author: BROWN, Judge.

text:
    Daquan WHITENER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1205-CR-254.
    Court of Appeals of Indiana.
    Feb. 14, 2013.

      Elizabeth A. Beilin, Cohen Law Offices, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Daquan Whitener appeals his conviction for burglary as a class A felony and the trial court’s determination that he register as a sex offender as a condition of probation. Whitener raises two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his conviction for burglary as a class A felony; and
II. Whether the court erred in ordering that he register as a sex offender as a condition of probation.

Additionally, the State raises an issue on cross-appeal, namely, whether the court properly declined to enter a judgment of conviction for rape as a class B felony based upon double jeopardy principles. We affirm.

The facts most favorable to the conviction follow. On August 5, 2009, K.A. was at her home with her three children in Elkhart County, Indiana, and over the course of the afternoon her mother, Laura Jackson, Holly Meyers, and Raquel Pizana arrived to visit. K.A.’s mother spent most of the afternoon inside with K.A.’s children while the four women socialized outside in the backyard. At some point in the afternoon or evening, the women decided that they wanted to drink alcohol. Aso, at one point Meyers phoned Whitener, who was seventeen years old at the time, and asked if he could return a CD which belonged to Pizana and bring it to K.A.’s home. Whitener arrived along with his cousin Anthony Wheeler. K.A. had not previously met Whitener or Wheeler. When Whitener arrived, K.A. and Jackson were inside, and Whitener and Wheeler talked outside with Meyers and Pizana. Whitener and Wheeler left the home with Pizana without speaking to K.A.

Whitener and Wheeler later returned to K.A.’s home and again spoke in the backyard with Meyers and Pizana and finished a bottle of gin, and Pizana called K.A. to the back door and asked if she would go with Pizana, Whitener, and Wheeler to the liquor store to purchase more alcohol. Before driving to the liquor store they stopped by another home and picked up Telvon Whitener, who was thirteen or fourteen years old and was another cousin of Whitener’s. When they arrived at the liquor store, K.A. went inside, purchased a bottle of gin, and then returned to the car and they left. When they returned to K.A.’s home, K.A. went inside to attempt “to get rid of [her] mom” while the others went into the backyard. Transcript at 145. Around 8 p.m., after K.A.’s mother left, K.A. asked Pizana to drive her to Kroger to purchase liquor for herself, and again K.A., Pizana, Whitener, and Wheeler traveled together to purchase alcohol. During this time, Jackson stayed at the home to watch K.A.’s children and Meyers was in her car talking on the phone.

While in Pizana’s vehicle, for the most part the people in the car listened to the radio and did not speak to each other. First, the vehicle went to a gas station so Whitener could purchase “a black and mild,” and then they proceeded to Kroger. K.A. and Pizana went inside, purchased a bottle of vodka, and then drove back to K.A.’s home. Id. at 147. K.A. did not speak with Whitener while they were in the car.

When they returned, Whitener, Telvon, and Wheeler sat at the kitchen table while K.A., Jackson, and Pizana sat in the living room on the couch. K.A. and Jackson began to raise the issue with Pizana that they did not “feel comfortable with [the boys] there cause [sic] [they] didn’t know how old they were but [they] knew that they were young,” and they told Pizana that they did not want the boys to be there. Id. at 151. Eventually, the three boys left with Pizana, but before they left K.A. asked Whitener if she could use his phone because she did not have her own phone. That brief conversation was the only time K.A. spoke with Whitener that evening.

After they left, Jackson told K.A. that she should keep drinking because K.A. did not have the opportunity to do so very often due to her children, Jackson assured K.A. that she would watch her children, and K.A. “drank a lot.” Id. at 154. At some point in the night they returned, and at around 1 a.m. Pizana drove Jackson, Whitener, Telvon, and Wheeler away from KA’s home. K.A. fell asleep on the couch and did not remember Jackson and Pizana leaving. Pizana observed that K.A. was “really, really drunk,” noting that she was stumbling and slurring her words. Id. at 86. Pizana dropped Jackson off at her home and then drove the three boys to another residence and dropped them off.

They stayed at that house for a couple of minutes and then walked to Whitener’s house which took about five or ten minutes. While at Whitener’s house, Whitener went upstairs and then came back downstairs and stated to Wheeler and Tel-von that he was going to go back to K.A.’s house because “he remembered that she said she wanted to have sex with him,” although Wheeler did not hear K.A. state this to Whitener. Id. at 283. After staying at Whitener’s house for “a minute,” the three of them walked back to K.A.’s house. Id. at 284.

As they were arriving at K.A.’s home, Whitener explained to Telvon and Wheeler that K.A. told Whitener to enter through a living room window because “she had child safety locks on her door.” Id. at 285. Whitener lifted up the screen in the window, pulled back the window, pushed in a fan which was blocking the window and crawled through. K.A. awoke and observed her “fan going down in [her] window.” Id. at 156. Whitener then went to the back door and let Wheeler and Telvon into the home. K.A. did not react to the fan initially because she was “too drunk” and was “going in and out, blacking out,” but she observed “a couple people in [her] house” and recognized Telvon and Whitener. Id. at 157-158.

Once inside, Whitener asked Telvon to “try to talk to her” and to “[k]iss on her neck a little bit or whatever.” Id. at 250. Telvon kissed K.A. on the neck and pulled K.A.’s pants down, but she told him to stop and he did not have sex with her. At one point Whitener moved Telvon aside and told Telvon that “you don’t know what you’re doing.” Id. at 258. K.A. observed Whitener, who was “real close” to her face and had his penis in his hand, and both Whitener and Telvon were telling her that it was “alright.” Id. at 159. Whitener put a condom on and had sex with K A. During intercourse, K.A. was crying and attempting to push Whitener off of her and cried out for Jackson to help because she thought Jackson was still at her house. After Whitener finished having sex he asked Wheeler “do you want a turn man,” but Wheeler declined. Id. at 261. They then left through the back door, but before Whitener left he discarded the condom. After they left, K A. “stumbled to the back door, pushed it all the way shut and locked it,” and then she went back into the living room and fed her baby, who had been in the living room in her car seat next to the couch during this time. K.A. started crying and eventually fell asleep. Id. at 162.

The next morning, K.A. awoke to her mother knocking on her door, and her mother asked why her window was pried open. Soon after, Jackson came over to K.A.’s house and observed K.A. looking “kind of traumatized and ... crying and her hair was messed up and here [sic] mom was screaming,” and K.A. then started telling Jackson what had occurred. Id. at 114. K.A. called the police and Officer Bruce Anglemyer responded and took photographs of the home and transported K.A. to the hospital to have a rape kit done. K.A. noticed that her vaginal area was sore to the point that she “couldn’t wear pants” or “wipe” and that her “pad was hurting [her] cause [sic] it kept rubbing up against [her].” Id. at 167. K.A. noticed while at the hospital that she had bruises on her leg and back which she did not recognize before the previous night, and also that she had a “hickey” on her neck that had not been present before. Id. at 169.

On August 28, 2009, the State charged Whitener with Count I, burglary as a class A felony; and Count II, rape as a class B felony. The court held a jury trial which commenced on March 23, 2010. At trial, K.A. testified that she did not ask Whitener to return to her home that night, did not ask him to climb through the window, and did not ask him to have sex with her. K.A. testified that she did not call the police that night because she did not have a phone and did not want to go outside. Wheeler and Telvon both testified that Whitener had consensual sex with K.A. and that Telvon did not have sex with her.

Corporal James Peterson of the Elkhart Police Department testified that he collected “buckle swab standards” from Telvon and Whitener. Id. at 299. Officer Dan Milanese testified that he collected a condom and condom wrapper, located in the kitchen trash can, from K.A.’s home, and photographic evidence of the condom was admitted into evidence. Jamie Lynn Rice, a registered nurse at Elkhart General Hospital, testified that she performed a sexual assault exam on K.A. and that K.A. told Rice that “she was very sore in her vagina ... she was swollen ... the external labia of her vagina and uhm, very red.” Id. at 349. Rice testified that K.A. had a red mark on the right side of her neck, swelling on her labia majora, a scratch to her knee, and a bruise on her back and longer scratch above the bruise. Detective Carlton Conway testified that he interviewed Whitener and Telvon and that Whitener voluntarily gave a statement in which he admitted that he had sex with K.A., that K.A. told him to climb through the window, and that although she did not say specifically that she wanted to have sex “he knew what she meant.” Id. at 395. Detective Conway also indicated that Whitener stated that he did not believe K.A. was intoxicated when they had sex, and testified that Whitener told him that he put a condom on to have sex with K.A. Lori Healey, a forensic scientist with the Indiana State Police who tested the recovered evidence, testified that DNA on the condom revealed that Whitener could not be excluded as a contributor and that Tel-von and Wheeler could both be excluded. Healey also testified that a DNA swab sample from K.A.’s neck revealed that neither Whitener nor Telvon could be excluded as contributors.

On March 25, 2010, the jury found Whitener guilty as charged. On April 19, 2010, the court held a sentencing hearing and sua sponte vacated Count II, finding that there was a reasonable possibility that the same evidentiary facts were relied upon by the jury in convicting Whitener on both Counts I and II. The court sentenced Whitener to twenty-five years with five years suspended to probation. The court also ordered that Whitener register as a sex offender.

On April 23, 2010, Whitener filed a motion to correct error stating that the court’s order requiring him to register as a sex offender pursuant to Ind.Code § 11-8-8-4.5 was error because his sole conviction was for burglary as a class A felony which is not one of the enumerated offenses in the statute. On April 28, 2010, the State filed a motion to correct error stating that the court erred when it “held that the State was required to prove aggravating circumstances to a jury” and in vacating Count II based upon double jeopardy-grounds. Appellant’s Appendix at 97. On May 10, 2010, the court held a hearing on the motions to correct error and denied the State’s motion to the extent that it asked the court to reinstate a conviction on Count II and granted Whitener’s motion with respect to the order that he register as a sex offender. The court also granted the State’s motion with respect to aggrava-tors and mitigators, proceeded to resen-tencing, and sentenced Whitener to forty years with fifteen years suspended to probation. The court also ordered that Whitener register as a sex offender as a condition of probation.

On April 9, 2012, Whitener filed a petition for leave to file a belated notice of appeal pursuant to Ind. Post-Conviction Rule 2(1). On April 17, 2012, the court granted his petition, and on May 16, 2012, Whitener by counsel filed a notice of appeal.

I.

The first issue is whether the evidence is sufficient to sustain Whitener’s conviction for burglary as a class A felony. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind.1991).

The offense of burglary as a class A felony is governed by Ind.Code § 35-43-2-1, which provides that “[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is ... a Class A felony if it results in: (A) bodily injury; or (B) serious bodily injury; to any person other than a defendant.” Here, the State alleged in its charging information that Whitener:

Did break and enter the building or structure of another person, to wit: the residence of [K.A.], with intent to commit a felony therein, to wit: Rape, that is to knowingly have sexual intercourse with a member of the opposite sex and the person was compelled by force or the imminent threat of force, which conduct resulted in bodily injury, to wit: an impairment to the physical condition of the said [K.A.]....

Appellant’s Appendix at 233. Thus, to convict Whitener of burglary as a class A felony, the State needed to prove that he broke and entered K.A.’s residence with the intent to commit rape and that K.A. suffered an impairment to her physical condition.

Whitener argues that the State failed to prove the elements of burglary because “there was inadequate evidence presented at trial to establish that [Wbitener] entered [K.A.’s] apartment with the requisite intent to force [her] to have sexual intercourse with him.” Appellant’s Brief at 10. Whitener argues that at trial, Telvon and Wheeler both testified that Whitener indicated to them that K.A. told him to come back to her home and to enter through the front window that was open because the front door had child safety locks on the handle. Whitener argues that K.A. “could not remember much of what happened,” noting that she “could not testify for certain that [Whitener] even had sexual intercourse with her, let alone whether said act was the result of a consensual encoun-ter_” Id. at 12. Wbitener also argues that there was insufficient evidence to show that K.A. sustained bodily injury as a result of his actions, noting that K.A. could not attribute the marks on her leg and back directly to Whitener, and the mark on her neck “was a result of the separate act of Telvon [ ] kissing her neck....” Id. at 13.

The State argues that Whitener “lifted up the screen in the window, pulled back the window, and pushed in the fan that was blocking the window” which satisfies the breaking and entering element. Ap-pellee’s Brief at 15. The State argues that Whitener “expressly intended to return to [K.A.’s] house to have sex with her.” Id. The State argues that Whitener knew that K.A. did not have a phone and notes that K.A. testified that she did not invite Whitener to return or consent to having sex. The State argues also that the method of entering a home can evidence one’s intent to commit a violent attack and that Whitener’s entry by the window was evidence of such. The State argues that Whitener’s behavior while inside K.A.’s home is further evidence of intent, noting that he encouraged Telvon to have sex with her and asked Wheeler whether he wanted to have sex with her. The State also argues that evidence supports the verdict that K.A. suffered bodily injury as a result of Whitener’s breaking and entering including “significant swelling, bruising, redness, soreness and pain in her vaginal area” as well as “bruising on her back, bruising and scratches on her knee, scratches on her buttock and hip area, and ecchymosis, or bruising, on her neck.” Id. at 16.

To the extent that Whitener suggests that the State failed to prove intent, we observe that evidence of intent “need not be insurmountable,” Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987), reh’g denied, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.” Freshwater v. State, 853 N.E.2d 941, 944 (Ind.2006). The evidentiary inference pointing to the defendant’s intent must be separate from the inference of the defendant’s breaking and entering. Justice v. State, 530 N.E.2d 295, 297 (Ind.1988); Kondrup v. State, 250 Ind. 320, 323, 235 N.E.2d 703, 705 (1968). “The inference of intent must not derive from or be supported by the inference of breaking and entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind.2012). “In other words, the evidence must support each inference — felonious intent and breaking and entering— independently, and neither inference should rely on the other for support.” Id. “This is not to say, however, that the same piece of evidence cannot support both inferences.” Id.

Here, the facts most favorable to the conviction reveal that Whitener spent most of the evening at K.A.’s home and was aware of the fact that she had been drinking heavily, and that when they left K.A.’s home around 1 a.m. K.A. was “really, really drunk,” and was stumbling and slurring her words. Transcript at 86. Whitener also was aware that K.A. did not have a working phone. After leaving K.A.’s home, Whitener, Wheeler, and Telvon arrived at Whitener’s house, and Whitener stated that he was going back to K.A.’s home because she wanted to have sex with him. They walked to K.A.’s, and when they arrived Whitener approached the living room window, lifted up the screen in the window, pulled back the window, pushed in a fan which was blocking the window and crawled through. Whitener found K.A., who had been sleeping, on her couch, and she was drunk and “going in and out, blacking out.” Id. at 157. He then went to the back door and let the other two into the home. Whitener first encouraged Telvon to kiss K.A., but he later moved Telvon aside, telling Telvon that “you don’t know what you’re doing,” put on a condom, and had sex with K.A. Id. at 258. During intercourse, K.A. was crying and attempting to push Whitener off of her and cried out for help from Jackson who she thought was still at her house. After finishing, Whitener asked Wheeler “do you want a turn man,” but Wheeler declined. Id. at 261. K.A. sustained injuries including soreness on her vaginal area to the point that she “couldn’t wear pants” or “wipe” and that her “pad was hurting [her] cause [sic] it kept rubbing up against [her].” Id. at 167. An examination at the hospital revealed that K.A. had bruises on her leg and back as well as a “hickey” on her neck. Id. at 169.

Whitener’s argument is essentially a request that we reweigh the evidence or judge the. credibility of witnesses, which we cannot do. Jordan, 656 N.E.2d at 817. We conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could have found beyond a reasonable doubt that Whitener’s entry of K.A.’s home was unauthorized and that he was guilty of burglary as a class A felony.

II.

The next issue is whether the court erred in ordering that Whitener register as a sex offender as a condition of probation. Probation is a criminal sanction where the convicted offender agrees to accept conditions upon his behavior in lieu of incarceration. Gaither v. Ind. Dep’t of Correction, 971 N.E.2d 690, 694 (Ind.Ct.App.2012). A trial court has broad discretion to impose conditions of probation, with the only limitation being that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. Id. The reviewing court is limited to considering whether the conditions imposed by the court on the accused aid in the furtherance of the goal of “assuring that the probation serves as a period of genuine rehabilitation and that the community is not harmed by a probationer being at large.” Id. We will not set aside terms of probation unless the trial court abused its discretion. Id. An abuse of discretion occurs where the decision is “clearly against the logic and effects of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (Ind.2007).

Whitener begins by reciting Ind.Code § 11-8-8-4.5, the relevant provision defining “sex offender” for purposes of Indiana’s Sex Offender Registration, and argues that although he “does not dispute that if he were convicted of Rape as a class B felony he would meet the criteria for having to register as a sex offender .... [his] conviction for Rape in Count II was vacated....” Appellant’s Brief at 15. Whitener argues that “[w]hen looking at the statute outlining the crimes for which a person is required to register as a sex offender, Burglary is not listed” and he “would need to have been convicted of Rape as a separate and distinct act for the statute to apply in the instant matter.” Id.

The State argues that the trial court was within its discretion to order that Whitener register as a sex offender as a condition of probation and that the court did not abuse its discretion in doing so. The State argues that because the order was a condition of probation and not a statutory requirement, “a violation ... would [ ] be punishable as a probation violation and [Whitener] would not be subject [to] prose-eution for violation of Ind.Code § 11-8-8-17.” Appellee’s Brief at 18.

In Weiss v. Ind. Parole Board, defendant Weiss was convicted of aggravated battery, and “[s]hortly after Weiss was paroled, his parole agent recommended that he be required to adhere to the standard and special sex offender parole conditions in addition to the standard parole conditions” because his crime involved “raping a minor and leaving her for dead,” and “these additional requirements would protect society and encourage rehabilitation.” 838 N.E.2d 1048, 1049 (Ind.Ct.App.2006) (internal quotations omitted), trans. denied. Weiss challenged the imposition of the sex offender parole conditions, arguing in part that the Indiana Parole Board was prohibited from imposing the sex offender conditions on a parolee not convicted of an offense listed in the statute defining sex offender, and the court dismissed his claim pursuant to Ind. Trial Rule 12(B)(6). Id. at 1050.

On appeal, this court noted that the statutes as constructed did not prohibit imposing the sex offender conditions on offenders such as Weiss and that “[a]l-though [he] was not convicted of a sex offender crime, he pled guilty to aggravated battery of a minor” and he “does not deny that the battery to the minor also involved the rape of her.” Id. at 1051-1052. We observed that Ind.Code § 11-13-3-4(b) granted the parole board “general authority to impose additional conditions beyond the standard conditions for a person on parole as long as the conditions are reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right.” Id. at 1051. The court held that “[t]hese acts are a significant part of his social interaction history that should be taken into account when determining what conditions would aid his re-entry to society” and that “[b]ecause his crime involved a sexual act with a child, the imposition of the sex offender conditions are reasonably related to Weiss’s reintegration into the community.” Id. at 1052.

Just as the parole board is vested with discretion in setting conditions of parole, as noted above trial courts are given broad discretion in fashioning conditions of probation, and we find that the reasoning in Weiss applies with equal force here to Whitener’s probation. Indeed, we note that this court has previously stated that “[pjarole and probation conditions may be •viewed together because ‘a person on probation occupies a status similar to that of a person on parole.’ ” Gaither, 971 N.E.2d at 694 (quoting Carswell v. State, 721 N.E.2d 1255, 1262 (Ind.Ct.App.1999)). “[Tjhe only practical difference between the two is that ‘probation’ relates to judicial action taken before the prison door is closed, whereas ‘parole’ relates to executive action taken after the door has closed on a convict.” Id.

Ind.Code § 35-38-2-2.3 (Supp.2009) governs the conditions of Whitener’s probation. At the time of Whitener’s sentencing, the relevant version of Ind.Code § 35-38-2-2.3 provides in part that “(a) As a condition of probation, the court may require a person to do a combination of the following: ... (14) Satisfy other conditions reasonably related to the person’s rehabilitation.” Although Whitener was convicted and sentenced on a count of burglary as a class A felony, which is not an enumerated offense under Ind.Code § 11-8-8^.5(a) (Supp.2007), the underlying felony he intended to commit when committing the burglary was rape, which is an enumerated offense. Moreover, we note that Whitener was found guilty of committing rape as a class B felony by the jury, and the court vacated his conviction based upon double jeopardy principles. Thus, much as the defendant in Weiss, Whitener’s crime involved the act of raping K.A., and it was within the court’s discretion under the facts of this case to order that he register as a sex offender as a condition of probation as reasonably related to his rehabilitation. Accordingly, we conclude that the court did not abuse its discretion in ordering that he register as a sex offender as a condition of probation. See Hale v. State, 888 N.E.2d 314, 319 (Ind.Ct.App.2008) (holding that condition of probation that the defendant’s driver’s license be suspended for a period of ten years was reasonably related to his rehabilitation and noting that it “is consistent with the trial court’s broad discretion in imposing conditions of probation in order to create law-abiding citizens and to protect the community with the only limitation being that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public” and that the reviewing court “is essentially limited to determining whether the conditions placed upon the defendant are reasonably related to attaining these goals”) (internal quotations omitted), tram, denied.

III.

The issue raised by the State on cross-appeal is whether the court properly declined to enter a judgment of conviction for rape as a class B felony based upon double jeopardy principles. However, before we can address the merits of this issue, we must first discuss whether the State may raise this issue. As noted above, on April 19, 2010, at Whitener’s sentencing hearing, the court vacated Count II, noting that it merged into Count I for sentencing. On April 28, 2010, the State filed a motion to correct error which stated in part that the court erred in vacating Whitener’s conviction on Count II. On May 10, 2010, following a hearing, the court denied the State’s motion in relevant part. Neither Whitener nor the State filed a notice of appeal in 2010, and in April 2012 the court granted Whitener’s petition to file a belated notice of appeal pursuant to Ind. Post-Conviction Rule 2(1).

Initially, we observe that the State’s authority to appeal criminal matters is extremely limited and is statutory in nature and that “the State cannot appeal unless given that statutory authorization by the legislature.” State v. Coleman, 971 N.E.2d 209, 211 (Ind.Ct.App.2012) (citing State v. Brunner, 947 N.E.2d 411, 415 (Ind.2011), reh’g denied). Also, “[t]he State’s statutory right of appeal is in contravention of common law principles and is therefore strictly construed.” Id. (citing State v. Pease, 531 N.E.2d 1207, 1208 (Ind.Ct.App.1988)). Specifically, Ind.Code § 35-38-4-2, titled “Appeals by state as provided by court rules for certain cases,” provides that appeals to this court or the Indiana Supreme Court may be taken by the State in the following cases:

(1) From an order granting a motion to dismiss an indictment or information.
(2) From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of
former jeopardy, presented and ruled upon prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is acquitted.
(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.
(6) From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or
(C) the remedy by appeal after judgment is otherwise inadequate.

This rule applies with equal force when the State raises an issue by way of cross-appeal. See Hardley v. State, 905 N.E.2d 399, 401 (Ind.2009) (observing that generally Ind.Code § 35-38^4-2 applies to claims raised by the State including claims raised by cross-appeal as was the case therein).

We also observe that in Hardley the Court held that, in addition to the circumstances enumerated in Ind.Code § 35-38-4-2, there is an additional circumstance in which the State may appeal in criminal cases where, as a pure matter of law, the trial court’s sentence is claimed to be illegal. 905 N.E.2d at 404. The Court determined that Ind.Code § 35-38-1-15 implicitly grants the State authority to challenge erroneous sentences and reasoned that “sound policy and judicial economy favor permitting the State to present claims of illegal sentence on appeal when the issue is a pure question of law that does not require resort to any evidence outside the appellate record.” Id. at 408. The Court noted that such a challenge need not be brought within thirty days of a final judgment because “[tjhere is no requirement that a motion to correct a sentence under [Ind.Code] § 35-38-1-15 must be made within thirty days of the final judgment” and “the State’s appellate challenge is the substantial equivalent of the motion to correct erroneous sentence....” Id.

The Court applied this principle in another case in which the defendant petitioned the trial court to modify his conviction for operating under the influence from a class D felony to a class A misdemeanor which the court granted. Brunner, 947 N.E.2d at 414. The Court held that the State “timely appealed a judgment entered by the trial court” which the court did not possess statutory authority to do and that under those circumstances, in which the issue was “a pure question of law that does not require evidence outside the record ... the State has the limited availability to appeal a trial court’s modification of conviction under these particular circumstances.” Id. at 415-416. We note, however, that the statement in Hardley that such an appeal need not be filed within thirty days based upon Ind.Code § 35-38-1-15 was not applicable in this circumstance.

We turn next to State v. Holtsclaw, in which the Court addressed whether Ind. Appellate Rule 9 applied to the State in tolling the thirty-day deadline for filing a notice of appeal when a party files a motion to correct error. 977 N.E.2d 348, 349 (Ind.2012). In Holtsclaw, following the trial court’s May 23, 2011 grant of the defendant’s motion to suppress evidence, the State on June 21, 2011 filed a motion to correct error which the court denied on July 25. Id. On August 16, 2011, the State appealed the court’s suppression ruling, and the defendant argued that the appeal was untimely and not authorized by statute because Ind.Code § 35-38-4-2 does not allow for appeals by the State stemming from the denial of a motion to correct error. Id. at 349-350. The State argued that Ind. Appellate Rule 9, which tolls the thirty-day filing deadline “if any party files a timely motion to correct error!,] • • • took precedence over Ind.Code § 35-38-4-2 and thus its appeal was timely.” Id. at 350. The Court agreed, noting that “[o]ur ‘rules of procedure prevail over any statute or statutory construction’ ” and “in this conflict between Indiana Code § 35-38-4-2 and our Appellate Rule 9, the former must give way to the latter.” Id. (quoting State ex rel. Crawford v. Del. Cir. Ct., 655 N.E.2d 499, 500 (Ind.1995)). It held that pursuant to Ind. Appellate Rule 9 the State had until August 24, 2011, to appeal from the denial of its motion to correct error, and that accordingly its appeal was timely. Id.

Here, by contrast, following the court’s denial of the State’s motion to correct error on May 10, 2010, the State elected not to appeal. It was two years later, after Whitener pursued a direct appeal by filing a petition to file a belated appeal pursuant to Ind. Post-Conviction Rule 2(1), that the State elected to raise this issue. We conclude that, under these circumstances, the State’s cross-appeal issue is untimely, and accordingly we dismiss the State’s appeal.

Finally, to the extent that the principle in Hwrdley that the State may seek review of pure questions of law in which such review would not require evidence outside the record might apply to the instant case, we observe that the Indiana Supreme Court has made clear that a double jeopardy challenge is not a challenge to a defendant’s sentence. In McCullough v. State, the defendant on direct appeal raised claims of “insufficient evidence and double jeopardy but does not seek appellate review of his sentence.” 900 N.E.2d 745, 746 (Ind.2009) (emphasis added). The State raised by cross-appeal a challenge to the sentence imposed by the trial court, seeking either a remand for resentencing due to the alleged inadequacy of the sentencing statement or, alternatively, requesting that the defendant’s sentence be revised by the appellate court and a longer sentence be imposed. Id. at 750. The Court held that “the State may not by appeal or cross-appeal (a) initiate a challenge to a trial court’s criminal sentence that is within the court’s sentencing authority or (b) seek appellate review and revision of such sentence,” unless the “defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution,” and that in that case the State was precluded from raising the issue on appeal. Id. at 750-751. Thus, despite the fact that the defendant raised a double jeopardy claim, the Court reasoned that the defendant did not challenge his sentence.

Even if the principle expressed in' Hard-ley were to apply to the State’s instant challenge, its claim could not be construed as challenging Whitener’s sentence as illegal. Thus, any such claim would be subject to Ind. Appellate Rule 9(A) and the appeal must be brought within thirty days after the entry of a final judgment.

For the foregoing reasons, we affirm Whitener’s conviction for burglary as a class A felony and the court’s order that Whitener must register as a sex offender as a condition of probation, and we dismiss the State’s claim that the court erred in merging Count II into Count I based upon double jeopardy principles.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

      . Although this appeal stems from a burglary conviction, as charged the underlying felony Whitener intended to commit was rape, which is a form of sexual assault, and accordingly we anonymize the victim's name.

      . Meyers left at one point because she had to work.

      . The State also suggests that this issue is moot because the court erred in vacating Whitener's rape conviction. We address this issue in part III.

      4. Ind.Code § 1 l-13-3-4(g), as currently constructed, provides in part:
      (g) As a condition of parole, the parole board:
      (1) may require a parolee who is a sex offender (as defined in IC 11-8-8-4.5) to:
      (A) participate in a treatment program for sex offenders approved by the parole board; and
      (B) avoid contact with any person who is less than sixteen (16) years of age unless the parolee:
      (i) receives the parole board’s approval; or
      (ii) successfully completes the treatment program referred to in clause (A); and
      (2) shall:
      (A) require a parolee who is a sex or violent offender (as defined in IC 11 — 8—8— 5) to register with a local law enforcement authority under IC 11-8-
      (B) prohibit a parolee who is a sex offender from residing within one thousand (1,000) feet of school property (as defined in IC 35-31.5-2-285) for the period of parole, unless the sex offender obtains written approval from the parole board;
      (C) prohibit a parolee who is a sex offender convicted of a sex offense (as defined in IC 35-38-2-2.5) from residing within one (1) mile of the victim of the sex offender’s sex offense unless the sex offender obtains a waiver under IC 35-38-2-2.5;....
      We observe that this statute differs from the version recited in Weiss in that Ind.Code §§ 5-2-12, which related to sex offender registration in Indiana, was repealed by Pub.L. No. 140-2006, § 41, and Pub. L. No. 173-2006, § 55, and the current statute reflects that the sex offender registration is governed by Ind.Code §§ 11-8-8, among other revisions not pertinent in this matter.

      . As noted above, the court sentenced Whitener in May 2010 following the hearing on the motions to correct error and ordered that Whitener register as a sex offender as a condition of probation. Ind.Code § 35-38-2-2.3 has subsequently been amended by Pub. L. No. 40-2012, § 20 (eff. July 1, 2012), and Pub. L. No. 147-2012, § 9 (eff. July 1, 2012). The relevant subparagraph in the current statute is listed as subparagraph (15).

      . Section 4.5(a) provides a list of offenses and states that a person who is convicted of any such enumerated offense is a “sex offender,” and it lists rape as one such offense but does not include burglary with the intent to commit rape or other enumerated offense. Ind. Code § 1 l-8-8-4.5(a) (Supp.2007) (subsequently amended by Pub. L. No. 1-2012, § 2 (eff. Jan. 30, 2012); Pub. L. No. 72-2012, § 1 (eff. July 1,2012)).

      . We acknowledge that this court has previously observed that if a trial court grants a petition to file a belated notice of appeal, "the 'notice of appeal shall be treated for all purposes as if filed within the prescribed period.’ ” Beatty v. State, 854 N.E.2d 406, 409 (Ind.Ct.App.2006) (quoting Post-Conviction Rule 2(1) (subsequently amended on Sept. 10, 2007 (eff. Jan. 1, 2008)), Sept. 9, 2008 (eff. Jan. 1, 2009, Sept. 20, 2011 (eff. Jan. 1, 2012))), reh’g denied. However, the September 10, 2007 amendment, effective on January 1, 2008, revised Ind. Post-Conviction Rule 2(1) and included Rule 2(l)(f) which altered language governing the timing requirements and specifically stated that notices of appeal shall comply with the timing requirements of Ind. Appellate Rule 9(A). Currently, Ind. Post-Conviction Rule 2(l)(f), titled “Time and procedure for initiating appeal," states that "[i]f the court grants permission to file a belated notice of appeal, the time and procedure for filing such notice of appeal is governed by App. R. 9(A).” To the extent that the rule expressed in Beatty might have rendered timely the State’s cross-appeal motion following Whitener’s belated notice of appeal, we observe that the current version of Post-Conviction Rule 2(1) does not contemplate that filing of a belated notice of appeal would allow for cross-appeal issues to be filed by the State as cross-appeals are sought pursuant to Ind. Appellate Rule 9(D). Where the State has appealable issues following a final judgment, it should raise them in a timely fashion or forfeit its opportunity.
      We also note that, in Beatty, this court was addressing whether the State could raise on cross-appeal the question of whether the post-conviction court abused its discretion when it allowed the defendant to file a belated notice of appeal. As the Beatty court noted, the defendant’s argument that Ind.Code § 35-38-4-2 precluded the State’s cross-appeal was erroneous because “a petition to file a belated notice of appeal is authorized and governed by the Post-Conviction Rules; consequently, the proceeding herein is properly characterized as a post-conviction proceeding rather than a criminal proceeding.” 854 N.E.2d at 409 (citing State v. Lawson, 272 Ind. 541, 400 N.E.2d 128, 128-129 (1980)) (emphases added). Thus, the court held "the State’s right to cross-appeal from an order granting such a petition is governed by rule rather than statute.” Id. Where the State challenges on cross-appeal the post-conviction court's decision to allow the defendant to file a belated notice of appeal, it is appealing a ruling made at a postconviction proceeding, rather than from a direct criminal appeal, and accordingly the limitations imposed by Ind.Code § 35-38-4-2 do not apply to bar the State from bringing that issue.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    James ROBERSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 18A02-1204-PC-306.
    Court of Appeals of Indiana.
    Feb. 14, 2013.

      Stephen T. Owens, Public Defender of Indiana, Kelly A. Kelly, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

James Roberson appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his conviction for murder. We reverse and remand.

Issue

The sole dispositive issue is whether Roberson received ineffective assistance of trial counsel.

Facts

In the early morning hours of March 18, 2006, Roberson and Antron Young were at a nightclub in Muncie. Young repeatedly exchanged angry words with persons at the club, and he also repeatedly bumped and pushed Roberson. Young had a reputation for being a bully. The nightclub closed shortly before 3:00 a.m. As Roberson and Young left the club, they had to be prevented from fighting each other by a mutual friend, with the friend essentially forcing Roberson into his car to separate him from Young.

Many of the people who were at the club, including Roberson and Young, went to a nearby convenience store, with Young arriving there after Roberson. In the parking lot, Roberson argued with two friends about a handgun, and he eventually took possession of it. Roberson then said that he wanted to “merk an** *a,” which is slang for wanting to kill someone, and that he would kill anyone who “messes” with his friends. Tr. pp. 261, 272.

Young then arrived at the convenience store with his cousin, Bruce Smith. Roberson saw Young and yelled to Smith, “I need to holler at your cousin.” Id. at 139. Smith thought Roberson and his Mends could have been intending to “jump” on Young. Id. at 141. Young got out of Smith’s vehicle, lifted up his shirt to show that he was unarmed, and then went into the convenience store. Roberson stayed outside. Roberson’s Mend, Larry Brown, went into the store and attempted to fight Young, but other people broke it up.

After this fight, another cousin of Young’s, Brian Young, left the store, shook Roberson’s hand as he stood by the door, and said, “see you later.” Id. at 368. Then Young next left the store, immediately punched Roberson in the face, and began walking away. Roberson drew the handgun and fired three shots at Young, with two of the shots striking Young in the head and chest. After Young fell to the ground, Roberson fired several more shots at him, saying, “die mother fi: * *er, die.” Id. at 236. Young died from the gunshot wounds.

The State charged Roberson with murder. At trial held on April 2-4, 2007, Roberson claimed self-defense, and the trial court instructed the jury accordingly. In addition, the trial court gave final instructions to the jury on voluntary manslaughter as a lesser included offense of murder. It does not appear that trial counsel expressly requested instructions on voluntary manslaughter, but neither did counsel object to any such instructions being given. Ultimately, the jury convicted Roberson of murder. Roberson pursued a direct appeal, claiming that the prosecutor had committed misconduct during closing argument and that there was insufficient evidence to support his conviction. We rejected both arguments and affirmed Roberson’s conviction. Roberson v. State, No. 18A04-0705-CR-289, 2008 WL 204678 (Ind.Ct.App. Jan. 25, 2008), trans. denied.

Roberson subsequently filed a PCR petition, arguing he received ineffective assistance of trial and appellate counsel with respect to not objecting to the content of the trial court’s instructions regarding voluntary manslaughter and not challenging them on direct appeal as fundamentally erroneous. On March 22, 2012, the post-conviction court denied Roberson’s petition. He now appeals.

Analysis

PCR proceedings are civil in nature, and a defendant bears the burden of establishing his or her claims by a preponderance of the evidence. Smith v. State, 822 N.E.2d 193, 198 (Ind.Ct.App.2005), trans. denied. A defendant appealing the denial of a PCR petition is challenging a negative judgment. Id. Thus, to the extent this appeal turns on factual issues, Roberson must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the PCR court. See id. “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. We will not defer to the PCR court’s legal conclusions, but we do accept its factual findings unless they are “clearly erroneous.” Id.

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or her counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)), cert, denied. An attorney’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). 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.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006).

Roberson contends that the murder and voluntary manslaughter instructions were erroneous both because they effectively precluded the jury from considering whether Roberson committed voluntary manslaughter if the State proved the basic elements of murder, i.e. knowingly killing Young, and because they erroneously placed the burden on the State of proving the existence of sudden heat beyond a reasonable doubt. At the outset, we acknowledge that it does not appear trial counsel expressly requested that the jury be instructed on voluntary manslaughter as a lesser included offense of murder. However, once the trial court indicated that it was going to give such instructions and counsel acquiesced in that decision, it was incumbent upon counsel to ensure that the instructions were correct.

Trial counsel’s acquiescence in the giving of instructions regarding voluntary manslaughter also may have constituted a strategic decision to permit the jury to consider convicting Roberson of that offense rather than murder. The post-conviction court ruled in part that it would have been inconsistent for Roberson to pursue a claim of self-defense and simultaneously obtain jury instructions allowing the jury to find that he was acting under sudden heat so as to support a conviction for voluntary manslaughter instead of murder. The law in Indiana is clear, however, that a defendant in a murder trial may claim both self-defense and, alternatively, seek a conviction for voluntary manslaughter instead of murder. See Clark v. State, 834 N.E.2d 153, 158 (Ind.Ct.App.2005) (holding that “an instruction on self-defense does not preclude an instruction on voluntary manslaughter”). The post-conviction court’s suggestion to the contrary was erroneous.

Although voluntary manslaughter is a lesser included offense of murder, it is not a “typical” lesser included offense, because instead of requiring the State to prove less than all the elements of murder, it requires the State to prove all of the elements of murder and disprove the existence of sudden heat when there is any appreciable evidence of such in the record. See Watts v. State, 885 N.E.2d 1228, 1232 (Ind.2008). Additionally, a conviction for voluntary manslaughter constitutes an acquittal of murder. Id. The absence of sudden heat is not an element of murder, and a jury ordinarily does not have to be instructed that the State has the burden of disproving the existence of sudden heat in order to gain a murder conviction. Massey v. State, 955 N.E.2d 247, 255 n. 4 (Ind.Ct.App.2011). If there is no evidence in the record of sudden heat, the jury need not be instructed that the State bears the burden of disproving the existence of sudden heat. Id. If, however, the record contains any appreciable evidence of sudden heat, an instruction on voluntary manslaughter is justified. Roark v. State, 573 N.E.2d 881, 882 (Ind.1991). Additionally, such evidence may arise from either the State’s or the defendant’s evidence; the defendant does not bear the burden of placing the issue of sudden heat into question. Dearman v. State, 743 N.E.2d 757, 761 (Ind.2001).

“ ‘Sudden heat’ is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.” Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind.Ct.App.2010), trans. denied. Words alone do not constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter, especially when the words were not intended to provoke the defendant, such as fighting words. Id. Additionally, any alleged provocation must be such that it would obscure the reason of an “ordinary man,” which is an objective as opposed to a subjective standard. Id. at 1282-83. Unlike the right to self-defense, which ceases to exist once a danger has passed, “sudden heat can survive for a while beyond the act of provocation.” Roark, 578 N.E.2d at 883.

We conclude the record here contains ample evidence of possible sudden heat. Throughout the evening leading up to the shooting, Young was being argumentative and belligerent toward Roberson, including repeatedly bumping into him at the nightclub. Also, although Roberson verbalized an intention to “merk a n* * *a” before shooting Young, we note that Roberson did not actually shoot Young until after Young had punched him in the face. Tr. p. 261. Thus, it is open to reasonable debate whether Roberson’s pri- or comments were mere bragging and whether he would have pulled the trigger if Young had not punched him. The shooting also occurred immediately after Young’s punch, meaning there was little or no time for calm reflection by Roberson between Young’s ultimate act of provocation and the shooting. Young’s provocation went beyond mere words to physical violence, although Young’s words and other conduct throughout the evening may have contributed to the provocation.

This evidence of sudden heat meant that it was crucial that the jury be properly instructed on the State’s burden of proof for murder and voluntary manslaughter. In this case, the trial court gave the following jury instruction, number 4, regarding the offense of murder:

The crime of murder is defined by law as follows:
A person who knowingly or intentionally kills another human being commits murder, a felony.
Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant, James D. Roberson, III
2. knowingly
3. killed
4. Antron Dushaun Young.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of murder, a felony, as charged in Count 1.

App. p. 166.

It also gave the following instruction, number 12, regarding voluntary manslaughter:

The Defendant is charged with Murder, a felony. The crimes of Voluntary Manslaughter, a Class A Felony, Voluntary Manslaughter, a Class B Felony, Involuntary Manslaughter, a Class C Felony, and Reckless Homicide, a Class C felony are offenses included in the crime of Murder. If the State proves the Defendant guilty of Murder, you need not consider the included crimes. However, if the State fails to prove the Defendant committed the crime of Murder as charged, you may consider whether the Defendant committed Voluntary Manslaughter, as a Class A Felony, Voluntary Manslaughter, as a Class B Felony, Involuntary Manslaughter, a Class C Felony, or Reckless Homicide, a Class C Felony.
You must not find the Defendant guilty of more than one crime.

Id. at 174 (emphasis added). However, in reading this instruction to the jury, the trial court said, “If the State proves the Defendant guilty of Murder, you must not consider the included crimes.” Tr. p. 452 (emphasis added).

Finally, the trial court gave the following instruction, number 13, regarding voluntary manslaughter:

If you find that the Defendant is not guilty of the crime of Murdér as charged in the information, you may then consider whether the Defendant is guilty of the included offense of Voluntary Manslaughter, as a Class A Felony or as a Class B Felony.
The crime of Voluntary Manslaughter is defined by law as follows:
A person who knowingly or intentionally kills another human being while acting under sudden heat commits Voluntary Manslaughter, a Class B Felony. However, the offense is a Class A Felony if it is committed by means of a deadly weapon.
The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder to Voluntary Manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat.
Before you may convict the Defendant of Voluntary Manslaughter, as a Class A Felony, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant, James Roberson, in
2. knowingly or intentionally
3. killed, by means of a deadly weapon
4. Antron Dushaun Young
5. while he was acting under sudden heat.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Voluntary Manslaughter, a Class A Felony.
If you find that the Defendant is not guilty of the included offense of Voluntary Manslaughter, a Class A felony, you may then consider whether the Defendant is guilty of the included offense of Voluntary Manslaughter, as a Class B Felony.
Before you may convict the Defendant of Voluntary Manslaughter, as a Class B Felony, the State must have proved each of the following elements beyond a reasonable doubt:
1. The Defendant, James Roberson, III
2. knowingly or intentionally
3. killed
4. Antron Dushaun Young
5. while he was acting under sudden heat.
The difference between Voluntary Manslaughter, as a Class A Felony, and Voluntary Manslaughter, as a Class B Felony, is that the State has the additional burden of proving beyond a reasonable doubt that the killing was committed by means of a deadly weapon for a conviction as a Class A Felony.

App. pp. 175-76.

Turning first to instruction 13, there is no doubt that instruction contains erroneous, internally inconsistent, and inherently contradictory language. “It is well settled in Indiana that sudden heat is not an element of voluntary manslaughter.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002). Rather, where there is evidence of sudden heat, the State bears the burden of disproving its existence beyond a reasonable doubt. Id. An instruction assigning to the State the burden of affirmatively proving sudden heat is erroneous as a matter of law. Id. Thus, to the extent instruction 18 twice stated that the State bore the burden of proving the existence of sudden heat beyond a reasonable doubt, it was legally erroneous. See id.

Boesch went on to hold that the instruction in that case, which as here had not been objected to, was not fundamentally erroneous. The erroneous instruction in Boesch also informed the jury that sudden heat was “a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter” and that “in order to prove the offense of Murder ... the State bears the burden in its evidence of negating the existence of sudden heat beyond a reasonable doubt.” Id. at 1280. The Boesch court also noted that defense counsel had correctly emphasized to the jury during closing argument that the State bore the burden of disproving the existence of sudden heat. Id.

This court thoroughly examined Boesch’s holding in Eichelberger v. State, 852 N.E.2d 631 (Ind.Ct.App.2006), trans. denied. In Eichelberger, the jury was erroneously instructed at the trial of a defendant charged with murder that to convict the defendant of voluntary manslaughter instead, the State bore the burden of proving the existence of sudden heat beyond a reasonable doubt. The instruction also stated, “The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter.” Eichelberger, 852 N.E.2d at 635. Nowhere was the jury instructed that to convict the defendant of murder, the State bore the burden of disproving the existence of sudden heat.

Despite some similarities to Boesch, this court held that the defendant received ineffective assistance of trial counsel for tendering the faulty voluntary manslaughter instruction. Id. at 639. In particular, we noted the Seventh Circuit’s grant of habe-as corpus relief in Sanders v. Cotton, 398 F.3d 572 (7th Cir.2005). In Sanders, as with this case, Boesch, and Eichelberger, the jury was erroneously instructed that sudden heat was an element of voluntary manslaughter that the State bore the burden of proving. After the defendant was convicted of murder and that conviction was affirmed on direct appeal, this court affirmed the denial of post-conviction relief that had claimed fundamental error and ineffective assistance of counsel with respect to the voluntary manslaughter instruction. This court affirmed on the basis that the instruction also informed the jury that sudden heat was a mitigating factor that reduced murder to voluntary manslaughter. Sanders v. State, 764 N.E.2d 705, 713 (Ind.Ct.App.2002), trans. denied, cert, denied.

In subsequently granting habeas corpus relief, the Seventh Circuit held the defendant had been denied fundamental due process because the jury had not at any time been given any instruction properly placing “the burden of proof on the State for showing the absence of sudden heat to gain a murder conviction; rather, the only time the jury instructions mentioned the burden of proof for sudden heat was in the manslaughter instructions,” which improperly said the State had to prove the presence of sudden heat. Eichelberger, 852 N.E.2d at 638-39 (citing Sanders, 398 F.3d at 582). As in Sanders, the jury in Eichel- berger never was informed that the State had to disprove the existence of sudden heat in order to obtain a murder conviction, whereas in Boesch the jury had been so instructed. On the basis of Sanders, the Eichelberger opinion held that the defendant had received ineffective assistance of trial counsel for failing to ensure the jury was instructed on the proper burden of proof for murder. Id.

As Eichelberger and Sanders make very clear, proper jury instructions in a murder case where there is any appreciable evidence of sudden heat should include an instruction for murder that informs the jury of the State’s burden of disproving the existence of sudden heat, as well as an instruction for voluntary manslaughter that properly identifies the State’s burden regarding sudden heat. The jury here was not properly instructed. In addition to the legally erroneous language of instruction 13, instruction 4, defining the elements of murder, makes no mention of the State’s burden to disprove the existence of sudden heat. Thus, the murder instruction here suffered from precisely the same fatal flaw we identified in Eichel-berger — it did not mention the State having to disprove sudden heat in order to obtain a murder conviction. And unlike in Boesch, at no point was the jury otherwise instructed of the State’s burden of disproving sudden heat in order to support a murder conviction.

Nor does instruction 18, which mentions sudden heat as a mitigating factor and that the State has the burden of disproving the existence of sudden heat, cure the defect of instruction 4. First, as we have noted, instruction 13 is internally inconsistent in that it also says the State has the burden of proving the existence of sudden heat. More importantly, however, the jury instructions as a whole indicated to the jury that it could only consider convicting Roberson of voluntary manslaughter if it first found him not guilty of murder. Instruction 12 stated in part that the jury “need not” consider whether Roberson had committed voluntary manslaughter if it had found he committed murder. In reading this instruction to the jury, the trial court replaced “need not” with “must not.” Instruction 13 likewise begins, “If you find that the Defendant is not guilty of the crime of Murder ..., you may then consider whether the Defendant is guilty of the included offense of Voluntary Manslaughter. ...” App. p. 175.

It was a clearly incorrect statement of the law to inform the jury that it could only consider convicting Roberson of voluntary manslaughter instead of murder if it first found him not guilty of murder, given that the jury instruction for murder did not inform the jury that the State had to disprove the existence of sudden heat. Such an instruction might be accurate with respect to lesser included offenses generally, but it is not with respect to voluntary manslaughter, given that the State must prove not only all of the elements of murder but must additionally disprove the existence of sudden heat when there is any appreciable evidence of such. See Watts, 885 N.E.2d at 1232.

Here, the jury was asked to first consider whether Roberson was guilty of murder, and if so, the jury was instructed to cease its deliberations at that point without considering the issue of whether Roberson had acted under sudden heat. In other words, the jury was given an incomplete instruction regarding murder, and it was precluded from considering whether Roberson had acted under sudden heat when the killing occurred if it found the State had proven the basic elements of murder. Indeed, where there is evidence of sudden heat in the record, a jury should be clearly instructed to first consider whether the State has disproved sudden heat and to be asked to choose whether the defendant is guilty of either murder or voluntary manslaughter, simultaneously. We also note that in the present case, unlike in Boesch, neither party explained the proper burden of proof to the jury during their closing arguments. Additionally, given the manner in which the jury was instructed, it would have been legally impossible for it to acquit Roberson of murder but convict him of voluntary manslaughter. Assuming the jury rejected Roberson’s self-defense claim, if the jury did not find that he knowingly killed Young, it could convict him of neither murder nor voluntary manslaughter.

We conclude it was deficient performance for trial counsel not to point out to the trial court the errors in instructions 4,12, and 13, which were clearly defined as errors at the time of Roberson’s trial. We further conclude that Roberson was prejudiced by this performance. The evidence of sudden heat in this case was not inconsiderable. It is readily conceivable that had the jury been properly and clearly instructed regarding the State’s burden of disproving the existence of sudden heat in order to convict Roberson of murder, that it might have opted to convict him of voluntary manslaughter instead. Roberson did not have to establish that the jury definitely would have convicted him of voluntary manslaughter instead of murder had it been properly instructed; he only had to establish a reasonable probability of such a result. See French, 778 N.E.2d at 824. He met that burden. Having established deficient performance and prejudice, Roberson has proven his claim of ineffective assistance of trial counsel. The post-conviction court erred in finding otherwise.

Conclusion

Roberson received ineffective assistance of trial counsel with respect to failing to ensure that the jury was properly instructed regarding the elements of murder, voluntary manslaughter, and the State’s burden of proof regarding sudden heat. We reverse the denial of Roberson’s PCR petition and remand for further proceedings consistent with this opinion.

Reversed and remanded.

GARRARD, SR. J., and CRONE, J., concur.

      . Roberson also contends that he received ineffective assistance of appellate counsel. Given our resolution of the trial counsel issue, we need not address that question.

      . At the PCR hearing, neither of Roberson’s trial attorneys had any recollection of discussions related to the final jury instructions.

      . Moreover, even if trial counsel had objected to the jury being instructed on voluntary manslaughter, the State may insist on the jury being so instructed when there is evidence of sudden heat in the record. See Collins v. State, 966 N.E.2d 96, 103-04 (Ind.Ct.App.2012). There was such evidence in this case, as we discuss later. Again, regardless of whether trial counsel originally wanted the jury to be instructed on voluntary manslaughter, they had to insist that any such instructions be legally correct.

      . Boesch did not address whether the failure to object constituted ineffective assistance of counsel, because the defendant in that case had not alleged ineffective assistance of counsel in his PCR petition; the claim of fundamental error had been part of the defendant’s direct appeal, which our supreme court decided simultaneously with the denial of the PCR petition.

      . Roberson’s trial was held in 2007; Eichel-berger was decided in 2006 and Sanders in 2005.


author: CRONE, Judge.

text:
    Alex CARRILLO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1108-PC-437.
    Court of Appeals of Indiana.
    Feb. 18, 2013.

      Eric C. Bohnet, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

CRONE, Judge.

Case Summary

In 1997, Alex Carrillo, a citizen of Ecuador who immigrated to the United States when he was one year old, pled guilty to possession of cocaine. Carrillo now appeals the denial of his petition for post-conviction relief (“PCR”), in which he argued that his guilty plea counsel provided ineffective assistance by failing to advise him that there could be negative immigration consequences as a result of his guilty plea. On appeal, he argues that the post-conviction court erred in concluding that he failed to establish prejudice resulting from his attorney’s failure to advise him. Concluding that Carrillo failed to show an objectively reasonable probability that but for his counsel’s failure to advise him of possible adverse immigration consequences, he would have decided to decline his guilty plea, we affirm.

Facts and Procedural History

Carrillo was born in Ecuador in 1965. He immigrated to the United States when he was one year old. He has lived his entire life in the United States but remains a citizen of Ecuador.

On May 7, 1997, Indianapolis police reported to the scene of a motorcycle accident. The police found Carrillo at the scene and determined that he had been the motorcycle driver. Carrillo appeared to be intoxicated, and he was arrested for public intoxication. During a search incident to arrest, the police saw Carrillo drop a clear plastic baggie containing what appeared to be crack cocaine. The substance later tested positive for cocaine and weighed 0.18 grams.

The State charged Carrillo with class D felony possession of cocaine and class B misdemeanor public intoxication. Carrillo was represented by a public defender. At the post-conviction hearing, Carrillo’s public defender testified that he had filed a motion for Carrillo’s resident alien identification to be returned to him on September 12, 1997, and therefore, there was “a really good chance” that he knew that Carrillo was not a United States citizen. Tr. at 9.

In September 1997, Carrillo pled guilty to class D felony possession of cocaine pursuant to a plea agreement that provided that Carrillo would receive alternative misdemeanor sentencing and a suspended 365-day sentence. The State dismissed the public intoxication charge. The trial court entered judgment of conviction for class A misdemeanor possession of cocaine and sentenced Carrillo to 365 days, suspended.

On April 11, 2011, Carrillo was detained by federal immigration authorities. He faces deportation proceedings based in part upon his 1997 conviction for possession of cocaine.

On May 10, 2011, Carrillo filed a PCR petition alleging that his guilty plea counsel did not provide effective assistance of counsel in failing to advise him that pleading guilty could adversely affect his immigration status and could result in deportation. Following a hearing, the post-conviction court issued an order denying Carrillo’s petition. The postconviction court concluded in relevant part that Carrillo failed to establish that prejudice resulted from his counsel’s failure to advise him of the possible deportation consequences of his guilty plea.

Carrillo appeals. Additional facts will be provided as necessary.

Discussion and Decision

This is an appeal from the denial of a PCR petition.
In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court .... Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468-69 (Ind.2006) (citations omitted).

Carrillo contends that the post-conviction court erred in finding that he was not denied the effective assistance of trial counsel. “The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence.” State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000) (citing Ind. Post-Conviction Rule 1(5)). 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. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied (2001). Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). Prejudice results where there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings 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. Thus, if the petitioner cannot establish prejudice, we need not evaluate counsel’s performance. Bryant v. State, 959 N.E.2d 315, 319 (Ind.Ct.App.2011). In this case, we decide Carrillo’s ineffective assistance claim based on the prejudice prong.

Carrillo argues that his attorney was ineffective for failing to inform him that pleading guilty could carry adverse immigration consequences. To establish prejudice for such ineffective assistance claims,

a petitioner must establish, by objective facts, circumstances that support the conclusion that counsel’s errors in advice as to penal consequences were material to the decision to plead. Merely alleging that the petitioner would not have pleaded is insufficient. Rather, specific facts, in addition to the petitioner’s con-clusory allegation, must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea.

Segura v. State, 749 N.E.2d 496, 507 (Ind.2001). In other words, “a petitioner may be entitled to relief if there is an objectively credible factual and legal basis from which it may be concluded that ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Accordingly, Carrillo’s self-serving testimony that he would not have pled guilty had his attorney advised him of the risk of deportation is by itself insufficient to establish prejudice.

In Sial v. State, 862 N.E.2d 702, 706 (Ind.Ct.App.2007), we held that the defendant did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an ineffective assistance claim based on the failure to advise of the possible adverse immigration consequences from pleading guilty. The Sial court reasoned as follows:

Sial testified that he has a wife and a thirteen-year-old daughter. Inasmuch as Sial has been in the United States for over twenty years, we infer that his daughter was likely born here and, consequently, would be an American citizen. If deported, Sial would be forced either to leave his wife and child behind or to uproot them from this country — most likely the only home his daughter has ever known. We believe that these are sufficient special circumstances and specific facts to establish a reasonable probability that if Sial’s attorney had advised him that deportation is a possible consequence of a felony conviction, Sial would have chosen to proceed to trial rather than to plead guilty.

Id. (citation omitted).

In contrast, the court in Trujillo v. State, 962 N.E.2d 110, 116 (Ind.Ct.App.2011), concluded that the defendant “failed to demonstrate the presence of special circumstances within the meaning of Segura and therefore failed to demonstrate that he suffered prejudice” from counsel’s failure to advise him regarding the immigration consequences of pleading guilty. There, Trujillo came to the United States when he was sixteen years old. When he pled guilty in 2008, he was fifty-two years old and had lived in the United States for thirty-four years. The Trujillo court did not find the length of time that the defendant lived in the United States to be a special circumstance in light of the defendant’s family situation. The Trujillo court concluded that the defendant’s family ties did not amount to special circumstances, explaining that at the time of his guilty plea,

he lived with his mother and did not mention a spouse or children, much less minor children, and thus failed to establish that he had a spouse or children. The prospect of forcibly separating from one’s nuclear family that includes minor children is the sort of compelling circumstance that might indeed motivate one to forego whatever advantages may attach to pleading guilty, and instead to face whatever hazards attend a trial on the merits. The prospect of a middle-aged man separating from his mother and relatives other than a spouse or children are not nearly so compelling. Therefore, Trujillo’s family situation is fundamentally different from the petitioner’s in Sial.

Id.

Since Sial and Trujillo, this Court has further developed the analysis used to determine whether, but for counsel’s failure to advise a defendant of the possible adverse immigration consequences of pleading guilty, a reasonable defendant would have declined to enter a guilty plea. In Clarke v. State, 974 N.E.2d 562, 566 (Ind.Ct.App.2012), the court stated that the strength of the State’s case against the defendant and the benefit to the defendant from pleading guilty were also factors that a reasonable defendant would consider in deciding whether to plead guilty. See also Segura, 749 N.E.2d at 507 (“We see no reason to require revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the same sentence.”).

In Clarke, at the time of the defendant’s guilty plea to dealing in cocaine, he was thirty-three years old and had lived in the United States for eleven years. The Clarke court did not find that his eleven years in the United States was so long that it constituted a special circumstance standing alone. Also at the time of his guilty plea, the defendant had two children who were still in-utero, but he was not married to either of the women carrying his child. The Clarke court believed that these facts weakened the defendant’s argument that his ties to his children were special circumstances, but for purposes of the appeal, the court assumed, without deciding, that these were special circumstances. Nevertheless, because of the strength of the case against the defendant and the substantial benefit he received from pleading guilty, the Clarke court concluded that the defendant would have pled guilty even if he had been advised of the risk of deportation.

Clarke had been charged with class A felony dealing in cocaine and pled guilty to class B felony dealing in cocaine and was sentenced to six years in prison, all but two days suspended, and ordered to serve two years on probation. He later pled guilty to resisting law enforcement, and in so doing, violated his probation for his dealing conviction. Pursuant to the plea agreement for resisting law enforcement, the trial court ordered the defendant to serve five years of the previously suspended sentence consecutive to the one-year sentence for resisting law enforcement. The Clarke court reasoned that

[t]he evidence against Clarke included the contraband, the large amount of cash found in the vehicle, and, we presume, the testimony of the two officers at the scene of the stop and arrest. Based upon the nature and strength of this evidence, we conclude that the objective probability of success at trial was low. Moreover, Clarke received a significant benefit in exchange for his guilty plea. The State agreed to reduce the dealing charge from a class A to a class B felony, and agreed to dismiss the marijuana charge and the resisting charge. The reduction in the dealing charge alone reduced his sentence exposure from an advisory sentence of thirty years to an advisory sentence of ten years. As it was, he was sentenced to six years, all suspended, and two years on probation. In summary, Clarke received a substantial benefit from his guilty plea.
Even assuming Clarke has established special circumstances with respect to his unborn children, considering the strength of the evidence against him and the significant benefit conferred upon him under the plea agreement, we conclude that the knowledge of the risk of deportation would not have affected a reasonable defendant’s decision to plead guilty. Although deportation would be a considerable inconvenience for Clarke, it is reasonable to assume he would be in a better position to provide for his then-unborn children from Barbados than from prison. Accordingly, Clarke has not established that he was prejudiced by trial counsel’s failure to advise him of the risk of deportation.

Id. at 568.

Turning now to the facts of this case, Carrillo argues that at the time of his guilty plea in 1997, he had lived in the United States for thirty years and had not been to Ecuador since 1990. Citing to the post-conviction hearing transcript, he notes that he has a wife, five children, parents, sisters, and other relatives that all live in the United States and claims that being deported to Ecuador would be like being in exile. Tr. at 11-13. Our review of the transcript shows that Carrillo testified regarding his family situation as it existed at the time of the post-conviction hearing, not as it was in 1997. The post-conviction hearing was held in June 2011, nearly fourteen years after his guilty plea. To decide whether Carrillo was prejudiced by counsel’s failure to advise him of the possible deportation consequences of pleading guilty, the relevant circumstances are those that existed in 1997 and whether those circumstances establish an objectively reasonable probability that Carrillo would not have pled guilty if he had been advised that adverse immigration consequences could result from pleading guilty.

Our review of the record before us shows that Carrillo did not testify as to whether he was married in 1997. He testified that he was currently married but separated and that he and his wife had four children together. Id. at 11. He did not testify as to the ages of those children. He did testify that he had a fifth child who at the time of the post-conviction hearing was twenty years old. Id. at 12. That child would have been around six years old in 1997. However, there is nothing in the record regarding whether Carrillo lived with or supported that child or had any relationship with that child’s mother at the time he pled guilty. All the record establishes is that in 1997 Carrillo had lived in the United States for thirty years, had not been to Ecuador in seven years, and had an eleven-year-old child. Carrillo’s family circumstances are not as compelling as the defendant’s in Sial, but are more compelling than those of the defendants in Trujillo and Clarke.

Taking into account the age at which Carrillo came to the United States, the length of time that he has lived here, and the fact that he had an eleven-year old child, it seems reasonable that the possibility of having to leave the United States would be a factor that a reasonable defendant would pause to consider when deciding whether or not to accept a guilty plea that would have negative immigration consequences. Whether a reasonable defendant in Carrillo’s place would have decided to reject the guilty plea and go to trial must now be evaluated in light of the strength of the case against Carrillo and the benefit that he received from pleading guilty.

The State had a very strong case that Carrillo committed possession of cocaine. The police saw him drop a clear plastic baggie that contained a substance that tested positive for cocaine. The officers’ testimony, the cocaine, and the laboratory report would have been overwhelming evidence of Carrillo’s guilt. Carrillo also benefited by pleading guilty. He received alternate misdemeanor sentencing and a fully suspended sentence thereby avoiding a first felony conviction and incarceration. The State also dismissed the misdemeanor public intoxication charge. Accordingly, we conclude that Carrillo has failed to show that there is an objectively reasonable probability that but for his counsel’s failure to advise him of possible adverse immigration consequences, he would have decided not to plead guilty. Therefore, we affirm the denial of Carrillo’s petition for post-conviction relief.

Affirmed.

KIRSCH, J., and MATHIAS, J., concur.

      . The U.S. Immigration and Nationality Act provides that an alien is subject to deportation for violating "any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C.A. § 1227(a)(2)(B)(i).

      . Several years before Carrillo entered his guilty plea, another panel of this Court held that an attorney’s failure to advise a nonciti-zen defendant of the deportation consequences of a guilty plea may constitute ineffective assistance. Williams v. State, 641 N.E.2d 44, 49 (Ind.Ct.App.1994) trans. denied (1995). Because we decide Carrillo’s claim on the basis of prejudice, we express no opinion as to whether Carrillo’s attorney’s performance was deficient.

      . These factors were also part of the analysis in Suarez v. State, 967 N.E.2d 552, 556 (Ind.Ct.App.2012), trans. pending, and Gulzar v. State, 971 N.E.2d 1258, 1261-62 (Ind.Ct.App.2012), trans. pending. In each case, the court concluded that the defendant failed to establish prejudice resulting from counsel’s failure to advise that pleading guilty carried the risk of deportation.

      . In Carrillo’s companion case that we decide today, Carrillo v. State, 982 N.E.2d 468 (Ind.Ct.App.2013), Carrillo testified to the ages of his children at his post-conviction hearing. He did not do so in this case, however, and we must make our decision based upon the evidence presented to the post conviction court in this case. See Schaefer v. Kumar, 804 N.E.2d 184, 187 n. 3 (Ind.Ct.App.2004) (“It is well settled that matters outside the record cannot be considered by this court on appeal.”).

      . The State argues that in 1997, Carrillo already had two convictions for misdemeanor conversion, which, being crimes of moral turpitude, made him eligible for deportation. Therefore, the State asserts, the immigration consequences would not have been a decisive factor regarding whether to plead guilty.

        However, there is no evidence that Carrillo knew that he had deportable convictions.

      . Carrillo argues that if he had known that he could be deported as a result of pleading guilty to possession of cocaine, he could have negotiated a guilty plea to the public intoxication charge. Appellant's Br. at 9-10. Carrillo relies on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), in which the Supreme Court observed that defense counsel "may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence.” The Padilla court made that observation in considering whether counsel’s failure to inform a defendant that adverse immigration consequences could result from pleading guilty was deficient performance. The issue of prejudice was not before the Supreme Court because it had not been ruled on by the court below. Thus, the possibility of various plea agreements was not considered in the context of prejudice. In addition, whether the State would have agreed to allow Carrillo to plead guilty to public intoxication and dismiss the possession of cocaine charge is pure speculation, in which we will not engage.