Anthony McCullough v. State of Indiana

FOR PUBLICATION
May 16 2013, 9:14 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY MCCULLOUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1209-PC-719
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
Cause Nos. 49G03-0905-PC-051550 & 49G03-0809-PC-210841
May 16, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Anthony McCullough appeals the post-conviction court’s partial denial of his
petition for post-conviction relief. He contends that the post-conviction court erred in
finding that his plea for Class C felony fraud on a financial institution was knowingly,
intelligently, and voluntarily entered into because he had ineffective assistance of trial
counsel for his Class D felony failure to register as a sex offender charge, and the pleas
were part of a combined plea agreement. Finding that McCullough received effective
assistance of trial counsel for his guilty plea for fraud and therefore pled guilty
knowingly, intelligently, and voluntarily to that charge, we affirm.
Facts and Procedural History
On September 4 and 10, 2008, McCullough and Julee Kehoe gave false
information on a loan application to Fifth Third Bank to purchase a car. On May 28,
2009, the State charged McCullough with Class C felony conspiracy to commit fraud on
a financial institution, Class C felony fraud on a financial institution, Class D felony
theft, and Class A misdemeanor check deception. On September 29, 2009, McCullough
entered into a combined plea agreement in which he pled guilty to Class C felony fraud
on a financial institution and an unrelated Class D felony failure to register as a sex
offender charge under cause number FD-210841. The plea agreement called for
concurrent sentences and capped the executed portion of the sentence at two years, but
left the rest of sentencing to the trial court’s discretion. In exchange for the plea, the
State dismissed the remaining three counts in the fraud case, agreed not to argue for
placement in the Department of Correction, and agreed not to file the habitual offender
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sentence enhancement. At the sentencing hearing, the trial court sentenced McCullough
to eight years, with six years suspended, on the Class C felony fraud conviction and a
concurrent two-year executed sentence on the Class D felony failure to register
conviction. McCullough was ordered to serve the executed portion of his sentence on
home detention through electronic monitoring services.
After being sentenced, McCullough learned of our Supreme Court’s holding in
Wallace v. State, 905 N.E.2d 371 (Ind. 2009), reh’g denied, that the sex-offender registry
requirements were not retroactive. His trial counsel had not previously advised him of
the holding in this case. McCullough then filed a petition and was removed from the sex-
offender registry because he never should have been required to register.
McCullough later filed a petition for post-conviction relief under both cause
numbers. An evidentiary hearing was held, and the court took the matter under
advisement. McCullough then filed a motion to withdraw his petition without prejudice,
which was granted. McCullough filed a new petition for post-conviction relief under
both cause numbers, which he moved to amend two months after filing. The post-
conviction court granted the petition. The amended petition claimed that McCullough’s
guilty pleas were not knowing, intelligent, and voluntary due to ineffective assistance of
trial counsel, specifically trial counsel’s failure to advise him about the Wallace holding.
An evidentiary hearing was held, and the post-conviction court entered findings of fact
and conclusions of law. Post-conviction relief was granted in the Class D felony failure
to register case, vacating that conviction, but denied in the Class C felony fraud case.
McCullough now appeals.
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Discussion and Decision
The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of
post-conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Id. On review, we will not reverse the judgment unless the evidence
as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. The post-conviction court in this case entered findings of fact
and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction that a mistake has been
made.” Id. (internal quotation omitted). The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id. We accept findings of fact
unless clearly erroneous, but we accord no deference to conclusions of law. Id.McCullough contends that his plea was not knowing, intelligent, and voluntary
because he received ineffective assistance of trial 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. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, failure to
satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824
(Ind. 2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong,
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we need not address whether counsel’s performance was deficient.” Lee v. State, 892
N.E.2d 1231, 1233 (Ind. 2008).
Counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. French, 778 N.E.2d at 824.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001),
reh’g denied. A strong presumption arises that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment. Id. To
meet the appropriate test for 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 reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
There are two different types of ineffective assistance of counsel claims that can
be made in regards to guilty pleas: (1) failure to advise the defendant on an issue that
impairs or overlooks a defense and (2) an incorrect advisement of penal consequences.
Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001); see also Smith v. State, 770 N.E.2d
290, 295 (Ind. 2002). Since McCullough is arguing that he was not properly advised
about the possible defense he may have had to the Class D felony failure to register
charge, the first category is at issue in this case. The specific standard for showing
prejudice on such a claim was articulated by our Supreme Court in Segura and requires:
a showing of a reasonable probability of success at trial if the alleged error
is one that would have affected a defense. . . . . A new trial is of course
necessary if an unreliable plea has been accepted. But its costs should not
be imposed needlessly, and that would be the result if the petitioner cannot
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show a reasonable probability that the ultimate result-conviction-would not
have occurred despite counsel’s error as to a defense.
749 N.E.2d at 503.
In this case, McCullough’s post-conviction petition was granted as to the charge
for which his trial counsel failed to advise him about a viable defense, vacating the Class
D felony failure to register conviction.
The charge for which his post-conviction petition was denied, however, was the
Class C felony fraud charge. While McCullough’s trial counsel testified at the post-
conviction hearing that there were some defenses that could have been asserted on this
charge, McCullough makes no argument that his trial counsel failed to inform him about
any defense to fraud. The evidence against McCullough for this charge was
considerable: his co-defendant had signed a plea agreement and was going to testify
against him, and the State had substantial evidence in the form of documents that all
pointed to McCullough’s guilt. His trial counsel testified that “the evidence against Mr.
McCullough was overwhelmingly and strongly against his favor” and “conviction was
almost certain if we had gone to trial.” Tr. p. 67. He also testified that McCullough did
not want to go to trial on the fraud case. Id. at 66-67.
Additionally, we note that McCullough received a substantial benefit from his plea
agreement. The State dismissed three charges: a Class C felony, a Class D felony, and a
Class A misdemeanor. The State also limited McCullough’s executed time to two years
and agreed not to file the habitual offender sentencing enhancement. Without this
agreement, McCullough could have faced up to a twenty-year executed sentence in the
DOC for the fraud charge alone – up to eight years for the Class C felony, Indiana Code
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section 35-50-2-6, and up to twelve years for the habitual offender enhancement. Ind.
Code § 35-50-2-8(h). Instead, he was sentenced to two concurrent two-year executed
sentences to be served on home detention, one of which was later vacated.
Based on these facts, we cannot say that the post-conviction court clearly erred in
granting relief as to the Class D felony failure to register charge, but denying relief as to
the Class C felony fraud charge. McCullough did not receive ineffective assistance of
counsel as to the fraud charge; his trial counsel did not fail to inform him of any defense,
and he has failed to show a reasonable probability of success at trial if he had not pled
guilty to fraud.
While we realize that both of the charges were part of a single plea agreement, the
post-conviction court did not err in separating the charges when coming to its decision.
Our Supreme Court has previously separated the charges in a plea agreement, reversing
only five of the six charges to which the defendant pled guilty in Smith v. State, 770
N.E.2d at 298. We also note that in this particular case, the two charges to which
McCullough pled guilty arose out of two unrelated criminal acts with separate cause
numbers, allowing us to easily separate the charges, relevant defenses, and effectiveness
of his trial counsel’s assistance. Finally, we note that the Segura Court, in articulating the
standard for showing ineffectiveness of counsel for failure to advise of a defense, stated
that the costs of a new trial “should not be imposed needlessly.” 749 N.E.2d at 503. In
this case, in failing to show that his counsel was ineffective in regards to the fraud charge,
McCullough has not presented us with any evidence that the outcome of a trial on that
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charge would have been any different than a guilty plea; there is no reason to needlessly
impose the costs of a new trial in this instance.
We therefore find that McCullough pled guilty knowingly, intelligently, and
voluntarily to the fraud charge and affirm the post-conviction court’s holding.
Affirmed.
KIRSCH, J., and PYLE, J., concur.
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