Jeannie M. Hess v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 13, 2015
• Docket: 10A05-1407-CR-317
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 13 2015, 9:45 am 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 ATTORNEY FOR APPELLEE Jeffrey D. Stonebraker Gregory F. Zoeller Clark County Chief Public Defender Attorney General of Indiana Jeffersonville, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeannie M. Hess, February 13,2015

Appellant-Defendant, Court of Appeals Case No. 10A05-1407-CR-317 v. Appeal from the Clark Circuit Court The Honorable Vicki L. Carmichael Cause No. 10C04-1110-FC-210 State of Indiana, Appellee-Plaintiff

Bailey, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 1 of 5 [1] Jeannie M. Hess (“Hess”) challenges her adjudication as a habitual offender, 1

presenting the sole issue of whether she was denied the effective assistance of

counsel during the habitual offender phase of her trial for burglary. We affirm.

Facts and Procedural History [2] On February 26, 2014, a jury convicted Hess of Burglary, as a Class C felony.2

Immediately after the verdict was returned, the jury reconvened for the habitual

offender phase of the proceedings.3 The prosecutor and defense counsel made

brief opening statements. The prosecutor then addressed the jury and proffered

certain exhibits for the jury’s consideration. Defense counsel declined to make

a closing statement, and the trial court remanded the jury to the jury room to

conduct deliberations.

[3] In a sidebar conference,4 the prosecutor indicated he was unsure if he had made

a formal motion to admit the exhibits that had been provided to the jury. The

1 Ind. Code § 35-50-2-8. 2 Ind. Code § 35-43-2-1. Burglary is now classified as a Level 1, 2, 3, 4, or 5 felony. We refer to the version of the statute in effect at the time of Hess’s offense. 3 Hess was not present at this time to assist in her defense. Hess left during jury deliberations on the underlying charge, and her counsel reported to the trial court that he had been unable to communicate with her by cell phone or text. 4 It is unclear whether the jury was still in the courtroom. The transcript includes the following information as to the sequence of events: Court: you are now remanded to the jury room for your deliberations on this phase of the trial. JURY RETIRES TO DELIBERATE Prosecutor: Judge, may we approach before? (emphasis added) Court: Yes, please do.

Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 2 of 5 trial court, with no objection from defense counsel, stated: “we will show that

those Exhibits are admitted.” (Tr. 212.)

[4] Hess was found to be a habitual offender. On June 9, 2014, Hess was

sentenced to eight years for the burglary conviction, to be enhanced by six years

due to her status as a habitual offender. This appeal ensued.

Discussion and Decision [5] Effectiveness of counsel is a mixed question of law and fact. Strickland v.

Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

of ineffective assistance under the two-part test announced in Strickland. Id. To

prevail on an ineffective assistance of counsel claim, a defendant must

demonstrate both deficient performance and resulting prejudice. Dobbins v.

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

Deficient performance is that which falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

“there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

SIDEBAR (Tr. 212.)

Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 3 of 5 1996). The two prongs of the Strickland test are separate and independent

inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed.” Id.

[6] We “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary

v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

considerable discretion in the choice of strategy and tactics. Timberlake v. State,

753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

reasonable professional judgment even if the strategy in hindsight did not serve

the defendant’s interests. Id. In sum, trial strategy is not subject to attack

through an ineffective assistance of counsel claim, unless the strategy is so

deficient or unreasonable as to fall outside the objective standard of

reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

[7] Hess contends that her trial counsel was ineffective for failing to make a closing

statement or lodge an objection when exhibits were presented to the jury

without explicit admission into evidence. In essence, she claims that defense

counsel failed to correct the prosecutor’s oversight and did nothing to defend

her against the habitual offender allegation.

Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 4 of 5 [8] Certainly, it would have been procedurally preferable for defense counsel to

have insisted upon documents being withheld from the jury until formally

admitted into evidence. However, Hess does not claim that she had a viable

defense to the habitual offender allegation that her counsel failed to pursue.

She does not claim to be a victim of misidentification. She does not claim that

she lacks predicate felony convictions to support the habitual offender

adjudication. Although defense counsel stood silent in the habitual offender

proceedings after the opening statement, Hess was not prejudiced by the

silence.

[9] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 5 of 5