Jeffrey S. Heironimus v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 17, 2016
• Docket: 82A01-1602-PC-394
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 17 2016, 9:05 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana

Deidre R. Eltzroth Eric P. Babbs Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffrey S. Heironimus, October 17, 2016 Appellant-Defendant, Court of Appeals Case No. 82A01-1602-PC-394 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1306-PC-17

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 1 of 11 Case Summary [1] Jeffrey Heironimus appeals the post-conviction court’s denial of his petition for

post-conviction relief. We affirm.

Issues [2] Heironimus raises two issues, which we restate as:

I. whether he received effective assistance of trial counsel; and

II. whether he received effective assistance of appellate counsel.

Facts [3] In May 2011, Heironimus robbed the First Federal Savings Bank in Evansville.

While talking to a bank employee, he insinuated that he had a gun by keeping

his hand in his backpack and demanding money. He took over $3900 in cash,

which included $200 in recorded bait money. The State charged Heironimus

with Class C felony robbery and alleged that he was an habitual offender. With

respect to the robbery charge, the State alleged that Heironimus “did knowingly

and by threat of force” take property from a bank employee. Direct Appeal

App. p. 42. Heironimus was convicted of robbery and found to be an habitual

offender. He appealed his conviction, challenging the trial court’s admission of

evidence of witness identifications made of him after police officers’ warrantless

entry into an accomplice’s residence. We affirmed. See Heironimus v. State, No.

82A01-1204-CR-152 (Ind. Ct. App. Nov. 1, 2012).

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 2 of 11 [4] Heironimus then filed a petition for post-conviction relief, which was later

amended. He argued that his trial counsel was ineffective for failing to file a

motion for directed verdict and that his appellate counsel was ineffective for

failing to argue on appeal that the evidence was insufficient to sustain the

conviction. Both arguments concerned the State’s allegation that Heironimus

took property from the bank employee by “threatening the use of force” rather

than “by putting any person in fear.” See Ind. Code § 35-42-5-1. After a

hearing, the post-conviction court denied Heironimus’s petition. The post-

conviction court entered findings of fact and conclusions thereon denying

Heironimus’s petition. Heironimus now appeals.

Analysis [5] Heironimus 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.

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 3 of 11 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.

I. Ineffective Assistance of Trial Counsel

[6] Heironimus argues that the post-conviction court was clearly erroneous when it

determined that he was not denied effective assistance of trial counsel. 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). Most ineffective assistance of counsel claims can be resolved

by a prejudice inquiry alone. Id.

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 4 of 11 [7] According to Heironimus, his trial counsel was deficient for failing to file a

motion for directed verdict regarding the robbery charge. In order for a trial

court to grant a directed verdict, there must be a complete lack of evidence on a

material element of the crime or the evidence must be without conflict and

susceptible to only an inference in favor of the defendant’s innocence. Huber v.

State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004). At the time of the offense,

Indiana Code Section 35-42-5-1 provided: “A person who knowingly or

intentionally takes property from another person or from the presence of

another person: (1) by using or threatening the use of force on any person; or (2)

by putting any person in fear; commits robbery, a Class C felony.” The State

alleged that Heironimus knowingly took property from the bank employee by

threatening force against the employee. Heironimus argues that a motion for

directed verdict would have been granted because there was no evidence to

show that he threatened the use of force against the bank employee.

[8] On this issue, the post-conviction court found:

2. Petitioner’s first claim was that he was denied the effective assistance of trial counsel due to omissions and errors of trial counsel that undermined confidence in the outcome of the case. The specific facts alleged by Petitioner to support this first claim were that Petitioner was charged and convicted of robbery for having taken money from a bank teller “by using or threatening the use of force,” but that the evidence at trial failed to support this element of the charge. Petitioner’s claim is that if counsel had moved for a directed verdict on this issue, there is a reasonable probability that this argument would have been

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 5 of 11 successful and Petitioner would not have been convicted of robbery.

3. The charging information in Petitioner’s case alleges that the offense was committed “by threat of force,” but does not allege the actual “use of force.”

*****

11. Mr. Gooden [trial counsel] testified that he was aware during trial of the issue regarding the sufficiency of the evidence on the threat of force element. However, he did not want to bring the issue to the attention of the State so the prosecutor could then fix the issue. Mr. Gooden also indicated based on his past experiences, he did not believe that a motion for directed verdict would be successful. As trial counsel, Mr. Gooden’s decision not to move for a directed verdict was one of strategy.

12. Even if Mr. Gooden had moved for a directed verdict, it is unlikely that his motion would have been successful.

App. Vol. II pp. 90, 92.

[9] Relying on Simmons v. State, 455 N.E.2d 1143 (Ind. Ct. App. 1983), and Maga v.

State, 508 N.E.2d 803 (Ind. 1987), the post-conviction court also concluded:

17. The teller in Petitioner’s case testified that the suspect who robbed the bank had his hood pulled up so that he [sic] his face was only partially visible and his hair could not be seen. The man put a backpack up on the teller station, and the man had one hand in the Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 6 of 11 backpack which led the teller to believe that the man might have a gun in the backpack. The man told the teller that he wanted her to put money in the backpack and told her not to push any alarms. After the teller put money in the backpack, the man indicated he wanted even more money. The teller testified that she was terrified, very scared and very nervous at the time. She also described her state as hysterical.

18. Petitioner’s attempt to conceal his appearance, the fact that he put his hand in his backpack when he asked for money, and that he told the teller to give him money and not to push any alarms all support the jury’s finding that the offense was committed by the “threat of force.” Petitioner’s behavior understandably made the teller feel terrified, scared and nervous and also understandably led the teller to believe that Petitioner had a gun. Petitioner’s words and gestures, along with the appearance that he might have a gun, establish the element of “threat of force.”

App. Vol. II pp. 93-94.

[10] We addressed a similar issue in Simmons, 455 N.E.2d at 1147-48. There, the

defendant robbed a liquor store by demanding money and putting his hand to a

bulge at his waist, which the manager thought was a gun. However, when the

defendant was arrested minutes later, the police found no weapon. The jury

found him guilty of Class C felony robbery by using or threatening the use of

force. On appeal, this court engaged in a lengthy analysis of the statutory

language, the prior statute’s language, and case law on the issue. We concluded

that the defendant’s “words, the bulge under his shirt, and his gestures toward

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 7 of 11 that bulge, all creating the inference he possessed a gun, were sufficient to

indicate he was threatening the use of force upon [the manager].” Simmons, 455

N.E.2d at 1148. Citing Simmons, our supreme court later noted that “[t]he

threat of force can be established through the appearance that a person had a

gun, and by the words and gestures of the person.” Maga v. State, 508 N.E.2d

803, 804 (Ind. 1987); see also Gray v. State, 903 N.E.2d 940, 946 (Ind. 2009)

(directing the entry of a conviction for Class C felony robbery rather than a

Class B felony robbery where the defendant implied that he had a gun in his

pocket but there was no evidence that he actually had a weapon).

[11] Here, the bank employee testified that Heironimus entered the bank wearing a

hooded sweatshirt with the hood pulled up over his head so that she could not

see much of his face. He was carrying a backpack and had his left hand inside

the backpack. He put his backpack on the counter and told the teller to give

him all of the money and not to push any alarms. Based on the position of the

backpack and his hand, the teller thought that “he had perhaps a gun in it.” Tr.

p. 24. She was “terrified, very scared, just very nervous.” Id. at 25.

Heironimus argues that the teller “seemed to realize that he was not armed

soon thereafter when he passed the bag to her.” Appellant’s Br. p. 8.

[12] For a motion for directed verdict to be successful, there must have been a

complete lack of evidence regarding threatening the use of force or the evidence

must be without conflict and susceptible to only an inference in favor of the

Heironimus’s innocence. Huber, 805 N.E.2d at 890. As in Simmons,

Heironimus’s words and actions implied that he had a gun and were sufficient

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 8 of 11 to indicate he was threatening the use of force upon the teller. Consequently,

even if his trial counsel had filed the motion for directed verdict, there is no

reasonable probability that the motion would have been successful or that the

result of the proceeding would have been different. The trial court’s denial of

Heironimus’s petition for post-conviction relief on this issue is not clearly

erroneous.

II. Ineffective Assistance of Appellate Counsel

[13] Next, Heironimus argues that he was denied effective assistance of appellate

counsel. The standard for gauging appellate counsel’s performance is the same

as that for trial counsel. Allen, 749 N.E.2d at 1166. Heironimus must

demonstrate that his appellate counsel was deficient and that he was prejudiced

by the deficient performance. Ben-Yisrayl, 729 N.E.2d at 106.

[14] Heironimus argues that his appellate counsel should have raised a claim that

the evidence was insufficient to sustain the conviction for robbery. Because the

strategic decision regarding which issues to raise on appeal is one of the most

important decisions to be made by appellate counsel, appellate counsel’s failure

to raise a specific issue on direct appeal rarely constitutes ineffective assistance.

See Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court

has adopted a two-part test to evaluate the deficiency prong of these claims: (1)

whether the unraised issues are significant and obvious from the face of the

record; and (2) whether the unraised issues are “clearly stronger” than the

raised issues. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied. If

this analysis demonstrates deficient performance by counsel, the court then Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 9 of 11 examines whether the issues that appellate counsel failed to raise “would have

been clearly more likely to result in reversal or an order for a new trial.” Id.

[15] Specifically, Heironimus argues that appellate counsel should have argued that

the evidence was insufficient to show that he threatened the use of force. On

this issue, the post-conviction court found:

19. Petitioner’s second argument . . . was that Petitioner received ineffective assistance of appellate counsel when counsel failed to challenge the conviction appropriately, relying instead, on a non-meritorious argument. In the facts alleged to support this second argument, Petitioner contends that if appellate counsel had argued that the State lacked sufficient evidence to convict Petitioner of the robbery charge, there is a reasonable probability that Petitioner’s robbery conviction would have been overturned and the sentence vacated. This argument is also based on the claim that there was not enough evidence of the “threat of force.”

22. Because this Court has found in favor of the State as to the sufficiency of the evidence issue, this Court finds that it was not ineffective for appellate counsel to fail to raise the issue on appeal.

App. Vol. II pp. 94-95.

[16] Even if Heironimus’s appellate counsel had raised the sufficiency issue, we

cannot say the argument would have been successful. When reviewing the

Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 10 of 11 sufficiency of the evidence needed to support a criminal conviction, we consider

only the evidence supporting the judgment and any reasonable inferences that

can be drawn from such evidence. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). We affirm if there is substantial evidence of probative value such that a

reasonable trier of fact could have concluded the defendant was guilty beyond a

reasonable doubt. Id. As we have noted, based on Heironimus’s words and

actions, there was evidence to support the jury’s finding that he threatened the

teller with force. See Simmons, 455 N.E.2d at 1148. The sufficiency issue would

not have been clearly more likely to result in reversal. The post-conviction

court’s denial of Heironimus’s argument on this issue is not clearly erroneous.

Conclusion [17] The post-conviction court’s denial of Heironimus’s petition for post-conviction

relief is not clearly erroneous. We affirm.

[18] Affirmed.

Riley, J., and Bailey, J., concur.

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