Harley v. State

952 N.E.2d 301, 2011 Ind. App. LEXIS 1842, 2011 WL 3240764
CourtIndiana Court of Appeals
DecidedJuly 29, 2011
DocketNo. 20A03-1012-PC-630
StatusPublished
Cited by4 cases

This text of 952 N.E.2d 301 (Harley v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harley v. State, 952 N.E.2d 301, 2011 Ind. App. LEXIS 1842, 2011 WL 3240764 (Ind. Ct. App. 2011).

Opinion

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Don S. Harley (Harley), appeals the post-conviction court’s denial of his petition for post-conviction relief of his conviction for non-support of a dependent child, a Class C felony, Ind.Code § 85-46-1-5.

We reverse and remand for a new trial.

ISSUE

Harley raises one issue on appeal, which we restate as follows: Whether Harley’s trial counsel was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income (SSI).

FACTS AND PROCEDURAL HISTORY

Harley was born in 1960 and was diagnosed with paranoid schizophrenia as a teenager. At the age of fourteen, he started receiving SSI income through his father. Harley applied for and began receiving SSI benefits in his own name in 1986. He subsequently married and on June 2, 1994, his child was born. In 1995, while Harley was in prison, the marriage was dissolved and the trial court issued a child support order requiring Harley to pay support for his dependent child. Harley was incarcerated from 1995 to 1999 and did not receive SSI benefits. When he was released from prison, he again received benefits.

Between 1999 and 2006, Harley unsuccessfully attempted to find employment. He estimated that he worked approximately eight days during this time period, claiming that his disability makes keeping employment difficult. He made no child support payments and accrued an arrear-age in excess of $15,000.00.

On January 11, 2006, the State filed an Information charging Harley with nonsupport of a dependent child, a Class C felony, I.C. § 35-46-l-5(a). On June 12, 2006, Harley filed documents establishing that he was receiving SSI benefits and on June 28, 2006, his counsel filed her appearance. Approximately a month later, on July 26, 2006, Harley entered into a guilty plea with the State and was sentenced to eight years of incarceration.

On June 29, 2007, Harley filed a petition for post-conviction relief, which was subsequently amended. On October 25, 2010, the post-conviction court held a hearing on Harley’s petition and on November 5, 2010, the court denied Harley’s request for post-conviction relief.

Harley now appeals. Additional facts will be provided as necessary.

[303]*303 DISCUSSION AND DECISION

I. Standard of Review

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind.Ct.App.2002). To succeed on appeal from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 975. 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. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002). We do not defer to the post-conviction court’s legal conclusions, but do accept its factual findings unless they are clearly erroneous. Id. The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Strowmatt, 779 N.E.2d at 975. If an issue was available on direct appeal but not litigated, it is waived. Id.

II. Ineffectiveness of Counsel

Harley contends that his trial counsel rendered ineffective assistance. Specifically, he claims that his trial counsel’s conduct was defective when she failed to inform him that he had a possible defense to the crime of failure to pay child support. SSI is a federal social welfare program and is specifically excluded from a parent’s income for the purpose of computing child support under Indiana Child Support Guideline 3.A.I. As such, Harley maintains that because his entire income derives from SSI benefits he has a defense that he was unable to pay child support.

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. Id. 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. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), reh’g denied, cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. The two prongs of the Strickland test are separate and independent inquiries. Id. Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient [304]*304prejudice ... that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

At the post-conviction hearing, Harley’s trial counsel testified that she did not recall whether she knew Harley was receiving SSI benefits during the time of her representation. She clarified however that she believed that “he sent me a letter to that effect.” (Transcript p. 8). She stated that she did not have a notation in her file alerting her to the SSI benefits, but based on Harley’s note she believes that she “probably discussed it.” (Tr. p. 8). Also, as is her practice in non-support cases, she obtained a copy of the chronological case summary in Harley’s divorce case in order to familiarize herself with the case.

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Cite This Page — Counsel Stack

Bluebook (online)
952 N.E.2d 301, 2011 Ind. App. LEXIS 1842, 2011 WL 3240764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harley-v-state-indctapp-2011.