Michael James Milligan, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Michael J. Milligan, appearing pro se, appeals the denial of his petition for post-conviction relief (PCR), claiming that the prosecutor committed misconduct during a guilty plea hearing, and that the trial court erred in denying his request for a continuance in the underlying criminal case. Milligan also contends that his guilty plea counsel was ineffective, that his guilty plea was not voluntary, and that he was denied due process.

[2] We affirm.

Facts and Procedural History

[3] On November 16, 2020, the State charged Milligan with possession of methamphetamine, a Level 6 felony, and various driving infractions. The probable cause affidavit, subsequently considered by the post-conviction court (PCR Court), established the circumstances of Milligan's offenses:

On 11/14/2020 at approximately 6:20 AM[,] I, Officer Burris[,] was conducting surveillance on a residence that I have received multiple tips about narcotics being bought and sold inside the house. I observed a vehicle pull into the driveway at 4:11 AM and leave the residence at approximately 6:20 AM. I got behind the vehicle and began to follow the vehicle observing for traffic infractions. In the area of 809 E Maumee Street I observed the vehicle did not have the proper lighting of the vehicle's license plate. I initiated a traffic stop on the vehicle and it pulled into the parking lot of the Speedway Gas Station located at 809 E Maumee Street. While pulling in I observed the drive[r] reach over into the area of the passenger seat.

I approached the vehicle and made contact with a white male later identified as Michael Milligan. I asked him to [r]oll down his passenger window to which he opened it approximately .5 inches and advised me that was far enough down. When I introduced myself and explained the reason for the stop Milligan became very confrontational and stated I didn't know what I was talking about in regards to the plate lights. I asked for his Driver's License and registration to which he demanded to speak to my supervisor. I requested a supervisor to the scene and Asst. Chief Whitmire arrived on scene. Whitmire began to speak to [the] male who was continuing to be confrontational.

At this time two Steuben County Deputies arrived to assist. I went from the passenger side to the driver's side of the vehicle. I informed Milligan that since he would not provide[ ] an ID I would like him to step out of the vehicle, to which he responded no. I informed him that I was going to ask one more time and then I would bring him out of the vehicle. At that time he stepped out of the vehicle. I placed Milligan in handcuffs that were properly spaced and double locked. I informed him at that time he was not under arrest but he was being detained until I could confirm his identity. I walked him back to the front of my patrol vehicle. In getting the information from him I needed to conduct my traffic stop Milligan advised me he knew the only reason I stopped him for the plate light was because he was leaving “crazy Susan's House” (512 S Darling Street). I did inform him I had been watching the house based on the tips I have received in relation to narcotics. It was discovered that Milligan did not hold a valid license and had a warrant from the state of Michigan.

I deployed K9 Diego to perform an open air sniff of the vehicle once I learned of the warrants. Diego gave a noticeable change in behavior, or alert, in the area of the front driver's side door. Diego gave a final response of sitting in the area of the B post door seam. The search of the vehicle did not yield any illegal items. I returned to Milligan, I advised him that due [to] the ․ alert of the certified K9 he was now going to be searched for any illegal substances or devices. He responded that I was not permitted to do so. As I explained that I was allowed to search him as an extension of the truck[,] I was getting into position to conduct the search. Milligan began to side step away, [and] I grab[bed] onto Milligan's arm who continued to attempt to pull away. At that time I pushed Milligan's body from the wa[i]st up, over the hood of my vehicle. Officer Otis and 2 Steuben County Deputies also assisted.

While conducting the search I located two small ziplock bags containing a white crystalline substance in Milligan's pocket. I believe from my training and experience for the substance to be Methamphetamine. I then advised Milligan that he was now under arrest.

․

Milligan received citations for the plate light not functioning, open container, and driving without a valid license. The citations were taken to the Steuben County Jail and place[d] with Milligan[’]s property.

Appellant's Appendix Vol. II at 40-41.

[4] During his initial hearing on November 16, 2020, Milligan indicated that he intended to hire counsel, but he failed to appear at a subsequent hearing. Following the issuance of a bench warrant and extradition, Milligan appeared for another hearing on March 29, 2022, and requested appointed counsel. The trial court appointed a public defender for Milligan at that time.

[5] On the morning of Mulligan's March 1, 2023, scheduled jury trial, preliminary instructions were finalized and prospective jurors were brought into the courtroom. At that point, Milligan requested a continuance so he could retain private counsel. The trial court denied the request, and Milligan pled guilty as charged. Following the guilty plea, Milligan was released, and the trial court ordered him to appear for a subsequent sentencing hearing.

[6] Milligan fled the State and failed to appear for sentencing in May 2023. Following extradition back to Indiana, Milligan appeared for sentencing in October 2023 and requested to withdraw his guilty plea. Following a hearing, the trial court denied Milligan's request to set aside his guilty plea. Milligan was then sentenced to one and one-half years that could be served in community corrections if “[he] qualifie[d] to participate in that program.” Transcript Vol. II at 109-10.

[7] On March 25, 2025, Milligan filed an amended pro se PCR petition,¹ claiming that he was entitled to relief based on an alleged illegal search that was conducted during the November 14, 2020 traffic stop. Milligan further claimed that his guilty plea counsel was ineffective, that he did not voluntarily enter his guilty plea, and that the trial court abused its discretion in denying his request to withdraw his guilty plea. Milligan specifically claimed that his counsel was ineffective for not adequately investigating the circumstances of his arrest, for failing to move to suppress illegally seized evidence, and for not requesting a hearing because of an alleged “material omission in the probable cause affidavit.” Appellee's Appendix Vol. II at 8-9.

[8] At the evidentiary hearing on July 9, 2025, Milligan testified that the underlying criminal case resulted from a traffic stop for a “tail light infraction,” and that the subsequent search was not “incident to arrest.” Transcript Vol. III at 6-11. Milligan further testified that the police report falsely stated that he did not have a driver's license and that an open container of alcohol was in the vehicle. Milligan acknowledged on cross-examination, however, that there was an outstanding warrant for his arrest, and he did not deny that police seized methamphetamine from his pocket.

[9] Milligan testified that his guilty plea counsel, Ben Nordmann (Attorney Nordmann), only met with him two or three times, rejected his claims that “there was a violation in the traffic stop,” and “pushed the [guilty] plea.” Id. at 8. According to Milligan, Attorney Nordmann told him that if he “pled guilty ․ [he] could go home that day and that's what [he] did.” Id. Milligan claimed he was pressured into the plea because

my attorney didn't investigate the case properly and that was my only out ․ because if I didn't plead guilty, I was going to lose at trial. I mean he plainly told me you lose a trial you're going to go to jail today. So, throughout the whole process, I've been difficult, to say the least. Because I feel like that it's wrong and I still am being difficult. In my understanding, what happened in the traffic stop was improper, at the least.

Id. at 9.

[10] Other than Milligan's own self-serving testimony, he presented no additional evidence at the PCR hearing, and he did not claim that the State or the trial court made any promises to him or coerced him to plead guilty.

[11] Following the hearing, the PCR Court issued an order with findings of fact and conclusions of law on July 31, 2025, denying Milligan's request for relief. In its order, the PCR Court determined that Milligan failed to establish ineffective assistance of counsel regarding his guilty plea because he failed to demonstrate “that counsel's representation fell below an objective standard of reasonableness.” Appellant's Appendix Vol. II at 31. The PCR Court concluded that counsel correctly advised Milligan that he was unlikely to prevail at trial and that a guilty plea would likely result in Milligan being released until the sentencing hearing.

[12] As for the voluntariness of Milligan's guilty plea, the PCR Court observed that Milligan did not produce any evidence that the advisements he received were insufficient or that his plea was otherwise improper. The PCR Court noted that Milligan's claimed promise of being released until sentencing was made by his own counsel—not the State or the trial court—and that he was, in fact, released until he was to be sentenced. Finally, the PCR Court determined that Milligan's claims of prosecutorial misconduct and the propriety of the trial court's denial of his motion for a continuance of his trial date were freestanding claims of error and would not be addressed in PCR proceedings.

[13] Milligan now appeals. Additional information will be provided as necessary.

Discussion and Decision

I. Standard of Review

[14] Post-conviction procedures do not afford the petitioner with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Rather, 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. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

[15] As post-conviction proceedings are civil in nature, a petitioner must establish his claims by a preponderance of the evidence to prevail. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002); Ind. Post-Conviction Rule 1(5). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[16] When appealing from the denial of a petition for post-conviction relief, 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.” Stevens, 770 N.E.2d at 745. 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. Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

II. Milligan's Claims

A. Denial of Continuance and Prosecutorial Misconduct

[17] Milligan contends that he is entitled to relief because the trial court erred in denying his request for a continuance of his trial date so he could obtain alternate counsel. Milligan also argues that his PCR petition should have been granted because the prosecutor engaged in misconduct by using “false evidence,” i.e., the probable cause affidavit, as “the factual basis for [the] plea.” Appellant's Brief at 20.

[18] Because a post-conviction proceeding is a civil proceeding in which a defendant may only present limited collateral challenges to a conviction and sentence, see P-C.R. 1(1)(b), potential relief is limited in scope to issues unknown at trial or unavailable on direct appeal. Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). We will not consider a freestanding claim of error on post-conviction review when it was not raised on direct appeal if the claim was known and available. Id. (citing Stephenson v. State, 864 N.E.2d 1022, 1029 (Ind. 2007)). 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. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). Moreover, “issues not raised in a PCR petition may not be raised for the first time on appeal.” Pavan v. State, 64 N.E.3d 231, 233 (Ind. Ct. App. 2016).

[19] Here, Milligan is attempting to raise claims regarding prior trial court proceedings, along with new claims that he did not raise in his PCR petition. More specifically, Milligan presents the transcript of his guilty plea hearing for the first time on appeal in an attempt to show that his denial of a continuance to hire new counsel was error and that the prosecutor committed misconduct by relying on the probable cause affidavit as the factual basis for his guilty plea. These are freestanding claims of error that cannot be raised at this juncture. Moreover, Milligan did not present those claims in his amended PCR petition. As a result, the issues are waived. See, e.g., Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002) (holding that issues that were known or available to defendants on direct appeal—but not presented—are not available for post-conviction review).

[20] Waiver notwithstanding, Milligan's claims lack merit. First, the trial court had discretion to deny Milligan's request for a continuance to seek new counsel. See Lewis v. State, 730 N.E.2d 686, 689 (Ind. 2000). The denial of counsel of choice can constitute error, but the right to counsel is also “circumscribed in several important respects.” United States v. Gonzalez-Lopez, 548 U.S. 140, 145-46 (2006). And Milligan recognizes that the right to counsel must be balanced “against the interests of the judicial administration.” Appellant's Brief at 15. The right to “counsel of choice must be exercised at the appropriate stage of the proceeding” and “it is within a trial court's discretion to deny a last-minute continuance to hire new counsel.” See, e.g., Washington v. State, 902 N.E.2d 280, 287 (Ind. Ct. App. 2009) (affirming the trial court's denial of the defendant's request on the morning of trial for a continuance to seek new counsel), trans. denied. Thus, even had Milligan not waived this issue, he would not be entitled to relief in light of the trial court's broad discretion to deny day-of-trial requests for continuances to seek new counsel. See id.

[21] As for Milligan's claim of prosecutorial misconduct, he has failed to show that the prosecutor's reliance on the probable cause affidavit to establish a factual basis for his plea constituted misconduct. While it is improper for a prosecutor to “knowingly us[e] false evidence ․ to obtain a tainted conviction” that had a “reasonable likelihood” of affecting the judgment, Napue v. Illinois, 360 U.S. 264, 269, 271 (1959), that premise is not relevant here because it is directed toward misleading jurors and Milligan pled guilty to the charged offenses. To be sure, the “main thrust of the case law in this area focuses on whether the jury's ability to assess all of the facts and the credibility of the witnesses supplying those facts has been impeded to the unfair disadvantage of the defendant.” Smith v. State, 34 N.E.3d 1211, 1220 (Ind. 2015). Milligan chose to plead guilty and he did not challenge the factual basis or the voluntary nature of his plea prior to petitioning for PCR. Thus, Milligan's allegation of prosecutorial misconduct fails.

B. Ineffective Assistance of Counsel

[22] Milligan argues that the PCR Court should have granted his request for relief because his guilty plea counsel was ineffective. Specifically, Milligan claims that Attorney Nordmann failed to adequately investigate his case and prematurely “waived the [Fourth Amendment] suppression issue” regarding the stop of his vehicle and the subsequent search. Appellant's Brief at 17.

[23] The benchmark for judging any ineffective assistance of counsel claim “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.” Strickland v. Washington, 466 U.S. 668, 685 (1984). A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). First, 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. “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). Moreover, “isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[24] 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. (internal quotation omitted). A petitioner's failure to satisfy either component will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[25] “[W]hen a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Lee v. United States, 582 U.S. 357, 364-65 (2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)); see also Bobadilla v. State, 117 N.E.3d 1272, 1284 (Ind. 2019). But “[d]efendants cannot simply say they would have gone to trial[;] they must establish rational reasons supporting why they would have made that decision.” Bobadilla, 117 N.E.3d at 1284.

[26] While Milligan contends that his guilty plea counsel was ineffective for failing to investigate and refusing to file a motion to suppress evidence because of the alleged improper stop and search, he has not made a cogent argument supporting those claims. See Ind. Appellate Rule 46(A)(8)(a) (providing that each contention made in the argument section of appellant's brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “citations to the authorities ․ relied on”). To be sure, Milligan has failed to address or even mention the prejudice prong of the Strickland analysis, and he has not presented any “rational reasons supporting why” he would not have pled guilty but for his counsel's alleged deficient performance. See Bobadilla, 117 N.E.3d at 1284. Milligan has therefore waived his claims of ineffective assistance of counsel. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant's contention was waived because it was “supported neither by cogent argument nor citation to authority”).

[27] Additionally, Milligan presented no evidence at the PCR hearing to support his claim that Attorney Nordmann failed to review certain evidence. Milligan did not call Attorney Nordmann as a witness, and he did not offer any other evidence that would show how a further investigation of the circumstances would have aided his defense. In short, Milligan failed to support his contention that his counsel failed to investigate and that he was prejudiced by that alleged failure.

[28] Milligan also claims that his counsel was ineffective for not pursuing a motion to suppress evidence because his right to be free from unreasonable search and seizure under the Fourth Amendment was violated. To prove ineffective assistance for failure to make a motion, a petitioner must establish a reasonable possibility that the motion would have been granted. Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013). Not only has Milligan provided no argument as to how any evidence from the stop would have been subject to suppression, none of the evidence in the record provides a basis for suppressing evidence of Milligan's offense. Although Milligan asserted in his PCR petition that the evidence from the stop could have been challenged by showing that the police officer deployed his K9 before learning that he had an open warrant, a K9 sniff is not a search and can occur without a degree of suspicion. Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013). Moreover, the evidence relevant to Milligan's guilt was the drugs that were seized when Milligan was searched, along with the outstanding warrant for his arrest. Both of these circumstances were bases for Milligan's lawful arrest and subsequent search. See, e.g., Fentress v. State, 863 N.E.2d 420, 423-24 (Ind. Ct. App. 2007) (a search incident to lawful arrest allows the arresting officer to conduct a warrantless search of the arrestee's person and the area within his immediate control). In sum, we conclude that the PCR Court did not clearly err in rejecting Milligan's ineffective assistance of counsel claims.

C. Involuntary Guilty Plea

[29] Milligan argues that his guilty plea was not voluntary because he was “improperly induced” to plead guilty. Appellant's Brief at 18. Milligan asserts that the prosecutor's alleged statement that he would not seek to have Milligan remanded to custody if he pled guilty “created an irresistible inducement that rendered the waiver of rights involuntary.” Id.

[30] The United States Constitution requires that the defendant enter a guilty plea voluntarily. United States v. Ruiz, 536 U.S. 622, 629 (2002). “A valid guilty plea depends on ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Gibson v. State, 133 N.E.3d 673, 697 (Ind. 2019) (quoting Hill, 474 U.S. at 56).

[31] Milligan's claim is not properly before us because he challenged the voluntariness of his guilty plea in his amended PCR petition on the grounds that his counsel told him that he would be released until sentencing. Milligan abandoned that claim, and he asserts for the first time on appeal that it was the State that rendered his plea involuntary. Again, “issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001). Milligan has waived the issue. See id.

[32] We further note that Milligan presented no evidence establishing that his guilty plea was involuntary. His PCR testimony relevant to this issue was only that his counsel told him that if he “pled guilty ․ [he] could go home that day and that's what [he] did.” Transcript Vol. III at 8. Indeed, Milligan received precisely what was promised, in that the trial court permitted him to return to his residence following the change of plea hearing. In sum, Milligan has failed to show that the PCR Court erred in denying his challenge to the voluntariness of his guilty plea.

D. Due Process

[33] Milligan argues that his right to due process was violated because the PCR Court “systematically obstructed access to the record” as a result of the court reporter's requirement of a down payment prior to transcribing the guilty plea hearing. Appellant's Brief at 21-22. Milligan also asserts that the PCR Court's statement in the order that “no evidence” was presented in support of his PCR petition warrants reversal. Id. at 25.

[34] Milligan's claim that he was improperly denied a transcript is not properly part of this appeal. While various statutes and a PCR rule provide for the production of transcripts at public expense for some indigent defendants, none of those provisions were applicable when Milligan made his request because his request for a transcript in July 2024 was made prior to his initiation of the September 2024 PCR proceedings. transcriptsSee Ind. Code § 33-40-8-5 (transcripts for indigent defendants “to appeal to the supreme court or the court of appeals the decision of a trial court in a criminal case”), I.C. § 33-40-1-5 (transcripts for defendants represented by a public defender); P-C.R. Rule 1(9) (guilty plea and sentencing transcripts for indigent PCR petitioners). The record also does not indicate that Milligan had been declared indigent as of July 2024. In fact, Milligan was represented by private counsel at that time. Further, Milligan has not established how he was harmed by any delay in accessing the transcript. In short, Milligan has failed to show that he was improperly denied the transcript and how he was allegedly prejudiced by the request for payment.

[35] Milligan also has not demonstrated that the PCR Court committed clear error in concluding that he presented “no evidence” in support of the PCR petition. Appellant's Brief at 25. Contrary to Milligan's claim, the PCR Court recognized that Milligan testified at the hearing. Although the PCR Court stated in its order that Milligan presented no evidence establishing ineffective assistance of counsel and no evidence that his guilty plea was involuntary, it reached that conclusion only after considering Milligan's testimony, finding it not credible, and determining that it did not establish either claim. See, e.g., Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (holding that factfinders are not required to believe a witness's testimony even when it is uncontradicted). Milligan did not present testimony or an affidavit from his trial counsel, and we have previously held that when counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations. Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied. For these reasons, we reject Milligan's claims that he was denied due process.

Conclusion

[36] In light of our discussion above, we conclude that the PCR Court correctly determined that Milligan was precluded from raising freestanding claims of error regarding the allegations of prosecutorial misconduct and the denial of his request to continue his trial date. We further conclude that Milligan's guilty plea counsel was not ineffective, that his guilty plea was voluntary, and that his right to due process was not violated.²

[37] Judgment affirmed.

FOOTNOTES

1.   Milligan filed an initial PCR petition on September 3, 2024.

2.   Milligan has filed a “Verified Motion For Judicial Notice,” a “Motion For Leave To File Corrected Enhanced Verified Motion for Judicial Notice and To Supplement the Record,” a “Verified Motion For Judicial Notice of Admissions and Court Records,” and a “Verified Motion To Supplement the Record On Appeal.” We have considered these motions and deny them by an order issued contemporaneous with this opinion.

Altice, Judge.

Brown, J. and DeBoer, J., concur.