Benefield v. State

• Decision Date: 14 April 2011
• Docket Number: No. 41A01–1006–PC–310.,41A01–1006–PC–310.
• Citation: 945 N.E.2d 791
• Parties: Gloria BENEFIELD, Appellant–Petitioner,v.STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

945 N.E.2d 791

Gloria BENEFIELD, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 41A01–1006–PC–310.

Court of Appeals of Indiana.

April 14, 2011.

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

OPINION

CRONE, Judge.

Case Summary and Issues

Gloria Benefield presented a document at a job interview showing that she was certified as a Qualified Medication Aide (“QMA”). It was later discovered that she was not QMA certified. Benefield was charged with and convicted of class C felony forgery and with being an habitual offender. She appealed, arguing, inter alia, that jury instruction 6 improperly defined “defraud” and created fundamental error. Another panel of this court concluded that although jury instruction 6 improperly defined “defraud,” it did not rise to the level of fundamental error.

Benefield petitioned for post-conviction relief, which the post-conviction court denied. She appeals, arguing that the post-conviction court erred in finding that her trial counsel did not provide ineffective assistance by not objecting to testimony regarding her knowledge as to whether she was QMA certified or to jury instruction 6. We conclude that trial counsel's decision not to object to the testimony was part of an objectively reasonable trial strategy and therefore does not constitute ineffective assistance. In addition, we conclude that the decision on direct appeal that jury instruction 6 did not result in fundamental error does not preclude our consideration as to whether the failure to object to jury instruction 6 created prejudice sufficient to that required for a finding of ineffective assistance of trial counsel. However, we conclude that Benefield fails to carry her burden to establish prejudice. According, we affirm the denial of her petition for post-conviction relief.

Facts and Procedural History

The relevant facts were set forth in our opinion on direct appeal as follows:

On March 23, 2005, Benefield applied for a health-care provider position with Regency Place in Greenwood and interviewed with Sabra Stark. Specifically, Benefield applied for a position as a Qualified Medication Aide (“QMA”), for which one needs certification from the Indiana Department of Health. To that end, Benefield produced a document that appeared to be an “Aide Registry [Letter]” issued by the Department of Health [on January 26, 2005]. [State's Ex. 3.] Although the document indicated that Benefield was certified as a QMA, Stark noticed that both the QMA certification number and QMA expiration date listed on the document appeared to be in a typeface inconsistent with the rest of the document.

After the interview, Stark called an automated telephone service to verify Benefield's certifications, only to learn that Benefield was not certified as a QMA. In fact, neither the QMA certification number nor the expiration date listed on the “Aide Registry [Letter]” were valid. Moreover, the Department of Health does not issue corrected “Aide Registry” letters with the corrections in a different typeface, instead preparing new documents when information has changed.

On September 2, 2005, the State charged Benefield with Class C felony forgery and with being an habitual offender. Before Benefield's jury trial on August 8, 2007, both parties stipulated to the admissibility of several exhibits, including Aide Registry letters from the Department of Health dated May 13, 2005, and August 1, 2007, which were tentatively identified as State's Exhibits 4 and 5 respectively. At trial, Department of Health Program Director of Administration Darlene Jones testified regarding the Aide Registry letters without objection, although they were not, in fact, actually admitted into evidence. Jones's testimony regarding the May 13, 2005, Aide Registry letter was generally comparing it to the Aide Registry letter produced by Benefield to point out differences in typeface, and her testimony regarding the August 1, 2007 letter was generally to establish that it was an example of an original Aide Registry letter.

Benefield v. State, 904 N.E.2d 239, 243 (Ind.Ct.App.2009), trans. denied.

Jones also testified regarding a document that was referred to as State's Exhibit 7, but which was not admitted into evidence.¹ Jones testified that State's Exhibit 7 was a document from Professional Resources, the company with which the Department of Health contracts to administer the test required to obtain QMA certification. Jones testified that the document indicated that Benefield had taken the test twice and failed. She further testified that page two of Exhibit 7 had a place for the test-taker to sign in order to acknowledge that the test-taker had not passed the test. According to Jones, Benefield had signed the document, which meant that she knew that she had not passed the test. Trial Tr. at 85.

After the presentation of evidence, the trial court instructed the jury, inter alia, that “ ‘Defraud’ means to make a misrepresentation of an existing material fact, knowing it to be false, or making it recklessly without regard to whether it is true or false.” Benefield, 904 N.E.2d at 244 (emphasis added) (citation and quotation marks omitted). Benefield objected to this instruction because it was based on Black's Law Dictionary, but the objection was overruled.

The jury found Benefield guilty as charged, the parties stipulated that Benefield had the required prior unrelated felonies necessary to support an habitual offender enhancement, and the trial court sentenced Benefield to an aggregate sentence of fourteen years.

Benefield appealed her conviction and sentence arguing, inter alia, that the trial court (1) erred in admitting testimony regarding Exhibits 4 and 5 because they were not actually entered into evidence and (2) committed fundamental error in giving final jury instruction 6, which provided the meaning of “defraud.” We concluded that because Benefield had failed to object to the testimony regarding Exhibits 4 and 5, she had waived her argument that the trial court erred in admitting that testimony. Id. We further concluded that final jury instruction 6 did not provide a proper definition of “defraud,” but the error was not fundamental. Id. at 247. Accordingly, we affirmed Benefield's conviction and sentence.

On November 18, 2009, Benefield filed her verified petition for post-conviction relief, alleging that her trial counsel provided ineffective assistance on a number of grounds, including: (1) for failing to object to hearsay regarding her knowledge that she did not have QMA certification; and (2) for failing to object to final jury instruction 6 on the ground that it contained a mens rea standard for defraud that improperly included recklessness.² PC App. at 14–20. On May 24, 2010, the post-conviction court denied Benefield's petition. Benefield appeals. Additional facts will be provided as necessary.

Discussion and Decision

Standard of Review

Initially, we note that the State has failed to submit an appellee's brief. “When an appellee fails to submit a brief, we need not undertake the burden of developing an argument for the appellee.” State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003). As such, Benefield may prevail by establishing a prima facie case of error. Sims v. State, 771 N.E.2d 734, 736 n. 1 (Ind.Ct.App.2002), trans. denied. Prima facie error is error “at first sight, on first appearance, or on the face of it.” State v. Augustine, 851 N.E.2d 1022, 1025 (Ind.Ct.App.2006) (citation and quotation marks omitted).

Benefield appeals the denial of her petition for her post-conviction relief We observe that the purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Reed v. State, 856 N.E.2d 1189, 1194 (Ind.2006). A post-conviction petition is not a substitute for an appeal, nor does it afford the petitioner a “super appeal.” Id.

In post-conviction proceedings, the petitioner bears the burden of proof by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). “To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind.2010).

In addition, we observe that the post-conviction court made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). “A postconviction 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.” Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citation and quotation marks omitted). We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not defer to the post-conviction court's conclusions of law. Wilson v. State, 799 N.E.2d 51, 53 (Ind.Ct.App.2003). “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998).

Benefield contends that she received ineffective assistance of trial counsel in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article 1, Sections Twelve and Thirteen of the Indiana Constitution.

When evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of...