Jarrad L. Mastin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 31 2017, 8:59 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jarrad L. Mastin Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jarrad L. Mastin, January 31, 2017
Appellant-Defendant, Court of Appeals Case No.
18A04-1605-PC-1038
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Kimberly S.
Appellee-Plaintiff. Dowling, Judge
Trial Court Cause No.
18C02-1302-PC-1
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial in 2011, Jarrad Mastin was convicted of three counts of
child molesting, one count as a Class A felony and two counts as Class B
felonies. The trial court sentenced Mastin to consecutive sentences of twenty
years for each Class B felony conviction and fifty years for his Class A felony
conviction, providing for an aggregate sentence of ninety years. On direct
appeal, we affirmed his convictions and sentence. Mastin v. State, 966 N.E.2d
197, 200 (Ind. Ct. App. 2012), trans. denied. Thereafter, Mastin filed a petition
for post-conviction relief, which the post-conviction court denied. Mastin, pro
se, now appeals the denial of post-conviction relief, raising three issues for our
review: (1) whether the post-conviction court erred in concluding Mastin’s trial
counsel was not ineffective, (2) whether the post-conviction court erred in
concluding Mastin’s appellate counsel was not ineffective, and (3) whether the
post-conviction court erred in denying Mastin’s motion for post-conviction
evidentiary hearing transcripts. Concluding the post-conviction court did not
err in finding Mastin is not entitled to relief on his claims he received ineffective
assistance of trial or appellate counsel, nor in denying Mastin’s motion for post-
conviction evidentiary hearing transcripts, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Mastin’s direct
appeal:
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Mastin’s daughter, K.M., was born on July 15, 2004, and placed
in the guardianship of her maternal grandmother, Diana Winans
(“Winans”). In 2009, K.M. began experiencing severe problems
using the bathroom. According to Winans, K.M. was “peeing
blood” and screaming, so Winans took K.M. to the hospital.
K.M. was examined and found to have blisters on her labia and
rectum. She was originally diagnosed with canker sores;
however, test results later confirmed that K.M. had been infected
with Type II genital herpes. In an interview with City of Muncie
police officers, Mastin confessed to having engaged in sexual
contact with K.M.
On January 28, 2010, the State charged Mastin with eight counts
of child molesting. Five counts were dismissed and, on July 18,
2011, Mastin was brought to trial before a jury on the remaining
three counts (two alleging sexual intercourse and one alleging
deviate sexual conduct). He was convicted as charged. On
August 30, 2011, Mastin was given consecutive sentences of
twenty years for each Class B felony conviction and fifty years for
his Class A felony conviction, providing for an aggregate
sentence of ninety years. He now appeals.
Id. at 200 (citations omitted). We affirmed Mastin’s convictions and sentence
on direct appeal. Id. at 203.
[3] On January 30, 2013, Mastin filed a pro se petition for post-conviction relief
and the post-conviction court appointed a State Public Defender to represent
him. The State Public Defender later withdrew as counsel after consulting with
Mastin and conducting an appropriate investigation into Mastin’s claims.
[4] On July 31, 2015, Mastin filed an amended petition for post-conviction relief.
In his petition, Mastin raises two claims of error, ineffective assistance of trial
counsel and ineffective assistance of appellate counsel. As to appellate counsel,
Mastin claims his counsel ineffectively argued his sentence was inappropriate.
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Mastin claims his trial counsel was ineffective for failing to communicate guilty
plea offers to him. On January 7, 2016, an evidentiary hearing was held at
which Jack Quirk, one of Mastin’s defense attorneys, testified “Mr. Mastin . . .
didn’t want to plead guilty, didn’t really want to listen to my advice. As I
recall, I told him . . . if it went to trial, he would be convicted and he would go
to prison for a longer length of time than what was offered.” Transcript at 17-
18.1 In addition, Zachary Craig, the deputy prosecuting attorney who handled
Mastin’s case, testified he faxed at least four guilty plea offers to Mr. Quirk at
his office. Each time, Mr. Quirk later responded that he discussed the plea with
Mastin who indicated he did not want to plead guilty to child molesting. After
Mr. Quirk withdrew, Mr. Craig stated he informed Mastin’s new counsel of the
status of any plea offer, stating,
[O]nce [Mr. Rowland] got onto the case, I made, I informed him
of the status of any offer, which was the last one submitted to Mr.
Quirk on December 1st[, 2010]. I told him that was basically the
standing offer. [Mr. Rowland] informed me that he was going to
basically take it to [Mastin], see what he wanted to do. By the
next pre-trial conference with Mr. Rowland, he informed me that
he wasn’t going to accept the offer. . . . [O]n the day of trial, that
morning before we started jury selection, I approached Mr.
Rowland and told him I would be willing to drop both the [Class
B felony charges] and allow him to plead to an open [Class A
felony]. So that delayed the start of the trial. Mr. Rowland and
[Mastin] met in one (1) of the jury rooms . . . for an extended
1
Prior to Mastin’s trial, Mr. Quick withdrew as Mastin’s counsel and L. Ross Rowland filed an appearance
on his behalf. Mr. Rowland also acted as Mastin’s appellate counsel. Mr. Rowland is now deceased and did
not testify at the evidentiary hearing.
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period of time, at least a half hour. . . . After a period of time,
like I said at least a half hour, [Mr. Rowland] came out . . . [and]
told me [Mastin] didn’t want to [plead guilty to the Class A
felony] so we started picking . . . the jury.
Id. at 37-38. Following the hearing, the post-conviction court issued its findings
of fact and conclusions thereon denying Mastin post-conviction relief. Mastin,
pro se, now appeals.
Discussion and Decision
I. Post-Conviction Standard of Review
[5] Post-conviction proceedings are not an opportunity for a super-appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839(2002). Rather, they create a narrow remedy for subsequent collateral
challenges to convictions that must be based on grounds enumerated in the
post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective
assistance of counsel is properly presented in a post-conviction proceeding. Id.A claim of ineffective assistance of appellate counsel is also an appropriate issue
for post-conviction review. Id. The petitioner must establish his claims by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[6] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we consider only the
evidence and reasonable inferences supporting the judgment. Hall v. State, 849
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N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the
credibility of the witnesses. See id. at 468-69. The post-conviction court’s denial
of post-conviction relief will be affirmed unless the evidence leads “unerringly
and unmistakably to a decision opposite that reached by the post-conviction
court.” McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the
evidence is without conflict and leads to but one conclusion, and the post-
conviction court reached the opposite conclusion, will the court’s findings or
conclusions be disturbed as being contrary to law. Hall, 849 N.E .2d at 469.
Finally, we do not defer to the post-conviction court’s legal conclusions, but do
accept its factual findings unless they are clearly erroneous. Stevens v. State, 770
N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).
II. Ineffective Assistance of Trial Counsel
[7] Mastin contends the post-conviction court erred in concluding his trial counsel
did not render effective assistance. Specifically, he contends trial counsel failed
to communicate guilty plea offers to him.
[8] To establish ineffective assistance of trial counsel, Mastin must show 1) his
counsel’s performance was deficient, and 2) the lack of reasonable
representation prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984). These two prongs are separate and independent inquiries. Manzano v.
State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135
S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of an ineffectiveness
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claim on one of the grounds instead of the other, that course should be
followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).
[9] As for the performance component, Mastin must “show[] that counsel’s
representation fell below an objective standard of reasonableness and that
counsel made errors so serious that counsel was not functioning as ‘counsel’
guaranteed to the defendant by the Sixth Amendment.” White v. State, 25
N.E.3d 107, 132 (Ind. Ct. App. 2014), trans. denied, cert. denied, 136 S.Ct. 595(2015). “[A]s a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012);
see also Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct. App. 2015) (holding trial
counsel renders ineffective assistance by failing to communicate favorable guilty
plea offers).
[10] To show prejudice from ineffective assistance of counsel where a plea offer has
been rejected or lapsed because of counsel’s deficient performance, Mastin must
demonstrate a “reasonable probability [he] would have accepted the earlier plea
offer had [he] been afforded effective assistance of counsel.” Frye, 132 S.Ct. at
1409. Mastin must also demonstrate a reasonable probability the plea would
have been entered without the prosecution canceling it or the trial court refusing
to accept it. Id. at 1410.
[11] As noted above, Mastin alleges no guilty pleas were discussed with him by
either Mr. Quirk or Mr. Rowland; therefore, he asserts his counsel’s
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performance was deficient. We again note it is Mastin’s burden to “establish[]
his grounds for relief by a preponderance of the evidence[,]” P-C.R. 1(5), and,
after reviewing the record, it is clear Mastin has failed to carry his burden. At
the post-conviction hearing, Mastin called Mr. Quirk, who served as Mastin’s
attorney from February 5, 2010 until his withdrawal on March 24, 2011.
Although Mr. Quirk could not recall the specific details of any of the guilty plea
offers, he was resolute that he spoke with Mastin about the plea offers, stating,
“I remember talking to you about plea offers. I remember you were against it
and you didn’t really like my advice and that’s when I decided to withdraw.”
Tr. at 17. Mr. Quirk’s advice included informing Mastin “if it went to trial, he
would be convicted and he would go to prison for a longer length of time than
what was offered.” Id. at 18. Further, Mr. Quirk’s testimony about Mastin’s
reluctance to accept any guilty plea was corroborated by the deputy prosecutor,
Mr. Craig. Mr. Craig testified after he communicated each offer, Mr. Quirk
later responded Mastin rejected the offer and did not wish to enter a plea of
guilty. Mr. Craig also testified he made a last-minute guilty plea offer on the
morning of trial, as the victim was particularly young and her guardians did not
want her to testify. According to Mr. Craig, Mastin and Mr. Rowland
discussed the offer for about thirty minutes before Mastin’s counsel informed
Mr. Craig he rejected the offer.
[12] Mastin’s testimony and recollection of events conflicts with that of his former
counsel and the deputy prosecutor, as he asserts neither Mr. Quirk nor Mr.
Rowland discussed guilty pleas with him. However, the post-conviction court
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clearly found Mr. Craig’s and Mr. Quirk’s testimony that Mastin was informed
of all guilty plea offers to be credible and it is not the role of this court to
reassess their credibility on appeal. Hall, 849 N.E.2d at 468-69. Because the
record supports the post-conviction court’s determination Mastin was informed
of the guilty plea offers made to him, we hold the post-conviction court did not
err in concluding Mastin’s trial counsel did not render ineffective assistance.2
III. Ineffective Assistance of Appellate Counsel
[13] Mastin also contends the post-conviction court erred in concluding his appellate
counsel was not ineffective. Although Mastin’s appellate counsel raised the
issue of an inappropriate sentence on direct appeal, it appears Mastin now
argues his appellate counsel inadequately presented that issue.
[14] The standard of review for claims of ineffective assistance of appellate counsel
is the same as for trial counsel in that Mastin must show appellate counsel was
deficient in his performance and the deficiency resulted in prejudice. Hollowell
v. State, 19 N.E.3d 263, 269 (Ind. 2014). To satisfy the first prong, “the
defendant must show deficient performance: representation that fell below an
objective standard of reasonableness . . . .” McCary, 761 N.E.2d at 392 (citing
2
Although we need not address the second prong of Strickland in light of our conclusion Mastin’s trial
counsel did not render deficient performance, we nonetheless find Mastin’s argument fails because he has not
established a “reasonable probability [he] would have accepted the earlier plea offer . . . .” Frye, 132 S.Ct. at
1409. At the post-conviction hearing, Mastin testified, “[I]f they would have . . . communicated especially
that last plea offer, most likely I would have took [sic] that under some consideration.” Tr. at 25. From this
statement, we cannot definitively say Mastin would have even considered the guilty plea. Therefore, even if
we assume his trial counsels’ performance was deficient, we conclude Mastin has not established a
reasonable probability he would have accepted the guilty plea offers.
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Strickland, 466 U.S. at 687-88). To satisfy the second prong, “the defendant
must show prejudice: a reasonable probability (i.e. a probability sufficient to
undermine confidence in the outcome) that, but for counsel’s errors, the result
of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at
694). A claim of ineffective assistance resting on appellate counsel’s
presentation of a claim must overcome the strongest presumption of adequate
assistance and relief is only appropriate when the appellate court is confident it
would have ruled differently. Bieghler v. State, 690 N.E.2d 188, 196 (Ind. 1997),
cert. denied, 525 U.S. 1021 (1998).
[15] On direct appeal, Mastin’s appellate counsel invoked our authority to review
and revise a sentence after consideration of the nature of the offense and the
character of the offender. See Ind. Appellate Rule 7(B). We were unpersuaded
by his argument and affirmed his sentence. Mastin, 966 N.E.2d at 203. Now,
the heart of Mastin’s argument is his appellate counsel ineffectively argued his
sentence was inappropriate by failing to compare and contrast Mastin’s own
convictions and sentence with that of several cases in which this court or our
supreme court has exercised its sentence revision authority. However, we note
Mastin failed to provide the post-conviction court with a copy of his direct
appeal appellant’s brief. As it is impossible to gauge the quality of appellate
counsel’s performance without consideration of the appellate work product, we
cannot say Mastin has met his burden of proving appellate counsel’s
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performance was deficient.3 The absence of evidence on Mastin’s ineffective
assistance of appellate counsel claim supports the post-conviction court’s
conclusion Mastin failed to meet his burden of proof.4 See Taylor v. State, 882
N.E.2d 777, 782 (Ind. Ct. App. 2008) (holding petitioner failed to meet his
burden of proof on a claim of ineffective assistance of trial counsel by failing to
tender the trial transcript to the post-conviction court).
IV. Denial of Post-Conviction Evidentiary Hearing
Transcripts
[16] Finally, Mastin contends the post-conviction court erred by denying his request
for post-conviction evidentiary hearing transcripts in order to prepare his
proposed findings of fact and conclusions of law. The post-conviction court
denied Mastin’s motion to compel the transcripts because he was unable to pay
for their cost and was not entitled to have them produced at public expense.
3
We note Indiana Rule of Evidence 201(a)(2)(C) permits a court to take judicial notice of “records of a court
of this state.” A court “may take judicial notice on its own[,]” or it “must take judicial notice if a party
requests it and the court is supplied with the necessary information.” Ind. Evidence Rule 201(c) (emphasis
added). Here, the post-conviction court did not exercise its discretion to take judicial notice of Mastin’s
direct appeal appellant’s brief. Mastin asserts he requested the post-conviction court take judicial notice of all
records, including his direct appeal brief; however, a review of his motion reveals he requested the post-
conviction court to take judicial notice of its “own records” that are in relation to the “jury/bench trial [that]
was conducted by this Court.” Appellant’s Appendix at 238. Therefore, to the extent Mastin asserts his
request that the post-conviction court take judicial notice included the records of the Court of Appeals of
Indiana, his argument fails.
4
Mastin attempts to remedy his failure to provide his direct appeal appellant’s brief by including it his
appendix. It is clear this brief was not part of the record below; thus, we will not consider it in this appeal.
See In re D.L.M., 725 N.E.2d 981, 983 n.4 (Ind. Ct. App. 2000) (noting “the well-established rule of appellate
procedure that our court may not consider evidence outside the record” and declining to consider a report
that was included in the appendix but was not part of the record).
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[17] Indiana Post-Conviction Rule 1(9)(b) provides, in relevant part, that petitioners
who are indigent are “entitled to a record of the post-conviction proceeding at
public expense for appeal of the denial or dismissal of the petition.” Mastin,
however, cites no statute or rule, and we find none, that provides a petitioner
with a transcript of the post-conviction proceeding at public expense before the
denial or dismissal of a petition.5 Therefore, we conclude that the post-
conviction court did not err by denying Mastin’s request for transcripts of the
evidentiary hearings in order to prepare his proposed findings and conclusions.
Conclusion
[18] The post-conviction court did not err in concluding Mastin is not entitled to
post-conviction relief on his claims he received ineffective assistance of trial and
appellate counsel, nor did it err in denying his motion for post-conviction
evidentiary hearing transcripts. Accordingly, we affirm.
[19] Affirmed.
Kirsch, J., and Barnes, J., concur.
5
The cases which Mastin cites for support of his argument, Murray v. Giarratano, 492 U.S. 1 (1989), Ross v.
Moffitt, 417 U.S. 600 (1974), Hardy v. U.S., 375 U.S. 277 (1964), Lane v. Brown, 372 U.S. 477 (1963), Lumbert
v. Finley, 735 F.2d 239 (7th Cir. 1984), and Campbell v. Criterion Group, 605 N.E.2d 150 (Ind. 1992), are
inapplicable to this issue.
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