MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Aug 14 2015, 6:47 am 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jeremy Schmitt Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Schmitt, August 14, 2015
Appellant-Petitioner, Court of Appeals Case No. 83A05-1409-PC-425 v. Appeal from the Vermillion Circuit Court. The Honorable John Rader, Special State of Indiana, Judge. Appellee-Respondent Cause No. 83C01-1211-PC-3
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 1 of 8 [1] Jeremy Schmitt appeals the denial of his petition for post-conviction relief,
arguing that the trial court erroneously accepted his guilty plea and that he
received ineffective assistance of trial counsel. Finding no error, we affirm.
Facts [2] In 2003, Schmitt entered into a romantic relationship with Teresa Cox. Cox
was having custody issues with Scott Williams, who was the father of her
daughter. On April 19, 2004, Schmitt and Cox broke into Williams’s residence
while Williams was inside. Cox murdered Williams; the cause of his death was
blunt force trauma. On April 28, 2004, the State charged Schmitt and Cox with
murder and class A felony conspiracy to commit murder.
[3] At some point, the State filed a notice of immunity indicating that it had
extended use and derivative use immunity to Schmitt such that any evidence he
provided in the trial against Cox would not be used in any criminal proceeding
against him. Schmitt testified at Cox’s trial on October 12, 2004.
[4] On February 9, 2005, Schmitt and the State filed a plea agreement, pursuant to
which Schmitt agreed to plead guilty to conspiracy to commit murder in
exchange for the dismissal of the murder charge. Sentencing was left to the trial
court’s discretion. At the guilty plea hearing, which was held the same day,
Schmitt stated that he understood the allegations, that he understood he was
pleading guilty to conspiracy to commit murder, and that he understood he was
telling the court that he had done what was alleged in the charging information.
To establish the factual basis for the plea, Schmitt’s attorney elicited
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 2 of 8 information from Schmitt that he had testified during Cox’s trial and that the
testimony he had given in that trial had been true and accurate. The trial court
accepted the guilty plea and later sentenced Schmitt to fifty years incarceration.
[5] On November 30, 2012, Schmitt filed a petition for post-conviction relief. The
post-conviction court held a hearing on the petition on April 17, 2014, and on
August 22, 2014, the post-conviction court denied the petition. Schmitt now
appeals.
Discussion and Decision [6] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed 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 v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted). Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 3 of 8 I. Guilty Plea [7] Schmitt makes two arguments with respect to his guilty plea. First, he contends
that his testimony from Cox’s trial was improperly used to establish a factual
basis for his plea. He complains that the State had provided him immunity for
that testimony, and as such, it should not have formed the factual basis for his
guilty plea. It was Schmitt, however, who offered the testimony as a basis for
the plea. The State did not attempt to use that testimony against him.
Consequently, the State abided by its immunity-related promises and there is no
error on this basis.
[8] Second, Schmitt argues that he maintained his innocence during the guilty plea
hearing and that, as such, the trial court should not have accepted the plea.
The so-called “Ross/Harshman rule” provides that a trial court “may not accept
a plea of guilty when the defendant both pleads guilty and maintains his
innocence at the same time. To accept such a plea constitutes reversible error.”
Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983); see also Harshman v. State, 232
Ind. 618, 621, 115 N.E.2d 501, 502 (Ind. 1953). This rule “is explicitly
contingent, however, upon the protestation of innocence occurring at the same
time the defendant attempts to enter the plea.” Carter v. State, 739 N.E.2d 126, 129
(Ind. 2000) (emphasis added).
[9] In this case, Schmitt admitted his guilt to the trial court multiple times during
his guilty plea hearing. He also stated that he had testified truthfully during
Cox’s trial. That testimony included the following admissions:
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 4 of 8 Schmitt knew that there was animus between Williams and Cox. Schmitt agreed to break into Williams’s residence for Cox. Schmitt, dressed in dark clothes and wearing a ski mask and gloves, used a pry bar and a knife to enter Williams’s residence. Schmitt walked quietly through the residence and unlocked the back door so that Cox could enter. Schmitt gave the pry bar to Cox and walked away, leaving her to commit the murder.
Appellant’s App. p. 130, 144, 152, 157, 167, 170, 172.
[10] Schmitt makes much of the fact that he testified at Cox’s trial that he did not
enter into an agreement with her to kill Williams. He argues that this testimony
constitutes a protestation of innocence triggering the Ross/Harshman rule. We
disagree. This testimony occurred at a different, earlier proceeding. At the
guilty plea hearing itself, Schmitt did not make a single protestation of
innocence.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Aug 14 2015, 6:47 am 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jeremy Schmitt Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Schmitt, August 14, 2015
Appellant-Petitioner, Court of Appeals Case No. 83A05-1409-PC-425 v. Appeal from the Vermillion Circuit Court. The Honorable John Rader, Special State of Indiana, Judge. Appellee-Respondent Cause No. 83C01-1211-PC-3
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 1 of 8 [1] Jeremy Schmitt appeals the denial of his petition for post-conviction relief,
arguing that the trial court erroneously accepted his guilty plea and that he
received ineffective assistance of trial counsel. Finding no error, we affirm.
Facts [2] In 2003, Schmitt entered into a romantic relationship with Teresa Cox. Cox
was having custody issues with Scott Williams, who was the father of her
daughter. On April 19, 2004, Schmitt and Cox broke into Williams’s residence
while Williams was inside. Cox murdered Williams; the cause of his death was
blunt force trauma. On April 28, 2004, the State charged Schmitt and Cox with
murder and class A felony conspiracy to commit murder.
[3] At some point, the State filed a notice of immunity indicating that it had
extended use and derivative use immunity to Schmitt such that any evidence he
provided in the trial against Cox would not be used in any criminal proceeding
against him. Schmitt testified at Cox’s trial on October 12, 2004.
[4] On February 9, 2005, Schmitt and the State filed a plea agreement, pursuant to
which Schmitt agreed to plead guilty to conspiracy to commit murder in
exchange for the dismissal of the murder charge. Sentencing was left to the trial
court’s discretion. At the guilty plea hearing, which was held the same day,
Schmitt stated that he understood the allegations, that he understood he was
pleading guilty to conspiracy to commit murder, and that he understood he was
telling the court that he had done what was alleged in the charging information.
To establish the factual basis for the plea, Schmitt’s attorney elicited
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 2 of 8 information from Schmitt that he had testified during Cox’s trial and that the
testimony he had given in that trial had been true and accurate. The trial court
accepted the guilty plea and later sentenced Schmitt to fifty years incarceration.
[5] On November 30, 2012, Schmitt filed a petition for post-conviction relief. The
post-conviction court held a hearing on the petition on April 17, 2014, and on
August 22, 2014, the post-conviction court denied the petition. Schmitt now
appeals.
Discussion and Decision [6] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed 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 v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted). Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 3 of 8 I. Guilty Plea [7] Schmitt makes two arguments with respect to his guilty plea. First, he contends
that his testimony from Cox’s trial was improperly used to establish a factual
basis for his plea. He complains that the State had provided him immunity for
that testimony, and as such, it should not have formed the factual basis for his
guilty plea. It was Schmitt, however, who offered the testimony as a basis for
the plea. The State did not attempt to use that testimony against him.
Consequently, the State abided by its immunity-related promises and there is no
error on this basis.
[8] Second, Schmitt argues that he maintained his innocence during the guilty plea
hearing and that, as such, the trial court should not have accepted the plea.
The so-called “Ross/Harshman rule” provides that a trial court “may not accept
a plea of guilty when the defendant both pleads guilty and maintains his
innocence at the same time. To accept such a plea constitutes reversible error.”
Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983); see also Harshman v. State, 232
Ind. 618, 621, 115 N.E.2d 501, 502 (Ind. 1953). This rule “is explicitly
contingent, however, upon the protestation of innocence occurring at the same
time the defendant attempts to enter the plea.” Carter v. State, 739 N.E.2d 126, 129
(Ind. 2000) (emphasis added).
[9] In this case, Schmitt admitted his guilt to the trial court multiple times during
his guilty plea hearing. He also stated that he had testified truthfully during
Cox’s trial. That testimony included the following admissions:
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 4 of 8 Schmitt knew that there was animus between Williams and Cox. Schmitt agreed to break into Williams’s residence for Cox. Schmitt, dressed in dark clothes and wearing a ski mask and gloves, used a pry bar and a knife to enter Williams’s residence. Schmitt walked quietly through the residence and unlocked the back door so that Cox could enter. Schmitt gave the pry bar to Cox and walked away, leaving her to commit the murder.
Appellant’s App. p. 130, 144, 152, 157, 167, 170, 172.
[10] Schmitt makes much of the fact that he testified at Cox’s trial that he did not
enter into an agreement with her to kill Williams. He argues that this testimony
constitutes a protestation of innocence triggering the Ross/Harshman rule. We
disagree. This testimony occurred at a different, earlier proceeding. At the
guilty plea hearing itself, Schmitt did not make a single protestation of
innocence. Instead, he plainly and repeatedly admitted his guilt. Under these
circumstances, the Ross/Harshman rule was not triggered and the post-
conviction court correctly determined that the trial court did not err by
accepting the guilty plea.
II. Assistance of Trial Counsel [11] Schmitt also argues that he received the ineffective assistance of trial counsel.
A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 5 of 8 probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance
claim based upon the prejudice prong, we may do so without addressing
whether counsel's performance was deficient.” Baer v. State, 942 N.E.2d 80, 91
(Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be
resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824
(Ind. 2002).
[12] Schmitt argues that his attorney was ineffective for introducing his testimony at
Cox’s trial as the factual basis for his guilty plea. Specifically, Schmitt alleges
that he did not consent to the use of this testimony as the factual basis.
Schmitt’s attorney, however, testified at the post-conviction hearing that he and
Schmitt had discussed the use of the Cox trial testimony as the factual basis for
the guilty plea. Trial counsel testified that Schmitt willingly agreed to waive
any immunity-related issues regarding the use of that testimony when he
pleaded guilty. It was for the post-conviction court to weigh these conflicting
accounts and make a determination. We will not second-guess its conclusion
that Schmitt’s attorney was being truthful.
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 6 of 8 [13] Schmitt also makes vague allegations that his attorney “did nothing to protect
Schmitt’s rights, to prevent the State from using Schmitt’s immunized
testimony against him, or to ensure that Schmitt understood the implications of
the plea agreement.” Appellant’s Br. p. 12. Trial counsel, however, testified
that he and Schmitt had “lengthy discussions” about all of Schmitt’s options
before pleading guilty. PCR Tr. p. 15. Again, we will not second-guess the
post-conviction court’s determination that counsel was being truthful.
[14] Early in the police investigation, Schmitt admitted to police that he had broken
and entered Williams’s residence on the night of the murder. He also told
police that he had admitted a person into Williams’s residence after breaking
in.1 His own admissions to police constitute compelling evidence supporting a
charge of felony murder. Despite this compelling evidence, Schmitt’s trial
attorney negotiated a plea to the less serious crime of class A felony conspiracy
to commit murder. It is evident that his counsel represented and protected him
quite ably. Schmitt cannot establish that his attorney’s performance was
deficient or that he suffered prejudice as a result of his attorney’s performance.
Instead, the record reveals that his attorney aided him, quite significantly. The
post-conviction court correctly determined that Schmitt did not receive
ineffective assistance of appellate counsel.
1 Schmitt initially told police that he had let a man into the house.
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 7 of 8 [15] The judgment of the post-conviction court is affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015 Page 8 of 8