John Mazurak v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 29 2016, 9:23 am
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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
John Mazurak Gregory F. Zoeller
Westville, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Mazurak, January 29, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1502-PC-55
v. Appeal from the Allan Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
02D04-1404-PC-110
Robb, Judge.
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Case Summary and Issues
[1] John Mazurak, pro se, appeals the post-conviction court’s denial of his petition
for post-conviction relief, raising the following restated issues: (1) whether
Mazurak received ineffective assistance of trial counsel, and (2) whether the
post-conviction judge committed misconduct. Concluding Mazurak did not
receive ineffective assistance of counsel and the post-conviction judge
committed no misconduct, we affirm the denial of Mazurak’s petition for post-
conviction relief.
Facts and Procedural History
[2] On July 13, 2012, a Kroger loss prevention officer (“LPO”) noticed a man later
identified as Mazurak adjusting his pants in an aisle of the grocery store. The
only item in Mazurak’s cart was a bottle of water. The LPO followed Mazurak
and observed Mazurak conceal a can of cherries in his pants. Mazurak
proceeded to a self-checkout terminal, where he paid only for the bottle of
water. The LPO stopped Mazurak as he was exiting the store. Mazurak
removed over fourteen dollars of merchandise from his pants and fled on foot.
The police apprehended Mazurak in the parking lot, and the State charged him
with theft as a Class D felony.
[3] On January 9, 2013, Mazurak and the State entered into a plea agreement,
which left sentencing to the discretion of the trial court but capped the executed
portion of Mazurak’s sentence at 183 days. The trial court conducted a guilty
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plea hearing, at which time the trial court questioned Mazurak and advised
Mazurak of the rights he was waiving by pleading guilty, including the right to
appeal his sentence.1 When the trial court asked Mazurak if he had ever
received treatment for “any mental illness” or if he was currently suffering from
“any mental or emotional disability,” Mazurak said, “No.” Tr. of Guilty Plea
Hr’g at 4. When the trial court asked Mazurak if he understood he was
admitting to the crime charged by pleading guilty, Mazurak replied, “I put the
two dollar jar of jam in my pocket which is theft.” Id. at 6. The trial court took
the plea agreement under advisement, pending receipt of the presentence
investigation report, and scheduled a sentencing hearing for February 4, 2013.
[4] Mazurak failed to appear for sentencing, and the trial court issued a warrant for
his arrest. Mazurak was arrested several months later. At the sentencing
hearing held on June 25, 2013, Mazurak informed the trial court he suffers from
“blackout spells” caused by permanent neurological damage:
It was totally unintentional and the bottom line is I have a infract
[sic] that causes that, my forgetfulness, which is a physical
organic condition and it just—I do that . . . . I have medical
records. I went to a lot of MRI’s and all that kind of thing to find
1
When a defendant pleads guilty under the terms of an agreement that provides for a sentencing cap or
range, the defendant may subsequently appeal his or her sentence because the trial court exercised some
amount of discretion in determining an appropriate sentence. Rivera v. State, 851 N.E.2d 299, 301 (Ind.
2006). Here, Mazurak waived the right to appellate review pursuant to the terms of the plea agreement he
entered with the State. Transcript of Guilty Plea Hearing at 5-6; see also Creech v. State, 887 N.E.2d 73, 75
(Ind. 2008) (holding a defendant may waive the right to appeal his or her sentence as part of a written plea
agreement).
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out why it is that I can just blank out and I do. Quite kind of like
a sleep walk but it doesn’t last very long . . . .
Transcript of Sentencing Hearing at 9. Mazurak offered no evidence
documenting his condition.
[5] The trial court accepted the plea agreement, entered judgment of conviction for
theft as a Class D felony, and sentenced Mazurak to three years in the
Department of Correction, with 183 days executed and the remainder
suspended to probation. Mazurak filed his first pro se petition for post-
conviction relief in 2013, which the post-conviction court dismissed without
prejudice. He filed a second pro se petition in 2014, alleging he received
ineffective assistance of trial counsel and that the trial court, in various ways,
abused its discretion. The post-conviction court ordered Mazurak submit his
case by affidavit pursuant to Indiana Post-Conviction Rule 1(9)(b). Mazurak
moved to vacate the court’s order and set an evidentiary hearing, but he also
filed a “Reply to the State[’]s Answer to Post Conviction Relief,” which the
post-conviction court concluded “appears to serve the purpose of submission of
[Mazurak’s] case by affidavit.” Appellant’s Brief at 20 (Findings of Fact at ¶ 3).
On January 30, 2015, the post-conviction court issued written findings of fact
and conclusions of law in an order denying Mazurak’s petition without an
evidentiary hearing. Mazurak now appeals the denial of his petition for post-
conviction relief. Additional facts will be provided as necessary.
Discussion and Decision
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I. Denial of Post-Conviction Relief
A. Standard of Review
[6] Post-conviction proceedings “provide a narrow remedy to raise issues that were
not known at the time of the original trial or were unavailable on direct
appeal.” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). The petitioner bears
the burden of establishing grounds for relief by a preponderance of the
evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is denied post-
conviction relief appeals from a negative judgment, which may be reversed only
if “the evidence, as a whole, unmistakably and unerringly points to a
conclusion contrary to the post-conviction court’s decision.” Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013) (citation omitted).
[7] In reviewing a denial of post-conviction relief, we neither reweigh the evidence
nor assess the credibility of witnesses. State v. Holmes, 728 N.E.2d 164, 169
(Ind. 2000), cert. denied, 532 U.S. 1067 (2001). We consider only the evidence
that supports the judgment and the reasonable inferences to be drawn from that
evidence. Id. We accept the post-conviction court’s factual findings unless
clearly erroneous, but we do not defer to its legal conclusions. Stevens v. State,
770 N.E.2d 739, 746 (Ind. 2002) (citing Ind. Trial Rule 52(A)), cert. denied, 540
U.S. 830 (2003).
B. Ineffective Assistance of Counsel
[8] Mazurak contends the post-conviction court erred in denying his petition for
post-conviction relief, which alleged he received ineffective assistance of trial
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counsel. The Sixth Amendment “right to counsel is the right to the effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a
claim of ineffective assistance of counsel, a petitioner must demonstrate (1)
counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Id. at 687. Counsel’s performance was deficient if it fell
below an objective standard of reasonableness based on prevailing professional
norms. Id. at 688.
[9] As for the prejudice prong, there are two types of ineffective assistance claims
available to a defendant who pleaded guilty: “(1) failure to advise the
defendant on an issue that impairs or overlooks a defense and (2) an incorrect
advisement of penal consequences.” Manzano v. State, 12 N.E.3d 321, 326 (Ind.
Ct. App. 2014) (citation omitted), trans. denied, cert. denied, 135 S. Ct. 2376
(2015). For claims relating to an overlooked defense, a petitioner must show a
reasonable probability that he would have been acquitted had he gone to trial.
Id. Where a petitioner claims counsel provided incorrect advice regarding penal
consequences, the petitioner must show “the hypothetical reasonable defendant
would have elected to go to trial if properly advised.” Segura v. State, 749
N.E.2d 500, 507 (Ind. 2001).
[10] Mazurak argues counsel rendered ineffective assistance by failing to: (1) raise
an automatism defense, (2) challenge the constitutionality of Indiana’s theft
statute, (3) object to the lack of a factual basis for Mazurak’s guilty plea, and (4)
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advise Mazurak of the trial court’s discretion to impose a period of probation
under the terms of the plea agreement.2 We will address each allegation in turn.
1. Automatism Defense
[11] Mazurak claims he suffers from “blackout spells,” which “disconnect the
conscious mind thought processes from the rest of the brain’s functions . . . .”
Appellant’s Br. at 12. Mazurak insists he was experiencing a “blackout spell”
at the time of the offense and that counsel knew of his condition. Mazurak now
contends counsel was ineffective by failing to raise an automatism defense, but
in his petition for post-conviction relief, Mazurak argued counsel was
ineffective by failing to raise an insanity defense. In either case, Mazurak
claims counsel overlooked a defense.
[12] Automatism is a state of unconscious behavior that “need not be the result of a
disease or defect of the mind.” McClain v. State, 678 N.E.2d 104, 106, 108 (Ind.
1997) (citation omitted). In Indiana, automatism is a recognized defense
separate from the insanity defense. Id. at 108-09. Where unconscious behavior
manifests in a person of sound mind, evidence of automatism may show a lack
of criminal intent. Id. at 107-08 (citing Ind. Code § 35-41-2-1). To the extent a
2
Mazurak also argues counsel was ineffective by failing to move to dismiss the allegedly defective charging
information. Because this issue was not raised in Mazurak’s petition for post-conviction relief, this claim is
now unavailable. P-C.R. 1(8) (stating all grounds for relief must be raised in the original petition for post-
conviction relief); Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-
conviction relief may not be raised for the first time on post-conviction appeal.”), cert. denied, 535 U.S. 1061
(2002).
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person’s actions are attributable to a “mental disease or defect,”3 the insanity
defense applies. Id. at 108 (citing Ind. Code § 35-41-3-6); see also Reed v. State,
693 N.E.2d 988, 991-92 (Ind. Ct. App. 1998) (holding a “small stroke” causing
disorientation and memory lapses was not a “mental disease or defect” within
the meaning of the insanity statute and that evidence of the condition was
relevant to issue of voluntariness).
[13] In support of his petition for post-conviction relief, Mazurak submitted several
unauthenticated medical records from 2011. The post-conviction court
concluded the results of an MRI show “Mazurak’s brain was abnormal in some
respects, but does not show that he had any mental disease or defect that
rendered him ‘unable to appreciate the wrongfulness of his conduct at the time
of the offense.’” Br. of Appellant at 21 (Findings of Fact at ¶ 5) (citing Ind.
Code § 35-41-3-6). The post-conviction court further concluded there was no
evidence suggesting Mazurak’s counsel knew or should have known an insanity
defense would be successful, noting Mazurak first raised the issue at sentencing
and had previously told the trial court, on the record, that he did not suffer from
any mental illness or disability. Id. at 20-21 (Findings of Fact at ¶ 4-¶ 5) (citing
Tr. of Guilty Plea Hr’g at 4).
3
“As used in [Indiana Code section 35-41-3-6], ‘mental disease or defect’ means a severely abnormal mental
condition that grossly and demonstrably impairs a person’s perception, but the term does not include an
abnormality manifested only by repeated unlawful or antisocial conduct.” Ind. Code § 35-41-3-6(b).
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[14] Under these circumstances, we cannot say the evidence “unmistakably and
unerringly points to a conclusion contrary to the post-conviction court’s
decision.” Wilkes, 984 N.E.2d at 1240. To the extent Mazurak argues counsel
should have raised an automatism defense, the claim is unavailable because he
did not raise the issue in his original petition. P-C.R. 1(8) (stating all grounds
for relief must be raised in the original petition for post-conviction relief); Allen,
749 N.E.2d at 1171 (“Issues not raised in the petition for post-conviction relief
may not be raised for the first time on post-conviction appeal.”).
[15] To the extent Mazurak argues counsel should have raised an insanity defense,
Mazurak presented no evidence suggesting counsel knew or should have known
of his condition prior to the sentencing hearing, which was held over six
months after the guilty plea hearing. See Allen v. State, 566 N.E.2d 1047, 1055
(Ind. Ct. App. 1991) (concluding counsel’s failure to request a neurological
examination did not constitute deficient performance because there no was
indication counsel was aware of defendant’s neurological abnormality prior to
trial). Moreover, Mazurak has failed show a reasonable probability an insanity
defense would have been successful had he gone to trial. See Manzano, 12
N.E.3d at 326. Indiana Code section 35-41-3-6(a) provides, “A person is not
responsible for having engaged in prohibited conduct if, as a result of mental
disease or defect, he was unable to appreciate the wrongfulness of the conduct
at the time of the offense.” (emphasis added). The medical records submitted to
the post-conviction court are from 2011, a year before Mazurak’s arrest in the
present case. The records do not establish Mazurak was experiencing a
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“blackout spell” at the time of the offense, and even assuming the offense did
occur during a “blackout spell,” the records do not suggest Mazurak would
have been unable to appreciate the wrongfulness of his conduct. At most, the
records show Mazurak has a neurological abnormality of undetermined
significance. The post-conviction court properly denied relief on this claim.
2. Constitutionality of Indiana’s Theft Statute
[16] Mazurak contends the version of theft statute that was in effect at the time of
his offense is unconstitutionally vague and that counsel was ineffective by
overlooking this defense. At the time of Mazurak’s offense, the statute
provided,
(a) A person who knowingly or intentionally exerts unauthorized
control over property of another person, with intent to deprive
the other person of any part of its value or use, commits theft, a
Class D felony. However, the offense is a Class C felony if:
(1) the fair market value of the property is at least one
hundred thousand dollars ($100,000) . . . .
Ind. Code § 35-43-4-2(a) (2009). Effective July 1, 2014, the theft statute was
amended as part of the General Assembly’s comprehensive revision of the
criminal code. See Pub. L. No. 168-2014; Pub. L. No. 158-2013. The pertinent
portion of the theft statute now reads,
(a) A person who knowingly or intentionally exerts unauthorized
control over property of another person, with intent to deprive
the other person of any part of its value or use, commits theft, a
Class A misdemeanor. However, the offense is:
(1) a Level 6 felony if:
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(A) the value of the property is at least seven
hundred fifty dollars ($750) and less than fifty
thousand dollars ($50,000);
***
(2) a Level 5 felony if:
(A) the value of the property is at least fifty
thousand dollars ($50,000) . . . .
Ind. Code § 35-43-4-2(a) (2014).
[17] Mazurak argues the 2014 amendments render the old version of the statute
unconstitutionally vague. From what we can discern, Mazurak contends the
amendments make it impossible for an ordinary person to know whether theft is
a misdemeanor or a felony. His argument focuses on the addition of a value
threshold making theft of property worth less than $750 a Class A
misdemeanor. He also claims the statute criminalizes the taking of “worthless
abandoned property.” Appellant’s Br. at 15.
[18] Any challenge to the validity of a statute must overcome a presumption of
constitutionality. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). A criminal
statute may be invalidated for vagueness if it (1) fails to provide notice enabling
an ordinary person to understand the conduct it prohibits, or (2) authorizes or
encourages arbitrary or discriminatory enforcement. Id. (citing City of Chicago v.
Morales, 527 U.S. 41, 56 (1999)). However, a statute is void for vagueness only
if it is vague as applied to the precise circumstances of the case at hand.
Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). “The
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defendant is not at liberty to devise hypothetical situations which might
demonstrate vagueness.” Id.
[19] The post-conviction court concluded,
[Mazurak] admitted at the guilty plea hearing that the property
he took did have a value of two dollars ($2.00), [Tr. of Guilty
Plea Hr’g at 6, 11], so . . . there was no question of “valueless”
property under the precise circumstances of his case. He
correctly asserts that, under present law, theft of property worth
less than seven hundred fifty dollars ($750.00) would be a
misdemeanor. However, he fails to note that savings clauses
enacted in connection with the revision of Indiana’s criminal
code (effective July 1, 2014) make it clear that the revision does
not affect penalties incurred before the effective date of the new
code, and that the doctrine of amelioration is not to be applied to
such penalties. [Ind. Code § 1-1-5.5-21, -22]. The new definition
of theft as a felony (including a value of at least $750.00) does not
retroactively render the old definition (with no specified dollar
value) unclear or unintelligible to persons of ordinary
intelligence.
Appellant’s Br. at 23 (Conclusions of Law at ¶ 4).
[20] We agree with the post-conviction court, and we would further note both
versions of the theft statute require, as an element of the offense, “unauthorized
control over property of another person, with intent to deprive the other person of
any part of its value or use.” Ind. Code § 35-43-4-2 (emphasis added). We
therefore fail to comprehend how either version could be construed as
criminalizing the taking of “worthless abandoned property.” Appellant’s Br. at
15. And in this particular case, Mazurak admitted his actions constituted theft.
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Prior to the trial court requesting a factual basis at the guilty plea hearing,
Mazurak twice blurted out, “I put the two dollar jar of jam in my pocket which
is theft.” Tr. of Guilty Plea Hr’g at 6 (emphasis added).4 Because a vagueness
challenge to the theft statute would have been meritless, the post-conviction
court properly denied relief on this claim of ineffective assistance. Gordon v.
State, 645 N.E.2d 25, 28 (Ind. Ct. App. 1995) (“Counsel will not be deemed to
be ineffective for failing to present meritless claims.”), trans. denied.
3. Factual Basis for Mazurak’s Guilty Plea
[21] Mazurak contends he pleaded innocent, not guilty, and counsel was ineffective
by failing to object to the lack of a factual basis for his guilty plea. Mazurak
points to two statements at the sentencing hearing: (1) his statement that the
theft was “totally unintentional” due to his “blackout spells,” and (2) his
statement that he had “no choice” but to accept the standard terms of
probation. Tr. of Sentencing Hr’g at 9, 12. During the guilty plea hearing six
months before the sentencing hearing, Mazurak admitted guilt three separate
4
To the extent Mazurak contends no theft occurred because the merchandise was unopened and never left
the store, that argument goes to the sufficiency of the evidence to support his conviction. “It is well settled
that a person who pleads guilty cannot challenge the propriety of the resulting conviction on direct appeal[,]”
Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009), and the claim is now unavailable because
post-conviction relief generally may not be based upon any “ground . . . knowingly, voluntarily,
and intelligently waived in the proceeding that resulted in the conviction.” A plea of guilty thus
forecloses a post-conviction challenge to the facts adjudicated by the trial court’s acceptance of
the guilty plea and resulting conviction.
Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008) (quoting P-C.R. 1(8)).
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times and at no point claimed to be innocent. See Tr. of Guilty Plea Hr’g at 6,
11.
[22] In Indiana, “a trial court cannot accept a guilty plea from a defendant who
pleads guilty and maintains his innocence at the same time.” Johnson v. State,
734 N.E.2d 242, 245 (Ind. 2000) (citing Ross v. State, 456 N.E.2d 420, 423 (Ind.
1983)). “A trial court may, however, accept a guilty plea from a defendant who
pleads guilty in open court, but later protests his innocence.” Id. Even when a
guilty plea has not been formally accepted, a trial court is not required to permit
a defendant to withdraw his plea if he later claims innocence. Carter v. State,
739 N.E.2d 126, 130-31 (Ind. 2000) (holding the trial court did not err by
denying the defendant permission to withdraw his guilty plea at the sentencing
hearing held a month after the guilty plea hearing).
[23] The post-conviction court concluded, and we agree, “Mazurak is not entitled to
post-conviction relief on the ground that he entered his guilty plea at one time
and claimed to be innocent at another, without regard to which happened first.”
Appellant’s Br. at 24 (Conclusions of Law at ¶ 7). Furthermore, we are
unpersuaded Mazurak’s statements should be considered assertions of
innocence. Mazurak claiming he “unintentionally” shoplifted is not the same
as Mazurak denying he did so, and Mazurak’s statement regarding the terms of
his probation had nothing to do with his guilt or innocence. The post-
conviction court properly denied relief on this claim.
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4. Mazurak’s Sentence
[24] Finally, Mazurak contends counsel was ineffective by failing to advise him of
the trial court’s discretion to impose a period of probation as part of the plea
agreement. Mazurak pleaded guilty to a Class D felony and thus faced a
maximum sentence of three years. Ind. Code § 35-50-2-7(a) (2012). The plea
agreement left sentencing to the discretion of the trial court but capped the
executed portion of Mazurak’s sentence at 183 days. At the guilty plea hearing,
the trial court advised Mazurak of the maximum penalty, and the following
exchange took place:
Q: I have in front of me a plea agreement in your case that
appears to have your signature on it. Did you sign it?
A: Yes Your Honor.
Q: Did you read it before you signed it?
A: Yes Your Honor.
Q: Did you discuss it with your attorney before you signed it?
A: Yes.
Q: Mr. Mazurak, it reads that at sentencing the defendant,
defendant’s attorney, and state may present facts and
argument but the Court has the final authority to impose a
sentence it deems proper. However, the executed portion
shall be no more than 183 days. The Court has the
authority to impose . . . fines, costs, standard, or special
conditions of probation it deems proper; pay $100.00
public defender fee; you waive your right to appeal the
reasonableness of the sentence and the State has no
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objection to you serving any executed sentence in Home
Detention or Work Release if eligible. Is that your
understanding of the plea agreement?
A: Yes Your Honor.
Tr. of Guilty Plea Hr’g at 8-9.
[25] The trial court sentenced Mazurak to three years in the Department of
Correction, with 183 days executed and the remainder suspended to probation.
When the trial court announced Mazurak’s sentence, Mazurak stated he was
under the impression the sentence could not exceed 183 days total. Tr. of
Sentencing Hr’g at 11. Now, Mazurak argues counsel misadvised him of the
terms of the plea agreement.5 But even if this were so—and there is no evidence
suggesting it is—the trial court advised Mazurak of the terms. Mazurak
therefore cannot show “the hypothetical reasonable defendant would have
elected to go to trial if properly advised.” Segura, 749 N.E.2d at 507 (emphasis
added). Mazurak was properly advised, even if he was not advised by counsel.
The post-conviction court properly denied relief on this claim.
II. Judicial Misconduct
[26] As best we can discern, Mazurak contends the post-conviction judge—who also
presided over Mazurak’s case at the trial court level—committed misconduct by
5
To the extent Mazurak argues his sentence exceeded the terms of the plea agreement, we disagree. The
terms of the plea agreement were clear, and the trial court did not depart from them.
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ordering Mazurak to submit his case by affidavit and by exhibiting personal
bias. Under Post-Conviction Rule 1(9)(b), “In the event petitioner elects to
proceed pro se, the court at its discretion may order the cause submitted upon
affidavit.” Mazurak proceeded pro se and provides no argument as to why an
evidentiary hearing was required in his case. See Ind. Appellate Rule
46(A)(8)(a) (requiring each contention in the appellant’s brief be supported by
cogent reasoning and citations to the authorities and parts of the record relied
on). As to the alleged bias, Mazurak argues the judge openly exhibited
personal bias against persons with mental disabilities. Mazurak cites no specific
instances demonstrating bias, and we find no support for this allegation in the
record. In short, these arguments are waived due to Mazurak’s failure to
comply with the appellate rules, but we would also note, waiver
notwithstanding, we find no evidence of judicial misconduct in the record.
Conclusion
[27] Mazurak received effective assistance of trial counsel, and the post-conviction
judge did not commit misconduct. We therefore affirm the post-conviction
court’s denial of post-conviction relief.
[28] Affirmed.
Barnes, J., and Altice, J., concur.
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