Nathan Hummel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 16, 2016
• Docket: 75A03-1602-PC-278
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 16 2016, 7:01 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Nathan Hummel Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nathan Hummel, September 16, 2016 Appellant-Petitioner, Court of Appeals Case No. 75A03-1602-PC-278 v. Appeal from the Starke Circuit Court State of Indiana, The Honorable Kim Hall, Judge Appellee-Respondent. Trial Court Cause No. 75C01-1508-PC-2

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016 Page 1 of 5 Statement of the Case [1] Nathan Hummel was convicted of dealing in a narcotic drug, as a Class B

felony; two counts of robbery, as Class B felonies; and disarming an officer, as a

Class C felony, pursuant to a plea agreement. Hummel subsequently petitioned

for post-conviction relief, which the post-conviction court denied. He now

appeals, challenging the post-conviction court’s judgment, and he raises a single

issue for our review, namely, whether he was denied the effective assistance of

trial counsel. We affirm.

Facts and Procedural History [2] In December 2011, the State charged Hummel with six felony counts related to

his participation in an armed robbery of a CVS pharmacy. In particular, the

State alleged that Hummel: jumped over the counter in the pharmacy and,

armed with a knife, took controlled substances from the presence of the

pharmacist and stole cartons of cigarettes; possessed with intent to deliver

morphine, methadone, oxycodone, oxycontin, Ritalin, Fentora, Nucynta, and

Avinza; and attempted to take a police officer’s gun. During a guilty plea

hearing in April 2012, Hummel pleaded guilty to dealing in a narcotic drug, as

a Class B felony; two counts of robbery, as Class B felonies; and disarming an

officer, as a Class C felony. In exchange for Hummel’s plea, the State reduced

the dealing count from a Class A felony to a Class B felony and dismissed two

of the felony counts. And the terms of the plea agreement provided for an

aggregate sentence of twenty-five years executed. The trial court entered

Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016 Page 2 of 5 judgment of conviction and sentence according to the terms of the plea

agreement.

[3] On August 18, 2015, Hummel filed a pro se petition for post-conviction relief.

In that petition, Hummel alleged that his “plea of guilty was not knowingly and

voluntarily entered into due to receiving ineffective assistance of trial

[counsel].” Appellant’s App. at 36. Following a hearing, the post-conviction

court concluded that Hummel “freely and voluntarily, after advise [sic] of

counsel who was not ineffective, pled guilty under the terms of the Plea

Agreement.” Appellant’s Br. at 23.1 This appeal ensued.

Discussion and Decision [4] Hummel contends that his plea was not knowing, intelligent, and voluntary

because he received ineffective assistance of trial counsel.

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, failure to satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel’s performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008).

1 Hummel did not include the post-conviction court’s order in the appendix on appeal. See Ind. Appellate Rule 50(A)(2)(b).

Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016 Page 3 of 5 Counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French, 778 N.E.2d at 824. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. 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. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

There are two different types of ineffective assistance of counsel claims that can be made in regards to guilty pleas: (1) failure to advise the defendant on an issue that impairs or overlooks a defense and (2) an incorrect advisement of penal consequences. Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001); see also Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). . . . The specific standard for showing prejudice on [the first type of claim] was articulated by our Supreme Court in Segura and requires:

a showing of a reasonable probability of success at trial if the alleged error is one that would have affected a defense. . . . 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.

749 N.E.2d at 503.

Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016 Page 4 of 5 McCullough v. State, 987 N.E.2d 1173, 1176-77 (Ind. Ct. App. 2013).

[5] We agree with the State that Hummel has waived this issue for review on

appeal for failure to present a cogent argument in support of his contentions.

See Ind. Appellate Rule 46(A)(8)(a). While Hummel sets out the applicable

standard of review and cites case law relevant to his burden to prove ineffective

assistance of counsel in general, he does not state with any specificity how his

trial counsel’s performance was allegedly deficient or direct us to any evidence

in the record to support his bare contentions. See id. For instance, in his brief

on appeal, Hummel states that his trial counsel made “unprofessional errors,”

but he does not describe those alleged errors or direct us to any part of the

record to support that allegation. Appellant’s Br. at 15. And Hummel avers

that his trial counsel did not “properly advise [him] on the offen[s]e of dealing

in a narcotic” drug, but he does not explain what his trial counsel’s advice was

or how it was improper. Id. at 16. Because of the lack of cogent argument and

citation to the record or relevant authority, Hummel has waived his ineffective

assistance of trial counsel claim for our review.

[6] Affirmed.

Vaidik, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 75A03-1602-PC-278 | September 16, 2016 Page 5 of 5