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 20 2016, 9:13 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
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 20, 2016
Appellant-Defendant, Court of Appeals Case No.
82A05-1602-PC-391
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.
82C01-1303-PC-6
Barnes, Judge.
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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 was denied the effective assistance
of trial counsel or his guilty plea was
involuntary because he was not properly
advised regarding the habitual offender
enhancement; and
II. whether he was denied the effective assistance
of trial counsel or his guilty plea was
involuntary because he was not advised
regarding an alleged defense to the charge.
Facts
[3] In May 2011, Heironimus was charged with Class C felony robbery for robbing
a bank in Evansville. The State also alleged that he was an habitual offender. 1
In January 2012, the State also charged Heironimus with Class D felony
attempted obstruction of justice and again alleged that he was an habitual
offender. The State alleged that Heironimus “knowingly sen[t] a letter to
Bradford Talley, who was a witness in [the robbery case], with the intent to
1
Heironimus was found guilty of Class C felony robbery and found to be an habitual offender. We affirmed
his conviction on direct appeal. See Heironimus v. State, No. 82A01-1204-CR-152 (Ind. Ct. App. Nov. 1,
2012). In a companion case to this appeal, we also affirmed the post-conviction court’s denial of his petition
for post-conviction relief. See Heironimus v. State, No. 82A01-1602-PC-394 (Ind. Ct. App. _____, 2016).
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induce Bradford Talley, by threat or coercion, to withhold testimony in that
proceeding, which conduct constituted a substantial step toward that
commission of the said crime of Obstruction of Justice . . . .” Petitioner’s Ex.
D. The letter in question was sent to Talley, who witnessed Heironimus fleeing
the bank after the robbery and who was a stranger to Heironimus. It stated:
I hope to get your ear before the state does. The prosecutor &
cops are going to try & have you appear @ my trial and point me
out, to say you saw me in a red truck. Using this testimony they
are trying to prove I was the guy who robbed a bank! They are
trying to give me as much as 50 yrs! Crazy dude! Anyway, I
didn’t do this – the guy driving the red truck, it was his bank; his
house where the money was found the next day, they caught him
and his wife spending the money while I was in jail (because he
lied & said I did it). He set me up & they are going for it – he’s a
thief, liar and rat! He is out of jail now. I don’t know how you
see this, but I do hope you are not a rat working with the police
on a lie in case like this is B.S.! If they find you they can force
you to court – cause their the Nazi pigs, they can not force you to
say you ever saw me nor can they make you point me out in
court.
Just remember things are always as it appears, right. Please don’t
let them take my life – not by your helping cool? P.S. Watch
your back out there. P.S.S. Probably lookin’ for ya - over
The Accused!
They’re trying to get you to point me out 1st in a line-up – you
don’t remember right. They are looking to find you & force you
to court on Nov. 14th 2011 just to point me out in court & say
you saw me in a red truck. You’re not sure, right. Simply put,
dude, you just can’t remember or be sure! Ok? This is my life –
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in your hands. I’ve met a couple people in jail who say they
know you & your kin, say it’s not your style to work with police.
Good luck – if all works out as it should with right at my back –
you may be able to talk me into some serious ink work. I am an
artist with my own equipment. Keepin’ it real, I keep it right
w/friends old and new.
App. Vol. II pp. 13-14 (capitalization omitted); Petitioner’s Ex. C.
[4] Heironimus’s trial counsel advised him that he faced a three-year sentence for
the attempted obstruction of justice charge and a four-and-one-half year
enhancement for his habitual offender status. Heironimus agreed to plead
guilty to attempted obstruction of justice, and the State dismissed the habitual
offender allegation. Heironimus agreed to an advisory sentence of eighteen
months, which the trial court imposed consecutive to his sentence for the
robbery and habitual offender action.
[5] In March 2013, Heironimus filed a petition for post-conviction relief, which
was later amended. Heirominus alleged that he did not receive effective
assistance of trial counsel and that his guilty plea was involuntary, unknowing,
and unintelligent. After a hearing, the post-conviction court entered findings of
fact and conclusions thereon denying Heironimus’s petition. Heironimus now
appeals.
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Analysis
[6] 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.
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.
[7] Heironimus argues that his trial counsel was ineffective and his guilty plea was
involuntary because he was incorrectly advised regarding the habitual offender
enhancement and an alleged defense to the charge. Because Heironimus was
convicted pursuant to a guilty plea, we must analyze his claims under Segura v.
State, 749 N.E.2d 496 (Ind. 2001). In Segura, the Indiana Supreme Court held:
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Whether viewed as ineffective assistance of counsel or an
involuntary plea, the post[-]conviction court must resolve the
factual issue of the materiality of the bad advice in the decision to
plead, and post[-]conviction relief may be granted if the plea can
be shown to have been influenced by counsel’s error. However,
if the post[-]conviction court finds that the petitioner would have
pleaded guilty even if competently advised as to the penal
consequences, the error in advice is immaterial to the decision to
plead and there is no prejudice.
Segura, 749 N.E.2d at 504-05. Thus, it is immaterial whether Heironimus’s
claim is characterized as an involuntary plea or ineffective assistance of counsel.
See Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura
and holding that it was immaterial whether the petitioner’s claim was
characterized as an involuntary plea or ineffective assistance of counsel
because, under either standard, the petitioner must demonstrate that the
intimidation resulting from his trial counsel’s failure to inform him of the single
larceny rule was material to his decision to plead guilty), trans. denied.
I. Habitual Offender Enhancement Claim
Heironimus argues that his guilty plea was involuntary and his trial counsel was
ineffective because his trial counsel incorrectly advised him that his sentence
could have been enhanced by his habitual offender status. Segura categorizes
two main types of guilty plea ineffective assistance of counsel cases: (1) failure
to advise the defendant on an issue that impairs or overlooks a defense, and (2)
an incorrect advisement of penal consequences. Smith v. State, 770 N.E.2d 290,
295 (Ind. 2002). Heironimus’s habitual offender claim falls under the second
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category—an incorrect advisement of penal consequences. In Segura, our
supreme court held:
[I]n order to state a claim for post[-]conviction relief a petitioner
may not simply allege that a plea would not have been entered.
Nor is the petitioner’s conclusory testimony to that effect
sufficient to prove prejudice. To state a claim of prejudice from
counsel’s omission or misdescription of penal consequences that
attaches to both a plea and a conviction at trial, the petitioner
must allege . . . “special circumstances,” or, as others have put it,
“objective facts” supporting the conclusion that the decision to
plead was driven by the erroneous advice.
We believe a showing of prejudice from incorrect advice as to the
penal consequences is to be judged by an objective standard, i.e.,
there must be a showing of facts that support a reasonable
probability that the hypothetical reasonable defendant would
have elected to go to trial if properly advised. . . .
In sum, . . . to prove this in the case of claims related to a defense
or failure to mitigate a penalty, it must be shown that there is a
reasonable probability that a more favorable result would have
obtained in a competently run trial. However, for claims relating
to penal consequences, a petitioner must establish, by objective
facts, circumstances that support the conclusion that counsel’s
errors in advice as to penal consequences were material to the
decision to plead. Merely alleging that the petitioner would not
have pleaded is insufficient. Rather, specific facts, in addition to
the petitioner’s conclusory allegation, must establish an objective
reasonable probability that competent representation would have
caused the petitioner not to enter a plea.
Segura, 749 N.E.2d at 507 (footnotes omitted).
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[8] In analyzing this claim, the post-conviction court found that: “‘[U]nder Indiana
law, a trial court cannot order consecutive habitual offender sentences.’
Breaston v. State, 907 N.E.2d 992, 994-995 (Ind. 2009), and cases cited therein.
‘This holds true whether the concurrent enhanced sentence is imposed in a
single proceeding or in separate proceedings.’ Id. at 995 . . . .” App. Vol. II p.
113. The court noted that Heironimus alleged “that he was misinformed by
trial counsel regarding the penal consequences he was facing because he falsely
believed he was facing a sentence of seven and one-half (7 1/2) years because of
the habitual offender count when he was really only facing three (3) years.” Id.
[9] Thus, the post-conviction court found, and the State concedes, that any habitual
offender enhancement in this case could not have been served consecutively to
the habitual offender enhancement in the robbery case. See Breaston, 907
N.E.2d at 994. However, Heironimus must also establish an objective
reasonable probability that competent representation would have caused him
not to enter a plea. The post-conviction court rejected Heironimus’s argument
and concluded:
13. In this case Petitioner was actually facing a possible
sentence on the Class D Attempted Obstruction of
Justice charge of three (3) years because his sentence
could not have legally been enhanced based on the
habitual offender count. Petitioner’s criminal
history is extensive, and it is unlikely that he would
have received an 18-month sentence if he had been
convicted of Attempted Obstruction of Justice at
trial. Therefore, Petitioner did receive a lesser
sentence by entering into the plea agreement.
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14. This Court finds, after attempting to conduct an
objective review of the facts, that Petitioner has
failed to establish by a preponderance of the
evidence that the accurate information regarding the
habitual offender count would have made any
difference in his decision to enter a plea.
*****
43. As indicated above, Petitioner was facing a
maximum sentence of three years even without the
habitual enhancement. Petitioner’s extensive
criminal history would likely have resulted in an
aggravated sentence if he had been found guilty.
Therefore, this Court finds that any advisement by
trial counsel that Petitioner was facing the
possibility of the habitual offender enhancement did
not result in prejudice to the Petitioner.
App. Vol. II p. 114, 120.
[10] Although his trial counsel advised him that he was facing a possible seven and
one-half year sentence, it is clear that Heironimus actually could have only been
sentenced to three years. The plea agreement, however, provided for an
advisory sentence of eighteen months. Heironimus had an extensive criminal
history. The post-conviction court noted that his criminal history included:
[T]he 2012 Robbery conviction in Cause 82C01-1105-FB-654; a
2009 Possession of a Controlled Substance conviction as a
misdemeanor; a 2007 federal Uttering Counterfeit Obligations or
Securities Conviction as a felony; a 1985 Robbery conviction as a
felony in which Petitioner served 42 years at the Indiana
Department of Correction; a 1979 Armed Robbery; a 1979
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Burglary; a 1976 Delivery [of] a Controlled Substance conviction;
and several other mostly alcohol-related offenses.
Id. at 105. Given Heironimus’s extensive criminal history, the likelihood of
him receiving a sentence more favorable than the advisory sentence is extremely
slim. Moreover, Heironimus never testified at the post-conviction hearing that
accurate advice regarding the habitual offender enhancement would have
caused him not to enter a guilty plea. On appeal, Heironimus argues only that,
given accurate advice, “it is reasonably probable to assume they would have
negotiated a term of even less time.” Appellant’s Br. p. 11. To the contrary,
there is no indication whatsoever that the State would have negotiated a
sentence less than the advisory sentence, especially given Heironimus’s criminal
history. The post-conviction court’s findings on this issue are not clearly
erroneous.
II. Sufficiency Defense
[11] Next, Heironimus argues that his guilty plea was involuntary and his trial
counsel was ineffective because his trial counsel failed to advise him of a
defense to the charge. Heironimus contends that the attempted obstruction of
justice charge would have been unsuccessful because the State lacked sufficient
proof to convict him. This claim falls under the first Segura category—failure to
advise the defendant on an issue that impairs or overlooks a defense. Smith,
770 N.E.2d at 295. In order to set aside a conviction because of an attorney’s
failure to raise a defense, a petitioner who has pled guilty must establish that a
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defense was overlooked or impaired and that the defense would likely have
changed the outcome of the proceeding. Segura, 749 N.E.2d at 499.
[12] On this issue, the post-conviction court found that Heironimus had admitted
during the guilty plea hearing that he sent a letter to a witness to induce him,
either by threat or coercion, not to testify in another proceeding against
Heironimus. The post-conviction court also found that Heironimus waived his
right to have the State prove the case beyond a reasonable doubt and of his right
to a trial by court or jury. Consequently, the post-conviction court rejected
Heironimus’s argument that his guilty plea was involuntary on this basis. As
for the ineffective assistance of counsel claim, the post-conviction court noted
that Heironimus was required to show that the defense would likely have
changed the outcome of the proceeding. The post-conviction court concluded
that a fact finder could have found Heironimus’s letter was sent to induce the
witness by threat or coercion to withhold testimony. The post-conviction court
determined that Heironimus failed to demonstrate that his counsel’s
performance was deficient or “that even if there were errors on the part of his
trial counsel, that any such errors prejudiced the defense.” App. Vol. II p. 147.
[13] In order for Heironimus to be convicted of attempted obstruction of justice, the
State had to prove beyond a reasonable doubt that he attempted to: (1)
knowingly or intentionally; (2) induce by threat, coercion, or false statement;
(3) a witness in an official proceeding; (4) to withhold or unreasonably delay in
producing any testimony, information, document or thing; and (5) by engaging
in conduct which constituted a substantial step toward the commission of the
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aforementioned crime. McElfresh v. State, 51 N.E.3d 103, 108 (Ind. 2016); Ind.
Code § 35-44-3-4 (repealed by P.L. 126-2012, § 53 (eff. July 1, 2012); see now
Ind. Code § 35-44.1-2-2); Ind. Code § 35-41-5-1. “Under the obstruction of
justice statute, the term ‘coercion’ ‘carries with it, at a minimum, the sense of
some form of pressure or influence being exerted on the will or choice of
another.’” McElfresh, 51 N.E.3d at 108 (quoting Sheppard v. State, 484 N.E.2d
984, 988 (Ind. Ct. App. 1985), trans. denied). “The form of pressure or influence
‘may vary widely—and certainly includes harassment, physical force,
intimidation, and threats—as long as it is exerted knowingly or intentionally to
induce conduct by a witness or informant that is proscribed’ by the obstruction
of justice statute.” Id. (quoting Sheppard, 484 N.E.2d at 988). In addition, the
failure to comply must be accompanied by a consequence. Id. If there is no
consequence, the “statement is not coercive, but is merely a request.” Id.
[14] According to Heironimus, the evidence would have been insufficient because
the letter that he wrote to Talley did not contain “any actual threats” or “overt
threats.” Appellant’s Br. p. 9. Heironimus wrote the letter at issue to a stranger
who was a witness to his fleeing the bank after the robbery. Heironimus said,
“If they find you they can force you to court – cause their [sic] the Nazi pigs,
they can not force you to say you ever saw me nor can they make you point me
out in court.” App. Vol. II p. 13. Heironimus then said, “Watch your back out
there.” Id. Finally, he said:
They’re trying to get you to point me out 1st in a line-up – you
don’t remember right. They are looking to find you & force you
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to court on Nov. 14th 2011 just to point me out in court & say
you saw me in a red truck. You’re not sure, right. Simply put,
dude, you just can’t remember or be sure! Ok?
Id. at 14. Heironimus then mentioned that he had met some people in jail that
knew Talley and Talley’s family. A reasonable fact finder could have
interpreted the letter as an attempt to induce Talley by coercion not to testify.
See, e.g., McElfresh, 51 N.E.3d at 109 (holding that the evidence was sufficient to
sustain the defendant’s conviction for attempted obstruction of justice where the
defendant sent a coercive letter to the mother of a child molesting victim). It is
extremely unlikely that this defense would have changed the outcome of the
proceeding. The post-conviction court’s findings on this issue are not clearly
erroneous.
Conclusion
[15] The post-conviction court’s denial of Heironimus’s petition for post-conviction
relief is not clearly erroneous. We affirm.
[16] Affirmed.
[17] Riley, J., and Bailey, J., concur.
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