MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 29 2017, 11:49 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Kathleen Cleary Ian McLean Deputy Public Defender Supervising Deputy Indianapolis, Indiana Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua J. Fairley, December 29, 2017 Appellant-Petitioner, Court of Appeals Case No. 82A04-1703-PC-575 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Respondent. Judge The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1203-PC-5
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 1 of 31 [1] Joshua Fairley (“Fairley”) pleaded guilty to murder in Vanderburgh Circuit
Court. Fairley later sought post-conviction relief, which the post-conviction
court denied. Fairley appeals and argues that the post-conviction court clearly
erred in rejecting his claims that his trial counsel was ineffective, that his guilty
plea was not knowingly and voluntarily made, and that the trial court erred by
not sua sponte conducting a competency evaluation.
[2] We affirm.
Facts and Procedural History A. The Shooting
[3] On the night of June 23, 2010, Fairley was at his home in Evansville with
Summer Jones (“Jones”). Jones had previously been in a relationship with
Fairley, and the two were in bed. At some point late that night or early the next
morning, someone began to pound on the door and walls of Fairley’s home.
Jones figured that the person causing the commotion was Fairley’s ex-
girlfriend, as Fairley had told Jones that he had recently broken up with his
girlfriend, and she was correct. Jones heard the sound of glass break and heard
Fairley tell the ex-girlfriend, later identified as sixteen-year-old H.G., to leave.
H.G. told the then thirty-year-old Fairley that she wanted to resume their
relationship, but Fairley told her that their relationship was over because H.G.
had indicated that she desired to have sex with another man. As Jones dressed
and readied to leave the house, she saw H.G. attempt to enter the home
through a window while Fairley was preventing her from doing so. Upon
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 2 of 31 seeing Jones, H.G. stated, “Who you got in here? A sixteen year old? Is it a
sixteen year old?”1 Ex. Vol., Petitioner’s Ex. 8, p. 161. H.G. eventually entered
the house, apparently through the door, and wanted to physically fight Jones.
H.G. entered the kitchen where Jones was and lunged at her, but was restrained
by Fairley, who told Jones to leave through the front door. Jones did not see
H.G. with any weapons, but knew that her ire was directed toward Jones.
[4] Jones left Fairley’s home and walked to her father’s house nearby, forgetting
that her own vehicle was parked outside Fairley’s home. She later woke her
father up and asked him to drive her back to Fairley’s home so that she could
get her vehicle; she also wanted her father to be there in case H.G. was still at
Fairley’s house and tried to fight her. When Jones returned to her vehicle, she
noticed that the passenger side window had been broken. Jones called the
police to report the broken window, and an officer arrived and took a statement
from her. The officer then went to Fairley’s front porch and knocked on the
door, but no one answered. The officer found a purse and wallet on the front
porch, and found two pieces of identification. He showed them to Jones, who
identified one of the pieces of identification as belonging to the girl she had seen
enter Fairley’s home, H.G. Jones then left to get her vehicle repaired.
[5] Later that day, June 24, Fairley failed to show up to work at a local pizzeria.
The owner of the establishment telephoned Fairley but got no answer. He then
1 Jones was twenty-six years old at the time.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 3 of 31 sent another employee to check on Fairley. This employee called back at
around 5:00 p.m. and informed his boss that the front door was broken, a
window was broken, and that he could see blood on the floor and a girl lying on
the floor. The police were called to the scene and discovered H.G. lying dead
on the floor with a gunshot wound to her head. They found Fairley in the
bathroom, sitting on the toilet with what appeared to be a self-inflicted gunshot
wound to the head. The bullet had entered under his chin and exited the top of
his head. Miraculously, Fairley was still alive. Fairley was transported to a local
hospital then taken to Wishard Hospital in Indianapolis.
B. The Investigation
[6] Detective Jack Spencer (“Detective Spencer”) of the Evansville Police
Department was lead investigator on the case. He, along with crime scene
investigators, spent many hours going over the scene of the crime. They also
learned that Jones had reported vandalism to her vehicle outside Fairley’s
house the morning of the day H.G. was found dead. The police transported
Jones from her home across the Ohio River in Owensboro, Kentucky and
interviewed her. Jones told them of the events of the night as recounted above.
[7] During the investigation, the police found no evidence indicating the
involvement of a third party in the shootings. Forensic evidence also ruled out
the possibility of an accidental shooting, as H.G.’s body had no indication that
she had held the gun. Instead, the police believed that Fairley and H.G. had
gotten into an argument, that Fairley had shot H.G. in the head, and then shot
himself. Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 4 of 31 [8] On July 13, 2010, Detective Spencer and Detective Michael Sides (“Detective
Sides”) drove to Wishard Hospital to talk to Fairley. Although the police did
not read Fairley his Miranda rights, Fairley was not communicative. Detective
Spencer told Fairley that he would be charged with murder but did not arrest
Fairley at the time.
[9] That Fairley was non-communicative was not a surprise, as he had suffered a
severe head wound and a brain injury. Fairley had to undergo several surgeries
and medical procedures, including a frontal lobectomy, the removal of his left
eye, and repair to his skull and jaw. Fairley was also sedated for a long period.
But he began to receive physical and speech therapy in July 2010 and began to
stabilize. Reports from mid-July indicate that Fairley suffered from
somnolence. And a clinical specialist diagnosed Fairley in mid-July with
dementia, disorientation as to place, and an inability to recall the names of
family members and identify objects in the room. Later that month, Fairley was
given a mental acuity test in which 30 is a perfect score; Fairley scored only 12.
Fairley had difficulty following instructions and could not recall some of his
own personal information, e.g., he could recall his date of birth, but not his age.
[10] Indianapolis police contacted Detective Spencer in late July and informed him
that the hospital was preparing to release Fairley. Detective Spencer spoke with
one of Fairley’s nurses, who informed him that Fairley had progressed mentally
and physically but still suffered from problems with his memory. On August 2,
2010, Detectives Spencer and Sides drove to Indianapolis to take Fairley into
custody and return him to Evansville. At the hospital, Detective Spencer asked
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 5 of 31 Fairley where he was, what the date was, what was his date of birth, and who
was the President of the United States. Fairley answered the questions about his
whereabouts correctly. Although he could not remember the name of the
current President, he did recall that he was African-American. When Detective
Spencer asked Fairley if he knew why he was in the hospital, he replied that he
did not. But Fairley then pointed to the wound on his chin and asked when it
had occurred. Detective Spencer replied that he had hoped that Fairley could
tell him about the gunshot wound. Detective Spencer also asked Fairley if he
knew where H.G. was. Fairley responded that he thought she was in
Evansville, but knew that he had not heard from her while in the hospital.
[11] Detective Spencer’s questioning of Fairley was summarized in his police report
as follows:
I asked Fairley if he remembered the night [H.G.] came to his house while Summer Jones was there and he stated he did. Fairley stated that he and Summer were about to have sex when [H.G.] came over. Fairley stated he remembered that [H.G.] broke the window and eventually came in through the front door. Fairley told me that [H.G.] had a key to his house. Fairley stated that he told Summer to leave out the back door and also told [H.G.] to leave. Fairley stated that [H.G.] was angry because Summer was there and he thought she was going to beat up Summer. Fairley stated he held [H.G.] down on the floor so Summer could leave. Fairley stated he did not know what door she left out of. Fairley stated he could not remember anything after that. I told Fairley that [H.G.] had been shot and was dead. Fairley looked at me puzzled and told me that he had just seen her recently. I told Fairley that we believed based on evidence at the scene that he had shot [H.G.] and then shot himself and I
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 6 of 31 needed to know why. Fairley stated he could not remember and never stated he did not shoot [H.G.] or himself. Fairley was discharged and Det. Sides and I handcuffed Fairley and explained that he was under arrest for [H.G.]’s murder, and he was going back to Evansville with us. He stated he understood, but asked no questions of me. I asked no more questions of Fairley regarding the case until we left the hospital. We stopped south of Terre Haute to get gas, and I took the opportunity to continue my questioning of Fairley. I retrieved two copies of the Miranda Waiver form and put one in his hand. I sat next to Fairley in the back seat and explained Miranda to him. He stated he understood what was said. I slowly read the form out loud and Fairley stated he understood his rights. He was unable to sign, due to the fact he was handcuffed to a leather belly belt, limiting his mobility. I again went over the events of June 24, 2010 with Fairley, and it was digitally recorded. I showed a crime scene photo to Fairley of the front of the house and asked him if it looked familiar. He stated that it was his house. I showed another photo of a handgun lying on the carpet in a pool of blood. Fairley seemed taken back by the photo and stated that it was his gun. I asked Fairley about his relationship with [H.G.] and he stated he did not remember how they met, but they had been in a sexual relationship for at least a year. Fairley stated that Jeff Phillips and [H.G.]’s aunt Angie knew of the relationship and [H.G.] would come to his house often while she was supposed to staying at Angie’s house. Fairley stated he thought [H.G.] was nineteen years old. I asked Fairley if anyone else was with [H.G.] when she came to his house that night Summer was there. He stated [H.G.] was alone, and he and Summer were alone until [H.G.] arrived. I asked Fairley if he saw [H.G.] with any weapon and he stated no. I asked Fairley if he had a sword collection and he stated he did. I asked him if he ever saw [H.G.] with one of his swords that night and he stated he did not remember her with one.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 7 of 31 I asked Fairley about his gun and what type it was. He stated he believed it was a 9mm and he had bought it from Tony Mattingly some time ago. I asked him low long ago and he stated it probably was longer than one year. I asked Fairley where he kept his gun, and he stated that it was kept in a locked closet in his bedroom and he had the only key, which was kept on his keyring. Fairley stated he kept a loaded magazine in the gun, but not one in the chamber. I asked Fairley if [H.G.] knew he had a gun and he stated she did, but did not have access to it.
Ex. Vol., Petitioner’s Ex. 10, pp. 110–111. Detective Spencer later stated that,
during this interview, Fairley had provided him with little information that he
did not already know. On August 4, 2010, the State charged Fairley with
murder.
[12] In jail, Fairley’s recovery continued. On August 5, 2010, he asked a jail officer
if he could “go sweep,” which he did not understand. Tr. pp. 77–78.
Eventually, he understood that Fairley meant that he wanted to shower.
Approximately one week later, a clinical social worker evaluated Fairley as part
of the suicide watch procedure and noted that he was oriented as to the time
and date. Fairley told the social worker that he did not recall shooting himself
or H.G.
C. The Defense
[13] The trial court held an initial hearing on August 6, 2010, and appointed a public
defender, Dennis Vowels (“Vowels”), to represent the indigent Fairley. At the
time of his appointment, Vowels had been practicing law for twenty-five years
and had been a public defender in Vanderburgh County for twenty-one years.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 8 of 31 He had represented clients in forty-eight murder cases, which included four
death-penalty cases and two life-without-parole cases. During Vowels’s first
meeting with Fairley, he was non-communicative. Vowels reviewed the large
number of reports from Wishard Hospital, which revealed the extent of
Fairley’s injuries and his neurological problems. Vowels decided not to request
the appointment of an expert to evaluate Fairley for competency; instead, he
decided to wait and see if and how Fairley’s condition improved. Vowels was
confident, based on his extensive experience in Vanderburgh County courts,
that he could continue the trial date if necessary.
[14] When the social worker reevaluated Fairley in September 2010, she determined
that Fairley was functioning “generally within normal limits,” though he still
did not recall the shooting. Tr. pp. 77–78. Vowels met with Fairley numerous
times and, by November 2010, Fairley was able to communicate with Vowels.
Fairley understood the discovery materials he reviewed with Fairley and
discussed his defense options. Fairley asked questions about the charges and the
evidence and assisted Vowels in preparing his case.
[15] Vowels also interviewed potential witnesses and Fairley’s coworkers. When he
spoke with the coworkers, Vowels learned that “what was happening at Mr.
Fairley’s house . . . was not a positive thing.” Id. at 14. Specifically, the
coworker informed Vowels that H.G. and her other high school friends used
Fairley’s house as a place to meet and drink alcohol and smoke marijuana.
With regard to Fairley’s statement to the police, Vowels was very confident that
the statement to the police would be suppressed, as there was strong evidence
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 9 of 31 that Fairley was not able to knowingly waive his Miranda rights at the time he
made the statement. Vowels did not file a motion to suppress because his
practice was to file such motions the week prior to trial. Vowels explained that
he did not file motions to suppress unless he was convinced they were merited,
and he had a record of success with such motions because of this.
[16] When Vowels spoke to Fairley, he noted that Fairley had an emotionally
appropriate response to the events. That is, he did not make light of the
situation and was solemn about the events that had occurred. Fairley was also
“equivocal” about the potential defenses that were discussed and was equivocal
about taking the case to trial. Tr. p. 26. Fairley eventually asked Vowels about
pleading guilty, which Vowels had previously discussed with him, among other
defense options. Among the other options was self-defense and arguing for a
lesser included offense, in light of H.G.’s entry into Fairley’s home. Vowels
recalled, however, that there was no forensic evidence that H.G. had held the
gun when it fired, as there was no gunpowder residue on her hands. Nor was
there any tissue or blood on her hands, and the location of the wound to her
head made it unlikely that it was self-inflicted. As Vowels later recalled:
[I]t could have been played out a number different ways where she shot him and then shot herself, where she shot herself and then he was so distraught he shot himself, it could have been played a number of different ways. It was a defensible case.
Id. at 25.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 10 of 31 D. The Plea
[17] Eventually, Fairley decided that he wanted to plead guilty to “the best deal
[Vowels] could get.” Tr. p. 27. Vowels did not think that the State based its
position on the admission of Fairley’s statement to the police. In fact, he
believed that the prosecutor “probably figured out that he wasn’t going to get
[the statement] into evidence either.” Id. at 29. Vowels testified that the
statement and its admissibility did not affect the plea negotiations. Ultimately,
Vowels negotiated a plea agreement wherein Fairly would plead guilty to
murder and receive a fifty-year executed sentence, which he stated was the best
deal he could get from the prosecutor. Fairley agreed to plead guilty pursuant to
these terms.
[18] At the plea hearing, the trial court engaged in an extended colloquy with
Fairley regarding his plead:
[Court]: You’ve been charged in this case with Murder a felony. You understand the nature of that charge? [Fairley]: Yes Sir, I do. [Court]: Pursuant to this plea agreement you now withdraw you[r] plea of not guilty and enter a plea of guilty as charged. [Fairley]: Yes. [Court]: You understand that by you[r] plea of guilty you are admitting the truth of all the facts [as] alleged in the charging information filed against you and upon entry of you[r] plea of guilty the Court will proceed with judgment and sentencing. [Fairley]: Yes Sir.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 11 of 31 [Court]: You understand the following rights, you are entitled to a speedy and public trial by court or jury the State must prove beyond a reasonable doubt that you committed the offense charged before you can be convicted of it. You have the right to introduce evidence and testify if you so desire. However, you cannot be compelled to testify against yourself. The court will subpoena any witnesses needed for your defense. You have the right to object to the introduction of the evidence and to confront and cross examine any witness used by the State. If the verdict is against you and you were found guilty you have the right to appeal. If you could not afford an attorney the court would appoint an attorney to represent you on that appeal. Do you understand these rights? [Fairley]: Yes. [Court]: You also understand Sir by pleading guilty you’re giving up all these rights. [Fairley]: Yes. [Court]: Now [the] State says that in Vanderburgh County, Indiana on or . . . between June 23 and June 24 of 2010 you knowingly and intentionally killed another human being. That being, [H.G.]. Do you admit that Sir? [Fairley]: Yes. Sir. [Court]: [Is the] State satisfied with [the] factual basis? [State]: Yes, Your Honor. [Court]: Have you read this plea agreement, Mr. Fairley? [Fairley]: Yes. [Court]: Does it contain all the conditions reached between yourself and the State of Indiana? [Fairley]: Yes.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 12 of 31 [Court]: You understand that I am not a party to this agreement and that I’ve neither accepted it or rejected it at this time. [Fairley]: Yes. [Court]: You understand that if I don’t accept the agreement you’ll be . . . permitted to withdraw you[r] plea of guilty and re-enter [a plea] of not guilty and then these proceedings today will not be made a matter of record. And if I accept the agreement I’m bound by the terms of the agreement as well. Do you understand that? [Fairley]: Yes Sir. [Court]: Are you aware that the maximum sentence for the charge of Murder is sixty five (65) years, minimum of forty five (45) years with a possible fine up to ten thousand (10,000) dollars. [Fairley]: Yes. [Court]: If this crime [was] committed while you were on probation, parole or serving a prison term for another crime then the sentence for this crime cannot begin until the other has ended. This is called consecutive sentences, do you understand that? [Fairley]: Yes Sir. [Court]: Has anyone made any promises[,] force or threats to obtain your plea of guilty? [Fairley]: No Sir. [Court]: Therefore is it a voluntary plea of guilty? [Fairley]: Yes. [Court]: Do you fully understand this proceeding Sir, and have you discussed it with you[r] attorney? [Fairley]: I did. Yes.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 13 of 31 [Court]: Are you presently under the influence of alcohol or drugs? [Fairley]: No. [Court]: You understand that before you’re sentenced, you’ll have the right to present evidence or testimony or have you’re [sic] attorney speak on you[r] behalf? [Fairley]: I understand. [Court]: If you understand those rights Sir, please sign that form and file it with the court. Please let the record reflect he’s been advised of his constitutional rights and he has filed the acknowledgment of those rights. The Court finds that a factual [basis] exists for his plea of guilty to Murder [a] Felony. Court further finds the defendants plea is made knowingly, voluntarily and intelligently. Court orders a pre- sentence investigation report to be prepared[.] [Vowels]: [O]ne of the things that wasn’t asked [of] you, do you understand if you went to trial the way the evidence is in this case that I believe the Jury would get a verdict form and they could choose between finding you guilty of Murder or Manslaughter or Reckless Homicide. And those sentences are a lot less than this. It’s less than fifty (50) years that you’re agreeing to, and by pleading guilty you don’t give a jury the opportunity to decide if you committed a lesser charge. You understand what I’ve said? [Fairley]: Yes Sir. [Vowels]: You, you wanna do this? You wanna plead guilty to Murder and take fifty (50) years if the Judge will give it to ya? [Fairley]: Yes, I do.
Ex. Vol., Petitioner’s Ex. 2, pp. 2–6. The trial court then accepted the plea. Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 14 of 31 [19] The presentence investigation report (“PSI”) noted that Fairley had two
juvenile adjudications, one for an unknown reason and one for what would
have been possession of stolen property if committed by an adult. Fairley had
been charged with two prior crimes, both misdemeanor possession of
marijuana; one of these was dismissed, and Fairley was convicted of the other.
In the PSI Fairley gave a version of the events of the crime in which H.G. got
his gun, he and H.G. struggled over the gun, and the gun discharged, hitting
H.G. in the head. Fairley explained that he shot himself because he felt badly
about what had happened. Id., Petitioner’s Ex. 5. p. 5. This, of course, differed
from Fairley’s previous statements in which he claimed to be unable to
remember the events of the shooting.
[20] On March 17, 2011, the trial court held a sentencing hearing. Fairley stated that
he was “sorry for what did happen.” Id. Petitioner’s Ex. 3, p. 2. H.G.’s mother
testified at the hearing and expressed her anger at Fairley. She also suggested
that the plea agreement indicated that the State had something to hide:
A trial would have meant that all of the facts of the case would be exposed. There are certain facts the State hopes never does. One day everything will come out from Officer Doolittle’s actions or lack thereof that are detrimental to the reputation of the police department. One day [H.G.]’s storey [sic] will be told. . . .
Id. at 4. When pronouncing its sentence, the trial court addressed the comments
made by H.G.’s mother:
I’d like to address the comments made by uh...the victim’s mother. [A]nyone that has children knows . . . that a parent’s Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 15 of 31 worst nightmare is to lose a child. We all know that and almost all of us in here have children including the lawyers. [A]nd so, and so I understand your grief. [B]ut I would like to point out a few things. First of all, the amount of years that Mr. Fairley gets for his crime . . . does not measure the value of your child’s life[.] Secondly, this man’s pleading guilty as charged to the crime of Murder. . . . I’ve looked at the file. I’ve looked at the charges. I’ve looked at the facts and it’s my judgment that it is a very fair plea on both sides, especially from the State. I think there’s a very real chance that if this case had gone to trial that it could have been a conviction for something less, whether people agree with that or not. Lastly, I want to say that there are no more competent or ethical attorneys that practice before this court then [sic] the gentleman . . . that sit[] here today. . . . None of these gentlemen are either liars nor are they manipulator’s [sic] and . . . I regret that those words were said. . . . I know these people and their [sic] good people and good lawyers.
Id. at 5 (emphasis added). Pursuant to the plea agreement, the trial court
sentenced Fairley to fifty years of incarceration.
E. Post-Conviction Proceedings
[21] On February 23, 2012, Fairley filed a pro se petition for post-conviction relief.
The State Public Defender’s office entered an appearance on Fairley’s behalf
the following month, and an amended petition for post-conviction relief was
filed on April 29, 2016. After the State filed its answer, the post-conviction
court held an evidentiary hearing on the petition on July 26, 2016. Fairley
called as witnesses Vowels, Detective Spencer, Detective Sides, and Dr. Fred
Unverzagt (“Dr. Unverzagt”), a neuropsychologist who testified that Fairley
would not have been mentally competent to waive his Miranda rights at the
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 16 of 31 time of his statement to the police. At the conclusion of the hearing, the post-
conviction court left the evidence open, and Fairley later submitted to the court
the deposition of Dave Frank, Fairley’s former employer, and the audio
recording of Fairley’s August 2, 2010 statement to the police. On February 21,
2017, the post-conviction court issued findings of fact and conclusions of law
denying Fairley’s petition. Fairley now appeals.
Standard of Review [22] Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443
(Ind. 2002). The post-conviction petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Henley v. State, 881
N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for
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, the petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
conviction court. Id. at 643–44. Although we do not defer to the post-conviction
court’s legal conclusions, we review the post-conviction court’s factual findings
under a clearly erroneous standard. Graham v. State, 941 N.E.2d 1091, 1096
(Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. Accordingly, we will not
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 17 of 31 reweigh the evidence or judge the credibility of witnesses, and we will consider
only the probative evidence and reasonable inferences flowing therefrom that
support the post-conviction court’s decision. Id.
I. Ineffective Assistance of Trial Counsel
[23] Fairley claims his trial counsel was ineffective for failing to investigate Fairley’s
competence to plead guilty and for failing to file a motion to suppress Fairley’s
statement to the police. Our supreme court has summarized the law regarding
claims of ineffective assistance of appellate counsel as follows:
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687–88). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel’s errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694).
Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014). Moreover,
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Isolated mistakes,
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 18 of 31 poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.
Stevens v. State, 770 N.E.2d 739, 746–47 (Ind. 2002) (citations omitted).
[24] Claims of ineffective assistance of trial counsel following a guilty plea require
certain other considerations. With regard to guilty pleas, two general types of
claims of ineffective assistance of trial counsel are accepted: (1) the failure to
advise the defendant on an issue that impairs or overlooks a defense, and (2) an
incorrect advisement of penal consequences. Manzano v. State, 12 N.E.3d 321,
326 (Ind. Ct. App. 2014), trans. denied (citing Segura v. State, 749 N.E.2d 496,
500 (Ind. 2001)).
[25] In Segura, our supreme court explained what a petitioner must establish on a
claim of ineffective assistance of trial counsel following a guilty plea:
We conclude that Hill [v. Lockhart, 474 U.S. 52 (1985)] . . . requires a showing of a reasonable probability of success at trial if the alleged error is one that would have affected a defense. This result seems preferable for several reasons. In [State v.] Van Cleave, [674 N.E.2d 1293 (Ind. 1996),] we identified sound reasons for requiring that a petitioner who pleads guilty show a reasonable probability of acquittal in order to prevail in a post-conviction attack on the conviction based on a claim of ineffective assistance of counsel. As Hill emphasized, the State has an interest in the finality of guilty pleas. This is in part grounded in the cost of a new trial, and the demands on judicial resources that are imposed by revisiting the guilty plea, but also in concerns about the toll a retrial exacts from victims and witnesses who are required to revisit the crime years later.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 19 of 31 Segura, 749 N.E.2d at 503 (citations omitted). Our supreme court therefore
concluded that “[a] new trial is of course necessary if an unreliable plea has
been accepted. But its costs should not be imposed needlessly, and that would
be the result if the petitioner cannot show a reasonable probability that the
ultimate result-conviction-would not have occurred despite counsel’s error as to
a defense.” Id. Thus, under Segura, to be successful in his claim of ineffective
assistance of trial counsel alleging an error that affects a defense, the petitioner
must prove that, but for counsel’s alleged errors, he would not have been
convicted. See id.
[26] In contrast, if the allegation of trial counsel error is in advice as to penal
consequences, Segura requires a petitioner to “establish, by objective facts,
circumstances that support the conclusion that counsel’s errors in advice as to
penal consequences were material to his or her decision to plead.” Willoughby v.
State, 792 N.E.2d 560, 564 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at
507), trans. denied.2 Here, Fairley’s claims of trial counsel’s performance appear
to fall into the first Segura category.
2 We have noted before that the federal Seventh Circuit Court of Appeals disagreed with the Segura holding and concluded that our supreme court misinterpreted the United States Supreme Court’s holding in Hill. See Manzano v. State, 12 N.E.3d 321, 326 n.1 (Ind. Ct. App. 2014), trans. denied (citing Payne v. Brown, 662 F.3d 825, 828 (7th Cir. 2011)). But because the Seventh Circuit’s “decisions on questions of federal law are not binding on state courts,” Jackson v. State, 830 N.E.2d 920, 921 (Ind. Ct. App. 2005), we have continued to follow Segura. Earlier this year, the United States Supreme Court decided Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958 (2017). In Lee, the Court acknowledged that, “when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession,” then the defendant must also show that he would have been better off going to trial. Id. at 1965. This is similar to what
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 20 of 31 A. Failure to Investigate Competence
[27] Fairley argues that his trial counsel, Vowels, was ineffective for failing to
investigate his competence to proceed in the criminal case against him and to
plead guilty. Fairley contends that, had his counsel investigated his
competency, he would have learned of the devastating impact of his brain
injury, the proceedings would have been stayed, and Fairley would not have
pleaded guilty.
[28] A defendant is not competent to stand trial when he is unable to understand the
proceedings and assist in the preparation of his defense. Mast v. State, 914
N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied. The conviction of an
incompetent defendant is a denial of both federal due process and a denial of a
state statutory right. Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App. 2009),
trans. denied. When a criminal defendant is thought to lack the ability to
understand court proceedings and assist in his own defense, the trial court
our supreme court held in Segura with regard to claims that affect or impair a defense. But the Lee Court noted that not all allegations of deficient performance are of this sort. Id. For example, the allegation of deficient performance in Lee was one that affected the defendant’s understanding of the consequences of pleading guilty, i.e., deportation. Id. This is akin to the “penal consequences” category mentioned in Segura. See 749 N.E.2d at 500. The Lee Court declined to adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial under such circumstances. Id. at 1966. Instead, Lee held that even a defendant without a viable defense can still show prejudice if he can show that, but for counsel’s errors, he would have gone to trial. Id. at 1966. “When th[e] consequences [of pleading guilty] are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive.” Id. at 1966 (citation omitted). Whether Segura conflicts with Lee is a question we need not resolve in the present case, because Fairley did not establish the first prong of the Strickland test, i.e., that his counsel’s performance fell below an objective standard of reasonableness.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 21 of 31 should set a hearing and appoint two or three disinterested psychiatrists or
psychologists to evaluate the competency of the defendant. Gross v. State, 41
N.E.3d 1043, 1047 (Ind. Ct. App. 2015) (citing Ind. Code § 35-36-3-1(a)). If,
following the hearing at which evidence pertaining to the defendant’s
competency is presented, the trial court determines that the defendant lacks the
ability to understand the proceedings and assist in the preparation of his
defense, the trial will be delayed while the defendant is committed to the
Division of Mental Health and Addiction, which “‘shall provide competency
restoration services or enter into a contract for the provision of competency
restoration services by a third party[.]’” Id. (quoting Ind. Code § 35-36-3-1(b)).
[29] Here, the evidence Fairley presented at the post-conviction hearing did not lead
unerringly and unmistakably to a conclusion that his trial counsel’s
performance in this regard fell below an objective standard of reasonableness
with regard to investigating Fairley’s competence. Vowels testified that when he
first met with Fairley, he seemed non-communicative. However, Fairley made
a rapid recovery, and soon began to respond appropriately to Vowels’s
questions about the charges against him. Fairley was eventually able to recall
the events that led up to the shooting, up to the moment when Jones left the
house while he restrained H.G. Fairley was able to go over the discovery
materials with Vowels and discussed possible defenses and the evidence against
him. Vowels specifically testified that Fairley was able to consult with him in a
meaningful way and was able to assist Vowels in preparing his defense. True,
Fairley still had certain memory deficiencies, but the fact that Fairley could not
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 22 of 31 recall the moments around the shooting does not mean that he was
incompetent to stand trial.
[30] Moreover, the testimony of Fairley’s expert witness, Dr. Unverzagt, went
mostly to his mental state at the time of the statement to the police. Indeed,
Fairley admits that Dr. Unverzagt was unable to do a “retroactive” competency
analysis of Fairley at the time of the plea hearing. Dr. Unverzagt admitted that
Fairley had a remarkable recovery and that he was unable to assess Fairley’s
mental functioning at the time of the plea hearing. Under these facts and
circumstances, the post-conviction court did not clearly err in determining that
Vowels’s decision not to investigate Fairley’s competence further or seek a
competency hearing did not fall below an objective standard of reasonableness. 3
B. Failure to File a Motion to Suppress
[31] Fairley also argues that his trial counsel was ineffective for failing to file a
motion to suppress his statement to the police on grounds that he was mentally
3 Fairley claims that attorney Vowels has made a similar mistake in the past, noting that he was the trial counsel in Prowell v. State, 741 N.E.2d 704 (Ind. 2001), a case in which our supreme court reversed the post- conviction court’s finding that Vowels provided effective assistance. But in that case, Vowels’s performance was deficient because he failed to timely retain experts for mitigation in a death penalty prosecution, relying instead on the “good graces” of the particular trial court judge. Id. at 715, 718. Moreover, the fact that Vowels was ineffective in his representation in a case that occurred in 1993 and 1994, over twenty years ago, is not terribly probative of Vowels’s performance in the present case. We also find Mast v. State, 914 N.E.2d 851 (Ind. Ct. App. 2009), trans. denied, to be distinguishable from this case. In Mast, trial counsel requested mental health evaluations of his client. One evaluation concluded that Mast was incompetent to stand trial, and the other expressed uncertainty about Mast’s competency. Yet his trial counsel did not ensure that these evaluations were brought to the attention of the trial court. Id. at 857. This is why the majority in Mast concluded that counsel was ineffective. Here, in contrast, the evidence supporting the post-conviction court’s decision reveals that, although Vowels initially felt that Fairley was non-communicative, Fairley rapidly improved and was able to assist in his defense.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 23 of 31 incapable of knowingly waiving his Miranda rights at the time of the police
interview, when Fairley was still relatively non-communicative.
[32] Vowels explained that he had not yet filed a motion to suppress because he
usually did not do so until closer to trial. He was confident that the statement
would not be admitted into evidence and believed that the prosecuting attorney
also believed that the statement would not be admissible. Thus, he felt that the
statement, and his not having yet filed a motion to suppress, did not affect the
plea negotiations between Fairley and the State. Although Fairley now claims
that his negotiation position could have only been helped had Fairley filed a
motion to suppress and successfully excluded the statement, this is contrary to
Vowels’s testimony. Vowels is an experienced defense attorney in Vanderburgh
County, and the post-conviction court was in a better position to judge the
veracity of his claim than we are on appeal. Accordingly, the post-conviction
court did not clearly err in concluding that Fairley’s trial counsel was not
ineffective.
II. Voluntariness of Guilty Plea
[33] Fairley also claims that the post-conviction court erred in rejecting his claim
that his plea of guilty was not knowingly and voluntarily made. The test for the
validity of a guilty plea is whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant. Williams
v. State, 42 N.E.3d 107, 113 (Ind. Ct. App. 2015), trans. denied. Accordingly,
Indiana Code section 35-35-1-2 provides that a trial court accepting a guilty plea
must determine that the defendant, among other things: (1) understands the Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 24 of 31 nature of the charges; (2) has been informed that a guilty plea effectively waives
several constitutional rights—including trial by jury, confrontation and cross-
examination of witnesses, compulsory process, and proof of guilt beyond a
reasonable doubt without self-incrimination; and (3) has been informed of the
maximum and minimum sentences for the crimes charged. In assessing the
voluntariness of the plea, we review all the evidence before the post-conviction
court, including testimony given at the post-conviction trial, the transcript of the
petitioner’s original sentencing, and any plea agreements or other exhibits that
are part of the record. Williams, 42 N.E.3d at 113.
[34] A guilty plea entered after the trial court has reviewed the various rights that a
defendant is waiving and has made the inquiries called for by statute is unlikely
to be found wanting in a collateral attack. Cornelious v. State, 846 N.E.2d 354,
357 (Ind. Ct. App. 2006) (citing State v. Moore, 678 N.E.2d 1258, 1265 (Ind.
1997)), trans. denied. To present a colorable claim for relief under such
circumstances, a defendant can show that he was coerced or misled into
pleading guilty by the judge, prosecutor, or his own defense counsel. Id.
[35] Fairley argues that his traumatic brain injury affected his ability to remember
the events of the shooting and that his plea was therefore involuntary. We
disagree. The trial court explained all of the rights Fairley would give up if he
pleaded guilty. Despite these warnings, Fairley never indicated anything other
than a desire to plead guilty at the plea hearing. To the contrary, he informed
the trial court that he understood the nature of the charge against him, and that
he admitted to the truth of the allegations contained in the charging
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 25 of 31 information. Vowels even explained to Fairley on the record the possibility of
him being convicted of a lesser-included offense if he proceeded to trial. Fairley
indicated that he understood this but still desired to plead guilty. And Vowels
testified at the post-conviction hearing that he observed nothing about Fairley’s
demeanor or behavior at the plea hearing that would have indicated that Fairley
was incompetent to plead guilty. Simply put, the post-conviction court did not
clearly err in concluding that Fairley had not met his burden of proof to show
that he was incompetent to plead guilty.
[36] Fairley also contends that his guilty plea was faulty because there was an
insufficient factual basis to support the plea. Indiana Code section 35-35-1-3(b)
provides that a trial court “shall not enter judgment upon a plea of guilty unless
it is satisfied from its examination of the defendant or the evidence presented
that there is a factual basis for the plea.” The factual basis requirement
primarily ensures that when a plea is accepted there is sufficient evidence that a
court can conclude that the defendant could have been convicted had he stood
trial. Oliver v. State, 843 N.E.2d 581, 588 (Ind. Ct. App. 2006), trans. denied. A
finding of factual basis is a subjective determination that permits a court wide
discretion which is essential due to the varying degrees and kinds of inquiries
required by different circumstances. Id. A factual basis exists when there is
evidence about the elements of the crime from which a court could reasonably
conclude that the defendant is guilty. Id. We typically review claims of error
about pleas under an abuse of discretion standard. Id. This standard is also
appropriate where, as here, a post-conviction petitioner asks that his plea be set
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 26 of 31 aside through a motion for post-conviction relief on grounds that the factual
basis was inadequate. Id.
[37] Indiana courts have recognized four methods for eliciting evidence to prove a
factual basis to support a guilty plea: (1) by the State’s presentation of evidence
on the elements of the charged offenses; (2) by the defendant’s sworn testimony
regarding the events underlying the charges; (3) by the defendant’s admission of
the truth of the allegations in the charging information read in court; or (4) by
the defendant’s acknowledgment that he understands the nature of the offenses
charged and that his plea is an admission of the charges. Id.; see also Ellis v. State,
67 N.E.3d 643, 647 (Ind. 2017) (setting forth the four methods by which a
factual basis to support a guilty plea may be established). Here, the allegations
set forth in the charging information were read in open court, and Fairley
admitted to the truth of the allegations. This was sufficient to establish the
factual basis for his guilty plea. See Oliver, 843 N.E.2d at 588; Ellis, 67 N.E.3d at
647.
[38] Still, Fairley argues that his subsequent statement in the pre-sentence
investigation report, wherein he claimed that the gun went off as he and H.G.
struggled for control of the weapon, undermines the factual basis for his plea.
Our supreme court has rejected similar claims in the past. See Moredock v. State,
540 N.E.2d 1230, 1231 (Ind. 1989) (holding that post-conviction petitioner’s
protestations of innocence in his pre-sentence investigation report after he
pleaded guilty were not an adequate basis for post-conviction relief); see also
Mayberry v. State, 542 N.E.2d 1359, 1361 (Ind. Ct. App. 1989) (citing Moredock
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 27 of 31 in holding that post-conviction petitioner’s claims of innocence in unsworn pre-
sentence investigation report was insufficient to establish grounds for post-
conviction relief where trial court had already accepted plea of guilty), trans.
denied; Hatcher v. State, 523 N.E.2d 446, 447 (Ind. Ct. App. 1988), adopted and
aff’d, 540 N.E.2d 1241 (Ind. 1989) (holding that post-conviction petitioner had
not established grounds for relief where defendant had pleaded guilty without
maintaining innocence then later claimed to be innocent in unsworn pre-
sentence investigation report).
[39] Fairley claims that his case is distinguishable from these cases because of his
brain injury and what he claims to be the limited nature of the trial court’s
inquiry at the plea hearing. We disagree. These cases clearly hold that a
protestation of innocence made in an unsworn pre-sentence investigation report
after a defendant has pleaded guilty do not affect the validity of the plea. The
same is true here. It was only after he pleaded guilty that Fairley made the
unsworn statement in the pre-sentence investigation report claiming that the
gun went off accidentally as he struggled with H.G. for control of the weapon.
Moreover, his own expert, Dr. Unverzagt, explained that this version of events
could have been Fairley merely repeating a version of events that had been
described to him during the plea negotiations, as opposed to his own actual
recollection of events. Ex. Vol., Petitioner’s Ex. 12, pp. 11–12.
[40] Accordingly, we conclude that Fairly has not established that the post-
conviction court clearly erred in rejecting his claim that his guilty plea was not
knowingly and voluntarily made.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 28 of 31 III. Denial of Due Process
[41] Lastly, Fairley claims that he was denied due process of law when the trial
court accepted his guilty plea when the trial court did not sua sponte investigate
whether Fairley was competent to stand trial. He argues that, given the nature
of his injuries, the trial court should have ordered a competency evaluation and
that, had the trial court done so, he would have been found to be incompetent
to plead guilty.
[42] Notably, Fairley does not bring this claim under the rubric of a claim of
ineffective assistance of trial counsel, nor is it part of his claim that his plea was
not knowingly or voluntarily made. Instead, it appears to be a free-standing
claim of error. More specifically, it appears to be a claim of fundamental error,
as he argues that the trial court should have acted sua sponte. See Taylor v. State,
No. 82S00-1610-LW-576, ___ N.E.3d ___, 2017 WL 6014364, at *3 (Ind. Dec.
5, 2017) (noting that to show fundamental error, a defendant must establish that
the trial court should have raised an issue sua sponte due to a “blatant violation
of basic and elementary principles, undeniable harm or potential for harm, and
prejudice that makes a fair trial impossible.”). But claims of fundamental error
are not available in post-conviction proceedings. Sanders v. State, 765 N.E.2d
591, 592 (Ind. 2002). Thus, to the extent that Fairley’s claim is one of
fundamental error, we are unable to review it. See id.
[43] Even if we addressed Fairley’s claim on its merits, he would not prevail. Fairley
indisputably suffered from a traumatic brain injury. And he was initially non-
communicative and therefore presumably unable to assist his counsel in his Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 29 of 31 defense. However, Fairley made a remarkable recovery, and Vowels, his
extremely experienced trial counsel, was able to communicate with him and
discuss the charges against him and the available defenses. Indeed, Vowels
testified at the post-conviction hearing that there was no indication that Fairley
was incompetent at the time he chose to plead guilty. Although Fairley had a
visible injury from his failed suicide attempt, he was able to communicate and
understand what was going on. More importantly, Vowels testified that Fairley
was competent and desired to plead guilty. The trial court thoroughly explained
the rights Fairley would forgo by pleading guilty, and Fairley indicated that he
understood his rights yet still desired to plead guilty. Vowels even questioned
Fairley on the record to ensure that Fairley understood that he was forgoing the
possibility of being convicted for a lesser included offense. Still, Fairley
indicated that he understood this and wanted to plead guilty. Under these facts
and circumstances, we are unable to say that Fairley was so obviously impaired
that the trial court should have ordered a competency evaluation sua sponte and
that the trial court’s failure to do so amounted to a deprivation of due process.
Conclusion [44] The post-conviction court did not clearly err in concluding that Fairley had not
met his burden of establishing that his trial counsel was ineffective for failing to
have Fairley’s competency evaluated or for failing to move to suppress Fairley’s
statement to the police. Nor did the post-conviction court clearly err in rejecting
Fairley’s claim that his guilty plea was not made knowingly and voluntarily.
Lastly, the post-conviction court did not clearly err in determining that Fairley
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 30 of 31 was not deprived due process when the trial court did not sua sponte order
Fairley to undergo a competency evaluation. Accordingly, we affirm the order
of the post-conviction court denying Fairley’s petition for post-conviction relief.
[45] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A04-1703-PC-575 | December 29, 2017 Page 31 of 31