Jeffrey S. Heironimus v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 17 2016, 9:05 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Deidre R. Eltzroth Eric P. Babbs
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey S. Heironimus, October 17, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1602-PC-394
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
The Honorable Kelli E. Fink,
Magistrate
Trial Court Cause No.
82C01-1306-PC-17
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 1 of 11
Case Summary
[1] Jeffrey Heironimus appeals the post-conviction court’s denial of his petition for
post-conviction relief. We affirm.
Issues
[2] Heironimus raises two issues, which we restate as:
I. whether he received effective assistance of trial
counsel; and
II. whether he received effective assistance of
appellate counsel.
Facts
[3] In May 2011, Heironimus robbed the First Federal Savings Bank in Evansville.
While talking to a bank employee, he insinuated that he had a gun by keeping
his hand in his backpack and demanding money. He took over $3900 in cash,
which included $200 in recorded bait money. The State charged Heironimus
with Class C felony robbery and alleged that he was an habitual offender. With
respect to the robbery charge, the State alleged that Heironimus “did knowingly
and by threat of force” take property from a bank employee. Direct Appeal
App. p. 42. Heironimus was convicted of robbery and found to be an habitual
offender. He appealed his conviction, challenging the trial court’s admission of
evidence of witness identifications made of him after police officers’ warrantless
entry into an accomplice’s residence. We affirmed. See Heironimus v. State, No.
82A01-1204-CR-152 (Ind. Ct. App. Nov. 1, 2012).
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 2 of 11
[4] Heironimus then filed a petition for post-conviction relief, which was later
amended. He argued that his trial counsel was ineffective for failing to file a
motion for directed verdict and that his appellate counsel was ineffective for
failing to argue on appeal that the evidence was insufficient to sustain the
conviction. Both arguments concerned the State’s allegation that Heironimus
took property from the bank employee by “threatening the use of force” rather
than “by putting any person in fear.” See Ind. Code § 35-42-5-1. After a
hearing, the post-conviction court denied Heironimus’s petition. The post-
conviction court entered findings of fact and conclusions thereon denying
Heironimus’s petition. Heironimus now appeals.
Analysis
[5] Heironimus argues that the post-conviction court’s denial of his petition is
clearly erroneous. A court that hears a post-conviction claim must make
findings of fact and conclusions of law on all issues presented in the
petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-
conviction Rule 1(6)). “The findings must be supported by facts and the
conclusions must be supported by the law.” Id. Our review on appeal is limited
to these findings and conclusions. Id. Because the petitioner bears the burden
of proof in the post-conviction court, an unsuccessful petitioner appeals from a
negative judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a
negative judgment must show that the evidence as a whole ‘leads unerringly
and unmistakably to a conclusion opposite to that reached by the trial
court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert.
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 3 of 11
denied). Under this standard of review, “[we] will disturb a post-conviction
court’s decision as being contrary to law only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion.” Id.I. Ineffective Assistance of Trial Counsel
[6] Heironimus argues that the post-conviction court was clearly erroneous when it
determined that he was not denied effective assistance of trial counsel. To
prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both that his or her counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. A counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.
2002). 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy
either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027,
1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved
by a prejudice inquiry alone. Id.Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 4 of 11
[7] According to Heironimus, his trial counsel was deficient for failing to file a
motion for directed verdict regarding the robbery charge. In order for a trial
court to grant a directed verdict, there must be a complete lack of evidence on a
material element of the crime or the evidence must be without conflict and
susceptible to only an inference in favor of the defendant’s innocence. Huber v.
State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004). At the time of the offense,
Indiana Code Section 35-42-5-1 provided: “A person who knowingly or
intentionally takes property from another person or from the presence of
another person: (1) by using or threatening the use of force on any person; or (2)
by putting any person in fear; commits robbery, a Class C felony.” The State
alleged that Heironimus knowingly took property from the bank employee by
threatening force against the employee. Heironimus argues that a motion for
directed verdict would have been granted because there was no evidence to
show that he threatened the use of force against the bank employee.
[8] On this issue, the post-conviction court found:
2. Petitioner’s first claim was that he was denied the
effective assistance of trial counsel due to omissions
and errors of trial counsel that undermined confidence
in the outcome of the case. The specific facts alleged
by Petitioner to support this first claim were that
Petitioner was charged and convicted of robbery for
having taken money from a bank teller “by using or
threatening the use of force,” but that the evidence at
trial failed to support this element of the charge.
Petitioner’s claim is that if counsel had moved for a
directed verdict on this issue, there is a reasonable
probability that this argument would have been
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 5 of 11
successful and Petitioner would not have been
convicted of robbery.
3. The charging information in Petitioner’s case alleges
that the offense was committed “by threat of force,” but
does not allege the actual “use of force.”
*****
11. Mr. Gooden [trial counsel] testified that he was aware
during trial of the issue regarding the sufficiency of the
evidence on the threat of force element. However, he
did not want to bring the issue to the attention of the
State so the prosecutor could then fix the issue. Mr.
Gooden also indicated based on his past experiences,
he did not believe that a motion for directed verdict
would be successful. As trial counsel, Mr. Gooden’s
decision not to move for a directed verdict was one of
strategy.
12. Even if Mr. Gooden had moved for a directed verdict,
it is unlikely that his motion would have been
successful.
App. Vol. II pp. 90, 92.
[9] Relying on Simmons v. State, 455 N.E.2d 1143 (Ind. Ct. App. 1983), and Maga v.
State, 508 N.E.2d 803 (Ind. 1987), the post-conviction court also concluded:
17. The teller in Petitioner’s case testified that the suspect
who robbed the bank had his hood pulled up so that he
[sic] his face was only partially visible and his hair
could not be seen. The man put a backpack up on the
teller station, and the man had one hand in the
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 6 of 11
backpack which led the teller to believe that the man
might have a gun in the backpack. The man told the
teller that he wanted her to put money in the backpack
and told her not to push any alarms. After the teller
put money in the backpack, the man indicated he
wanted even more money. The teller testified that she
was terrified, very scared and very nervous at the time.
She also described her state as hysterical.
18. Petitioner’s attempt to conceal his appearance, the fact
that he put his hand in his backpack when he asked for
money, and that he told the teller to give him money
and not to push any alarms all support the jury’s
finding that the offense was committed by the “threat
of force.” Petitioner’s behavior understandably made
the teller feel terrified, scared and nervous and also
understandably led the teller to believe that Petitioner
had a gun. Petitioner’s words and gestures, along with
the appearance that he might have a gun, establish the
element of “threat of force.”
App. Vol. II pp. 93-94.
[10] We addressed a similar issue in Simmons, 455 N.E.2d at 1147-48. There, the
defendant robbed a liquor store by demanding money and putting his hand to a
bulge at his waist, which the manager thought was a gun. However, when the
defendant was arrested minutes later, the police found no weapon. The jury
found him guilty of Class C felony robbery by using or threatening the use of
force. On appeal, this court engaged in a lengthy analysis of the statutory
language, the prior statute’s language, and case law on the issue. We concluded
that the defendant’s “words, the bulge under his shirt, and his gestures toward
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 7 of 11
that bulge, all creating the inference he possessed a gun, were sufficient to
indicate he was threatening the use of force upon [the manager].” Simmons, 455
N.E.2d at 1148. Citing Simmons, our supreme court later noted that “[t]he
threat of force can be established through the appearance that a person had a
gun, and by the words and gestures of the person.” Maga v. State, 508 N.E.2d
803, 804 (Ind. 1987); see also Gray v. State, 903 N.E.2d 940, 946 (Ind. 2009)
(directing the entry of a conviction for Class C felony robbery rather than a
Class B felony robbery where the defendant implied that he had a gun in his
pocket but there was no evidence that he actually had a weapon).
[11] Here, the bank employee testified that Heironimus entered the bank wearing a
hooded sweatshirt with the hood pulled up over his head so that she could not
see much of his face. He was carrying a backpack and had his left hand inside
the backpack. He put his backpack on the counter and told the teller to give
him all of the money and not to push any alarms. Based on the position of the
backpack and his hand, the teller thought that “he had perhaps a gun in it.” Tr.
p. 24. She was “terrified, very scared, just very nervous.” Id. at 25.
Heironimus argues that the teller “seemed to realize that he was not armed
soon thereafter when he passed the bag to her.” Appellant’s Br. p. 8.
[12] For a motion for directed verdict to be successful, there must have been a
complete lack of evidence regarding threatening the use of force or the evidence
must be without conflict and susceptible to only an inference in favor of the
Heironimus’s innocence. Huber, 805 N.E.2d at 890. As in Simmons,
Heironimus’s words and actions implied that he had a gun and were sufficient
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 8 of 11
to indicate he was threatening the use of force upon the teller. Consequently,
even if his trial counsel had filed the motion for directed verdict, there is no
reasonable probability that the motion would have been successful or that the
result of the proceeding would have been different. The trial court’s denial of
Heironimus’s petition for post-conviction relief on this issue is not clearly
erroneous.
II. Ineffective Assistance of Appellate Counsel
[13] Next, Heironimus argues that he was denied effective assistance of appellate
counsel. The standard for gauging appellate counsel’s performance is the same
as that for trial counsel. Allen, 749 N.E.2d at 1166. Heironimus must
demonstrate that his appellate counsel was deficient and that he was prejudiced
by the deficient performance. Ben-Yisrayl, 729 N.E.2d at 106.
[14] Heironimus argues that his appellate counsel should have raised a claim that
the evidence was insufficient to sustain the conviction for robbery. Because the
strategic decision regarding which issues to raise on appeal is one of the most
important decisions to be made by appellate counsel, appellate counsel’s failure
to raise a specific issue on direct appeal rarely constitutes ineffective assistance.
See Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court
has adopted a two-part test to evaluate the deficiency prong of these claims: (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. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied. If
this analysis demonstrates deficient performance by counsel, the court then
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 9 of 11
examines whether the issues that appellate counsel failed to raise “would have
been clearly more likely to result in reversal or an order for a new trial.” Id.[15] Specifically, Heironimus argues that appellate counsel should have argued that
the evidence was insufficient to show that he threatened the use of force. On
this issue, the post-conviction court found:
19. Petitioner’s second argument . . . was that Petitioner
received ineffective assistance of appellate counsel
when counsel failed to challenge the conviction
appropriately, relying instead, on a non-meritorious
argument. In the facts alleged to support this second
argument, Petitioner contends that if appellate counsel
had argued that the State lacked sufficient evidence to
convict Petitioner of the robbery charge, there is a
reasonable probability that Petitioner’s robbery
conviction would have been overturned and the
sentence vacated. This argument is also based on the
claim that there was not enough evidence of the “threat
of force.”
*****
22. Because this Court has found in favor of the State as to
the sufficiency of the evidence issue, this Court finds
that it was not ineffective for appellate counsel to fail to
raise the issue on appeal.
App. Vol. II pp. 94-95.
[16] Even if Heironimus’s appellate counsel had raised the sufficiency issue, we
cannot say the argument would have been successful. When reviewing the
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 10 of 11
sufficiency of the evidence needed to support a criminal conviction, we consider
only the evidence supporting the judgment and any reasonable inferences that
can be drawn from such evidence. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009). We affirm if there is substantial evidence of probative value such that a
reasonable trier of fact could have concluded the defendant was guilty beyond a
reasonable doubt. Id. As we have noted, based on Heironimus’s words and
actions, there was evidence to support the jury’s finding that he threatened the
teller with force. See Simmons, 455 N.E.2d at 1148. The sufficiency issue would
not have been clearly more likely to result in reversal. The post-conviction
court’s denial of Heironimus’s argument on this issue is not clearly erroneous.
Conclusion
[17] The post-conviction court’s denial of Heironimus’s petition for post-conviction
relief is not clearly erroneous. We affirm.
[18] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1602-PC-394| October 17, 2016 Page 11 of 11