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 Mar 31 2014, 10:05 am the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT KING GREGORY F. ZOELLER Scott King Group Attorney General of Indiana Merrillville, Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RONNIE ERVIN MAJOR, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1307-PC-288 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge The Honorable Natalie Bokota, Magistrate Cause No. 45G03-1206-PC-10
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
Ronnie Ervin Major was involved in a fight with Ant-won Fortier, in which Fortier
sustained four gunshot wounds. Major was charged with class A felony attempted murder,
class B felony aggravated battery, and class C felony battery. His first trial ended in a
mistrial. After his second trial, a jury acquitted him of attempted murder and aggravated
battery and found him guilty of class C felony battery. Major’s conviction was affirmed on
direct appeal.
Major filed a petition for postconviction relief (“PCR”), asserting that (1) his trial
counsel was ineffective in failing to move to dismiss the charges on double jeopardy grounds
after the first trial, given that the prosecutor stated prejudicial information in his opening
argument that he had not disclosed to Major; (2) his pretrial counsel was ineffective in
drafting an agreement (“the Agreement”), in which Fortier agreed to wave all claims against
Major in exchange for $20,000; and (3) his trial counsel was ineffective in offering the
Agreement into evidence. The postconviction court denied Major’s PCR petition, concluding
that a motion to dismiss would not have been granted, that the Agreement itself did not
prejudice Major, and that the decision to use the Agreement was part of a reasonable trial
strategy.
Major appeals, arguing that the postconviction court’s judgment is contrary to law.
Concluding that Major has failed to persuade us that the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the postconviction court, we affirm.
2 Facts and Procedural History
We summarized the facts underlying Major’s convictions in a memorandum decision
on direct appeal as follows:
On October 5, 2008, Ant-won Fortier (“Fortier”) returned to Gary from Indianapolis with Jocelyn Blair (“Blair”) and a woman Fortier knew as “Sugar- Booty.” When they arrived at Blair’s house, Sugar-Booty exited Fortier’s vehicle and began to walk toward the house. Fortier, who had been driving, and Blair were still sitting in the vehicle when Major arrived. Major parked his car approximately ten to fifteen feet from Fortier’s vehicle.
Major, who was Blair’s former boyfriend, immediately proceeded to shout obscenities at Blair and punched her while she was seated in Fortier’s vehicle. Fortier asked Major to leave because Blair’s children had come outside of the house. Major responded with more obscenities and talked about needing his money and his truck.
Fortier again asked Major to leave, and Major continued to curse at Fortier. Major approached Fortier with his fist balled and started swinging toward him. Major and Fortier both threw punches and fought. Major ripped Fortier’s shirt and tore off his chain and charm. They continued to fight, but eventually separated. Major continued to yell at Fortier, and Fortier continued to ask Major to leave.
Major walked toward his vehicle and pulled a gun from his back while he was fifteen feet from Fortier. Major then aimed his gun at Fortier. Fortier said, “Oh, you're going to shoot me now?” Tr. at 97. Major walked toward Fortier who stood still. Major tried to hit Fortier with the gun, but Fortier threw up his arm and then heard a shot. Fortier received an injury to his back and three wounds to his neck. He fell to the ground, and Major ran toward Blair.
Major left soon thereafter, and people began shouting that Fortier had been shot. Fortier went to the house, but left to drive himself to the hospital. Blair, who accompanied him, took over driving because Fortier started to bleed profusely during the trip. Fortier was hospitalized for three to four days. He suffered four bullet wounds on his upper shoulder and left neck area.
3 The State charged Major with attempted murder, a Class A felony, aggravated battery as a Class B felony, battery as a Class C felony, and battery as a Class A misdemeanor.
Major v. State, No. 45A03-1105-CR-220, slip op. at * 1 (Ind. Ct. App. Dec. 27, 2011).
Before trial, Major was represented by Randy Godshalk. Godshalk drafted the
Agreement for Major and Fortier, which provided as follows: it was a full and final release
and resolution of the events of October 5, 2008; the parties disputed the true value of
Fortier’s claim but agreed that Major would pay $20,000 to Fortier and in exchange Fortier
would forever waive and give up any and all claims of any type against Major; the substance
of the Agreement was confidential, and if Fortier disclosed the substance of the Agreement
he would return any monies received to Major; and “the settlement outlined in this agreement
shall encompass the resolution of all disputes between the parties whether civil, criminal, or a
combination.” Petitioner’s Ex. 1. Fortier signed the Agreement. Major did not, but he made
four payments to Fortier for a total of $16,000.
The State filed a motion to disqualify Godshalk, who was also acting as counsel for
Blair. The trial court granted the State’s motion. Major retained new counsel, Darnail Lyles,
who filed his appearance in September 2009. Godshalk provided Major’s file to Lyles,
including the Agreement and receipts of Major’s payments to Fortier.
Lyles represented Major at his first trial in June 2010. The prosecutor told the jury in
his opening statement that two years after the alleged offenses were committed, someone shot
at Fortier. Lyles objected that there was no evidence that the shooter was connected to
Major. The prosecutor stated that Fortier would testify that the shooter rolled the window
4 down and said this is either “for or from Ronnie.” Petitioner’s Ex. 3 at 13. Lyles informed
the trial court that he knew about the shooting but that the shooter’s statement had not been
disclosed to him. The prosecutor indicated that he had just learned of the shooter’s statement
the day before and had failed to inform defense counsel. The trial court told the prosecutor,
“then you’re at fault. You’ve blindsided him with this which is highly culpable information.
It’s very damaging.” Id. at 14. The prosecutor stated that he would not use the evidence of
the subsequent shooting and the shooter’s statements. Id. The prosecutor explained that he
failed to inform defense counsel “not purposely but mistakenly because [he] was busy.” Id.
at 18. He argued that a curative instruction would resolve the matter. Id. Major moved for
mistrial, which the trial court granted.
A second trial was held, at which Major continued to be represented by Lyles. Lyles’s
defense strategy was to persuade the jury that the shooting was an accident. Tr. at 62. As
part of this strategy, Lyles introduced the Agreement to impeach Fortier’s credibility
regarding the intentional nature of Major’s actions. Id. at 62, 66. Lyles believed that victims
seeking redress for a criminal act are not usually siphoning off money from the defendant,
and he wanted to show that Fortier was an opportunist who had financial motivation to
proceed against Major. Id. at 62, 66, 118. In addition, Major testified.
The jury acquitted Major of class A felony attempted murder and class B felony
aggravated battery but found him guilty of class C felony battery. The trial court sentenced
Major to a term of six years, with two years executed. Major appealed his conviction, and we
affirmed.
5 Major filed a PCR petition, arguing that Godshalk provided ineffective assistance in
drafting the Agreement by failing to include a statement that Major was not admitting to
liability and that Lyles provided ineffective assistance by failing to move to dismiss the
charges against him after his motion for mistrial was granted and by offering the Agreement
into evidence. A hearing was held, at which Godshalk and Lyles testified. Subsequently, the
State and Major submitted proposed findings of fact and conclusions of law.
The postconviction court issued findings of fact and conclusions of law, concluding
that Lyles provided effective assistance and denying Major postconviction relief.
Specifically, the postconviction court concluded that the State had not intentionally withheld
evidence with the intent to force a mistrial, and therefore a motion to dismiss would not have
been granted. The postconviction court also concluded that Lyles’s decision to use the
Agreement was part of his trial strategy to undermine Fortier’s credibility by showing that he
was not a victim, but an opportunist trying to siphon funds from Major, and therefore Lyles’s
performance did not fall below prevailing professional norms.
Major filed a motion to correct error, in which he asserted that he had not abandoned
his claim that Godshalk provided ineffective assistance because (1) he raised the claim in his
petition; (2) in his proposed findings of fact, he stated that because Godshalk prepared the
Agreement without a statement that Major was not admitting liability, the Agreement
constituted an admission of wrongdoing; and (3) in his proposed conclusions of law, he
stated that he was prejudiced by the Agreement when Lyles admitted it into evidence. The
postconviction court denied Major’s motion to correct error, stating that Major failed to
6 address how Godshalk’s actions constituted ineffective assistance; even if the claim
concerning Godshalk were not abandoned, the court would find that Major failed to establish
that Godshalk provided ineffective assistance; Godshalk did not represent Major at trial; the
Agreement in and of itself did not prejudice Major; and it was only Lyles’s decision to
introduce the agreement into evidence that arguably could have prejudiced Major.
Appellant’s App. at 48.
Discussion and Decision
Standard of Review
Major appeals the denial of his PCR petition.
Post-conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence. We review factual findings of a post- conviction court under a clearly erroneous standard but do not defer to any legal conclusions. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Additionally, the PCR court here entered findings of fact and conclusions thereon, as required by Indiana Post-Conviction Rule 1(6). We cannot affirm the judgment on any legal basis, but rather, must determine if the court’s findings are sufficient to support the judgment.
Woodson v. State, 961 N.E.2d 1035, 1040-41 (Ind. Ct. App. 2012) (citations and quotation
marks omitted), trans. denied.
A petitioner who has been denied post-conviction relief … appeals from a negative judgment. … When a petitioner appeals from a negative judgment, he or she must convince the appeals court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the trial court. Stated slightly differently, this Court will disturb a post-conviction court’s decision as being contrary to law only where the evidence is without
7 conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.
Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001) (citations and quotation marks omitted).
Major contends that he is entitled to postconviction relief because he was denied
effective assistance of counsel. “The Sixth Amendment to the United States Constitution
guarantees the defendant the right to effective assistance of counsel.” Latta v. State, 743
N.E.2d 1121, 1125 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).
“‘The purpose of the effective assistance guarantee of the Sixth Amendment is simply to
ensure that criminal defendants receive a fair trial.’” Wilkes v. State, 984 N.E.2d 1236, 1245
(Ind. 2013) (quoting Strickland, 466 U.S. at 689).
To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that
his counsel’s performance was deficient and that he was prejudiced thereby. Ward v. State,
969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687). To establish deficient
performance, a petitioner must demonstrate that counsel’s representation “‘fell below an
objective standard of reasonableness, committing errors so serious that the defendant did not
have the counsel guaranteed by the Sixth Amendment.’” Reed v. State, 866 N.E.2d 767, 769
(Ind. 2007) (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). In assessing
whether counsel’s performance was deficient, we observe that even the finest, most
experienced criminal defense attorneys may not agree on the ideal strategy or most effective
way to represent a client, and therefore there is a strong presumption that counsel rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). To establish
8 prejudice, the defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Latta, 743 N.E.2d at 1125. “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694).
Section 1 – Motion to Dismiss
Major claims that Lyles was ineffective in failing to move to dismiss the charges after
his motion for mistrial was granted due to the State’s failure to disclose prejudicial evidence.
To prevail on a claim of ineffective assistance due to the failure to file a motion, “the
defendant must show a reasonable probability that the motion to dismiss would have been
granted if made.” Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013). Major argues that a
motion to dismiss would have been granted based on the constitutional and statutory
provisions against double jeopardy:1
If a defendant moves for a mistrial, the defendant forfeits the right to raise a double jeopardy claim in subsequent proceedings, unless the motion for mistrial was necessitated by governmental conduct intended to goad the defendant into moving for a mistrial. … [T]he key inquiry on appeal concerns the subjective intent of the prosecuting authority. [T]o determine whether a second trial is barred after a defendant’s motion for a mistrial, we must examine whether the prosecutor brought about the mistrial with the intent to cause termination of the trial. If the State acted with intent to force the
1 The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. Also, Indiana Code Section 35-41-4-3 provides in relevant part that a “prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if … the former prosecution was terminated after the jury was impaneled and sworn … unless (i) the defendant consented to the termination or waived, by motion to dismiss or otherwise, his right to object to the termination.” However, if “the prosecuting authority brought about [the motion to dismiss] with intent to cause termination of the trial, another prosecution is barred.” Id.
9 defendant into moving for a mistrial, the prohibition against double jeopardy bars a second prosecution.
Wilson v. State, 697 N.E.2d 466, 472 (Ind. 1998) (citations and quotation marks omitted)
(emphases added).
Major asserts that the prosecutor’s conduct brought about the mistrial and that he
acted with the intent to force Major into moving for a mistrial. We agree that the
prosecutor’s conduct caused the mistrial and therefore turn to the question of his intent. The
postconviction court found that there was no evidence that the prosecutor acted with the
intent to terminate the trial and that the evidence indicated that the prosecutor’s failure to
disclose the information about the second shooter’s statement was a mistake.
Major asserts that the prosecutor clearly knew that he did not disclose the shooter’s
statement to Major and still included it in his opening remarks knowing that it would result in
a mistrial. But the latter assertion is not evidence of whether the prosecutor intended to force
Major to move for a mistrial, it is merely a bald assertion. Major then contends that the trial
court must have believed that the prosecutor intended to goad Major to move for a mistrial
based on its statement to the prosecutor: “[T]hen you’re at fault. You’ve blindsided him
with this which is highly culpable information. It’s very damaging.” Petitioner’s Ex. 3 at 14.
Although the trial court’s statement is evidence that the prosecutor’s conduct necessitated the
mistrial, which we have already acknowledged, we cannot agree that it is evidence of the
prosecutor’s subjective intent. We observe that the record reveals that the prosecutor told the
trial court that he had learned of the information only the day before and that his failure to
inform defense counsel was a mistake. He also told the trial court that he would not pursue
10 the matter and argued in favor of a curative instruction. Accordingly, Major has failed to
persuade us that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the postconviction court.
Section 2 – The Drafting of the Agreement
Major contends that Godshalk provided ineffective assistance by failing to draft the
Agreement to include a statement that Major was not admitting to liability. The
postconviction court concluded that Godshalk did not represent Major at trial, the Agreement
in and of itself did not prejudice Major, and it was only Lyles’s decision to introduce the
Agreement into evidence that arguably could have prejudiced Major.
Major contends that he was prejudiced by the Agreement because he paid Fortier
$16,000. However, we fail to see, and he does not explain, how his payment to Fortier is
relevant to his claim that Godshalk provided ineffective assistance in failing to draft the
Agreement to include a statement that Major was not admitting to liability. Major also
argues that he was prejudiced because he was led to believe that the Agreement would
prohibit Fortier from pursuing criminal charges. Appellant’s Br. at 10; Appellant’s Reply Br.
at 3-4. This argument is unsupported by the evidence, which shows that Godshalk told Major
that only the prosecutor’s office could decide whether to proceed with criminal charges. Tr.
at 19. Finally, Major baldly asserts that that he was prejudiced by the Agreement because it
constituted an admission of guilt. None of these assertions addresses the postconviction
court’s conclusion that with respect to the criminal proceedings against Major, it was only
11 Lyles’s decision to introduce the Agreement into evidence that arguably could have
prejudiced Major.
We observe that the Agreement was between Major and Fortier. The State was not a
party to the Agreement. Godshalk testified that the purpose of the Agreement was to settle
any civil claims that Fortier might have against Major and, in the event that Major was
convicted of crimes against Fortier, to limit any criminal restitution that Fortier might seek.
Id. at 16-17. Godshalk also testified that the purpose of the Agreement was not to interfere
with the criminal prosecution. Id. at 39. Further, by its own terms the Agreement was to be
kept confidential. Major has failed to persuade us that the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the postconviction court.
Section 3 – Offering the Agreement
Lastly, Major asserts that Lyles provided ineffective assistance by offering the
Agreement into evidence.2 The postconviction court found that Lyles had a specific reason
for admitting the Agreement, which was to undermine Fortier’s credibility by showing that
he was not really a victim, but an opportunist trying to siphon funds from Major. It
2 We observe that Major has not provided us with the entire trial transcript, but only the part of the transcript relating to the motion to dismiss. The record also does not contain the charging informations or any other information that would indicate whether Major was charged with class C felony battery because he used a deadly weapon or because he caused serious bodily injury. “On appeal from the denial of a petition for post- conviction relief, the burden is on the petitioner to provide a record adequate for review.” Lile v. State, 671 N.E.2d 1190, 1193 (Ind. Ct. App. 1996). “Failure to do so has been found to be grounds for waiver of any alleged error based upon the absent material.” Cox v. State, 475 N.E.2d 664, 667 (Ind. 1985) (stating that criminal defendant has duty to provide proper record to facilitate intelligent appellate review of issues). We decline to find Major’s argument waived, but his failure to include the portions of the transcript relevant to his argument has impeded our review.
12 concluded that Lyles’s decision to use the Agreement was clearly a trial strategy and did not
fall below prevailing professional norms.
Major argues that the Agreement clearly indicated that he admitted wrongdoing, so
there could not possibly be any rational trial strategy to offer the document. Major argues
that Godshalk and Lyles both testified that the Agreement constituted an admission of
wrongdoing. This is an overstatement. The record shows that they both testified that it could
be construed as an admission of wrongdoing. Lyles testified that he did not think that the
jurors would necessarily construe the Agreement as an admission because they were not
lawyers. Lyles also testified that the defense position was that the shooting was an accident.
Lyles’s strategy was to use the Agreement to impeach Fortier’s credibility regarding the
intentional nature of Major’s actions because victims seeking redress for a criminal act are
not usually siphoning off money from the defendant. “Reasonable strategy is not subject to
judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not
lightly speculate as to what may or may not have been an advantageous trial strategy as
counsel should be given deference in choosing a trial strategy which, at the time and under
the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). We
conclude that Lyles introduced the Agreement as part of a trial strategy and that his
representation did not fall below prevailing professional norms. Major has failed to persuade
us that the evidence as a whole leads unerringly and unmistakably to a decision opposite that
reached by the postconviction court. For the reasons stated above, we affirm the denial of
Major’s PCR petition.
13 Affirmed.
BAKER, J., and NAJAM, J., concur.