MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 20 2015, 8:27 am 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey A. Baldwin Gregory F. Zoeller Tyler D. Helmond Attorney General of Indiana Voyles Zahn & Paul Jesse R. Drum Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Emily Duncan, August 20, 2015 Appellant-Petitioner, Court of Appeals Case No. 67A01-1503-PC-102 v. Appeal from the Putnam Circuit Court State of Indiana, The Honorable Matthew L. Appellee-Respondent. Headley, Judge Trial Court Cause No. 67C01- 1401-PC-1
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 1 of 14 STATEMENT OF THE CASE
[1] Appellant-Petitioner, Emily J. Duncan (Duncan), appeals the post-conviction
court’s denial of her petition for post-conviction relief.
[2] We affirm.
ISSUE
[3] Duncan raises one issue on appeal, which we restate as follows: Whether the
post-conviction court erred in denying Duncan’s petition for post-conviction
relief because she was denied effective assistance of trial counsel.
FACTS AND PROCEDURAL HISTORY
[4] On September 29, 2011, the State filed an Information, charging Duncan with
two Counts of sexual misconduct with a minor, Class B felonies, Ind. Code §
35-42-4-9(a)(1) (2011). Shortly after her arrest, Duncan retained private
counsel, but on March 28, 2012, Duncan’s attorney filed a motion to withdraw
due to Duncan’s inability to pay for his services as previously agreed. On April
18, 2012, the trial court initially denied the motion to withdraw; however, on
April 25, 2012, the trial court permitted the withdrawal of counsel and
appointed a public defender (Trial Counsel) to represent Duncan.
[5] Prior to trial, the State engaged in plea negotiations with Duncan through her
attorney. In approximately August of 2012, Trial Counsel informed Duncan
that the State had offered to reduce her charges from Class B felonies to Class C
felonies in exchange for a guilty plea. Duncan declined the plea offer.
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 2 of 14 Sometime thereafter, Trial Counsel advised Duncan that the State had offered a
revised plea agreement, under which she would be convicted of one Class D
felony. Again, Duncan refused to plead guilty. On October 24, 2012,
immediately prior to the start of the trial, the State explained that the offer to
plead guilty to a Class D felony remained on the table, which Trial Counsel
immediately conveyed to Duncan. After Duncan indicated that she would not
plead guilty, the trial court conducted a bench trial. At the close of the
evidence, the trial court found Duncan guilty of both Counts of Class B felony
sexual misconduct with a minor and entered judgment of conviction thereon.
On December 21, 2012, following a sentencing hearing, the trial court merged
Counts I and II and sentenced Duncan to a term of eight years—with two years
executed in the Indiana Department of Correction, two years served in
Community Corrections, and four years suspended to probation.
[6] On January 4, 2013, Duncan initiated a direct appeal. However, on March 5,
2013, she filed a verified motion to remand and temporarily stay appellate
proceedings pursuant to the Davis-Hatton procedure. On March 12, 2013, our
court dismissed the appeal without prejudice in order for Duncan to pursue
post-conviction relief before the trial court.
[7] On January 27, 2014, Duncan filed a Verified Petition for Post-Conviction
Relief. Duncan argued that her conviction should be set aside, in pertinent
part, because she “was denied the effective assistance of trial counsel.”
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 3 of 14 (Appellant’s App. p. 121). 1 More specifically, Duncan alleged that Trial
Counsel “was deficient and his representation fell below an objective standard
of reasonableness” because he “failed to provide effective assistance of counsel
during plea negotiations by not adequately explaining the consequences of plea
offers.” (Appellant’s App. pp. 121-22). On January 7, 2015, the post-
conviction court held a hearing and issued an Order on February 25, 2015,
denying Duncan’s petition for post-conviction relief. The post-conviction court
concluded that Trial Counsel’s “representation did not fall below the objective
standard of reasonableness” because he had communicated the State’s plea
offers to Duncan. (Appellant’s App. p. 171).
[8] Duncan now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION2
[9] Duncan invoked the Davis-Hatton procedure, “which is the termination or
suspension of a direct appeal already initiated, upon appellate counsel’s motion
for remand or stay, to allow a petition for post-conviction relief to be pursued in
the trial court.” White v. State, 25 N.E.3d 107, 121 (Ind. Ct. App. 2014), reh’g
1 We note that the second page of Duncan’s petition, which appears to enumerate additional arguments for setting aside her conviction, has been omitted from the Appendix. We further note that although Duncan cites to the trial transcript in her appellate brief, we have only been provided with the transcript from the post- conviction relief hearing. 2 We remind the parties that, pursuant to Indiana Administrative Rule 9(G)(2)(f), “[c]omplete Social Security Numbers of living persons” are confidential and must be excluded from public access. Additionally, we note that the pre-sentence investigation (PSI) report is to be excluded from public access; however, we have included confidential information from the PSI report in this decision to the extent necessary to resolve the appeal in accordance with Indiana Administrative Rule 9(G)(7)(a)(ii)(c). See I.C. § 35-38-1-13; Ind. Administrative Rule 9(G)(2)(b).
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 4 of 14 denied, trans. denied. In this case, because Duncan’s petition for post-conviction
relief was denied, the direct appeal “can be reinstated.” Id. Accordingly, “in
addition to the issues raised on direct appeal, the issues litigated in the post-
conviction-relief proceeding can be raised”—i.e., “the direct appeal and the
appeal of the denial of post-conviction relief are consolidated.” Id. Here,
Duncan solely challenges the denial of her petition for post-conviction relief.
I. Standard of Review
[10] Post-conviction procedures “create a narrow remedy for subsequent collateral
challenges to convictions.” Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind.
2000), reh’g denied, cert. denied, 534 U.S. 830 (2001). In order to prevail on a
claim of post-conviction relief, Duncan bears “the burden of establishing [her]
grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction
Rule 1(5). Because Duncan is appealing a negative judgment, our court “will
reverse the denial of post[-]conviction relief only if the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the
post[-]conviction court.” Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002),
reh’g denied, cert. denied, 537 U.S 1122 (2003).
[11] In this case, the post-conviction court entered findings of fact and conclusions
of law in accordance with Indiana Post-Conviction Rule 1(6). As such, we will
reverse the post-conviction court’s findings and judgment “only upon a showing
of clear error—‘that which leaves us with a definite and firm conviction that a
mistake has been made.’” Ben-Yisrayl, 729 N.E.2d at 106 (quoting State v.
Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), reh’g denied, cert. denied, 523 U.S.
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 5 of 14 1079 (1998)). Although we accord no deference to the post-conviction court’s
conclusions of law, “the post[-]conviction court is the sole judge of the weight
of the evidence and the credibility of witnesses.” Davidson, 763 N.E.2d at 443-
44.
II. Ineffective Assistance of Trial Counsel
[12] Duncan claims that Trial Counsel rendered ineffective assistance during the
plea negotiations prior to trial. The Sixth Amendment to the United States
Constitution—applicable to the States through the Fourteenth Amendment—
guarantees “the right to effective assistance of counsel” to the accused in all
criminal prosecutions. Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012). It is well
established that this Sixth Amendment right to effective representation “extends
to the plea-bargaining process.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012).
[13] As a general principle, “counsel’s performance is presumed effective”;
therefore, Duncan “must offer strong and convincing evidence to overcome this
presumption.” Ben-Yisrayl, 729 N.E.2d at 106. We review claims of ineffective
assistance of counsel under the two-part test articulated in Strickland v.
Washington, 466 U.S. 668 (1984), reh’g denied. First, Duncan must establish that
Trial Counsel’s “performance was deficient.” White, 25 N.E.3d at 132 (citing
Strickland, 466 U.S. at 687). “This requires a showing that counsel’s
representation fell below an objective standard of reasonableness and that
counsel made errors so serious that counsel was not functioning as ‘counsel’
guaranteed to the defendant by the Sixth Amendment.” Id. Second, Duncan
must demonstrate “that the deficient performance prejudiced the defense.” Id.
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 6 of 14 (citing Strickland, 466 U.S. at 687). “To establish prejudice, a defendant 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. (quoting Strickland, 466 U.S. at 694). Duncan’s failure to establish either of
the prongs set forth in Strickland “will cause the claim to fail.” Id. (quoting State
v. Greene, 16 N.E.3d 416, 419 (Ind. 2014)).
A. Deficient Performance
[14] In evaluating whether an attorney’s performance fell below “an objective
standard of reasonableness[,]” we look to the “prevailing professional norms.”
Woods v. State, 701 N.E.2d 1208, 1211 (Ind. 1998), reh’g denied, cert. denied, 528
U.S. 861 (1999). “[A]s a general rule, defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Frye, 132 S.Ct. at 1408. Also
relevant to this case, Indiana Professional Conduct Rule 1.4(b) provides that
“[a] lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.”
[15] The parties do not dispute that Trial Counsel communicated each of the State’s
plea offers to Duncan, all of which Duncan declined. Duncan now alleges that
Trial Counsel’s performance was deficient because, following the State’s first
offer to plead guilty to two Class C felonies, “[t]he penalty range for a Class C
felony was not communicated. And Duncan, given that she has no legal
training, did not know what the penalty range for a Class C felony was.”
(Appellant’s Br. p. 9) (internal citation omitted). In addition, subsequent to the
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 7 of 14 State’s second offer that she could plead guilty to one Class D felony, Duncan
posits that Trial Counsel “failed to explain the penalty range for a Class D
felony. And he failed to explain so that Duncan could understand several other
terms, such as the possibility that the conviction could be entered as an
alternative Class A misdemeanor and would prevent her from the requirement
of registering as a sex offender.” (Appellant’s Br. pp. 9-10) (internal citations
omitted). See I.C. § 35-50-2-7(b) (providing that “if a person has committed a
Class D felony, the court may enter judgment of conviction of a Class A
misdemeanor and sentence accordingly”).
[16] In Lawrence v. State, 464 N.E.2d 1291, 1295 (Ind. 1984), the defendant raised a
claim of ineffective assistance of counsel based, in relevant part, on the fact
“that his trial counsel failed to adequately explain the terms of a plea
agreement” by misinforming him of the possible penalties for the charged
offense and by misadvising him about the possibility that the trial court might
reject the plea. Our supreme court rejected this argument, stating that “[t]he
test is one of reasonableness; this does not require perfection.” Id. Here, at the
post-conviction relief hearing, Trial Counsel answered affirmatively when asked
whether he explained the differences in penalty ranges for Class B, C, and D
felonies and particularly testified that he “would have informed [Duncan] what
the [Class] C felony [penalty] was and if she didn’t ask I would tell her what the
range was and . . . her response to every offer was I’m not pleading guilty to
something I didn’t do.” (Tr. p. 22). Trial Counsel further elaborated that on
the day of the trial, even though the time for a written plea agreement had
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 8 of 14 lapsed, the State explained that it was still offering the Class D felony as a
“charge bargain[].” (Tr. p. 25). Having reviewed all of the evidence against
Duncan, Trial Counsel testified that he advised Duncan to accept the State’s
offer to plead guilty to one Class D felony because he believed she would be
convicted if she proceeded to trial. According to Trial Counsel:
I mean I spent half an hour, forty five minutes in that room discussing that and the whole time [Duncan] said I’m not pleading guilty to something I did not do. At one point in time [the prosecutor] came in and talked and explained to her you know that, or we both talked about the fact that [she] didn’t have to report [as a sex offender]. That there was alternative misdemeanor sentenc[ing]. She was not interested. She was not interested in pleading guilty.
(Tr. p. 23). Because the record supports the post-conviction court’s
determination that Trial Counsel “told [Duncan] of the oral offer. He told her
of the ramifications and he went to the extraordinary step of having the elected
prosecutor discuss the case right up until the trial commenced[,]” we find that
Duncan’s argument is primarily a request to reweigh the evidence and reassess
the credibility of witnesses, neither of which are functions of this court.
(Appellant’s App. p. 171); see Dew v. State, 843 N.E.2d 556, 560 (Ind. Ct. App.
2006), trans. denied.
[17] We are also unpersuaded by Duncan’s attempts to characterize Trial Counsel’s
representation as deficient based, in large part, on the fact that by the time of
the post-conviction relief hearing, Trial Counsel could not recall the precise
wording he utilized two-and-a-half years earlier to explain the plea offers to
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 9 of 14 Duncan. Trial Counsel testified during the post-conviction relief hearing that
he “would have told everything that was in the offer[,]” and the post-conviction
court specifically found that Trial Counsel “would have told [Duncan] if any
offer required [her] to register in the sex registry. [Trial Counsel] also
recommended . . . that she take the [Class] D felony and talked about
alternative misdemeanor sentencing possibility.” (Tr. p. 27; Appellant’s App. p.
170). It was well within the discretion of the post-conviction court to accept
Trial Counsel’s testimony as credible.
[18] Duncan additionally contends that Trial Counsel was ineffective because no
special measures were taken to clarify the course of plea bargaining in this case.
Specifically, she asserts that
[t]he State did not convey any of the plea offers in writing to [T]rial [C]ounsel, nor did [T]rial [C]ounsel memorialize any conversation about plea negotiations in writing to Duncan. And the specific course of the plea negotiations was not put on record, either as a status document or verbally at the pre-trial hearings or the beginning of the trial.
(Appellant’s Br. p. 11) (internal citation omitted).
[19] We initially note that the State’s conduct in the course of the plea negotiations
has no bearing on whether Trial Counsel rendered adequate representation.
Moreover, the Supreme Court has explained that
[w]hen a plea offer has lapsed or been rejected, . . . no formal court proceedings are involved. This underscores that the plea- bargaining process is often in flux, with no clear standards or
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 10 of 14 timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. **** “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process.
Frye, 132 S.Ct. at 1407-08 (quoting Premo v. Moore, 562 U.S. 115, 125 (2011)).
Nevertheless, the Frye Court added that “[t]he prosecution and the trial courts
may adopt some measures to help ensure against late, frivolous, or fabricated
claims after a later, less advantageous plea offer has been accepted or after a
trial leading to conviction with resulting harsh consequences.” Id. at 1408-09.
For instance, the Court suggested that the State may require offers to be
memorialized in writing or for formal offers to be made part of the record. Id.
at 1409.
[20] Duncan does not direct our attention to any rule or regulation requiring defense
counsel to present plea offers to a defendant in writing. Instead, Indiana’s
Rules of Professional Conduct require a lawyer to:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . . is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 11 of 14 (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct . . . .
Ind. Professional Conduct Rule 1.4(a). Comment 2 to this Rule specifies that
when an attorney receives “a proffered plea bargain in a criminal case[,]” he or
she “must promptly inform the client of its substance unless the client has
previously indicated that the proposal will be acceptable or unacceptable or has
authorized the lawyer to accept or to reject the offer.” Prof’l Cond. R. 1.4 cmt.
2. In accordance with his professional duties, the evidence establishes that Trial
Counsel promptly and reasonably consulted with Duncan to inform her of the
substance of each plea offer and to explain the ramifications for pleading guilty
under each scenario. Because Trial Counsel believed it was in Duncan’s best
interest for her to plead guilty to the State’s final offer of a Class D felony, Trial
Counsel went so far as to request the prosecuting attorney to meet with Duncan
prior to trial in an attempt to explain the benefits of the plea. She consistently
refused the plea offers and made it clear to Trial Counsel that she maintained
her innocence and would not be pleading guilty. Based on this evidence, we
cannot say that Trial Counsel’s representation was deficient.
B. Prejudice
[21] Although we need not address the second prong of Strickland in light of our
conclusion that Trial Counsel’s performance did not fall below an objective
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 12 of 14 standard of reasonableness, we would nevertheless find that Duncan’s claim
fails because she has not established that her defense was prejudiced by Trial
Counsel’s conduct. See Collins v. State, 14 N.E.3d 80, 87 (Ind. Ct. App. 2014).
As the Supreme Court has determined:
To show prejudice from ineffective assistance of counsel where a plea offer has . . . been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Frye, 132 S.Ct. at 1409.
[22] During the post-conviction relief hearing, Duncan testified that she would have
accepted the State’s last plea offer had she known the possible sentencing range
and been informed that judgment could have been entered as a Class A
misdemeanor. The record, however, reveals that on numerous occasions,
Duncan clearly “professed [her] innocence and had no intention of pleading
guilty.” See Jervis v. State, 28 N.E.3d 361, 367 (Ind. Ct. App. 2015), trans. denied.
Along with informing Trial Counsel that she would “not plead[] guilty to
something [she] didn’t do[,]” Duncan stated during her pre-sentence
investigation interview, “I have no version [of events] because it never Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 13 of 14 happened.” (Tr. p. 22; Appellant’s Conf. App. p. 28). Also, Duncan’s former
fiancé wrote a letter to the trial court on Duncan’s behalf, asking for lenient
sentencing. He described “witness[ing] her steadfast denial of guilt even in the
face of increasingly attractive plea offers.” (Appellant’s App. p. 88). Thus, it is
evident that Duncan chose to maintain her innocence and proceed to trial
despite the opportunity for a favorable plea bargain. Therefore, Duncan has
failed to demonstrate any prejudice.
CONCLUSION
[23] Based on the foregoing, we conclude that the post-conviction court properly
denied Duncan’s petition for post-conviction relief because she did not receive
ineffective assistance of trial counsel during the plea negotiations.
[24] Affirmed.
[25] Friedlander, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 67A01-1503-PC-102 | August 20, 2015 Page 14 of 14