Guy Ivester v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not Sep 03 2013, 5:33 am
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
APELLANT PRO SE: ATTORNEYS FOR APPELLEE:
GUY J. IVESTER GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GUY IVESTER, )
)
Appellant-Petitioner, )
)
vs. ) No. 33A04-1209-PC-491
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable David A. Kolger, Special Judge
Cause No. 33C01-1011-PC-5
September 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Guy J. Ivester, pro se, appeals the post-conviction court’s denial of his petition for
post-conviction relief. Ivester presents five issues on appeal: 1) whether he was denied
the effective assistance of his trial counsel; 2) whether his guilty plea was entered
voluntarily; 3) whether there was prosecutorial misconduct during these proceedings; 4)
whether the trial court abused its discretion in not penalizing the State for late discovery
compliance; and 5) whether the post-conviction court abused its discretion in denying
certain of Ivester’s discovery requests. Concluding that Ivester was not denied the
effective assistance of his trial counsel, that he entered his guilty plea voluntarily, that his
claims of prosecutorial misconduct and trial court abuse of discretion are unavailable, and
that there was no abuse by the post-conviction court, we affirm.
Facts and Procedural History
On October 2, 2008, Ivester was charged with three counts of dealing in a
schedule II controlled substance, all as Class A felonies, and maintaining a common
nuisance, as a Class D felony. The charges stemmed from at least two separate hand-to-
hand purchases in July of 2008, in which Detective Aaron Strong of the Henry County
Area Drug Task Force, working undercover, purchased oxycodone and other controlled
substance pills from Ivester. The State offered various plea agreements to Ivester, who
refused all offers, believing that the State, once past discovery deadlines, would not be
able to have the relevant lab report admitted at trial and therefore would not be able to
prove its case. Trial was scheduled for September 21, 2009. On the day of trial, the court
denied Ivester’s motion in limine to exclude the lab report. Following the denial of the
motion, and prior to jury voir dire, Ivester entered into a plea agreement with the State.
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Pursuant to the plea agreement, Ivester pleaded guilty to count II, dealing in a schedule II
controlled substance as a Class A felony, and his sentence was to be capped at twenty
years.
The trial court held a sentencing hearing in October of 2009. Prior to sentencing,
Ivester’s counsel orally moved the court to permit Ivester to withdraw his guilty plea,
which motion the court denied. The court sentenced Ivester to twenty years
imprisonment, with two years suspended to probation.
In November of 2010, Ivester filed a pro se petition for post-conviction relief,
which was later amended. The post-conviction court held a hearing in June of 2012, and
in August of 2012 the court issued its findings of fact and conclusions of law, denying
Ivester’s petition. This appeal followed. Additional facts will be supplied as necessary.
Discussion and Decision
I. Standard of Review
To prevail on appeal from the denial of post-conviction relief, the petitioner must
show that the evidence is without conflict and leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Thacker v. State, 715
N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied. A post-conviction court’s
findings and judgment will be reversed only upon a showing of clear error, which is error
that leaves us with a definite and firm conviction that a mistake has been made.
Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-
conviction court’s findings of fact unless they are clearly erroneous, but we do not defer
to the post-conviction court’s conclusions of law. Id. We examine only the probative
evidence and reasonable inferences that support the post-conviction court’s determination
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and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.
State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).
II. Ineffective Assistance of Trial Counsel
A. Standard of Review
We review claims of ineffective assistance of counsel under the two prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d
188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). To prevail on a claim of
ineffective assistance of counsel, the petitioner must show that his counsel’s performance
was deficient and that the lack of reasonable representation prejudiced him. Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first
prong, the petitioner must show that counsel’s performance was deficient in that
counsel’s representation fell below an objective standard of reasonableness and that
counsel committed errors so serious that petitioner did not have the “counsel” guaranteed
by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show
prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Pruitt v. State, 903
N.E.2d 899, 906 (Ind. 2009).
Under this standard, judicial scrutiny of counsel’s performance must be highly
deferential, and there is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. Bieghler, 690 N.E.2d at 192 (citing
Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
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1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do
not necessarily render representation ineffective. Id.
In a case such as this one, where the petitioner pleaded guilty, the two prongs
remain, but our supreme court has outlined what is required to show prejudice when there
was no trial. In all cases, the petitioner must demonstrate “a reasonable probability that
the hypothetical reasonable defendant would not have pled guilty and elected to go to
trial if properly advised.” Segura v. State, 749 N.E.2d 496, 509 (Ind. 2001) (Sullivan, J.,
concurring in result). The petitioner must do more than simply allege that a plea would
not have been entered. Id. at 507. Where the alleged error is one that would have
affected a defense or is related to a failure to mitigate a penalty, the petitioner must show
that there would have been a reasonable probability of success at trial. Id. at 503, 507.
Where the alleged error is counsel’s omission or misdescription of penal consequences
that is relevant to both a plea and a conviction at trial, however, the bar is somewhat
lower. In those cases, the petitioner must allege “‘special circumstances’ or . . .
‘objective facts’ supporting the conclusion that the decision to plead guilty was driven by
the erroneous advice.” Id. at 507 (citations omitted).
Finally, we note that the two prongs of the Strickland test are separate and
independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, we may determine the prejudice prong first
without inquiring into whether counsel’s performance was adequate. Thacker, 715
N.E.2d at 1284.
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B. Ivester’s Trial Counsel
Ivester presents several arguments regarding his trial counsel’s assistance. Ivester
first argues that his counsel was ineffective for failing to compel discovery, specifically
disclosure of the identity of a confidential informant involved in the transactions upon
which the charges against him were based. This appears to relate back to several issues
that Ivester raised with the post-conviction court below.1 It seems that the “informant” to
whom Ivester refers might be the store clerk who facilitated Detective Strong’s meeting
with Ivester. The post-conviction court noted that the nature of the underlying
transaction—i.e. a hand-to-hand transaction from Ivester to Detective Strong—renders
the “proposed observations of any other civilian witness exceedingly insignificant.”
Post-Conviction Court Findings of Fact and Conclusions of Law at 19. Additionally,
Ivester was aware at the time he pleaded guilty that the identity of any “informant” had
not been disclosed. As for Ivester’s claim that the informant could have established
entrapment as a viable defense, the post-conviction court noted that a number of specific
facts in Ivester’s case negated the possibility of entrapment as a defense, namely that
there were multiple transactions, agreements as to price, and that one transaction occurred
in Ivester’s home. Ivester has not shown that, but for counsel’s actions, he would not
have pleaded guilty. We see no clear error on the part of the post-conviction court.
Ivester next argues that his counsel was ineffective in failing to depose the State’s
witnesses. Ivester’s trial counsel, John Hovanec, testified at the post-conviction relief
hearing. Hovanec testified that he did not depose Detective Strong because he had
1
Ivester’s brief is difficult to decipher in parts, although it does not appear that he is attempting to raise
issues here on appeal that were not raised below. See Walker v. State, 843 N.E.2d 50, 58 n.2 (Ind. Ct. App. 2006)
(“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction
appeal.” ) (citation omitted), trans. denied.
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viewed the videotapes of the drug transactions, and taped statements from Detective
Strong, and Hovanec did not believe that a deposition would add anything or that
Detective Strong would deny his earlier statements. The post-conviction court noted that
Detective Strong testified at the post-conviction relief hearing, corroborating Hovanec’s
testimony, and the post-conviction court concluded that deposing Detective Strong would
have been a waste of counsel’s time and may even have solidified the State’s case against
Ivester. As for deposition of the lab analyst who ran the lab report on the drugs that
Detective Strong purchased from Ivester, Hovanec testified that their trial strategy was to
try to keep the lab results out of court, and that depositing the lab analyst would only
support the report and would not help Ivester’s case.
Ivester’s third complaint relates to Hovanec not moving to suppress the drug
analysis results. Firstly, Hovanec did in fact move in limine to have the report excluded
due to the late discovery of the report, and the court denied the motion. Secondly, the
State correctly notes that, to the extent that the motion did not already encompass the lab
analyst’s testimony, it is likely, based on the court’s denial of the first motion, that the
court would also have denied any motion to exclude the analyst’s testimony. We do not
believe that Ivester was prejudiced by any alleged failure on Hovanec’s part.
Ivester’s fourth claim is that Hovanec incorrectly advised him regarding a
potential sentence under the plea. Ivester claims that he was led to believe that his entire
sentence would likely be suspended. He also claims that the trial judge stated that she
would not “penalize” him if he pleaded guilty, and that this meant that he would not
receive an executed sentence. We agree with both the State and the post-conviction court
that the trial judge’s statements were not an indication that the court would not give
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Ivester an executed sentence. Rather, because of late discovery on the part of the State,
the court was willing to do what it would not normally do—accept a guilty plea from
Ivester at that late stage—rather than penalizing him for reacting only then to the belated
lab report. As for sentencing advice, Hovanec testified that he and Ivester spoke at length
about possible sentences and outcomes up to the date of trial, as Ivester was offered
various plea agreements. The State notes that if Ivester had not pleaded guilty, he would
have faced a possible sentence much higher than the twenty year cap provided by the plea
agreement. The court questioned Ivester before accepting his plea, and specifically made
sure he understood that the cap on his sentence was twenty years and that he would be
able to argue for suspension, but the State would also be able to ask for the entire twenty
years executed. The court also made sure that Ivester understood that he was waiving his
right to appeal “whatever sentences [sic] issued by the Court.” Petitioner’s Exhibit 1, at
9. Finally, the court received assurances from Ivester that he was not expecting anything
different from what the judge had just reviewed, and that he was not forced into the plea.
Ivester fails to show objective facts supporting a conclusion that his decision to plead was
induced by erroneous advice.
Finally, Ivester argues that Hovanec was ineffective in failing to file a written
motion to withdraw the guilty plea. It is true that after entry of a guilty plea but before
sentencing, a motion to withdraw must be made in writing. Ind. Code § 35-35-1-4(b).
However, we need not reach whether this constituted deficient performance, because we
agree with the post-conviction court that Ivester was not prejudiced by any failure on
Hovanec’s part. Following Hovanec’s oral motion to withdraw Ivester’s plea, the trial
court noted several reasons that it would have denied the motion to withdraw even if it
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had been properly presented in written form. Namely, that Ivester had appeared in court
and provided a factual basis under oath; that the court had reviewed Ivester’s rights and
the implications of the plea with him and that he understood the rights he was waiving;
that the State would have been substantially prejudiced by a withdrawal of the plea at that
point; and that Ivester presented no evidence indicating that his withdrawal was necessary
to prevent a manifest injustice.
In sum, testimony at the post-conviction relief hearing showed that Hovanec
communicated with Ivester and worked with him to develop a strategy, counseled him to
try to achieve the best possible outcome, and that Hovanec was prepared to proceed with
trial as scheduled. Ivester has not shown any prejudice as a result of any possible failures
on the part of his trial counsel, or that he would not have pleaded guilty had his counsel
done things differently. The post-conviction court did not clearly err in denying Ivester’s
claim.
III. Voluntariness of Guilty Plea
A. Standard of Review
On review of a guilty plea, we look at all of the evidence before the post-
conviction court. Moffitt v. State, 817 N.E.2d 239, 249 (Ind. Ct. App. 2004), trans.
denied. If evidence exists that supports the post-conviction court’s determination that the
guilty plea was voluntary, intelligent and knowing, we will not reverse. Id. When a
guilty plea is attacked because of alleged misinformation concerning sentencing, the issue
of the validity of such plea is determined by the following two-part test: (1) whether the
defendant was aware of actual sentencing possibilities; and (2) whether the accurate
information would have made any difference in his decision to enter the plea. Id.
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B. Voluntariness of Ivester’s Plea
Ivester argues that his guilty plea was involuntary because of the State’s late
discovery, resulting in a lack of preparedness on the part of his trial counsel, and because
he believed that his entire sentence would be suspended based on the trial judge’s
statement that she would not “penalize” him.
As discussed above, Ivester misunderstands the trial judge’s statement about not
penalizing him. The statement did not indicate that the court would suspend Ivester’s
entire sentence, but rather indicated the reason why the court was allowing a plea to be
entered so late in the process. Additionally, there is evidence to support the post-
conviction court’s determination that Ivester was advised as to the potential sentence
under his plea agreement and that he stated under oath his comprehension of the possible
sentence. The post-conviction court also noted that Ivester testified at the post-conviction
relief hearing, and that at no point did he state that he believed he would get to go home
and not be sent to prison as a result of the plea agreement. Rather, he stated that he
believed he deserved a second chance. We conclude that Ivester was aware of the actual
sentencing possibilities, and any more accurate information would not have made a
difference in his decision to accept the plea.
As for the State’s late discovery, discovery is not generally relevant to
voluntariness—while it may go to the strength of the State’s case, it does not go to
whether Ivester’s plea was voluntary. Nonetheless, Hovanec testified that he had
discussed with Ivester the likelihood that the report would be given late, and that the
court would nonetheless allow it to be entered into evidence. Hovanec also testified that
he was fully prepared for trial, and the post-conviction court found Hovanec to be
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credible. There is evidence to support the post-conviction court’s determination that
Ivester’s plea was voluntary.
IV. Prosecutorial Misconduct
Ivester next argues that the prosecutor in his case engaged in misconduct by
failing to disclose the informant, among other claims. Ivester notes that claims of
prosecutorial misconduct are generally reserved for direct appeal, but argues that
fundamental error is available to him as a post-conviction relief claim. Ivester cites to
Keller v. State, 481 N.E.2d 1109, 1112 (Ind. Ct. App. 1985), for the proposition that his
prosecutorial misconduct issue would have been available on direct appeal (we need not
delve into the contemporaneous objection that would have been required to make the
issue available on appeal). However, as the State notes, fundamental error is not
available as a free-standing issue on petition for post-conviction relief. Graham v. State,
941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011). This argument is therefore not available to
Ivester.
Nonetheless, we briefly observe that prosecutorial misconduct requires a
determination both that the prosecutor engaged in misconduct and that such misconduct
placed the defendant in a position of grave peril, and that the potential for peril is
measured by the probable persuasive effect on the jury’s decision. Ratliff v. State, 741
N.E.2d 424, 428-29 (Ind. Ct. App. 2000), trans. denied. We agree with the post-
conviction court here that it is relevant that Ivester was never before a jury. Moreover,
we also agree that his attorney’s testimony that he was fully prepared to proceed to trial
and further discovery was not necessary shows that Ivester was not placed in a position of
grave peril.
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V. Abuse of Discretion of Trial Court
Ivester also argues that the trial court abused its discretion in not excluding
evidence that was submitted after discovery deadlines. The State notes that by pleading
guilty, Ivester waived any challenge to the pre-trial rulings of the trial court. Neville v.
State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996). As noted above, any free-standing
claim of fundamental error is also not available here.2
VI. Abuse of Discretion of Post-Conviction Court
Finally, Ivester argues that the post-conviction court abused its discretion when it
denied certain of his discovery requests, namely requests to have the video of his drug
transaction with Detective Strong and to call the “confidential informant” as a witness
during the post-conviction relief hearing.
The post-conviction court is afforded broad discretion in ruling on discovery
matters, and we will affirm those decisions absent a showing of clear error and resulting
prejudice. Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013). We see no such clear
error here. Ivester’s trial counsel testified as to having seen the video and what was on it,
and Detective Strong testified at the post-conviction relief hearing as well. It is not clear
what the video itself would have added to Ivester’s post-conviction claims. The same
goes for denying Ivester’s request to call the confidential informant as a witness. As we
noted above, we are not convinced that any such witness would have added anything to
the evidence that Ivester already presented at his hearing, and we see no clear error on the
part of the post-conviction court in denying Ivester’s request.
2
Ivester again references the trial court’s statement about not “penalizing” him here within his argument
that the trial court abused its discretion. We again point out that Ivester seems to have misunderstood the trial
court’s statement.
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Conclusion
Concluding that Ivester was not denied the effective assistance of his trial counsel,
that his guilty plea was voluntary, that his claim of prosecutorial misconduct is
unavailable but nonetheless there was no such misconduct, that his claim of abuse of
discretion on the part of the trial court is unavailable, and that there was no abuse of
discretion on the part of the post-conviction court, we affirm.
Affirmed.
RILEY, J., and KIRSCH, J., concur.
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