Danny Bailey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2015
• Docket: 82A01-1501-CR-28
• Status: Published

Opinion

MEMORANDUM DECISION Jul 31 2015, 9:09 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John Andrew Goodridge Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Danny Bailey, July 31, 2015

Appellant-Defendant, Court of Appeals Case No. 82A01-1501-CR-28 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Mary Margaret Lloyd, Judge Appellee-Plaintiff Cause No. 82D02-1006-FA-569

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015 Page 1 of 5 [1] Danny Bailey appeals the post-conviction court’s denial of his petition for post-

conviction relief. Finding no error, we affirm.

Facts [2] On March 31, 2011, a jury found Bailey guilty of class A felony child

molesting, class C felony child molesting, and class B felony incest. Bailey was

sentenced to forty years on the first count, six years on the second count, and

ten years on the third count. The trial court ordered these sentences to run

concurrently, resulting in a forty-year executed term. Bailey appealed his

sentence, and this Court affirmed in a memorandum decision. Bailey v. State,

No. 82A05-1108-CR-398, 2012 WL 1069016 (Ind. Ct. App. Mar. 29, 2012).

[3] Following this decision, Bailey filed a petition for post-conviction relief in

which he alleged that he had been denied effective assistance of counsel. Bailey

alleged that his trial counsel had never informed him that, prior to trial, the

State had offered Bailey a plea that would have resulted in a term of fifteen

years. The post-conviction court held a hearing on October 24, 2014.

[4] Bailey called his trial attorney, Kurt Schnepper, to testify at the hearing.

Schnepper testified that the State initially offered a plea agreement with a

sentence of forty years. He testified that he discussed this plea with Bailey but

did not recommend that Bailey accept it. Schnepper further testified that the

State offered a second plea agreement, this time with a sentence of fifteen years.

In regard to this plea offer, Schnepper testified that while he did not have a

specific recollection of communicating the offer to Bailey, it was his practice to

Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015 Page 2 of 5 always communicate plea offers to his clients. Following the hearing, the post-

conviction court denied Bailey’s petition for post-conviction relief. Bailey now

appeals.

Discussion and Decision [5] Bailey argues that the evidence before the post-conviction court indicated that

Schnepper failed to engage in meaningful plea negotiations and, therefore, the

post-conviction court erred in determining that Bailey had not been denied

effective assistance of counsel. A party appealing a post-conviction court’s

denial of a petition for post-conviction relief “must establish that the evidence,

as a whole, unmistakably and unerringly points to a conclusion contrary to the

post-conviction court’s decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258

(Ind. 2000). We accept the post-conviction court’s findings of fact unless they

are clearly erroneous. Id. We examine only the probative evidence and the

reasonable inferences drawn therefrom that support the post-conviction court’s

judgment and we do not reweigh the evidence or judge the credibility of the

witnesses. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000).

[6] To establish a claim for post-conviction relief alleging a violation of the Sixth

Amendment right to effective assistance of counsel, a petitioner must meet the

requirements set forth in Strickland v. Washington, 466 U.S. 668 (1984). The

petitioner must show that (1) “counsel’s representation fell below an objective

standard of reasonableness” and (2) that “the deficient performance prejudiced

the defense.” Id. at 687-88. A petitioner establishes prejudice by showing “that

Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015 Page 3 of 5 there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. It is well

established that “criminal defense attorneys have a duty to inform their clients

of plea agreements proffered by the prosecution, and that failure to do so

constitutes ineffective assistance of counsel under the sixth and fourteenth

amendments.” Dew v. State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006).

[7] On appeal, Bailey reiterates arguments made before the post-conviction court.

Bailey argues that Schnepper failed to adequately inform him of the details of

the State’s original forty-year offer and that Schnepper entirely failed to inform

him of the State’s subsequent fifteen-year offer. These are both issues of fact.

[8] Bailey points to the testimony of his wife, Georgette, who testified at the post-

conviction hearing that Schnepper had not informed Bailey of the second offer.

She also testified that Bailey was not able to inform her of any of the details of

the initial offer, which Bailey believes indicates that this offer was never

adequately communicated.

[9] However, the post-conviction court noted that Schnepper’s testimony

contradicted Georgette’s. It noted that Schnepper testified that he showed

Bailey the initial offer and discussed it with him. Appellant’s Br. p. 30. It also

noted that, as to the second offer, Schnepper testified that he “wouldn’t have

gone through all that trouble to get the offer and then hide that from [his] client

and not discuss it with him.” Tr. p. 20-21. Schnepper testified that it was his

Court of Appeals of Indiana | Memorandum Decision 82A01-1501-CR-28 | July 31, 2015 Page 4 of 5 general practice to meet with the prosecutor before trial to discuss any final plea

offer. Schnepper testified:

Schnepper: I’m not going to take a class A felony to trial without presenting that final offer to the client and discussing it with him at length. Counsel: Is it fair to say that’s your general practice? Schnepper: Yes. Counsel: And do you have any reason to believe why you wouldn’t have done that here? Schnepper: No, I just don’t have the specific recollection of whether that was at the courthouse or at my office . . . .

Tr. p. 21.

[10] The post-conviction court noted that it had been presented with contradictory

testimony and that it was left “to decide which of these contradictory versions

of events carries the day.” Appellant’s Br. p. 31. The post-conviction court

concluded that “given the totality of the witnesses’ testimony, the Court can

only conclude that Attorney Schnepper did communicate the offers.” Tr. p. 32.

This conclusion is supported by the testimony of Schnepper and is, therefore,

not clearly erroneous. On appeal, we will not reweigh the evidence or judge the

credibility of the witnesses to reach a contrary conclusion.

[11] The judgment of the post-conviction court is affirmed.

May, J., and Robb, J., concur.

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