Darryl L. Abron v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral Dec 05 2013, 9:58 am
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DARRYL L. ABRON GREGORY F. ZOELLER
Plainfield, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARRYL L. ABRON, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1301-PC-56
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clark Rogers, Judge
Cause No. 49G22-0805-FC-116813
December 5, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Darryl Abron appeals the denial of petition for post-conviction relief. We affirm.
Issues
Abron raises three issues, which we restate as:
I. whether the post-conviction court properly determined
that he did not receive ineffective assistance of trial
counsel;
II. whether the post-conviction court properly determined
that his guilty plea was knowing, intelligent, and
voluntary; and
III. whether the post-conviction court properly determined
that the jury trial issue was waived.
Facts
In 2008, Abron was charged with Class C felony burglary, Class A misdemeanor
resisting law enforcement, and Class A misdemeanor criminal mischief. Abron was also
alleged to be an habitual offender. Attorney Dan Mohler was appointed to represent
Abron.
Shortly before the scheduled jury trial, the State offered Abron a plea arrangement
in which he would plead guilty to the burglary charge and the habitual offender
enhancement with a minimum sentence of six years and a maximum sentence of twelve
years. After Mohler and Abron discussed the offer, Abron did not accept it, and the offer
expired.
On September 29, 2008, after a jury was selected, Abron had a panic attack and
was transported to the hospital, and the trial was continued until the next day. In the
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meantime, Abron and the State entered into a written plea agreement that called for
Abron to plead guilty to the burglary and resisting law enforcement charges and to being
an habitual offender. In exchange, the criminal mischief charge would be dismissed, and
the executed sentence would be capped at twelve years.
When the trial reconvened on September 30, 2008, Abron refused to plead guilty
to being an habitual offender. Abron then indicated he wanted to abandon the plea
agreement, plead guilty as charged to the burglary, resisting law enforcement, and
criminal mischief charges, and have a jury trial on the habitual offender enhancement.
Abron explained that Mohler suggested this strategy before his panic attack the day
before. In response, Mohler explained that that advice was given before the current plea
offer was made. Mohler then advised Abron to take the plea agreement because “[t]hings
have changed” and it “is a totally different situation” than when he was advising Abron
the day before. Trial Tr. p. 43. Abron rejected this advice and again indicated he wanted
to plead guilty to the pending charges and have a jury decide the habitual offender
enhancement. Mohler and Abron discussed the situation, and Mohler stated, “Things
have changed since my advice to you last time. . . . My previous advice has changed
because of an intervening situation.” Id. at 45-46.
Mohler then informed the trial court and Abron that the decision to plead guilty
was Abron’s alone, that he was disassociating himself from Abron’s decision to plead
guilty or proceed to a jury trial, and that he was not saying anything else until Abron
made a final decision. Mohler then apparently walked away from the defense table but
remained in the courtroom while Abron pled guilty to the pending charges.
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Mohler then represented Abron during the jury trial on the habitual offender
allegation and objected to the use of the prior convictions on cruel and unusual
punishment and double jeopardy grounds. The objection was overruled, and Abron was
found to be an habitual offender. The trial court sentenced Abron to eight years on the
burglary charge, which was enhanced by twelve years for being an habitual offender, and
to one year on each of the misdemeanor charges, for a total sentence of twenty-two years.
Abron filed a direct appeal arguing that his convictions for burglary and criminal
mischief violated double jeopardy principles and that his sentence was not proportionate
to the nature of the crime. A panel of this court dismissed his appeal as it related to his
convictions and affirmed his sentence. See Abron v. State, No. 49A02-0811-CR-986
(Ind. Ct. App. July 30, 2009).
In 2010, Abron filed a pro se petition for post-conviction relief, which he amended
in 2012. Following a hearing, at which Mohler and Abron testified, the post-conviction
court denied Abron’s petition. Abron now appeals.
Analysis
A petitioner in a post-conviction proceeding bears the burden of proof, and an
unsuccessful petitioner appeals from a negative judgment. Pruitt v. State, 903 N.E.2d
899, 905 (Ind. 2009). 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 post-conviction court. Id. 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.4
I. Ineffective Assistance of Counsel
Abron claims that he received ineffective assistance of counsel. “To prevail on a
claim of ineffective assistance of counsel, a petitioner must demonstrate both that his
counsel’s performance was deficient and that the petitioner was prejudiced by the
deficient performance.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App.
2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984)), trans. denied. The failure to satisfy either prong will cause the claim to fail. Id.“Counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms.” Id. To establish 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. Counsel’s Advice Regarding Habitual Offender Enhancement
Abron asserts that Mohler incorrectly advised him that the State could not use the
prior felony convictions to support the habitual offender enhancement because those
same convictions had already been used to support a previous habitual offender
enhancement. Abron claims that Mohler’s advice regarding the use of the convictions
informed his decision to reject the plea agreement and plead guilty to the pending charges
and to have a jury trial on the habitual offender enhancement.
The record does not establish that Abron was misadvised by Mohler. It is clear
from the transcript of the trial proceedings that Mohler’s advice to plead guilty to the
pending charges and proceed to a jury trial on the habitual offender enhancement was
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given when there was no plea offer from the State. Mohler explained that the situation
changed in light of the plea offer and advised Abron to accept the offer.
At the post-conviction hearing, Mohler testified that he had come across this issue
before in his representation of another client and learned that the State could use the same
convictions it had already used to support a previous habitual offender enhancement.
Mohler testified that, although the higher courts had already ruled on the issue, he
intended to challenge the use of the same underlying felony convictions. This is
consistent with Mohler’s objection to the use of the prior convictions on cruel and
unusual punishment and double jeopardy grounds during the habitual offender trial. This
was a reasonable strategy in the absence of a plea offer.
The post-conviction court concluded:
The fact that Petitioner ultimately set out on a course that led
to a longer prison sentence (22 years, instead of the capped
12-year offer that Mr. Mohler had advised him to take) cannot
be blamed on Mr. Mohler, who, in the Court’s opinion, did
everything that he could lawfully and properly do to advise
Petitioner, who, to his detriment, thought he could do better
for himself. As stated above, the Court does not find that
Petitioner’s mistaken belief about the State’s ability to prove
the habitual offender charge can be attributed to Mr. Mohler.
App. p. 41. Based on our review of the post-conviction relief hearing testimony and the
transcript of the underlying proceedings, Abron has not established that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite to that reached by the
post-conviction court.
B. Abandonment
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When Abron rejected the plea agreement and decided to plead guilty to the
pending charges, the relationship between Abron and Mohler became very strained and
Mohler walked away from the defense table but remained in the courtroom while the trial
court accepted Abron’s guilty plea and a factual basis was established. Abron claims
that, by walking away from the table, Mohler abandoned him during a critical stage in the
proceeding.
Abron has not established that Mohler’s representation fell below an objective
standard of reasonableness because Mohler did not abandon Abron during the guilty plea
proceedings. Mohler testified at the post-conviction relief hearing that, when he met with
Abron at the jail, Abron agreed to accept the plea agreement but, when they arrived at
court, Abron changed his mind. Mohler testified that he and Abron were not on the same
page the day of the plea and that he explained to Abron that he could not make the
decision whether to plead guilty for Abron. Mohler then physically removed himself
from sitting next to Abron to try to show him that the decision regarding the plea was his.
On this issue, the post-conviction court found that, by creating space, Mohler most
likely reduced tension levels to a point where Abron could more effectively make his
decision and that the transcript revealed “that the continual dithering by Petitioner, his
constant vacillations and apparent refusal to hear what was being told to him put all
parties and the Court in a tense and frustrating situation.” App. p. 40. The post-
conviction court concluded that, at that point, Abron had been fully advised by Mohler,
that Abron was fully and accurately advised by the trial court about the plea, and that
Mohler did not cease to act as Abron’s attorney simply because he momentarily walked
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away from the table when Abron was “making it difficult, if not impossible for Mr.
Mohler to perform his duties.” Id. at 41. The evidence as a whole does not lead
unerringly and unmistakably to the opposite conclusion.
C. Failure to Object
Abron argues that he received ineffective assistance of counsel because Mohler
failed to object to the trial court’s convening of a jury to determine Abron’s habitual
offender status. According to Abron, the habitual offender status should have been
determined by the trial court pursuant to Indiana Code Section 35-50-2-8(f), which
provides, “If the person was convicted of the felony in a jury trial, the jury shall
reconvene for the sentencing hearing. If the trial was to the court or the judgment was
entered on a guilty plea, the court alone shall conduct the sentencing hearing under IC 35-
38-1-3.”
The transcript of the trial proceedings clearly shows that Abron requested a jury
trial on his habitual offender status. It is well-settled that a defendant may not request a
trial court to take an action and later claim on appeal that such action is erroneous.
Baugh v. State, 933 N.E.2d 1277, 1280 (Ind. 2010). Under the invited error doctrine,
Abron may not take advantage of any error that was created by his request for a jury trial
on the habitual offender allegation. See id.Nevertheless, on this issue, the post-conviction court concluded that Abron “fails
to show any prejudice from being permitted, albeit erroneously under state statute, to
exercise his constitutionally guaranteed right to a jury trial. And he fails to show any
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likelihood of a different result had the evidence been presented to the judge alone.” App.
p. 43.
In an attempt to circumvent the prejudice prong of an ineffective assistance of
counsel claim, Abron claims that the resulting jury trial amounted to fundamental error
and, therefore, prejudice is presumed. The cases Abron cites do not support this
proposition. In fact, Benefield v. State, 945 N.E.2d 791, 804 (Ind. Ct. App. 2011), trans.
denied, upon which Abron relies, explains that fundamental error and prejudice for
ineffective assistance of trial counsel claims are different questions. Ineffective
assistance prejudice is based on a reasonable probability of a different result, while
fundamental error occurs only when the error is so prejudicial that a fair trial is rendered
impossible. Id. Thus, our review is limited to whether Abron has established a
reasonable probability that the result of the habitual offender trial would have been
different had it been decided by the trial court. He has not. The post-conviction court
properly rejected this claim.
II. Knowing, Intelligent, and Voluntary Plea
Abron claims that the post-conviction court failed to address his claim that,
because of the ineffective assistance of counsel, his guilty plea was not knowing,
intelligent, and voluntary. To the contrary, the post-conviction court specifically found
that Abron’s “decision to plead guilty as he did was made knowingly, intelligently and
voluntary as it pertains to Mr. Mohler’s performance as defense counsel.” App. p. 41.
The post-conviction court also found, based on the evidence presented at the hearing, that
there is “no reason to believe that the state of Petitioner’s mental health had an effect on
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his decision to reject a more favorable plea.” Id. at 41-42. Thus, Abron’s contention that
the post-conviction court failed to address this issue is not supported by the record.
Further, the record does not support Abron’s assertion that Mohler ultimately
advised him to reject the State’s offer, plead guilty to the pending charges, and have a
jury trial on the habitual offender status. During the trial proceedings, Mohler clearly and
repeatedly advised Abron to accept the plea agreement and explained that his earlier
advice was no longer relevant in light of the plea offer. Thus, Abron has not established
that counsel’s advice rendered his guilty plea unknowing or unintelligent.
As for Abron’s claim that Mohler knew Abron suffered from mental issues, which
rendered Abron “unstable and unable to make important and intelligent decision[s],” the
record does not support this claim. Appellant’s Br. p. 17. Although Abron had a panic
attack on the first day of the trial court proceedings, there is no indication that his guilty
plea to the pending charges was unknowing, unintelligent, or involuntary. Mohler
testified that, although Abron was agitated and angry and “coming off the effects of drug
addiction,” he believed Abron “had sufficient mental capacity to be able to make
decisions such as pleading guilty.” Tr. p. 28. Mohler explained that, had he felt Abron
did not have that capacity, he would have filed a motion for a competency evaluation.
Mohler also believed that the judge accepting Abron’s guilty plea would confirm that he
was acting voluntarily. In light of this evidence, Abron has not shown that the evidence
as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by
the post-conviction court.
III. Waiver
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Abron alleged that the trial court erred in allowing a jury to determine his habitual
offender status after he pled guilty to the pending charges. The post-conviction court
held that this issue is waived because it was available at the time of Abron’s direct appeal
and not raised. Abron argues that the post-conviction court erred because a defendant
who pleads guilty may not challenge the plea by direct appeal and must seek relief
through post-conviction remedies. See Tumulty v. State, 666 N.E.2d 394, 395 (Ind.
1996). As Tumulty explained, “the plea as a legal act brings to a close the dispute
between the parties, much as settling civil parties do by submitting an agreed judgment.
To permit appeal by settling parties would, of course, make settlements difficult to
achieve in any litigation.” Id.Although Abron is generally correct, he did not plead guilty to the habitual
offender status. Instead, a jury found him to be an habitual offender. Thus, the reasoning
in Tumulty does not apply here. As such, an impropriety in conducting a jury trial, as
opposed to a bench trial, to determine Abron’s habitual offender status was a free-
standing issue available for direct appeal. Because this issue was not raised on direct
appeal, the post-conviction court correctly determined that it is waived. See Timberlake
v. State, 753 N.E.2d 591, 597-98 (Ind. 2001) (“[M]ost free-standing claims of error are
not available in a postconviction proceeding because of the doctrines of waiver and res
judicata.”), cert. denied.
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Conclusion
Abron has not established that he received ineffective assistance of trial counsel,
that his guilty plea was unknowing, unintelligent, or involuntary, or that the jury trial
issue was available for post-conviction relief proceedings. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
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