MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2019, 8:04 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Sam Spicer, II Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Evan M. Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sam Spicer, II, December 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-PC-145 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge Trial Court Cause No. 15C01-1604-PC-9
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 1 of 17 STATEMENT OF THE CASE [1] Appellant-Petitioner, Sam Spicer, II, (Spicer), appeals the post-conviction
court’s denial of his petition for post-conviction relief (PCR).
[2] We affirm.
ISSUES [3] Spicer presents two issues on appeal, which we restate as the following:
(1) Whether Spicer’s freestanding claim that the trial court abused its discretion when it denied his motion to withdraw his guilty plea is procedurally defaulted; and
(2) Whether the post-conviction court’s findings of fact and conclusions of law denying his PCR are clearly erroneous.
FACTS AND PROCEDURAL HISTORY [4] The facts pertaining to Spicer’s underlying conviction for Class A felony
conspiracy to commit dealing in methamphetamine are as follows:
Following a tip, detectives of the Dearborn County Sheriff’s Department initiated an investigation into a possible methamphetamine manufacturing operation. Over a period of time, the detectives observed two individuals, later identified as Spicer and Lisa Ellis (“Ellis”), “continuously involved in the criminal activity” of transporting numerous individuals to pharmacies in Dearborn County, with the goal of purchasing pseudoephedrine.
As part of the scheme, Spicer would deliver the pseudoephedrine to Vernis Newton (“Newton”) in Ohio and to an unnamed Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 2 of 17 individual in Kentucky; methamphetamine was manufactured in both locations. Each ninety-six count box of pseudoephedrine that was purchased could produce approximately two grams of methamphetamine. Spicer and Newton had an arrangement by which Newton would give Spicer one gram of methamphetamine, and Newton would keep the rest. Spicer, in turn, kept one half gram of methamphetamine for himself and gave the other half to the individual who had purchased the box of pseudoephedrine. The people involved in this conspiracy were mostly addicts and undereducated, some having only an eighth grade education.
The probable cause affidavit, signed by Detectives Norman Rimstidt and Carl Pieczonka, described various purchases observed by the detectives. In all, the detectives saw individuals purchasing five-and-a-half boxes of pseudoephedrine, an amount detectives estimated “is equivalent to 15.84 grams of pseudoephedrine.” This amount of pseudoephedrine was “well in excess of what it would take to manufacture more than three grams of methamphetamine.”
On February 14, 2014, the State charged Spicer and approximately twenty-four other co-defendants with Class A felony conspiracy to commit dealing in methamphetamine in an amount of three grams or more. The overt act alleged to be in furtherance of the agreement was the purchase of pseudoephedrine for the manufacture of methamphetamine.
Spicer v. State, No. 15A05-1409-CR-410, (Ind. Ct. App. May 12, 2015) (record
citations omitted), trans. denied. The trial court appointed a public defender
(Guilty Plea Counsel) to represent Spicer. Spicer invoked his right to a speedy
trial, and his jury trial was scheduled for April 7, 2014. The parties engaged in
discovery and plea negotiations. By April 4, 2014, the State had negotiated plea
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 3 of 17 bargains with over twenty of Spicer’s co-defendants, and the State had
completed its trial preparation.
[5] On April 4, 2014, which was the Friday before Spicer’s trial was to begin on
Monday, the trial court was notified that the parties had entered into a plea
agreement. 1 The trial court convened a guilty plea hearing. When the parties
appeared in court, Guilty Plea Counsel informed the trial court that Spicer had
changed his mind and had decided to exercise his right to a jury trial. The State
verified that it was prepared for trial. The trial court confirmed Spicer’s trial
date of April 7, 2014, and recessed the proceedings.
[6] Later in the day on April 4, 2014, the trial court reconvened the proceedings
because Spicer had decided to change his plea pursuant to a plea agreement
wherein he would plead “open” to the Class A felony charge. (PCR Exh. 7,
Exh. Vol. I, p. 136). When the parties appeared in court, Spicer indicated
through Guilty Plea Counsel that he desired to have a specific paragraph
removed from the plea agreement. The State would not agree to the proposed
change and suggested that Spicer simply plead guilty without having any plea
agreement in place.
[7] Before taking Spicer’s change of plea, the trial court verified with Spicer that he
understood his trial rights, understood that he was waiving them with his plea,
had not been offered anything or been threatened to induce his plea, and that he
1 The record is silent regarding the terms of the original plea agreement.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 4 of 17 felt that his plea was his own free choice and decision. The trial court also
verified with Spicer that he understood that he was pleading “open” to the
Class A felony charge which carried a possible sentencing range of between
twenty and fifty years, with an advisory sentence of thirty years. (PCR Exh. 7,
Exh. Vol. I, p. 137). Spicer confirmed to the trial court that he wished to plead
guilty despite understanding that his criminal record could be considered by the
trial court as a basis for increasing his sentence. Spicer established a factual
basis for his plea. The trial court accepted Spicer’s guilty plea and set the
matter for sentencing for June 10, 2014. Spicer’s sentencing hearing was later
rescheduled for July 24, 2014. Spicer’s pre-sentence investigation report
revealed that Spicer had a criminal history dating from 2003 consisting of two
prior felony convictions and five prior unrelated misdemeanor convictions.
[8] Between his guilty plea hearing and sentencing, Spicer filed several letters and
pro se motions with the trial court seeking to set aside his guilty plea. On June
2, 2014, Spicer wrote a pro se letter to the trial court in which he claimed that he
was firing Guilty Plea Counsel because, among other things, he alleged that
Guilty Plea Counsel had advised him that he would “get no less or no more in
the case [than] anybody else. Which the way I understood would be 20
suspend 10 do 5 with [purposeful] incarceration, which now I believe otherwise
now [sic].” (PCR Exh. 5, Exh. Vol. I, p. 57). In a pro se motion to withdraw
guilty plea he filed with the trial court on July 3, 2014, Spicer alleged that
Guilty Plea Counsel had been ineffective for failing to review the plea
agreement with him prior to his change of plea and that his counsel had “no
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 5 of 17 criminal justice knowledge.” (Guilty Plea App., Vol. I, p. 184). Spicer also
asserted his innocence to the charge. In a second pro se motion to withdraw
guilty plea filed with the trial court on July 14, 2014, Spicer argued that his plea
should be set aside because he was asserting his innocence to the charge. Spicer
also alleged that Guilty Plea Counsel had been ineffective but did not raise any
detailed allegations.
[9] On July 24, 2014, the trial court held a combined hearing on sentencing and on
Spicer’s motions to set aside his guilty plea. The trial court first addressed
Spicer’s motions to withdraw his plea. Spicer re-asserted his claim that Guilty
Plea Counsel had advised him that he would get “no less and no more than
anybody else in the case, and that’s the may [sic] reason I pled open to the A.”
(PCR Exh. 7, Exh. Vol. I, p. 145). The trial court asked Guilty Plea Counsel
for comment, and Guilty Plea Counsel informed the trial court that he had
explained to Spicer what the different possibilities of resolving the case were,
that he thought that the State had a strong case against Spicer, including a
number of co-defendants who were willing to testify against him, and that
Spicer had decided to plead guilty. Guilty Plea Counsel stated, “I thought that
was in his best interests at that time . . . and I still do.” (PCR Exh. 7, Exh. Vol.
I, p. 146). The trial court took Spicer’s motions to withdraw his guilty plea
under advisement and proceeded to take evidence and argument for sentencing,
which it also took under advisement.
[10] On August 13, 2014, the trial court denied Spicer’s motions to set aside his plea.
The trial court found that Spicer had admitted his factual guilt, Spicer had failed
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 6 of 17 to demonstrate any incompetence by Guilty Plea Counsel, Spicer had failed to
demonstrate that any manifest injustice would result if his plea was not
withdrawn, and that the State would be significantly prejudiced if it were, as it
had extended favorable plea agreements to over twenty of Spicer’s co-
conspirators in order to procure their testimony for Spicer’s trial. On August
13, 2014, the trial court also sentenced Spicer to forty years of incarceration.
The trial court found Spicer’s guilty plea and hardship to his family as
mitigating factors which were outweighed by the significant aggravating factors
of the nature and circumstances of the crime, Spicer’s criminal record, and the
fact that he was on probation for a felony conviction at the time of the offense.
[11] Spicer pursued a direct appeal and raised two issues: (1) Whether the trial court
considered improper aggravating circumstances for sentencing, and (2) whether
the trial court’s sentence was inappropriate given his character and the nature of
his offense. See Spicer, slip op. at 3-5. This court affirmed Spicer’s sentence. Id.
at 5.
[12] On April 25, 2016, Spicer filed his PCR, which he amended on June 1, 2018,
after the public defender had withdrawn from his case. In his PCR, Spicer
alleged that the trial court had abused its discretion in denying his motions to
withdraw his guilty plea and that Guilty Plea Counsel had been ineffective for
“misleading [Spicer] to believe if he took a plea that he would not get any more
time [than] the rest of the defendants, which was the main reason why Spicer
pled guilty[.]” (PCR App. Vol. II, p. 29). On August 24, 2018, and November
20, 2018, the post-conviction court held evidentiary hearings on Spicer’s PCR.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 7 of 17 Guilty Plea Counsel testified that he recalled that Spicer was reluctant to go to
trial. Spicer asked Guilty Plea Counsel if he recalled telling Spicer that he
would get no more or less of a sentence than his co-defendants if he pleaded
guilty, that if Spicer took the case to trial he could get a forty or fifty-year
sentence, and that Spicer had to plead guilty open to the charge. Guilty Plea
Counsel responded that he “would have told you what your options were,
which ones I thought were most advisable. But I would never tell you a
guaranteed outcome of any option you might take.” (PCR Transcript Vol. I, p.
26). Guilty Plea Counsel explained that he would not have told Spicer that he
would get no more or less than his co-defendants because “different factors
come up, and it’s always at the discretion of the [c]ourt. All I can tell you is my
feelings about how things are likely to turn out, but I would never guarantee
anything like that.” (PCR Tr. Vol. I, p. 27). When Spicer posited that he
simply took Guilty Plea Counsel’s word for what he said Spicer would receive
as a sentence, Guilty Plea Counsel responded, “I never gave you my word on
what outcome you would receive under any scenario.” (PCR Tr. Vol. I, p. 27).
Spicer’s sister, Ruby Spicer (Ruby), also testified at the hearing on Spicer’s PCR
in support of his theory that Guilty Plea Counsel had informed Spicer he would
receive a sentence no more and no less severe than his co-defendants. On
December 6, 2018, both Spicer and the State submitted proposed findings of
fact and conclusions of law to the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 8 of 17 [13] On December 18, 2018, the post-conviction court entered its Order denying
Spicer’s PCR, in support of which it entered the following relevant findings of
fact and conclusions of law:
21. [Guilty Plea Counsel] testified that he did not recall ever telling Mr. Spicer that if he pled open, he would receive “no more or no less than anybody else in the case.”
****
23. [Guilty Plea Counsel] testified that he would “never tell you [Spicer] a guaranteed outcome of any option you might take.”
26. Ruby Spicer testified that [Guilty Plea Counsel] had a discussion with Ruby in which he claimed Spicer would not receive worse than any other co-defendant if he were to plead open to the single charged count, and that “the Judge would probably be more lenient, in fact, on him taking it.”
27. Ruby Spicer also stated, when asked by the [c]ourt, that her testimony as to what [Guilty Plea Counsel] said was “what I got out of the conversation.”
28. Spicer presented no further evidence at [the] hearing beyond the testimony of [Guilty Plea Counsel] and Ruby Spicer.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 9 of 17 31. Spicer similarly did not enter the record of the proceedings into evidence, nor request the [c]ourt to take judicial notice of any record of proceedings.
43. Additionally, the [c]ourt finds Spicer’s proffered evidence that he was “promised” to receive no less than any of the other co-defendants’ sentences by pleading open to the [c]ourt to be unpersuasive.
(PCR App. Vol. II, pp. 12-13, 15). The post-conviction court found Ruby’s
testimony to be “suspect,” given that eighteen of his co-defendants had pleaded
to Class D felony charges, one co-defendant had judgment on his Class D
felony conviction entered as a Class A misdemeanor, three co-defendants
pleaded to single Class B felony charges, and one co-defendant pleaded to a
Class A felony charge with a fixed sentence of thirty years with fifteen years
suspended. (PCR App. Vol. II, p. 15). The post-conviction court found that
it is illogical to believe that an attorney would guarantee Spicer that he would receive “no more or less” than the twenty-four (24) co-defendants, when such light sentences for all but one (1) co- defendant were legally impossible to obtain for Spicer because he was pleading guilty to the Class A Felony. He could not reasonably expect to receive the same sentence as his co- defendants when they negotiated for and received lesser charges.
(PCR App. Vol. II, p. 15). Because it found that Spicer had failed to show that
Guilty Plea Counsel had rendered deficient performance, the post-conviction
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 10 of 17 court declined to determine whether Spicer had suffered any prejudice as a
result of Guilty Plea Counsel’s representation.
[14] Spicer now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Withdrawal of Guilty Plea
[15] Spicer contends that the trial court abused its discretion when it denied his
motion to withdraw his guilty plea. More specifically, he argues that a
withdrawal of his plea was merited because he entered his plea based on
mistaken sentencing advice and because he professed his innocence to the trial
court prior to sentencing. The State responds that Spicer was procedurally
barred from bringing that claim in his PCR and that it is not available for our
review. We agree with the State.
[16] As a general rule, a defendant is permitted to move to withdraw his guilty plea
prior to sentencing. See Ind. Code § 35-35-1-4(b). However, once a defendant
has moved the trial court for the withdrawal of his plea and the trial court
denies the motion, a direct appeal is the proper avenue for contesting the trial
court’s decision. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). If a
defendant fails to raise the issue that was available for direct appeal, it is waived
and cannot be raised in a post-conviction proceeding. See Mills v. State, 868
N.E.2d 446, 452 (Ind. 2007).
[17] Here, Spicer moved the trial court to withdraw his plea prior to sentencing. At
the July 24, 2014, combined plea withdrawal and sentencing hearing, the trial Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 11 of 17 court heard evidence on Spicer’s motions and took the matter under
advisement. On August 13, 2014, the trial court denied Spicer’s motions to
withdraw his plea. Spicer pursued a direct appeal but did not raise the issue of
the trial court’s denial of his motions to withdraw. Therefore, the issue was
waived, was not properly raised in Spicer’s PCR, and is not available for our
review. See id.
II. Ineffectiveness of Counsel
A. Standard of Review
[18] Spicer appeals following the post-conviction court’s denial of relief. PCR
proceedings are civil proceedings in which a petitioner may present limited
collateral challenges to a criminal conviction and sentence. Weisheit v. State,
109 N.E.3d 978, 983 (Ind. 2018). In a PCR proceeding, the petitioner bears the
burden of establishing his claims by a preponderance of the evidence. Id.
When a petitioner appeals from the denial of his PCR, he stands in the position
of one appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263,
269 (Ind. 2014). To prevail on appeal from the denial of a PCR, 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. In
addition, where a post-conviction court makes findings of fact and conclusions
of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer
to its legal conclusions, but we will reverse its findings and judgment only upon
a showing of clear error, meaning error which leaves us with a definite and firm
conviction that a mistake has been made. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 12 of 17 B. Findings and Conclusions
[19] Before proceeding to Spicer’s argument of ineffective assistance of counsel, we
will address two brief preliminary arguments made by Spicer regarding the post-
conviction court’s findings and conclusions. Spicer first draws our attention to
the fact the post-conviction court’s order “is a verbatim adoption of the State’s
proffered findings and conclusions.” (Appellant’s Br. pp. 13-14). Spicer does
not argue that he was deprived of a fair and full adjudication of his PCR, but he
correctly notes that our supreme court has observed that the wholesale adoption
of a party’s findings results in “an inevitable erosion of the confidence of an
appellate court that the findings reflect the considered judgment of the trial
court.” Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001). Nevertheless, in light
of the high volume of cases presided over by trial court judges and the need to
“keep the docket moving,” our supreme court has declined to prohibit the
practice. Id. at 708-09.
[20] Our review of the post-conviction court’s Order revealed that it made some
non-substantive changes to the State’s proposed findings and conclusions, and,
therefore, there is evidence that the post-conviction court did not simply
rubberstamp the State’s proposed order. We are cognizant that Spicer declined
to waive the post-conviction court’s thirty-day deadline for entering its Order.
However, we do not promote such near-wholesale adoptions of proposed
orders, because, as noted by our supreme court, it endangers the perception of
the judiciary as providing full, fair, and unbiased determinations. Id. at 709.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 13 of 17 [21] Spicer also challenges the post-conviction court’s finding that he “did not enter
the record of the proceedings into evidence, nor request the [c]ourt to take
judicial notice of any record of proceedings.” (PCR App. Vol. II, p. 13). Our
review leads us to conclude that this finding does not enjoy support in the
record. Spicer’s proffered PCR Exhibits 1-7, consisting of relevant portions of
the record of proceedings in the underlying Class A felony case and transcripts
of the guilty plea hearing and hearing on Spicer’s motions to withdraw his plea,
were admitted into evidence at the PCR hearing without objection. In addition,
on June 1, 2018, Spicer had moved the post-conviction court to take judicial
notice of its own records, and the post-conviction court granted the motion on
June 21, 2018. We also note that this finding was one of the State’s proposed
findings adopted by the post-conviction court and that the State itself requested
at the PCR hearing that the post-conviction court take judicial notice of the
record of proceedings in the underlying case, a request that the post-conviction
court granted.
[22] We conclude that this finding is clearly erroneous. However, Spicer does not
argue that this finding undermines the post-conviction court’s legal conclusion
that his counsel’s performance was not deficient, and, as more fully explained
below, we conclude that the post-conviction court’s determination in that
regard was not clearly erroneous. In addition, the Order denying relief contains
several findings of fact regarding the underlying proceedings. Therefore, we
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 14 of 17 conclude that Spicer has failed to demonstrate that he was prejudiced by the
post-conviction court’s erroneous finding. 2
C. Ineffective Assistance of Counsel
[23] Spicer also argues that he received ineffective assistance because Guilty Plea
Counsel provided him with inaccurate advice regarding the sentence Spicer
would receive, advice that caused Spicer to plead guilty to the offense. We
evaluate ineffective assistance of counsel claims under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such
a claim, a petitioner must show that 1) his counsel’s performance was deficient
based on prevailing professional norms; and 2) that the deficient performance
prejudiced the defense. Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018) (citing
Strickland, 466 U.S. at 687). In analyzing whether counsel’s performance was
deficient, we determine whether, upon consideration all of the circumstances,
counsel’s actions were reasonable under prevailing professional norms. Id. To
demonstrate sufficient prejudice in the context of a defendant’s decision to
plead guilty based on the allegedly deficient advice of guilty plea counsel, the
petitioner must show that there is a reasonable probability that, but for his
counsel’s unprofessional errors, “he would not have pleaded guilty and would
have insisted on going to trial.” Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind.
2019) (quoting Jae Lee v. United States, — U.S. —, 137 S.Ct. 1958, 1965, 198
2 The remainder of Spicer’s preliminary arguments are addressed by our resolution of his main arguments on appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 15 of 17 L.Ed.2d 476 (2017)). A petitioner’s failure to satisfy either the ‘performance’ or
the ‘prejudice’ prong of a Strickland analysis will cause an ineffective assistance
of counsel claim to fail. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).
[24] Here, Spicer claimed in his PCR that Guilty Plea Counsel’s performance was
deficient because he inaccurately advised Spicer that “he would not get any
more time [than] the rest of the defendants, which was the main reason why
Spicer pled guilty[.]” (PCR App. Vol. II, p. 29). Guilty Plea Counsel testified
at the PCR hearing that he would not have guaranteed Spicer the outcome of
any of the options for proceeding that he had discussed with Spicer. Guilty
Plea Counsel more specifically testified that he would not have guaranteed
Spicer that he would receive no more or less time than his co-defendants
because “different factors come up, and it’s always at the discretion of the
[c]ourt.” (PCR Tr. Vol. I, p. 27). The post-conviction court rejected Ruby’s
testimony as suspect and unpersuasive, and it ultimately rejected Spicer’s
allegation that Guilty Plea Counsel had advised him in the manner Spicer
claimed. In light of Guilty Plea Counsel’s testimony, we cannot say that the
evidence “as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court[,]” which is our standard of
review following the denial of a PCR. See Hollowell, 19 N.E.3d at 269. The
post-conviction court’s determination that Guilty Plea Counsel’s performance
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 16 of 17 was not deficient was not clearly erroneous, and, therefore, we affirm the post-
conviction court’s denial of relief. 3
CONCLUSION [25] Based on the foregoing, we conclude that Spicer’s claim that the trial court
abused its discretion when it denied his motion to withdraw his guilty plea is
procedurally defaulted and that the post-conviction court’s conclusion that he
was not denied the effective assistance of counsel was not clearly erroneous.
[26] Affirmed.
[27] Baker, J. and Brown, J. concur
3 Because Spicer has failed to establish any grounds for relief based upon his counsel’s performance, we do not engage in any analysis of the prejudice prong of the Strickland analysis. See Taylor, 840 N.E.2d at 331.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019 Page 17 of 17