John Jorman, Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 7, 2013
• Docket: 49A04-1203-PC-163
• Status: Unpublished

Opinion

Aug 07 2013, 6:10 am Pursuant to Ind. Appellate Rule 65(D), 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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JOHN JORMAN, JR. GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JOHN JORMAN JR., ) ) Appellant-Petitioner, ) ) vs. ) No. 49A04-1203-PC-163 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice, Judge The Honorable Amy J. Barbar, Magistrate Cause No. 49G02-0912-PC-100675

August 7, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge John Jorman, Jr. (“Jorman”) appeals the denial of his petition for post-conviction

relief. He raises multiple issues for our review, which we consolidate and restate as:

I. Whether the post-conviction court properly denied Jorman’s request for a public defender;

II. Whether the post-conviction court erred when it denied Jorman’s free standing claims of error at trial; and

III. Whether the post-conviction court erred when it found that Jorman had not received ineffective assistance of trial counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

In its order denying Jorman’s petition for post-conviction relief, and taking from

the probable cause affidavit, the post-conviction court summarized the facts regarding the

underlying offenses as follows:

[Jorman] was contracted with Family and Social Services Administration (FSSA) Bureau of Developmental Disability Services (BDDS) as a Medicaid Provider. Jorman provided services to clients in their home for BDDS. In 2007, Jorman submitted an application/proposal to provide services to BDDS. The Provider Relations Director of BDDS, Arnetta Jackson, identified several problems with Jorman’s application, including his failure to reach the minimal financial requirement of a line of credit of at least $35,000.00

Jackson informed Jorman of the requirement and Jorman told her that he could not meet this requirement and asked her to lower it. Jackson informed Jorman that the requirement could not be lowered.

In December 2007, Jorman submitted a bank statement from the National Bank of Indianapolis, dated November 2007, to BDDS showing that he had a balance of approximately $22,000[.00]. With other letters of credit submitted this brought Jorman up to the $35,000[.00].

2 BDDS staff called the National Bank of Indianapolis and learned that Jorman’s account was closed in October 2005. Affiant confirmed with [the] National Bank of Indianapolis that Jorman’s account was closed.

Jorman falsified bank documents to make it appear that he met the minimum financial requirements of BDDS in order to procure a government contract.

Appellant’s App. at 60.

On December 14, 2009, the State charged Jorman with forgery1 as a Class C

felony and government contract procurement through false information2 as a Class A

misdemeanor. Jorman was found to be indigent, and the trial court appointed public

defender, Alan Reid (“Reid”), as Jorman’s counsel. On May 6, 2010, Jorman entered

into a plea agreement that called for him to plead guilty as charged to both counts. In

exchange, the State agreed that the sentence would be capped at two years total with all

other terms open to argument. Pursuant to the plea agreement, Jorman acknowledged

that, by pleading guilty, he was admitting the truth of all the facts alleged in the charges

and that he was satisfied with his counsel’s performance. Jorman was advised of his

rights, and he accepted the State’s proffered factual basis. The plea agreement was

accepted by the trial court, and a judgment of conviction was entered.

On June 23, 2010, Jorman moved pro se to withdraw his guilty plea, which the

trial court denied. On July 19, 2010, Reid was replaced by another public defender,

Karen Brogan (“Brogan”). Jorman filed another pro se motion to withdraw his guilty

plea, which was denied after a hearing on July 23, 2010. On that same date, the trial

1 See Ind. Code § 35-43-5-2. 2 See Ind. Code § 35-43-5-11.

3 court conducted a sentencing hearing and sentenced Jorman to two years on Class C

felony forgery and to one year for Class A misdemeanor government contract

procurement through false information, all suspended and with both sentenced to run

concurrently with each other. The trial court placed Jorman on probation for one year.

On August 6, 2010, Jorman filed a pro se petition for post-conviction relief,

alleging ineffective assistance of trial counsel, that his two convictions violated double

jeopardy, that he did not knowingly, voluntarily, or intelligently enter into his guilty plea,

that the probable cause affidavit was defective, and that the trial court erroneously denied

his motion to withdraw his guilty plea. Appellant’s App. at 38-44. On August 13, 2010,

the post-conviction court denied Jorman’s request that a public defender be appointed. A

hearing was held on Jorman’s petition on September 14, 2011, at which time the post-

conviction court took the matter under advisement. On March 1, 2012, the post-

conviction court denied Jorman’s petition for post-conviction relief. Jorman now

appeals.

DISCUSSION AND DECISION

Jorman argues that the post-conviction court erroneously denied his petition for

relief. Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or

unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738

N.E.2d 253, 258 (Ind. 2000), cert. denied 534 U.S. 1164 (2002); Wieland v. State, 848

N.E.2d 679, 681 (Ind. Ct App. 2006), trans. denied, cert. denied 549 U.S. 1038 (2006).

The proceedings do not substitute for a direct appeal and provide only a narrow remedy

4 for subsequent collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The

petitioner for post-conviction relief bears the burden of proving the grounds by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

When a petitioner appeals a denial of post-conviction relief, he appeals a negative

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. denied. The

petitioner must establish that the evidence as a whole unmistakably and unerringly leads

to a conclusion contrary to that of the post-conviction court. Id. 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. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

denied. The post-conviction court is the sole judge of the weight of the evidence and the

credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008),

trans. denied. We accept the post-conviction court’s findings of fact unless they are

clearly erroneous, and no deference is given to its conclusions of law. Fisher, 878

N.E.2d at 463.

I. Request for Counsel

Jorman contends that the post-conviction court erred when it denied his request for

the appointment of counsel during the post-conviction proceedings. The right to counsel

in post-conviction proceedings is not guaranteed by either the Sixth Amendment to the

United States Constitution or Article I, section 13 of the Indiana Constitution. Daniels v.

State, 741 N.E.2d 1177, 1190 (Ind. 2001); Taylor v. State, 882 N.E.2d 777, 783 (Ind. Ct.

App. 2008). The Indiana Post-Conviction Rules provide that the public defender may

5 represent any petitioner committed to the Indiana Department of Correction if the public

defender determines the proceedings are meritorious and in the interests of justice and

may refuse representation in any case where the conviction or sentence being challenged

has no present penal consequences. Ind. Post-Conviction Rule 1(9)(a).

In the present case, Jorman was sentenced to an aggregate two-year sentence, all

suspended. After he filed his petition for post-conviction relief, he requested that a public

defender be appointed to assist him in the proceedings, which the post-conviction court

denied. Jorman had no constitutional right to appointed counsel, although, pursuant to

the post-conviction rules, he could have employed his own counsel or proceeded pro se,

as he did here. Id. Further, Jorman was never incarcerated in this case, so therefore, the

Public Defender was not required to represent him in his post-conviction proceedings.

Because the post-conviction court was not required to refer Jorman’s case to the Public

Defender at public expense, the court did not err in denying him a public defender.

II. Free Standing Claims

Jorman raised several free standing claims of error in his petition for post-

conviction relief, to which the post-conviction court denied relief. These included claims

that the probable cause affidavit was defective, that he did not knowingly, voluntarily, or

intelligently enter into his guilty plea, that the trial court erroneously denied his motion to

withdraw his guilty plea, and that his convictions violated double jeopardy. On appeal,

he contends that the post-conviction court erred when it denied these claims.

Initially, we note that Jorman pleaded guilty in his underlying case. “It is well

settled that a person who pleads guilty cannot challenge the propriety of the resulting

6 conviction on direct appeal; he or she is limited on direct appeal to contesting the merits

of a trial court’s sentencing decision, and then only where the sentence is not fixed in the

plea agreement.” Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009). Therefore, these

issues would not have even been allowed to be raised on direct appeal. Further, post-

conviction relief is not a substitute for a direct appeal. P-C.R. 1(1)(b). Post-conviction

procedures create a narrow remedy for subsequent collateral challenges to convictions.

Martin v. State, 760 N.E.2d 597, 599 (Ind. 2002). Freestanding claims that the original

trial court committed error are available only on direct appeal and are not available in

collateral proceedings. Id. (citing Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001),

cert, denied 534 U.S. 1136 (2002)). Claims such as Jorman’s free standing claims can

only be considered when framed as a claim of ineffective assistance of counsel. The

post-conviction court properly denied Jorman relief on his free standing claims of error.

III. Ineffective Assistance of Counsel

Jorman argues that he received the ineffective assistance of his trial counsel, Reid,

which influenced him to plead guilty. He contends that, if not for Reid’s ineffective

representation, he would not have pleaded guilty and would have proceeded to trial. We

review ineffective assistance of trial counsel claims under the two-prong test set out in

Strickland v. Washington, 466 U.S. 668 (1984). Fisher, 878 N.E.2d at 463. First, the

petitioner must demonstrate that counsel’s performance was deficient, which requires a

showing that counsel’s representation fell below an objective standard of reasonableness

and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the

United States Constitution. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert.

7 denied 537 U.S. 839 (2002). Second, the petitioner must demonstrate that he was

prejudiced by counsel’s deficient performance. Id. To show prejudice, a petitioner must

show that there is a reasonable probability that the outcome of the trial would have been

different if counsel had not made the errors. Id. A probability is reasonable if it

undermines confidence in the outcome. Id.

We presume that counsel rendered adequate assistance and give considerable

discretion to counsel’s choice of strategy and tactics. Smith v. State, 765 N.E.2d 578, 585

(Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad

judgment do not necessarily render representation ineffective.” Id. “If we can resolve a

claim of ineffective assistance of counsel based on lack of prejudice, we need not address

the adequacy of counsel’s performance. Fisher, 878 N.E.2d at 463-64.

Because Jorman was convicted pursuant to a guilty plea, we must analyze this

particular claim under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura discusses two

types of ineffective assistance of counsel claims in this context: (1) where the

defendant’s lawyer fails to advise the defendant on an issue that impairs or overlooks a

defense; and (2) where the defendant’s lawyer incorrectly advises the defendant as to

penal consequences. Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007). If a

petitioner is convicted pursuant to a guilty plea and later claims that his counsel rendered

ineffective assistance because counsel overlooked or impaired a defense, the petitioner

must show that a defense was indeed overlooked or impaired and that the defense would

have likely changed the outcome of the proceeding. Id. Therefore, the petitioner must

show a reasonable probability that, had the defense been raised, the petitioner would not

8 have pleaded guilty and would have succeeded at trial. Helton v. State, 907 N.E.2d 1020,

1023-24 (Ind. 2009) (citing Segura, 749 N.E.2d at 503).

Here, Jorman has not shown that, had Reid provided different representation at

trial, he would not have pleaded guilty or that a trial would have resulted in a more

favorable outcome. Jorman’s guilty plea capped his sentence at two years despite the fact

that he was facing two charges, including a Class C felony. A person who commits a

Class C felony shall be imprisoned for a fixed term of between two and eight years, with

the advisory sentence being four years. Ind. Code § 35-50-2-6. Jorman also faced

another charge, which could have resulted in consecutive sentencing. His plea agreement

reduced his sentence from the advisory to the minimum for a Class C felony. Jorman has

not established that different representation by Reid would have supported a reasonable

probability that Jorman would have chosen to go to trial, and that if he had, he would

have succeeded at trial.

Additionally, Jorman did not call Reid as a witness at his post-conviction hearing.

Absent evidence in support of the petitioner’s assertion, the post-conviction court may

infer that counsel would not have corroborated the petitioner’s allegations. Mays v. State,

790 N.E.2d 1019, 1021-22 (Ind. Ct. App. 2003) (citing Dickson v. State, 533 N.E.2d 586,

589 (Ind. 1989); Lockert v. State, 627 N.E.2d 1350, 1353 (Ind. Ct. App. 1994)). We can

therefore infer that Reid would not have supported Jorman’s claims. Jorman bears a

heavy burden and must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite to that reached by the post-conviction court. Hall

v. State, 849 N.E.2d 466, 469 (Ind. 2006). This court will not disturb the post-conviction

9 court’s denial of relief unless the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite conclusion. We,

therefore, conclude that Jorman has failed to meet his burden. The post-conviction court

did not err in denying is petition.

Affirmed.

VAIDIK, J., and PYLE, J., concur.