APPELLANT PRO SE
: ATTORNEYS FOR APPELLEE:
AHMED MAYS STEVE CARTER
Carlisle, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
AHMED MAYS, )
vs. ) No. 49A02-0212-PC-1049
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 1
The Honorable Tanya Walton-Pratt, Judge
The Honorable Heather Welch, Master Commissioner
Cause No. 49G01-9907-CF-126934
June 30, 2003
OPINION - FOR PUBLICATION
Appellant, Ahmed Mays, seeks review of the denial of his petition for post-conviction
relief. Upon appeal, Mays presents three issues for our review, which we
restate as: (1) whether Mays received ineffective assistance of counsel; (2) whether
his guilty plea violates double jeopardy principles; and (3) whether the trial court
properly advised Mays of his rights at his guilty plea hearing.
On November 30, 1999, Mays pleaded guilty to Unlawful Possession of a Firearm
by a Serious Violent Felon, as a Class B felony,
See footnote and Carrying a
Handgun Without a License, as a Class C felony.See footnote Mays also pleaded
guilty to being a Habitual Offender.See footnote A sentencing hearing
was held on January 7, 2000, at the conclusion of which the trial
court sentenced Mays to the minimum term of six years on the serious
violent felon convictionSee footnote which was enhanced by ten years for the habitual offender
finding.See footnote The court also sentenced Mays to the maximum term of eight
years on the felony carrying convictionSee footnote and ordered that the sentence run concurrent
with the sentence already imposed, for a total aggregate sentence of sixteen years
On January 11, 2001, Mays filed a pro se petition for post-conviction relief
and also requested that an attorney be appointed to represent him. A
public defender entered an appearance on behalf of Mays on February 14, 2001,
but on November 28, 2001, Mays moved to proceed pro se, which motion
the trial court granted. On July 29, 2002, Mays filed a memorandum
of law in support of his petition for post-conviction relief, and the State
filed its belated answer to Mays petition on September 10, 2002. A
hearing on Mays petition was held on September 17, 2002. On October
24, 2002, the post-conviction court adopted the States proposed findings of fact and
conclusions of law and thereby denied Mays petition for post-conviction relief.
In order to obtain post-conviction relief, the petitioner must demonstrate by a preponderance
of the evidence that he is entitled to relief upon grounds enumerated in
the post-conviction rules. Ind. Post-Conviction Rule 1 §5;
Ford v. State, 755
N.E.2d 1138, 1141 (Ind. Ct. App. 2001), trans. denied. An appeal from
a denial of post-conviction relief is therefore an appeal from a negative judgment,
and the petitioner must establish that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction court.
State v. Holmes, 728 N.E.2d 164, 169 (Ind. 2000), cert. denied 532 U.S.
Here, Mays argues that the post-conviction court erred in concluding that he was
not denied the right to effective assistance of trial counsel. To succeed
on his claim of ineffective assistance of counsel, Mays was required to present
strong and convincing evidence to overcome the presumption that his guilty plea counsels
representation was appropriate. See Allen v. State, 743 N.E.2d 1222, 1234 (Ind.
Ct. App. 2001), trans. denied. To do that, Mays was required to
establish the two components set forth in Strickland v. Washington, 466 U.S. 668
(1984). First, Mays was required to show that his counsels representation was
deficient in that it fell below an objective standard of reasonableness. See
id. at 687. Mays was also required to show that he was
prejudiced by such deficiency. See id.
As Mays claim follows his guilty plea, we review the prejudice prong of
the Strickland analysis under the standard set forth in Segura v. State, 749
N.E.2d 496 (Ind. 2001). See Reynolds v. State, 783 N.E.2d 357, 358
(Ind. Ct. App. 2003). The Segura Court categorized two types of claims
of ineffective assistance of counsel following a guilty plea, one of which involves
errors which affect a defense or sentence. Segura, 749 N.E.2d at 501.
Mays claim fits within this category in that double jeopardy violations may
affect the sentence which could be imposed.
See footnote To establish that he was
prejudiced, Mays was required to show that there was a reasonable probability that
counsels alleged shortcomings in failing to consider the double jeopardy implications of the
offenses to which Mays pleaded guilty had an impact on the sentence which
See id. at 504.
The post-conviction court concluded that Mays was not entitled to relief because he
presented no evidence in support of his claim that his counsel was ineffective.
In his petition for post-conviction relief, Mays argued that he was prejudiced
by his counsels performance, asserting that had he been adequately advised as to
the double jeopardy implications, he would not have pleaded guilty, but rather would
have requested a trial by jury. At the post-conviction hearing, however, Mays
argument focused upon the double jeopardy implications of his convictions. The extent
of Mays argument at the post-conviction hearing was as follows:
Okay. Well first - - first postconviction I put in was about
the unlawful possession of a firearm by a serious violent felon, and the
carrying a handgun without a license. And under the argument that I
put in is that theres - - theres a double jeopardy principle because
both - - its the same case under - - under - -
with the same gun. Its two different cases from this same gun.
Then I put in another memorandum of law in support of double
jeopardy issue for my postconviction petition, and it was for - - about
my sentencing - - when . . . I got sentenced. Transcript
After the State declined cross-examination, Mays rested his case without presenting any evidence.
The State presented no evidence, but asked the post-conviction court to take
judicial notice of the court file, specifically drawing the courts attention to the
written plea agreement.
Even assuming that Mays could have established that he was prejudiced by the
fact that he pleaded guilty to offenses which violated double jeopardy principles, Mays
has failed to demonstrate how his counsels representation fell below an objective standard
of reasonableness. While Mays claims that his counsel did not advise him
of the double jeopardy implications of the offenses to which he was pleading
guilty, Mays did not procure testimony or an affidavit from his counsel.
Absent evidence in support of Mays assertion, the post-conviction court could infer that
Mays counsel would not have corroborated Mays allegation that he did not adequately
advise him as to possible double jeopardy implications. Dickson v. State, 533
N.E.2d 586, 589 (Ind. 1989); Lockert v. State, 627 N.E.2d 1350, 1353 (Ind.
Ct. App. 1994).
Thus, contrary to Mays claim that his counsel allowed him to plead guilty
to three offenses which he considers blatant violations of double jeopardy principles does
not in and of itself clearly demonstrate that he was denied his right
to effective assistance of trial counsel. Mays did not present any evidence
from which the post-conviction court could have evaluated his counsels performance to determine
whether it fell below an objective standard of reasonableness. Although advising a
defendant to plead guilty to offenses which violate double jeopardy principles may be
seriously questioned, such is not per se ineffective assistance of counsel. Indeed,
defendants may achieve an advantageous position where the State agrees to reduce an
offense in exchange for a plea of guilty, notwithstanding the fact that the
reduced offense, in conjunction with another offense, may constitute double jeopardy. See
Mapp v. State, 770 N.E.2d 332 (Ind. 2002); Games v. State, 743 N.E.2d
1132 (Ind. 2001). Mays has not demonstrated that the evidence as a
whole leads unerringly and unmistakably to a decision opposite that reached by the
In addition to arguing that his counsel was ineffective, Mays directly challenges his
convictions as violative of double jeopardy principles of the United States and Indiana
See footnote As a general rule, however, a defendant with adequate counsel who
pleads guilty to achieve favorable outcomes gives up a plethora of substantive claims
and procedural rights, including the right to collaterally challenge convictions upon double jeopardy
Mapp, 770 N.E.2d at 334-35; Games, 743 N.E.2d at 1135.
In Mapp, our Supreme Court reaffirmed this rule and further held that there
is no exception under Indiana law even for facially duplicative charges. 770
N.E.2d at 335. Here, Mays has not demonstrated that he did not
have the assistance of adequate counsel or that he did not achieve a
favorable outcome as a result of the bargaining process. Thus, by pleading
guilty, Mays waived his right to directly challenge his convictions as violative of
Mays also claims that his guilty plea should be set aside because the
trial court did not advise him prior to pleading guilty that his convictions
violated double jeopardy principles and that by pleading guilty he waived his right
to challenge the convictions on that basis. In his brief, Mays acknowledges
that the trial court advised him of his basic rights and as to
some of the consequences of pleading guilty, but asserts that, given the blatant
double jeopardy violations, it wouldve been only fair that [he] was advised of
this waiver. Appellants Brief at 25.
Mays cites no authority, nor are we aware of any which requires a
trial court to inform a defendant of possible double jeopardy violations or that
by pleading guilty he waives his right to challenge his convictions as violative
of double jeopardy.
See Boykin v. Alabama, 395 U.S. 238, 243 (1969)
(holding that before accepting a guilty plea, a trial court must be satisfied
that the defendant is aware of certain rights, of which double jeopardy was
not included); Ind. Code § 35-35-1-2 (Burns Code Ed. Repl. 1998) (setting forth
the required advisements a trial court must give prior to accepting a plea
See footnote As there is no requirement that a trial court advise
defendants of possible double jeopardy violations or that by pleading guilty defendants waive
their right to collaterally challenge their convictions on those grounds, the post-conviction court
did not err in concluding that Mays was entitled to no relief on
The judgment of the post-conviction court is affirmed.
DARDEN, J., concurs.
BAKER, J., concurs with opinion.
COURT OF APPEALS OF INDIANA
AHMED MAYS, )
vs. ) No. 49A02-0212-PC-1049
STATE OF INDIANA, )
BAKER, J., concurring with opinion.
I completely concur with the majoritys analysis and conclusion. I write separately
to note that although we are compelled by Mapp and Games to decline
review of the stand-alone double jeopardy claims, Mays has failed to show how
he was prejudiced by imposition of the concurrent sentences.
Ind. Code § 35-47-4-5 (Burns Code Ed. Supp. 2002).
Footnote: Ind. Code § 35-47-2-1 (Burns Code Ed. Repl. 1998); Ind. Code
§ 35-47-2-23 (Burns Code Ed. Repl. 1998).
See Ind. Code § 35-50-2-8 (Burns Code Ed. Supp. 2002).
See Ind. Code § 35-50-2-5 (Burns Code Ed. Repl. 1998).
See I.C. § 35-50-2-8; I.C. § 35-50-2-5.
See Ind. Code § 35-50-2-6 (Burns Code Ed. Repl. 1998).
In his brief, Mays argues that the double jeopardy violations constituted a
defense which was overlooked by his counsel and that such defense would likely
have changed the outcome of the proceeding. Double jeopardy, however, is not
a defense to a crime in the sense that one cannot be found
guilty of multiple offenses which constitute double jeopardy; rather it is a limitation
as to the punishment, i.e. entry of judgment of conviction or sentence, which
may be imposed when two or more convictions constitute the same offense for
double jeopardy purposes.
See Carter v. State, 750 N.E.2d 778 (Ind. 2001).
In his brief Mays make two separate double jeopardy arguments.
Mays argues that his convictions violate double jeopardy principles in that the same
prior felony conviction was used to prove his status as a serious violent
felon, to enhance the carrying offense to a Class C felony, and as
one of the two prior, unrelated felonies used to support the finding that
he was a habitual offender. We first note that the habitual offender
finding was used to enhance the serious violent felon offense. Assuming Mays
is correct in that the same prior felony conviction established his status as
a serious violent felon and as a habitual offender, there would appear to
be a double jeopardy violation.
See Conrad v. State, 747 N.E.2d 575,
595 (Ind. Ct. App. 2001), trans. denied.
Mays also argues that his convictions for unlawful possession of a firearm by
a serious violent felon and carrying a handgun without a license violate double
jeopardy principles in that the same gun was used to prove both offenses.
Again, assuming what Mays asserts is true, the convictions may be contrary
to double jeopardy principles. See Richardson v. State, 717 N.E.2d 32 (Ind.
1999); Alexander v. State, 768 N.E.2d 971 (Ind. Ct. App. 2002), affd upon
rehg 772 N.E.2d 476 (Ind. Ct. App. 2002), trans. denied.
On numerous occasions our Supreme Court and this court have held double
jeopardy violations to constitute fundamental error.
Haggard v. State, 445 N.E.2d 969
(Ind. 1983); Cuto v. State, 709 N.E.2d 356 (Ind. Ct. App. 1999); Garcia
v. State, 686 N.E.2d 883 (Ind. Ct. App. 1997); Odom v. State, 647
N.E.2d 377 (Ind. Ct. App. 1995), trans. denied. Be that as
it may, we are bound by Mapp, supra, and are not permitted to
address the issue in this case.
Other than his claim that the trial court should have advised
him of the possible double jeopardy implications of the offenses to which he
was pleading guilty, Mays does not argue that the courts required advisements prior
to accepting his plea were inadequate.