Rex L. Kast 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
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
REX L. KAST GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
Mar 22 2013, 9:30 am
IN THE
COURT OF APPEALS OF INDIANA
REX L. KAST, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1205-CR-211
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D05-1105-FB-114
March 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
When police received a tip that Rex L. Kast had been selling prescription drugs at a
local establishment, they followed him, performed a traffic stop, obtained his permission to
search his van, and found hundreds of pills containing various controlled substances. The
State charged Kast with two class B felony counts and one class C felony count of possession
with intent to distribute controlled substances and three counts of class D felony possession
of controlled substances. Kast entered into a plea agreement in which he agreed to plead
guilty to the three class D felonies in exchange for the State dismissing the more serious
charges. The plea agreement set his sentence at three consecutive one-and-a-half-year terms.
At sentencing, defense counsel made a verbal request to withdraw Kast’s guilty plea. The
trial court denied the motion and sentenced Kast accordingly.
Kast now appeals, claiming that his trial counsel provided ineffective assistance by
failing to follow the proper procedures for filing the motion to withdraw his guilty plea and
by failing to object to his sentence and failing to advise him that his sentence exceeded the
statutory limit. Finding that he was not prejudiced by counsel’s errors, we affirm.
Facts and Procedural History
In May 2011, the Allen County police acted on a tip that Kast was selling Vicodin at a
Fort Wayne gentlemen’s club. The source also identified Kast’s vehicle as a white van and
gave police the license plate number. Shortly thereafter, police waited nearby for Kast to exit
the club. When Kast drove away in the van, police followed him to a truck stop and waited
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while he went inside. When Kast drove away from the truck stop and failed to properly use
his turn signal, police stopped him.
During the stop, Kast consented to the officer’s request to search his van. The search
produced 649 pills in several brown pill bottles. The various pills were later determined to be
methadone hydrochloride, acetaminophen and hydrochloride bitrate, acetaminophen and
oxycodone, morphine sulfate, and alprazolam.
The State charged Kast with two counts of class B felony possession with intent to
distribute a schedule I, II, or III controlled substance, one count of class C felony possession
with intent to deliver a schedule IV controlled substance, and three counts of class D felony
possession of a schedule I, II, III, or IV controlled substance. Kast entered into a plea
agreement wherein he would plead guilty to the three class D felony counts in exchange for
the State’s dismissal of the class B and C felony counts. The plea agreement set Kast’s
sentence at three consecutive terms of one year and 183 days, with one year of each term
suspended to probation. At the guilty plea hearing, the trial court advised Kast of his right to
a trial and informed him that by pleading guilty, he was waiving his right to trial as well as
his right to challenge his conviction and sentence. Kast affirmed that he had read and
understood the terms of the plea agreement, that he had discussed its terms with counsel, and
that his guilty plea was voluntarily made.
At the April 9, 2012 sentencing hearing, defense counsel inquired as to whether the
trial court had received a fax containing a written motion to withdraw Kast’s guilty plea.
When the trial court responded that it had not, defense counsel made an oral motion to
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withdraw Kast’s guilty plea on the ground that the defense had discovered the whereabouts
of a witness who allegedly had a personal relationship with the State’s source. The State
objected, arguing that the existence of this witness was known at the time Kast pled guilty
and that Kast had entered his plea intelligently, knowingly, and with full understanding of the
consequences. The trial court denied the motion and sentenced Kast pursuant to the terms of
the plea agreement. Kast now appeals pro se. Additional facts will be provided as necessary.
Discussion and Decision
Kast contends that his trial counsel provided ineffective assistance. At the outset, we
note that pro se appellants are held to the same rules and standards as licensed attorneys.
Schumm v. State, 866 N.E.2d 781, 797 (Ind. Ct. App. 2007), corrected and clarified on reh’g
868 N.E.2d 1202. We also note that while he raises his ineffective assistance of counsel
claim via direct appeal, the preferred forum in which to adjudicate an ineffective assistance
claim is a post-conviction proceeding. Lewis v. State, 929 N.E.2d 261, 263 (Ind. Ct. App.
2010). Nevertheless, where ineffective assistance claims can be evaluated on the trial record
alone, they are resolvable on direct appeal. Id. To prevail on his ineffective assistance claim,
Kast must satisfy two components. Id. He must demonstrate both deficient performance and
prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
performance is “representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the
Sixth Amendment.” Brown v. State, 880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008), trans.
denied. We assess counsel’s performance based on facts that are known at the time and not
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through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans.
denied. “[C]ounsel’s performance is presumed effective, and a defendant must offer strong
and convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706,
714 (Ind. 2007). Prejudice occurs when a reasonable probability exists that, “but for
counsel’s errors the result of the proceeding would have been different.” Brown, 880 N.E.2d
at 1230. We can dispose of claims upon failure of either component. Id.I. Motion to Withdraw Guilty Plea
Kast first asserts that his trial counsel provided ineffective assistance by failing to
properly file a written motion to withdraw his guilty plea prior to sentencing. At sentencing,
counsel made a verbal request to withdraw the guilty plea and indicated that he had submitted
a written, verified motion via fax. Indiana Code Section 35-35-1-4 addresses the withdrawal
of a guilty plea and provides in pertinent part,
(b) After entry of a plea of guilty, or guilty but mentally ill at the time of
the crime, but before imposition of sentence, the court may allow the defendant
by motion to withdraw his plea of guilty … for any fair and just reason unless
the state has been substantially prejudiced by reliance upon the defendant’s
plea. The motion to withdraw the plea of guilty … made under this subsection
shall be in writing and verified. The motion shall state facts in support of the
relief demanded, and the state may file counter-affidavits in opposition to the
motion. The ruling of the court on the motion shall be reviewable on appeal
only for an abuse of discretion. However, the court shall allow the defendant
to withdraw his plea of guilty … whenever the defendant proves that
withdrawal of the plea is necessary to correct a manifest injustice.
With respect to the form of defense counsel’s motion to withdraw Kast’s guilty plea,
we note that counsel claims to have sent a written motion to the trial court via fax. The trial
court did not receive it, and at sentencing, the prosecutor indicated that he did not have a
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copy of the motion in his files but that defense counsel had notified him by email concerning
the motion. Sent. Tr. at 5. Notwithstanding, defense counsel failed to comply with Allen
County Local Rules LR02-TR7-9 and -10, which prohibit the filing of motions by fax. Thus,
the trial court was left with an oral motion to withdraw guilty plea raised during sentencing.
In Graham v. State, 941 N.E.2d 1091 (Ind. Ct. App. 2011), another panel of this Court
was faced with an ineffective assistance of appellate counsel claim, where counsel did not
challenge the trial court’s denial of Graham’s oral motion to withdraw his guilty plea.
Although procedurally distinct from the present case in that it was a post-conviction
proceeding involving ineffective assistance of appellate rather than trial counsel, the facts are
sufficiently similar to bear some discussion. In Graham, the motion to withdraw guilty plea
was oral rather than in writing. The Graham court noted that the fact the motion was not in
writing may have been sufficient alone for the issue to be rejected on direct appeal. Id. at
1099. However, the court went on to say that
even if a written motion had been filed, an appellate claim regarding that
motion is unlikely to have been successful. Graham contends that he protested
his innocence at his sentencing hearing. It is true that a judge may not accept a
plea of guilty when the defendant both pleads guilty and maintains his
innocence at the same time. This rule applies, however, only to defendants
who actually plead guilty and maintain their innocence simultaneously. It does
not apply to defendants who plead guilty, and then later, during a presentence
interview and/or at sentencing, protest their innocence.
Id. (citations and internal quotation marks omitted).
At his guilty plea hearing, Kast did not simultaneously plead guilty and maintain his
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innocence.1 Instead, he unequivocally admitted that he possessed each specified drug without
a valid prescription. He authenticated his signature on the plea agreement and stated that he
had read the agreement and discussed it with counsel before signing it. He answered in the
affirmative when asked if his plea of guilty was made voluntarily and of his own free will.
When the trial court asked defense counsel if he was aware of any benefit if the case were to
proceed to trial, counsel responded, “No advantage, Judge.” Appellant’s App. at 29.2 Later,
at sentencing, when defense counsel presented as the basis for Kast’s oral motion to
withdraw the guilty plea “newly discovered evidence” concerning whereabouts of a witness
who would allegedly testify that he had been set up, he nonetheless conceded that the
witness’s existence was known to the defense at the time of the guilty plea hearing. Sent. Tr.
at 6.3 Simply put, the guilty plea hearing transcript is replete with Kast’s admissions of guilt
and is devoid of any reference to a missing witness by either Kast or defense counsel. Later,
at sentencing, the trial court denied Kast’s oral motion to withdraw, and even if the motion
had been properly filed and in writing, Kast would have been subject to the onerous abuse of
1
In his brief, Kast asserts that he “has maintained his innocence throughout the proceedings and only
agreed to plead guilty because his crucial witness had been hounded into hiding by the State’s [source].”
Appellant’s Br. at 11. However, he cites as support the sentencing transcript, not the guilty plea hearing
transcript. The latter contains no such claim of innocence.
2
We note that the transcript on appeal does not include a transcript of the guilty plea hearing. The
only copy of the guilty plea hearing transcript is found in the appellant’s appendix. While this transcript
should have been included as part of the transcript and not the appendix, we review it and cite to it as found in
the appendix. See Ind. Appellate Rule 50(F) (“Because the transcript is transmitted to the Court on Appeal
pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.”).
3
We note that the transcript before us is separately paginated in different volumes in violation of
Indiana Appellate Rule 28(A)(2), which states in part, “The pages of the Transcript shall be numbered
consecutively regardless of the number of volumes the Transcript requires.”
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discretion standard of review on appeal of that issue. Ind. Code § 35-35-1-4(b). See also
Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012) (emphasizing presumption in
favor of trial court’s ruling on motion to withdraw guilty plea and stating that abuse of
discretion standard on appeal requires examination of defendant’s statements at guilty plea
hearing to determine whether plea was offered “freely and knowingly.”), trans. denied.
Based on Kast’s unequivocal admission during the guilty plea hearing that he illegally
possessed each of the drugs, there is not a reasonable probability that the outcome of the
proceedings would have been different. Consequently, we conclude that although defense
counsel performed deficiently in failing to properly file a written motion to withdraw Kast’s
guilty plea, Kast has failed to establish that he was prejudiced as a result.
II. Consecutive Sentences
Kast also claims that his trial counsel provided ineffective assistance by failing to
object to the imposition of consecutive sentences that exceeded the time allowed by statute
and by failing to advise him that the sentence contained in the plea agreement was illegal.
Consecutive sentences cannot be imposed absent express statutory authority. Mask v. State,
829 N.E.2d 932, 935 (Ind. 2005). Indiana Code Section 35-50-1-2 provides such authority in
certain circumstances.
(c) Except as provided in subsection (d) or (e), the court shall determine
whether terms of imprisonment shall be served concurrently or consecutively.
…. The court may order terms of imprisonment to be served consecutively
even if the sentences are not imposed at the same time. However, except for
crimes of violence, the total of the consecutive terms of imprisonment,
exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to
which the defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed the advisory sentence for a felony
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which is one (1) class of felony higher than the most serious of the felonies for
which the person has been convicted.
In Mask, our supreme court held that under Indiana Code Section 35-50-1-2(c), “terms
of imprisonment” should be read to include any period of incarceration to which a defendant
is sentenced, even if all or a portion of that period of time is suspended. 829 N.E.2d at 936.
Thus, when calculating the maximum aggregate sentence, any period of a suspended sentence
must be included. Here, the State concedes this point, admitting that Kast’s four-and-a-half-
year aggregate sentence for his three class D felony convictions (which are not crimes of
violence) illegally exceeds the four-year advisory sentence for the next higher class of
felony.4 Appellee’s Br. at 8-9.
Notwithstanding, the State argues that defense counsel’s failure to object to the illegal
sentence does not amount to ineffective assistance. We agree. Counsel need not object in
order to preserve a sentencing error for review on direct appeal. Reed v. State, 856 N.E.2d
1189, 1194 (Ind. 2006). In Reed, our supreme court held that trial counsel did not render
ineffective assistance in failing to object to the trial court’s imposition of consecutive
sentences pursuant to Indiana Code Section 35-50-1-2(c). Likewise, here, trial counsel’s
failure to object to Kast’s consecutive sentence did not foreclose our direct review of his
sentence, and counsel cannot be said to have been ineffective on that basis.
Kast also appears to argue that trial counsel was ineffective in failing to advise him
that the sentence contained in his plea agreement was illegal. Counsel’s incorrect advice
4
The advisory sentence for a class C felony is four years. Ind. Code § 35-50-2-6.
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regarding penal consequences generally falls into two basic categories: (1) claims of
promised leniency and (2) claims of incorrect advice as to the law. Segura v. State, 749
N.E.2d 496, 504 (Ind. 2001). To state a claim of prejudice from counsel’s omission or
misdescription of penal consequences attaching to both a plea and a conviction at trial, a
petitioner must establish, by objective facts, circumstances that support the conclusion that
the omitted or erroneous advice was material to his decision to plead guilty. Id. at 507.
In Lee v. State, 816 N.E.2d 35 (Ind. 2004), our supreme court held that “[a] defendant
may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and
then later complain that it was an illegal sentence.” Id. at 40 (quoting Collins v. State, 509
N.E.2d 827, 833 (Ind. 1987)). The Lee court emphasized that defendants who plead guilty to
achieve favorable outcomes forfeit a plethora of substantive claims and procedural rights,
and that striking a favorable bargain that includes an otherwise illegal consecutive sentence
falls in this category. Id.Whether a defendant has benefitted from a plea agreement with an illegal
sentencing provision generally is measured by whether the plea reduced the
defendant’s penal exposure. … Additionally, our supreme court has not
permitted attempts to avoid the Lee rule merely by stating that the plea was the
result of ineffective assistance of counsel. See Stites v. State, 829 N.E.2d 527,
529 (Ind. 2005) (holding that ineffective assistance claim was “merely a subset
of Stites’[s] claim that her plea agreement was void because it called for
consecutive sentences”). Another way of saying this might be that a defendant
who, on advice of counsel, enters a plea agreement calling for an illegal
sentence is not prejudiced if he or she nonetheless benefited from that
sentence.
Hacker v. State, 906 N.E.2d 924, 927 (Ind. Ct. App. 2009) (emphasis added), trans. denied.
See also State v. Parham, 913 N.E.2d 770, 772-73 (Ind. Ct. App. 2009) (holding that where
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defendant struck favorable bargain with State, decreasing his sentence exposure by twenty-
three years, he forfeited the right to challenge the imposition of unauthorized consecutive
habitual offender enhancements), trans. denied.
Here, the State charged Kast with two class B felonies, one class C felony, and three
class D felonies. In exchange for his guilty plea, the State agreed to dismiss his two class B
felony counts and his class C felony count, thereby reducing his penal exposure by more than
twenty-five years. In short, Kast was benefited, not prejudiced, by entering into his plea
agreement. Thus, we conclude that his trial counsel’s failure to advise him that his aggregate
sentence exceeded statutory limits did not amount to ineffective assistance of counsel.
Accordingly, we affirm.
Affirmed.
KIRSCH, J., and MATHIAS, J., concur.
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