Barnett v. State
| Citation | 141 N.E.3d 402 (Table) |
| Decision Date | 07 February 2020 |
| Docket Number | Court of Appeals Case No. 18A-PC-3010 |
| Parties | Michael T. BARNETT, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Appellant Pro Se: Michael T. Barnett, Carlisle, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
[1] Michael Barnett appeals the post-conviction court's denial of his petition for post-conviction relief. We affirm.
[2] Barnett presents four issues for our review, which we restate as:
[3] The underlying facts, as stated in Barnett's direct appeal, are as follows:
Barnett v. State , No. 48A02-0410-CR-905, slip op. *2 (internal footnotes omitted).
[4] On direct appeal, Barnett challenged his fifty-eight year aggregate sentence as to aggravating and mitigating circumstances and inappropriateness. This Court affirmed the judgment of the trial court. See id.
[5] In December 2013, Barnett filed his pro se petition for post-conviction relief, which he later amended. An evidentiary hearing was held on Barnett's petition on March 27, 2017. The court took the matter under advisement and allowed the parties to submit proposed findings of fact and conclusions of law. On October 29, 2018, the court issued its order adopting the proposed findings and conclusions of the State and denying Barnett's petition. This appeal ensued.
[6] To the extent the post-conviction court has denied relief, the petitioner appeals from a negative judgment and faces the rigorous burden of showing that the evidence, as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Harris v. State , 762 N.E.2d 163, 166 (Ind. Ct. App. 2002), trans. denied . 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. Kistler v. State , 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied . In this review, findings of fact are accepted unless they are clearly erroneous, and no deference is accorded to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Witt v. State , 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied .
[7] Barnett alleges ineffective assistance of both trial and appellate counsel. To prevail on a claim of ineffective assistance of counsel, a defendant is required to establish both (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defendant. Johnson v. State , 948 N.E.2d 331, 334 (Ind. 2011) (citing Strickland v. Washington , 466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ). To satisfy the first element, the defendant must show that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that the defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea v. State , 983 N.E.2d 1134, 1138 (Ind. 2013). In order to satisfy the second element, the defendant must show prejudice; that is, a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 1139. There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the defendant has the burden of overcoming this presumption. Harris , 762 N.E.2d at 168-69.
[8] Barnett first contends he received ineffective assistance from his trial counsel, claiming that counsel coerced him into accepting an illusory plea agreement. Particularly, he asserts that trial counsel performed deficiently by recommending he accept the plea offer to avoid the State's threat of filing additional charges, even though the State was foreclosed from filing additional charges because the statutory deadline had passed. See Ind. Code § 35-34-1-5(b)(1) (1993) ().
[9] There are two main types of ineffective assistance of trial counsel claims made in the context of guilty pleas: (1) the failure to advise the defendant on an issue that impairs or overlooks a defense, and (2) an incorrect advisement of penal consequences. Arnold v. State , 61 N.E.3d 1171, 1179 (Ind. Ct. App. 2016). Barnett's claim seems to fall within the first category, where, in order to establish that the guilty plea would not have been entered if counsel had performed effectively, the petitioner must show that a defense was overlooked or impaired and that the defense would likely have changed the outcome of the proceeding. Id.
[10] During the pendency of this case, certain facts came to light supporting additional charges of child molesting. The State was willing to accept Barnett's open plea, and in return, it would not file additional charges which would expose him to a significantly longer sentence if convicted. Pursuant to the prevailing case law at the time of Barnett's charges and plea, amendments to a charging information that were related to matters of substance were regularly permitted as long as the substantial rights of the defendant were not prejudiced, regardless of whether the amendments were untimely under Section 35-34-1-5(b). See, e.g. , Wright v. State , 593 N.E.2d 1192 (Ind. 1992) ; Kindred v. State , 540 N.E.2d 1161 (Ind. 1989) ; Haymaker v. State , 528 N.E.2d 83 (Ind. 1988) ; Hegg v. State , 514 N.E.2d 1061 (Ind. 1987) ; Laughner v. State , 769 N.E.2d 1147 (Ind. Ct. App. 2002), trans. denied ; Townsend v. State , 753 N.E.2d 88 (Ind. Ct. App. 2001) ; Tripp v. State , 729 N.E.2d 1061 (Ind. Ct. App. 2000) ; Todd v. State , 566 N.E.2d 67 (Ind. Ct. App. 1991) ; State v. Gullion , 546 N.E.2d 121 (Ind. Ct. App. 1989).1 Further, in certain circumstances, the State can dismiss the initial information and then refile it with additional charges after the omnibus date has passed. See, e.g. , Mendoza v. State , 869 N.E.2d 546 (Ind. Ct. App. 2007), trans. denied (State's dismissal of original charges and refiling of new charges after omnibus date had passed was permissible where State was not attempting to circumvent an adverse ruling and defendant had adequate time to prepare for trial on new charge).
[11] Barnett has failed to point to any evidence demonstrating anything other than that his trial counsel logically and reasonably evaluated the circumstances at the time when he advised Barnett with respect to his plea, and he has failed to show that a defense was overlooked or compromised and that the defense would likely have changed the outcome of the proceeding. Accordingly, we cannot say the post-conviction erred in concluding that Barnett's trial counsel was not ineffective.
[12] Next, Barnett asserts that his appellate counsel was ineffective for failing to raise issues that were stronger than the ones raised. Because the strategic decision regarding which issues to raise on appeal is one of the most important decisions to be made by appellate counsel, counsel's failure to raise a specific issue on direct appeal rarely constitutes ineffective assistance. Brown v. State , 880 N.E.2d 1226, 1230 (Ind. Ct. App. 2008), trans. denied . "For countless years, experienced advocates have ‘emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.’ " Walker v. State , 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting Bieghler v. State , 690 N.E.2d 188, 194 (Ind. 1997) ), trans. denied . Accordingly, on review, we should be particularly deferential to appellate counsel's strategic decision to exclude certain issues in favor of other issues more likely to result in a reversal. Id. To evaluate whether appellate counsel performed deficiently by failing to raise an issue on appeal, we apply a two-part test: (1) whether the unraised issue is significant and obvious from...
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