Ron Rose v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 27, 2013
• Docket: 15A01-1306-PC-272
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Dec 27 2013, 7:06 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

CYNTHIA M. CARTER GREGORY F. ZOELLER Law Offices of Cynthia M. Carter, LLC Attorney General of Indiana Indianapolis, Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

RON ROSE, ) ) Appellant-Defendant, ) ) vs. ) No. 15A01-1306-PC-272 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally Blankenship, Judge Cause No. 15D02-1303-PC-1

December 27, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Ron Rose appeals the denial of his petition for post-conviction relief (PCR) following

his conviction under Ind. Code Ann. § 35-42-4-2(a)(3) (West, Westlaw current with all 2013

legislation) for criminal deviate conduct as a class B felony, which was entered upon his

guilty plea. Rose presents several issues for review, one of which is dispositive: was Rose’s

guilty plea knowing, intelligent, and voluntary?

We reverse.

The facts are that on March 11, 2011, Rose pleaded guilty to criminal deviate conduct

as a class B felony. Rose thereby admitted that between February 3, 2010 and February 15,

2010, he knowingly caused T.S. to perform or submit to deviate sexual conduct when T.S.

was so mentally disabled or deficient that consent to the conduct could not be given. The

written plea agreement (the Agreement) called for a sentence of twenty years, with ten years

suspended. Among other things, the Agreement provided: “Defendant shall register as a

sexual offender as required by law.” Appellant’s Appendix at 38. The Agreement was

approved by the trial court on April 12, 2011.

The Agreement incorporated by reference two attachments, designated as Exhibit A

and Exhibit B. At the guilty plea hearing, those attachments were submitted for the court’s

approval, along with the Agreement. Exhibit A was descriptively entitled “Dearborn County

Superior Court’s Conditions of Probation”. Id. at 40. Exhibit B, which is the primary focus

in the present appeal, was entitled “Indiana Recommended Special Probation Conditions for

2 Adult Sex Offenders”. Exhibit B consisted of twenty-five1 numbered conditions, each with

two blank spaces beside it. The first blank space was provided for Rose to signify by

initialing that he acknowledged it as a condition of his probation. The second blank space

was used by the court to signify by initialing that it imposed that particular condition as a part

of Rose’s probation. Rose and the court initialed all but two of those twenty-five conditions.

The un-initialed conditions provided as follows:

1. Applies only to sexually violent predators: A sex offender who is a sexually violent predator (as defined in IC 35-38-1-7.5) shall register with local law enforcement authorities within seventy-two (72) hours of being released to probation in accordance with IC 11-8-8-7(h) and shall comply with all other registration requirements. Required as a condition of probation by I.C. § 35-38-to-2.2 for sex offenses listed in I.C. § 11-8-8-4.5.

* * * * *

3. Applies only to “offenders against children” as defined in I.C. § 35- 42-4-11(a)(1) & (2), including sexually violent predators. You shall not reside within 1000 (1000) feet of school property, a used program center or a public park and you shall not establish a residence within one (1) mile of the victim of your sex offense in accordance with IC 35-42-4-11 (c).

Id. at 41 (emphasis in original). Notably, Rose and the court both initialed paragraph 2,

which provided as follows:

2. Applies only to sex offenders who are NOT sexually violent predators: You shall register with local law enforcement authorities as a sex offender within seven (7) days of being released to/placed on probation in accordance with IC 11-8-8-7 and shall comply with all other registration requirements. *Required as a condition of probation by I.C. § 35-30-2-2.2 for sex offenses listed in IC 11-8-8-4.5.

1The list also included numbered paragraph 26. Other than the number, this item was left blank. Presumably, this space was intended to list a nonstandard, handwritten condition. Of course, the spaces provided for initials corresponding to this “item” were left blank.

3 Id. (emphasis in original).

At the guilty plea hearing, Rose acknowledged that he had read, fully understood,

and signed Exhibit A. Referring to Exhibit B, the court indicated that it would “actually

review” the conditions set out therein with Rose “because they are very important that they

are your agreement and understanding” [sic]. Id. at 46-47. The court then proceeded to

review, point by point but omitting paragraphs 1 and 3, the numerous conditions set out on

that list. Rose acknowledged those conditions, and accepted the guilty plea. According to

Rose, when he was processing into prison shortly thereafter, he learned for the first time that

he had been classified as a sexually violent predator (SVP), not as a regular sex offender.

Rose acknowledges that he agreed to register as a sex offender. He claims, however,

that his plea was based upon the understanding that he would be required to register as a

regular sex offender, not an SVP. As a regular sex offender, he would not be subjected to the

lifetime registration requirement under Ind. Code Ann. § 11-11-8-7 (West, Westlaw current

with all 2013 legislation). As an SVP, on the other hand, he would be required to register for

the rest of his life, as well as to endure other burdens not attendant to regular sex-offender

status, such as restrictions placed upon certain activities and other restrictions concerning

where he may reside. Rose challenges the validity of his guilty plea on the basis that it was

not voluntary. He brings this challenge in two forms, including a claim of trial court error

and a claim of ineffective assistance of counsel in failing to advise him of the consequences

of his plea. The first claim is dispositive of this appeal.

In a post-conviction proceeding, the petitioner bears the burden of establishing

4 grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134

(Ind. 2013). “When appealing the denial of post-conviction relief, the petitioner stands in the

position of one appealing from a negative judgment.” Id. at 1138 (quoting Fisher v. State,

810 N.E.2d 674, 679 (Ind. 2004)). In order to prevail, the petitioner must demonstrate that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-

conviction court’s conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer

to a post-conviction court’s legal conclusions, we will reverse its findings and judgment only

upon a showing of clear error, i.e., “that which leaves us with a definite and firm conviction

that a mistake has been made.” Id. at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102,

106 (Ind. 2000), cert. denied, 534 U.S. 830 (2001)).

“The long-standing 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.’” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010) (quoting North Carolina v.

Alford, 400 U.S. 25, 31 (1970)). To succeed on a claim of this nature, a petitioner “needs to

plead specific facts from which a finder of fact could conclude by a preponderance of the

evidence that the trial judge’s failure to make a full inquiry in accordance with [Ind. Code

Ann. § 35-35-1-2(a) (West, Westlaw current with all 2013 legislation)] rendered his decision

involuntary or unintelligent.” Oliver v. State, 843 N.E.2d 581, 590 (Ind. Ct. App. 2006). I.C.

§ 35-35-1-2(a) provides that before a court can accept a guilty plea, it must determine that the

defendant: (1) understands the nature of the charges; (2) has been informed that a guilty plea

represents a waiver of several specific constitutional rights; and (3) has been apprised of the

5 maximum and minimum sentences for the crime charged. See also Diaz v. State, 934 N.E.2d

1089. When making this assessment, we review all of 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 which are part of

the record.” Id. at 1094 (quoting State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997), cert.

denied, 523 U.S. 1258 (1998)).

I.C. § 35-35-1-2(a) reflects that an understanding of the maximum and minimum

sentences that may be assessed for the crime charged is an essential factor in making an

informed judgment regarding whether to enter a guilty plea. We conclude that the same is

true with respect to the plea of guilty to an offense that confers SVP status upon a defendant,

along with the stigma and restrictions of freedom attendant to that status. That is, in pleading

guilty to an offense that confers this status, a trial court must ensure that the defendant

understands this and its ramifications. This is based upon a defendant’s due process right to

be sheltered from the consequences of a guilty plea entered on anything less than an informed

judgment. See id. (Ind. 2010) (quoting North Carolina v. Alford, 400 U.S. at 31) (whether a

guilty plea is valid depends upon “‘whether the plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant’”).

Rose’s trial counsel, Dory Maryan,2 testified at length at the post-conviction hearing

about her representation of Rose. She testified that when she communicated the State’s plea

offer to Rose, “there were multiple concerns” on Rose’s part. Transcript of Post Conviction

2 At the time of trial, counsel’s surname was Hertzel.

6 Relief Hearing at 20. One concern was the amount of time he would be incarcerated. The

second concern “was the sex offender registry and what impact that would have on his ability

to see his kids.” Id. at 21. She advised Rose of the implications of accepting the State’s

offer, including the imposition of a lifetime registration requirement. She told him that a

conviction under the statute to which he was pleading guilty would automatically confer SVP

status upon him.3 She also discussed the implications of SVP classification, including the

fact that “there [were] all sorts of restrictions with movement” and that lifetime registration

was a condition of probation specified in the State’s tendered agreement. She noted that

Rose refused to initial the paragraphs pertaining specifically to SVP status, which she

advised him could “cause the Court to have a problem with accepting his plea [.]” Id. at 23.

She also advised that if he was not willing to accept (and therefore initial) those conditions,

“the Judge would let him know if the Court had a problem with it, with him not signing it and

… [t]he Court would advise him accordingly what that meant or would inquire further.” Id.

She testified that she “[a]bsolutely” advised him that the offense to which he was pleading

guilty required him to register as a sex offender for life. Id. at 25.

It is clear from the foregoing that Rose did not wish to plead guilty to a crime that

would confer SVP status upon him. His attorney emphatically corroborated his claim in this

respect. It is also clear that it was not possible to plead guilty in the present case without

thereby obtaining SVP status by operation of law. Trial counsel’s testimony indicated this

3 Pursuant to Ind. Code Ann. § 35-38-1-7.5(b)(1)(B) (West, Westlaw current with all 2013 legislation), a person attains SVP status by operation of law if convicted of an offense under I.C. § 35-42-4-2.

7 (i.e., voiding SVP status) was at the forefront of Rose’s mind when they discussed his refusal

to initial paragraphs 1 and 3 on Exhibit B. Yet, Rose apparently believed that if he declined

to initial those two provisions, they would be excluded from the Agreement, and that if the

trial court approved the Agreement as such, he would instead be classified as a regular sex

offender pursuant to paragraph 2. Accordingly, the evidence supports Rose’s claim that he

did not agree to plead guilty to the present offense if it conferred upon him SVP status.

At the guilty plea hearing, the court did not mention the two provisions that Rose

failed to initial. Instead, the court gave him the standard advisements that attend guilty pleas,

including acknowledgment of the rights he was waiving as a result of his guilty plea. The

court mentioned Exhibit A, which it described as “the standard conditions of probation that

you signed”, and verified that Rose had read and fully understood that document. Id. at 6.

The court then discussed Exhibit B, paraphrasing its provisions as set out above, omitting

paragraphs 1 and 3. The only mention of “sexually violent predator” were the Court’s

generic advisements that it could not approve requests for waiver of restrictions placed upon

sexually violent predators with respect to the location of the offender’s residence and person.

Following these advisements, the court asked, “and is that your understanding of the

conditions of Exhibit B that you would be required to abide by during your probation?” Id. at

12. Rose responded, “Yes.” Id.

We pause at this point to note the State’s claim that Rose was trying to “game the

system” by seeking to avoid SVP status, all the while “knowing from his counsel’s advice

that the law required lifetime registration[.]” Appellee’s Brief and 6. This assertion begs the

8 question. Whether Rose knew that a conviction of this offense would inexorably confer SVP

status upon him is precisely the question upon which this appeal hinges. By all accounts,

counsel persistently tried to explain to Rose the ramifications of pleading guilty to an offense

under I.C. § 35-42-4-2(a)(3). Yet, it appears that Rose clung to the belief that he could both

plead guilty to this offense and avoid SVP status. It would seem that, at some point, counsel

gave up and decided to let the court explain to Rose that what he wanted was not possible.

Yet, the trial court’s comments during the hearing that followed would not have apprised

Rose that the plea agreement accepted by the court was inconsistent with Rose’s

understanding. Significantly, the court made no note of Rose’s failure to initial paragraphs 1

and 3 on Exhibit B, nor did get it read those paragraphs to Rose.

Thus, it appears that the trial court entered judgment of conviction upon a plea

agreement that contained a term – and a significant term at that – to which Rose not only did

not agree, but in fact specifically rejected when discussing it with his attorney beforehand.

The trial court’s comments at the guilty plea hearing were not of such a nature as to shake

Rose’s apparent belief that his refusal to initial paragraphs 1 and 3 shielded him from SVP

status. Under the present circumstances, the trial court or the State, or both, should have

questioned Rose about his refusal to initial these paragraphs. By accepting the terms of the

Agreement, including the un-initialed Exhibit B, the trial court’s action could reasonably be

interpreted by Rose as giving him what he wanted. Thus, Rose has demonstrated that, prior

to accepting his guilty plea, the trial court failed to ascertain that he understood the range of

punishments that he faced as a result of pleading guilty. See I.C. § 35–35–1–2(A)(3).

9 Rose has demonstrated by a preponderance of the evidence that he did not understand

a critical aspect of his guilty plea. Therefore, the post-conviction court clearly erred in

denying his PCR petition. That decision is reversed, and this cause is remanded for further

proceedings consistent with this opinion.

Judgment reversed.

KIRSCH, J., and BAILEY, J., concur.