MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Feb 26 2020, 9:36 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Amy E. Karozos Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana Corinne J. Lightner Lauren A. Jacobsen Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Stephen C. Rainey, February 26, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-2120 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Respondent Judge Trial Court Cause No. 82D03-1712-PC-6071
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 1 of 13 [1] Stephen Rainey appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court should have found that he received the
ineffective assistance of appellate counsel. Finding no error, we affirm.
Facts [2] On July 22, 2014, the State charged Rainey with Level 21 felony dealing in
methamphetamine and Level 6 felony resisting law enforcement and alleged
that he was an habitual offender.2 Rainey’s jury trial took place on October 31,
2016.
[3] While the jury was deliberating, Rainey’s trial counsel requested a hearing
regarding a prior conviction. For both Level 3 felony dealing in
methamphetamine and the lesser-included offense of Level 5 felony possession
of methamphetamine, a prior conviction for dealing in a controlled substance
other than marijuana is an “enhancing circumstance” that increases the level of
felony. Ind. Code § 35-48-1-16.5(1). Therefore, Rainey’s attorney requested a
hearing so that Rainey could stipulate to the fact that he had a prior conviction
for Class B felony dealing in methamphetamine.
1 Originally, the State charged Rainey with this offense as a Level 2 felony based on an allegation that the amount of methamphetamine involved was at least ten grams. Later, the State filed an amended charge, alleging that the amount of methamphetamine was between five and ten grams. That amount of the drug would render the offense a Level 3 felony, but when an enhancing circumstance applies it becomes a Level 2 felony. The amended charging information continued to list the underlying felony as a Level 2, but we believe that to be a scrivener’s error, as it should have been a Level 3 felony, with a separate enhancing circumstance allegation raising it to a Level 2 felony. 2 The State later dismissed the resisting law enforcement charge and the habitual offender allegation.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 2 of 13 [4] At that hearing, the following conversation occurred on the record between
Rainey, his attorney, and the trial court:
Counsel: . . . The likelihood of this jury finding you not-guilty of anything is slim to none, you understand that. The fight was whether this is a Level 2 or a Level 4 [sic]. [The State] has the obligation to prove this beyond a reasonable doubt to the jury. Well basically all [the prosecutor] has to do is tender a certified docket [showing the prior conviction], which I’ve let you review. The other thing we can do is, we can simply say, yes Judge this is true but Judge will need to know the answer to that before we get there because the jury will have either to stay or be sent home. Do you have an option one way or the other as to—
Rainey: (Interrupting) What do you mean?
Counsel: But what I want to know is do you want to stipulate that this fact is true? That you have a prior dealing conviction or do you want [the prosecutor] to have to prove that in front of this jury?
Rainey: I don’t understand?
Counsel: Okay.
Rainey: (Inaudible.)
Counsel: Well what happens, the jury is going to return a verdict. And it’s either going to be one way or the other. It’s either going to be a Dealing of Methamphetamine as a Level 3 or it’s going to be Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 3 of 13 Possession as a Level 5. We then have the second phase of the trial, that is the enhancing circumstance, and we walked through that this morning. It turns into a Level 4, Possession, if you have an enhancing circumstance.
Rainey: Mm-hmm (affirmative).
Counsel: It turns into a Level 2 Dealing, if you have an enhancing circumstance. The enhancing circumstance that applies to you is that you have a prior dealing charge that resulted in a B Felony conviction. So [the prosecutor] is either going to have to present this before the jury and we’re going to have to then send them out, and do new verdict forms saying does he have an enhancing circumstance or not; or we can say, Judge, we agree that this is true.
Rainey: What is better?
Counsel: I’m not sure I can give a recommendation on this one.
***
Counsel: . . . I—it’s truly a personal choice. I can tell you that I would not put this before the jury. If you don’t want to admit this I would let Judge Pigman make the determination. I never think this is needed in front of a jury. I mean the quest—the question is that I see is, is this true? I think you and I’ve talked about it enough that we—that we know so.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 4 of 13 Rainey: (Inaudible) how—how far can they go back (inaudible)?
Counsel: How? They can go back forever on enhancing circumstances. There is no time limit.
Rainey: That was my first charge ever though.
Counsel: Yep, it was. The question is did it result in a dealing conviction?
Rainey: Yeah (affirmative).
Counsel: (Inaudible).
Rainey: Yes.
Counsel: Okay. Judge, I believe we’re willing to stipulate to the—
Court: (Interrupting). Okay. You admit you have that conviction, is that right Mr. Rainey?
Counsel: It resulted in what type of conviction?
Rainey: A, B. (Defendant indicates B felony). Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 5 of 13 Counsel: Tell the Judge what your sentence was.
Rainey: Six, do three years. First time I ever went to prison.
Court: Okay. All right we will show the defendant admits that. So there won’t be a need for an enhancing circumstance trial.
Trial Tr. Vol. I p. 90-94.
[5] Following deliberations, the jury found Rainey guilty of the lesser-included
offense of Level 5 felony possession of methamphetamine. The trial court
entered the conviction as a Level 4 felony based on the enhancing circumstance
of Rainey’s prior conviction and sentenced him to a ten-year term. Rainey filed
a direct appeal, arguing only that the sentence was inappropriate in light of the
nature of the offense and his character; this Court affirmed. Rainey v. State, No.
82A01-1612-CR-2857 (Ind. Ct. App. May 31, 2017).
[6] On December 4, 2017, Rainey filed a pro se petition for post-conviction relief;
his petition was later amended by counsel on March 22, 2019. The amended
petition alleged that Rainey had received the ineffective assistance of appellate
counsel because in the direct appeal, counsel failed to raise the lack of a
personal, knowing, and voluntary waiver of a jury trial on Rainey’s prior
conviction.3
3 Rainey also argued that appellate counsel should have sought a reversal because Rainey’s stipulation to his prior conviction amounted to a guilty plea without the required advisements. He has abandoned that
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 6 of 13 [7] The post-conviction court held an evidentiary hearing on Rainey’s petition on
May 10, 2019. Appellate counsel testified at that hearing, explaining that
. . . I do remember talking to my law partner about it in some detail, . . . and sort of batting back and forth the idea of—of . . . raising that issue and I think at the end of the day I didn’t feel like it was the appropriate issue . . . for appeal given that it was either a stipulation or a guilty plea. If it was a stipulation I didn’t think that he was entitled to a waiver and if it was a guilty plea . . . . I didn’t think . . . direct appeal was the appropriate place to bring it.
PCR Tr. Vol. II p. 10. Counsel testified that she was “never a fan” of the
sentencing issue she raised in the direct appeal and stated that she had no
strategic reason for not making an argument as to Rainey’s waiver of a jury trial
on his prior conviction. Id. On August 26, 2019, the post-conviction court
denied Rainey’s petition for post-conviction relief, adopting wholesale the
State’s proposed findings of fact and conclusions of law. Rainey now appeals.
Discussion and Decision [8] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the
argument on appeal and “agrees with the post-conviction court’s determination that his elevated offense was adjudicated at a bench trial.” Appellant’s Br. p. 14; see also Garrett v. State, 737 N.E.2d 388, 392 (Ind. 2000) (holding that stipulation regarding prior offenses did not amount to a guilty plea and was instead a bench trial).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 7 of 13 evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from the denial of 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, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post- conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[9] Rainey’s primary argument on appeal is that the post-conviction court
erroneously determined that he did not receive the ineffective assistance of
appellate counsel. To establish ineffective assistance of appellate counsel, the
petitioner must show that (1) appellate counsel was deficient in his or her
performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to
satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,
644 (Ind. 2008). To satisfy the first prong, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness,
committing errors so egregious that the defendant did not have the counsel
guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 8 of 13 second prong, the defendant must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Id.
[10] Ineffective assistance of appellate counsel claims fall into three categories:
denial of access to an appeal; waiver of issues; and failure to present issues well.
Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997). Rainey’s claim falls into the
second category: waiver. In evaluating claims regarding waiver of issues on
direct appeal, we consider (1) whether the unraised issues are significant and
obvious from the face of the record; and (2) whether the unraised issues are
clearly stronger than the raised issues. Id. at 194.
[11] Rainey argues that his appellate counsel was ineffective for failing to argue that
Rainey did not make a personal, knowing, and voluntary waiver of his right to
a jury trial on the enhancing circumstance of his prior Class B felony
conviction. As noted above, possession of methamphetamine is a Level 5
felony if the amount of the drug involved is between five and ten grams, but the
offense becomes a Level 4 felony “if an enhancing circumstance applies.” I.C.
§ 35-48-4-6.1(c), -6.1(d). If the defendant has a prior conviction for dealing in a
controlled substance other than marijuana, an enhancing circumstance applies.
I.C. § 35-48-1-16.5(1).
[12] As with any element of a criminal charge, the State has the obligation to prove
the enhancing circumstance beyond a reasonable doubt, and as with any felony,
the defendant has a constitutional right to a jury trial. See Jones v. State, 810
N.E.2d 777, 779 (Ind. Ct. App. 2004) (noting that a person charged with a
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 9 of 13 felony has an automatic right to a jury trial). The defendant may, of course,
waive his right to a jury trial, but it is well established that the waiver must be
knowing, voluntary, and made by the defendant—not by his attorney. Kellems
v. State, 849 N.E.2d 1110, 1112-13 (Ind. 2006)
[13] In Garcia v. State, the defendant was found guilty by a jury of Class A
misdemeanor operating a motor vehicle while intoxicated. 916 N.E.2d 219,
220 (Ind. Ct. App. 2009). The State also alleged that he had a prior conviction
of driving while intoxicated, which would enhance the conviction to a Class D
felony if proved beyond a reasonable doubt. Id. At a hearing following the jury
trial, the trial court explained to Garcia what his options were, including
stipulating to the prior conviction or proceeding to a jury trial on that
allegation. Id. at 222-23. During the conversation, Garcia asked many
questions but did not explicitly waive his right to a jury trial; instead, his
attorney waived on his behalf. Id. at 223.
[14] Garcia appealed, and this Court found that because “Garcia did not make a
‘personal communication’ to the court that he wished to relinquish his right to
have a jury determine whether the offense should be elevated to a Class D
felony,” the enhanced conviction had to be reversed. Id. at 223; see also Kellems,
849 N.E.2d at 1112-13 (holding that a knowing, voluntary, and intelligent
waiver of the right to a jury trial requires assent to a bench trial by defendant
personally, reflected directly and explicitly in the record). On remand, the State
had the option of retrying the enhancing element of the conviction or
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 10 of 13 dismissing that element and allowing the Class A misdemeanor to stand for
resentencing. Garcia, 916 N.E.2d at 220.
[15] In the case before us, as in Garcia, Rainey spent most of the hearing regarding
his prior conviction asking questions and showing that he did not have a firm
understanding of the proceeding or his options. At no point was it made
explicitly clear to him that by stipulating to his prior conviction, he was waiving
his right to a jury trial on that issue. And at no point did he personally, directly,
and explicitly agree to waive a jury trial. Pursuant to Garcia and Kellems,
therefore, the bare bones of the hearing and his attorney consenting on his
behalf did not suffice to protect his constitutional rights.
[16] That said, we must consider the doctrine of invited error. That doctrine, which
is based on the legal principle of estoppel, forbids a party from taking advantage
of an error that he commits, invites, or which is the natural consequence of his
own neglect or misconduct. Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018).
The doctrine may apply when the failure to object accompanies the party’s
affirmative requests of the trial court. Id. Our Supreme Court has noted that
over time, “our invited-error doctrine expanded to foreclose even constitutional
claims.” Batchelor v. State, 119 N.E.3d 550, 557 (Ind. 2019); see also Durden, 99
N.E.3d at 655 (finding “no reason to exempt structural errors from the invited-
error doctrine” despite prejudicial impact of juror removal); Brewington v. State,
7 N.E.3d 946, 977 (Ind. 2014) (observing that “even constitutional errors may
be invited”).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 11 of 13 [17] In Bunting v. State, the defendant was convicted by a jury of Class C
misdemeanor operating a vehicle while intoxicated. 854 N.E.2d 921, 923 (Ind.
Ct. App. 2006). Following the conviction, Bunting’s attorney advised the trial
court that Bunting and the State had stipulated to the fact that Bunting had a
prior conviction for operating a vehicle while intoxicated within the previous
five years, the jury was dismissed without objection, and the trial court entered
a judgment of conviction for Class D felony driving while intoxicated with a
prior conviction. Bunting appealed, arguing in part that he had been denied his
right to a jury trial on his prior conviction. This Court disagreed, noting that
Bunting had waived his right to a jury trial and that “if the jury dismissal did
not comport with Bunting’s understanding of the effect of the stipulation, he
nevertheless failed to object to the dismissal of the jury. A party may not sit
idly by, permit the court to act in a claimed erroneous manner, and
subsequently attempt to take advantage of the alleged error.” Id. at 924.4
[18] In this case, Rainey’s attorney requested the hearing and suggested that Rainey
intended to stipulate to his prior conviction. During the discussion, Rainey
agreed that he had a prior conviction and did not object to the dismissal of the
jury. Under these circumstances, we think it more likely than not that had the
4 The Bunting Court also noted that it was without dispute that Bunting did, in fact, have a prior conviction. Had the issue been before the jury, the jury would not have been “empowered to blatantly disregard the law or the facts before it,” meaning that the result would had to have been the same. Id. at 924.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 12 of 13 issue been raised on direct appeal, this Court would have found that the error
was invited and therefore waived.
[19] We also note that there is no real dispute that Rainey does, in fact, have a prior
conviction for Class B felony dealing in methamphetamine. So even if this
Court had not found invited error, it would have determined that a reversal and
remand would have been an unwise use of judicial resources, given that the jury
would not have been “empowered to blatantly disregard the law or the facts
before it,” meaning that everyone would have ended up back in the same place
following a retrial. Bunting, 854 N.E.2d at 924.
[20] Under these circumstances, we can only find that Rainey has not established
that there is a reasonable probability that, but for appellate counsel’s failure to
raise the issue on direct appeal, the result of the proceeding would have been
different. Therefore, we find that the post-conviction court did not err by
denying the petition for post-conviction relief.
[21] The judgment of the post-conviction court is affirmed.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020 Page 13 of 13