MEMORANDUM DECISION Feb 24 2015, 10:06 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Curtis Hardaway Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana
James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis Hardaway, February 24, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1404-PC-261 v. Appeal from the Marion Superior Court State of Indiana, Cause No. 49G01-0605-PC-95616
Appellee-Plaintiff. The Honorable Kurt Eisgruber, Judge; The Honorable Steven J. Rubick, Magistrate
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 1 of 7 Case Summary [1] Curtis Hardaway appeals the post-conviction court’s denial of his petition for
post-conviction relief. We affirm.
Issues [2] Hardaway raises several issues, which we consolidate and restate as:
I. whether Hardaway received ineffective assistance of trial counsel; and
II. whether Hardaway’s guilty plea was involuntary.
Facts [3] In 2006, the State charged Hardaway with the murder of Patricia Overbuy. In
2007, Hardaway pled guilty as charged. At the sentencing hearing, the trial
court found no aggravators and found two mitigators: (1) Hardaway’s
allegation that he suffered from untreated bipolar disorder and was depressed
because of his incarceration; and (2) the fact that Hardaway accepted
responsibility by pleading guilty. The trial court sentenced him to forty-five
years in the Department of Correction and recommended that Hardaway
receive mental health treatment. Hardaway did not file a direct appeal.
[4] In 2012, Hardaway filed a petition for post-conviction relief. Hardaway alleged
that: (1) his trial counsel was ineffective because she failed to investigate and
discover Hardaway’s mental health history, which according to Hardaway
includes paranoid schizophrenia, bipolar mania, and suicidal tendencies; and
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 2 of 7 (2) his guilty plea was not knowing, voluntary, and intelligent because he was
incompetent and insane at the time of the offense and the guilty plea.
Hardaway filed a motion to proceed via affidavit, which the post-conviction
court granted. However, neither Hardaway nor the State filed any affidavits.
The post-conviction court entered findings of fact and conclusions of law
denying Hardaway’s petition for post-conviction relief. Hardaway now
appeals.
Analysis [5] Hardaway argues that the post-conviction court’s denial of his petition is clearly
erroneous. A court that hears a post-conviction claim must make findings of
fact and conclusions of law on all issues presented in the petition. Pruitt v. State,
903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). “The
findings must be supported by facts and the conclusions must be supported by
the law.” Id. Our review on appeal is limited to these findings and conclusions.
Id. Because the petitioner bears the burden of proof in the post-conviction
court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing
P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that
the evidence as a whole ‘leads unerringly and unmistakably to a conclusion
opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749
N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review,
“[we] will disturb a post-conviction court’s decision as being contrary to law
only where the evidence is without conflict and leads to but one conclusion,
and the post-conviction court has reached the opposite conclusion.” Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 3 of 7 I. Ineffective Assistance of Counsel
[6] Hardaway first argues that his trial counsel was ineffective. 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 (1984)), cert. denied. A 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). 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).
[7] A post-conviction claim challenging a conviction pursuant to a guilty plea is
examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes
two main types of ineffective assistance of counsel cases: (1) failure to advise
the defendant on an issue that impairs or overlooks a defense, and (2) an
incorrect advisement of penal consequences. Smith v. State, 770 N.E.2d 290,
295 (Ind. 2002). In order to set aside a conviction because of an attorney’s
failure to raise a defense, a petitioner who has pled guilty must establish that a
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 4 of 7 defense was overlooked or impaired and that the defense would likely have
changed the outcome of the proceeding. Segura, 749 N.E.2d at 499.
[8] On appeal, Hardaway argues that his trial counsel was ineffective because she
failed to investigate his mental health history, failed to interview Hardaway,
failed to timely file an insanity defense, and failed to obtain a competency
examination. The post-conviction court rejected Hardaway’s argument. The
post-conviction court concluded that Hardaway had failed “to specify how
additional investigation would have led to his acquittal” and had “presented no
evidence of an overlooked or impaired defense, much less evidence of one that
would have led to a reasonable probability of success at trial.” App. p. 72.
Further, the post-conviction court concluded that, based on the pre-sentence
investigation report and the sentencing order, “it is apparent that Defendant’s
mental health issues were raised and considered before sentencing.” Id.
[9] Hardaway makes only unsupported allegations of his mental health issues. He
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MEMORANDUM DECISION Feb 24 2015, 10:06 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Curtis Hardaway Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana
James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis Hardaway, February 24, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A02-1404-PC-261 v. Appeal from the Marion Superior Court State of Indiana, Cause No. 49G01-0605-PC-95616
Appellee-Plaintiff. The Honorable Kurt Eisgruber, Judge; The Honorable Steven J. Rubick, Magistrate
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 1 of 7 Case Summary [1] Curtis Hardaway appeals the post-conviction court’s denial of his petition for
post-conviction relief. We affirm.
Issues [2] Hardaway raises several issues, which we consolidate and restate as:
I. whether Hardaway received ineffective assistance of trial counsel; and
II. whether Hardaway’s guilty plea was involuntary.
Facts [3] In 2006, the State charged Hardaway with the murder of Patricia Overbuy. In
2007, Hardaway pled guilty as charged. At the sentencing hearing, the trial
court found no aggravators and found two mitigators: (1) Hardaway’s
allegation that he suffered from untreated bipolar disorder and was depressed
because of his incarceration; and (2) the fact that Hardaway accepted
responsibility by pleading guilty. The trial court sentenced him to forty-five
years in the Department of Correction and recommended that Hardaway
receive mental health treatment. Hardaway did not file a direct appeal.
[4] In 2012, Hardaway filed a petition for post-conviction relief. Hardaway alleged
that: (1) his trial counsel was ineffective because she failed to investigate and
discover Hardaway’s mental health history, which according to Hardaway
includes paranoid schizophrenia, bipolar mania, and suicidal tendencies; and
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 2 of 7 (2) his guilty plea was not knowing, voluntary, and intelligent because he was
incompetent and insane at the time of the offense and the guilty plea.
Hardaway filed a motion to proceed via affidavit, which the post-conviction
court granted. However, neither Hardaway nor the State filed any affidavits.
The post-conviction court entered findings of fact and conclusions of law
denying Hardaway’s petition for post-conviction relief. Hardaway now
appeals.
Analysis [5] Hardaway argues that the post-conviction court’s denial of his petition is clearly
erroneous. A court that hears a post-conviction claim must make findings of
fact and conclusions of law on all issues presented in the petition. Pruitt v. State,
903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). “The
findings must be supported by facts and the conclusions must be supported by
the law.” Id. Our review on appeal is limited to these findings and conclusions.
Id. Because the petitioner bears the burden of proof in the post-conviction
court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing
P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that
the evidence as a whole ‘leads unerringly and unmistakably to a conclusion
opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749
N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review,
“[we] will disturb a post-conviction court’s decision as being contrary to law
only where the evidence is without conflict and leads to but one conclusion,
and the post-conviction court has reached the opposite conclusion.” Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 3 of 7 I. Ineffective Assistance of Counsel
[6] Hardaway first argues that his trial counsel was ineffective. 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 (1984)), cert. denied. A 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). 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).
[7] A post-conviction claim challenging a conviction pursuant to a guilty plea is
examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes
two main types of ineffective assistance of counsel cases: (1) failure to advise
the defendant on an issue that impairs or overlooks a defense, and (2) an
incorrect advisement of penal consequences. Smith v. State, 770 N.E.2d 290,
295 (Ind. 2002). In order to set aside a conviction because of an attorney’s
failure to raise a defense, a petitioner who has pled guilty must establish that a
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 4 of 7 defense was overlooked or impaired and that the defense would likely have
changed the outcome of the proceeding. Segura, 749 N.E.2d at 499.
[8] On appeal, Hardaway argues that his trial counsel was ineffective because she
failed to investigate his mental health history, failed to interview Hardaway,
failed to timely file an insanity defense, and failed to obtain a competency
examination. The post-conviction court rejected Hardaway’s argument. The
post-conviction court concluded that Hardaway had failed “to specify how
additional investigation would have led to his acquittal” and had “presented no
evidence of an overlooked or impaired defense, much less evidence of one that
would have led to a reasonable probability of success at trial.” App. p. 72.
Further, the post-conviction court concluded that, based on the pre-sentence
investigation report and the sentencing order, “it is apparent that Defendant’s
mental health issues were raised and considered before sentencing.” Id.
[9] Hardaway makes only unsupported allegations of his mental health issues. He
presented no evidence concerning his mental health and no evidence that an
insanity defense would have been successful. Hardaway had the burden of
presenting evidence to support his allegations, and he did not meet his burden.
We cannot say that the post-conviction court’s order is clearly erroneous.
II. Involuntary Guilty Plea
Next, Hardaway argues that his guilty plea was unknowing, involuntary, and
unintelligent because he was “totally incompetent and legally insane at the time
of the charged incident and at the time of the guilty plea proceedings.”
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 5 of 7 Appellant’s Br. p. 11. The post-conviction court rejected his claim. The post-
conviction court concluded:
The pending petition does not allege any deficiency in the advisements the trial court made to Defendant regarding his plea, and Defendant has presented no evidence of any such deficiency. Instead, the petition contains nothing more than an unsupported assertion that Defendant was suffering from mental health problems that prevented him from comprehending the proceedings. This claim is belied by the available record in this case: “DEFENDANT ADVISED OF RIGHTS/POTENTIAL PENALTIES. FACTUAL BASIS GIVEN. DEFT. AGREES AND COURT FINDS FACTUAL EXISTS. Court finds Defendant understands rights and knowingly and voluntarily waives rights.” CCS (January 29, 2007). Given the complete absence of evidence that the trial court did not conduct such a review, together with the fact that Defendant’s self- serving allegations are not the “specific facts” required to mount a successful post-conviction challenge to a guilty plea, the Court finds that this claim fails. App. p. 70.
[10] Hardaway’s unsupported allegations of insanity and incompetency are simply
insufficient to demonstrate that his guilty plea was involuntary. Hardaway
presented no evidence showing that he was insane or incompetent at the
relevant times, and the post-conviction court’s denial of Hardaway’s argument
is not clearly erroneous.
Conclusion [11] The post-conviction court properly denied Hardaway’s petition for post-
conviction relief. We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 6 of 7 [12] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015 Page 7 of 7