Dionne Harris v. State of Indiana

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
May 23 2012, 8:44 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
G. ALLEN LIDY GREGORY F. ZOELLER
Roscoe Stovall, Jr., & Associates Attorney General of Indiana
Mooresville, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DIONNE HARRIS, )
)
Appellant-Petitioner, )
)
vs. ) No. 34A04-1111-PC-593
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable George A. Hopkins, Special Judge
Cause No. 34D01-0703-PC-176
May 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Dionne Harris appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm.
Issues
Harris raises three issues, which we restate as:
I. whether the post-conviction court special judge should
have held a new evidentiary hearing before issuing his
findings of fact and conclusions thereon;
II. whether Harris’s guilty plea was voluntary; and
III. whether Harris received ineffective assistance of trial
counsel.
Facts
In March 2005, the State charged Harris with Class A felony dealing in cocaine,
Class C felony possession of cocaine, and Class C misdemeanor operating a motor
vehicle without having received a license, and alleged that Harris was an habitual
offender. In a separate cause, Harris was also charged with two counts of Class D felony
theft. Harris filed a motion to suppress, and on January 5, 2007, the trial court denied
Harris’s motion. After the motion was denied, Harris and his attorney agreed that they
should appeal the denial. However, they did not discuss filing an interlocutory appeal.
During the next week, the State offered Harris a plea agreement. Under the plea
agreement, if Harris pled guilty to Class A felony dealing in cocaine, the State agreed to
dismiss the remaining charges, including the theft charges and the habitual offender
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allegation. Harris’s attorney discussed the proposed plea agreement with him. His
attorney recalled advising Harris that, by entering into the plea agreement, he was
waiving his right to appeal his conviction. However, they did not specifically discuss the
appeal of the denial of the motion to suppress at that time.
Harris decided to accept the plea agreement, and a guilty plea hearing was held on
February 7, 2007. At the guilty plea hearing, the trial court advised Harris of his rights,
including the following advisement: “If you were to have a trial and you were to be found
guilty you would have the right to appeal your conviction to the Indiana Supreme Court
or the Court of Appeals, but by pleading guilty you’re giving up that right.” Petitioner’s
Exhibit 2 p. 3. Harris indicated that he understood his rights and did not have any
questions. The trial court accepted Harris’s guilty plea and sentenced him to thirty years
with ten years suspended to probation for the Class A felony dealing in cocaine
conviction. A few days after sentencing, Harris asked his attorney about the appeal of the
denial of the motion to suppress, and his attorney said an appeal of the denial was not
possible after the guilty plea.
In 2007, Harris filed a petition for post-conviction relief, which was subsequently
amended several times. Ultimately, Harris argued that: (1) his credit time was calculated
incorrectly; (2) his guilty plea was involuntary; and (3) he received ineffective assistance
of counsel. The post-conviction court held an evidentiary hearing on September 17,
2010. In July 2011, Harris filed a motion for appointment of a special judge, and the
Indiana Supreme Court appointed Judge George Hopkins as the special judge. After
Judge Hopkins was appointed, Harris filed a pro se appearance, and his attorney filed a
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motion to withdraw, which Judge Hopkins granted. Harris also filed a request for a copy
of the chronological case summary and a copy of the post-conviction transcripts. On
October 4, 2011, Judge Hopkins entered findings of fact and conclusions thereon denying
Harris’s petition for post-conviction relief regarding his ineffective assistance of counsel
and involuntary guilty plea claims and granting Harris’s petition for post-conviction relief
regarding his credit time claim. Harris now appeals.
Analysis
Harris appeals the post-conviction court’s denial of his petition for post-conviction
relief. 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.I. New Evidentiary Hearing
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After Judge Menges held an evidentiary hearing on Harris’s petition for post-
conviction relief, a special judge was appointed pursuant to Indiana Trial Rule 53.2.1
Harris argues that the special judge should have conducted a new evidentiary hearing to
determine the weight and credibility of the testimony.2
Even assuming Harris could request such a hearing, he concedes that “this due
process right may be waived and/or the parties can stipulate to the validity of the ability
of the successor judge to rule on the evidence presented.” Appellant’s Br. p. 8. Further,
Harris concedes that “the record is silent as to whether there was an objection to the
1
Indiana Trial Rule 53.2 provides:
(A) Time limitation for holding matter under advisement. Whenever
a cause (including for this purpose a petition for post conviction
relief) has been tried to the court and taken under advisement by
the judge, and the judge fails to determine any issue of law or
fact within ninety (90) days, the submission of all the pending
issues and the cause may be withdrawn from the trial judge and
transferred to the Supreme Court for the appointment of a special
judge.
(B) Exceptions. The time limitation for holding an issue under
advisement established under Section (A) of this rule shall not
apply where:
(1) The parties who have appeared or their counsel stipulate
or agree on record that the time limitation for decision
set forth in this rule shall not apply; or
(2) The time limitation for decision has been extended by
the Supreme Court pursuant to Trial Rule 53.1(D).
*****
2
Harris argues that Indiana Trial Rule 63(A), which pertains to the disability or unavailability of a judge
after the trial or hearing, should apply. Rule 63(A) provides, in part, that if the special judge “is satisfied
that he cannot perform those [post-trial or post-hearing] duties because he did not preside at the trial or for
any other reason, he may in his discretion grant a new trial or new hearing, in whole or in part.” We need
not address the application of Rule 63(A) because Harris waived this argument.
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Special Judge’s ability to rule on the ‘cold record’ and there is no evidence that the
parties stipulated that the Special Judge could so rule.” Id. Our review of the record
reveals that, although Harris filed other motions after the special judge was appointed, he
did not request that the special judge hold a new evidentiary hearing. The right to have a
special judge rehear evidence to make an evaluation of the credibility of witnesses and
weight of the evidence may be waived. Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct.
App. 1985). Harris waived this argument.
II. Involuntary Guilty Plea
Harris argues that the post-conviction court erred by finding that his guilty plea
was voluntary. This claim relates to Harris’s alleged belief that he could appeal the
denial of his motion to suppress despite his guilty plea. However, “[a] trial court lacks
the authority to allow defendants the right to appeal the denial of a motion to suppress
evidence when a defendant enters a guilty plea, even where a plea agreement maintains
that such an appeal is permitted.” Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009).
Voluntariness in Indiana practice “focuses on whether the defendant knowingly
and freely entered the plea, in contrast to ineffective assistance, which turns on the
performance of counsel and resulting prejudice.” Cornelious v. State, 846 N.E.2d 354,
358 (Ind. Ct. App. 2006), trans. denied. A guilty plea entered after the trial court has
reviewed the various rights that a defendant is waiving and has made the inquiries called
for by statute is unlikely to be found wanting in a collateral attack. Id. at 357 (citing State
v. Moore, 678 N.E.2d 1258, 1265 (Ind. 1997), cert. denied). “However, defendants who
can show that they were coerced or misled into pleading guilty by the judge, prosecutor
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or defense counsel will present colorable claims for relief.” Id. (quoting Moore, 678
N.E.2d at 1266). In assessing the voluntariness of a plea, we review all of the evidence
before the post-conviction court, including testimony given at the post-conviction
hearing, the transcript of the petitioner’s original sentencing, and any plea agreements or
other exhibits that are a part of the record. Id. at 357-58.
At the post-conviction hearing, Harris argued that his guilty plea was “not given
voluntarily because he believed he had a right to appeal the denial of the Motion to
suppress after he was sentenced.” Appellant’s App. p. 19. The post-conviction court
noted in its findings that Harris had previously been convicted of several felonies, that his
statement that he believed he could appeal the motion to suppress despite the guilty plea
was “self serving and not corroborated,” that Harris understood the terms of the plea
agreement, that Harris was satisfied with the terms of the plea at the time of sentencing,
and that Harris did not express any dissatisfaction until after sentencing. Id. The post-
conviction court concluded that Harris failed to show by a preponderance of the evidence
that his plea was not voluntary.
On appeal, Harris relies on Cornelious and Lineberry v. State, 747 N.E.2d 1151(Ind. Ct. App. 2001), for the proposition that his guilty plea was involuntary. However,
both Cornelious and Lineberry are distinguishable. In both of those cases, the defendants
pled guilty and were specifically advised that they could appeal the denial of a pre-trial
motion. Cornelius, 846 N.E.2d at 356-57; Lineberry, 747 N.E.2d at 1154. Here,
although Harris and his counsel briefly talked about appealing the denial of his motion to
suppress, Harris’s counsel never informed him that an appeal was in process. In fact, his
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counsel had no intention of filing an interlocutory appeal. Tr. pp. 42-43. More
importantly, Harris was never advised that he could appeal the denial of his motion to
suppress despite his guilty plea. To the contrary, at the guilty plea hearing, the trial court
advised Harris of his rights, including the following advisement: “If you were to have a
trial and you were to be found guilty you would have the right to appeal your conviction
to the Indiana Supreme Court or the Court of Appeals, but by pleading guilty you’re
giving up that right.” Petitioner’s Exhibit 2 p. 3. Harris indicated that he understood his
rights and did not have any questions. Harris did not raise the issue of appealing the
denial of the motion to suppress until he had already pled guilty and been sentenced.
Further, Harris received a substantial benefit from the plea agreement—including the
dismissal of several other charges and an habitual offender allegation. Even if Harris was
mistaken in his belief that he could still appeal the denial of his motion to suppress, that is
not the same as showing that he was coerced or misled into pleading guilty. Harris has
failed to meet his burden of demonstrating that his guilty plea was involuntary, and the
post-conviction court’s findings and conclusion on this issue are not clearly erroneous.
III. Ineffective Assistance of Counsel
In a related claim, Harris appeals the post-conviction court’s denial of his claim of
ineffective assistance of counsel. Harris contends that his trial counsel was ineffective
for failing to advise him that he could not appeal the denial of the motion to suppress if
he pled guilty. To prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his or her counsel’s performance was deficient and that the
petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d
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102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984)), cert. denied. We need not determine whether Harris’s counsel was
deficient because we conclude that Harris failed to demonstrate prejudice.
In analyzing prejudice in the context of a guilty plea, we review such ineffective
assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura
created two categories of claims and enunciated different treatments of each respective
category, depending upon whether the ineffective assistance allegation related to (1) an
unutilized defense or failure to mitigate a penalty, or (2) an improper advisement of penal
consequences. Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing
Segura, 749 N.E.2d at 507), trans. denied. Segura further divided the “penal
consequences” category into two subcategories. Id. The first subcategory concerns
claims of promised leniency. Segura, 749 N.E.2d at 504-05. The second subcategory
concerns claims of incorrect advice as to the law regarding the range of penal
consequences. Segura, 749 N.E.2d at 504.
Harris claims that his argument relates to the second category of Segura claims—
”defense trial counsel’s failure to advise the Appellant that one of the penal consequences
of his guilty plea would be that he could not further appeal his Motion to Suppress.”
Appellant’s Br. p. 15. However, we view Harris’s claim as falling in the first category of
Segura claims, i.e., Harris’s counsel’s alleged error or omission had the effect of
overlooking or impairing a defense. See Helton v. State, 907 N.E.2d 1020, 1023-24 (Ind.
2009) (holding that trial counsel was not ineffective for failing to file a motion to
suppress where the defendant pled guilty and the defendant was required to show “a
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reasonable probability that he would have succeeded at trial if a motion to suppress had
been made and sustained”). When a post-conviction allegation of ineffective assistance
relates to trial counsel’s failure to raise a defense, Segura requires that the prejudice from
an impaired or omitted defense be measured by evaluating the probability of success of
the impaired or omitted defense at trial. Willoughby, 792 N.E.2d at 563. Harris makes
no argument regarding the probability of success if he had appealed the denial of the
motion to suppress, and he failed to meet his burden of demonstrating prejudice. The
post-conviction court’s conclusion on this claim is not clearly erroneous.
Conclusion
Harris waived his claim that the special judge should have held a second
evidentiary hearing, and the post-conviction court’s denial of Harris’s petition for post-
conviction relief is not clearly erroneous. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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