Payne knew he would be designated a sexually violent predator upon his guilty plea.

[25] Payne points to the probation condition form he signed after he had entered into the guilty plea and had been sentenced. That form reflects that the sections applying to sexually violent predators were crossed out. He argues that form and erroneous markings are evidence that he was not properly advised of his status. However, any possible mis-advice Payne may have received in relation to the probation form could not have influenced his previous decision to plead guilty, and, consequently, does not show that his plea was involuntary or unknowing.

[26] We conclude that the post-conviction court did not err by denying Payne relief on this ground.

III. Ex Post Facto and Due Process Claims

[27] Payne's appellate brief raises his concerns about the ex post facto clause ³ and due process.⁴ He seems to suggest that the sex offense registry provisions are ex post facto as to him. See Appellant's Br. pp. 8-12. However, Payne did not include an argument about the ex post facto clause in his petition for post-conviction relief or his more definite statement. See Appellant's Supp. App. Vol. 2, pp. 9-18 (petition); 86-90 (more definite statement). Therefore, his claims are unavailable for review. P-C.R.1(8) (all grounds for relief must be stated in petition).

[28] Furthermore, our Supreme Court has clarified that “when the legislature imposes restrictions on people convicted of certain crimes, those restrictions are not part of a sentence, but are collateral consequences.” Kirby v. State, 95 N.E.3d 518, 520 (Ind. 2018). “Sex-offender registration itself is thus a collateral consequence.” Id. “The legislature can, for example, impose a lifetime registration requirement even after a sentence has been fully served.” Id. at 520-21. “Whether or not such a belated change is an ex post facto violation, it is not part of a sentence.” Id. at 521. “[W]hen the post-conviction rules allow challenges to a ‘sentence,’ they mean only the trial court's sentence on the conviction at hand.” Id. Thus, where a claim which “challenges a collateral consequence rather than [a] conviction or sentence, post-conviction review is unavailable.” Id.

[29] Payne also claims that a failure to notify him of his registration requirement, either by the Department of Correction or in his plea agreement, violated due process. See Appellant's Br. p. 10. However, Payne was advised of the statute under which he was required to register as a sex offender, and the statutory reference was set out in his plea agreement. His attorney testified that Payne had been advised of his reporting requirements. Moreover, notice is not required by due process before a person can be designated as a sexually violent predator. Flanders v. State, 955 N.E.2d 732, 747 (Ind. Ct. App. 2011) (no prior notice or hearing required when Legislature makes determination as matter of law), trans. denied. “SVP status under Indiana Code section 35-38-1-7.5(b) is determined by the statute itself.” Lemmon v. Harris, 949 N.E.2d 803, 815 (Ind. 2011).

[30] Whether these arguments are available for our review aside, Payne has not established that the post-conviction court erred by denying his petition on these grounds.

Conclusion

[31] We conclude that the record does not support Payne's allegation that his trial counsel was ineffective for failing to advise or for mis-advising him on the reporting requirements as a sexually violent predator. Further, we conclude that the record shows that Payne's guilty plea was knowing and voluntary. And we conclude that Payne has not demonstrated that his reporting requirements violate either the ex post facto clause or due process. Therefore, we affirm the post-conviction court's denial of relief.

[32] Affirmed.

FOOTNOTES

1.   There is a Table of Contents labelled Volume 1 of 2, and Transcript Volume 2 of 2, plus an additional transcript volume of the plea and sentencing hearings, which we will refer to as Volume 3.

2.   The State observes that Payne did not submit an affidavit from his trial counsel in support of his claim of ineffective assistance of counsel. Given trial counsel's statements at Payne's guilty plea hearing, it is unlikely that trial counsel would have contradicted his own representations to the court at the hearing in a sworn affidavit in Payne's post-conviction proceedings. Thus, we do not need to discuss the inference a post-conviction court might draw where an affidavit from trial counsel is not offered in support of a petition.

3.   “An ex post facto law is one which applies retroactively to disadvantage an offender's substantial rights.” Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind. 2006). “But, as is clear from the Constitutional text, ‘[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Id. at 1093 (quoting Marks v. United States, 430 U.S. 188, 191 (1977)).

4.   Due process rights are not violated where the necessary fact of a conviction for a qualifying offense as a SVP is not arguable. See Vickery v. State, 932 N.E.2d 678, 683 (Ind. Ct. App. 2010).

Robb, Senior Judge.

Tavitas, C.J., and Bailey, J., concur.