Bethea v. State

• Citation: 964 N.E.2d 255
• Decision Date: 20 March 2012
• Docket Number: No. 18A05–1107–PC–416.,18A05–1107–PC–416.
• Parties: Curtis A. BETHEA, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Court of Appeals of Indiana

964 N.E.2d 255

Curtis A. BETHEA, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 18A05–1107–PC–416.

Court of Appeals of Indiana.

March 20, 2012.

Stephen T. Owens, Public Defender of Indiana, Rodney Pol, Jr., Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Curtis A. Bethea was charged with multiple offenses stemming from the robbery of two victims. He ultimately pled guilty to one count of robbery and one count of criminal confinement, both class B felonies. The trial court imposed an aggregate sentence of forty years, the maximum allowable pursuant to the plea agreement. Appellate counsel argued that maximum consecutive sentences were impermissible pursuant to statute, but we affirmed Bethea's sentence.

Bethea subsequently filed a petition for post-conviction relief. He argued that trial counsel was ineffective because he failed to offer evidence that would have negated the trial court's finding that he knowingly used a juvenile in the commission of his offenses. He also argued that appellate counsel was ineffective because he failed to challenge several aggravating factors found by the trial court and/or challenge Bethea's sentence pursuant to Indiana Appellate Rule 7(B). The post-conviction court denied Bethea's petition.

We find that trial counsel was not ineffective because he had a valid strategic reason for not offering additional evidence concerning Bethea's juvenile co-defendant, when that evidence also contained prejudicial information. Based on Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), and Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007), trans. denied, appellate counsel could have challenged the trial court's use of one of the victim's injuries as an aggravating factor because that was an element of the burglary charge that was dismissed pursuant to Bethea's plea agreement. However, we conclude that Farmer and Roney misapplied the precedents on which they relied, and we decline to follow those cases. Bethea's remaining arguments concern minor mischaracterizations in the trial court's findings which are not significant enough in light of the valid findings to warrant a downward revision. Therefore, we affirm the denial of post-conviction relief.

Facts and Procedural History

On the evening of December 13, 2005, Bethea, Jerry Gore, Eddie Wilson, and Tyler Seaton went to the home of Angela Dailey and Jason Gates. Seaton knocked on the door, and when Gates opened it, she asked to use his telephone. While the door was still open, Bethea and Gore entered the home wielding guns. Gore ordered Gates to get on the floor, and Bethea bound his arms with tape. Gore pulled Dailey out of bed, dragged her to the living room, and told Seaton to bind her arms with tape. Gore and Bethea ransacked the house looking for money and drugs. Dissatisfied with what they found, Gore demanded to know where “the rest of it” was. State's Ex. 1. He hit Gates with his gun and kicked him in the head. Someone put a couch cushion over Dailey's head to keep her from looking at them. They went through Dailey's purse and took her driver's license, social security card, checkbook, and car keys. Gore and Bethea left in Dailey's car, and Seaton left with Wilson.

Seaton, who was seventeen at the time of the offense, later made a statement to the police. She claimed that Gore and Wilson had come to her house and told her that Gates owed them money. They wanted her to go knock on his door because they knew that Gates was scared of them and would not answer the door for them. Seaton denied knowing that the men intended to rob Gates. Seaton stated that they picked up Bethea on the way to Gates's house and that she had never met him before that night.

Seaton was waived into adult court, and she pled guilty to class C felony robbery and class C felony assisting a criminal. She testified against Gore, who was convicted on charges stemming from the robbery. Bethea was charged with nine counts: (1) class A felony burglary resulting in bodily injury; (2) robbery of Gates as a class B felony; (3) robbery of Dailey as a class B felony; (4) confinement of Gates as a class B felony; (5) class B felony confinement of Dailey based on her confinement in the living room; (6) intimidation of Gates as a class C felony; (7) intimidation of Dailey as a class C felony; (8) class D felony auto theft; and (9) class B felony confinement of Dailey based on her removal from the bedroom to the living room. Counts 2 through 7 and 9 were enhanced based on the fact that Bethea was armed with a deadly weapon. On October 19, 2006, Bethea agreed to plead guilty to count 2 (robbery of Gates) and 5 (confinement of Dailey) in exchange for dismissal of the other charges. Sentencing was left to the trial court's discretion.

At the sentencing hearing on February 9, 2007, Dailey testified about the robbery. She stated that she sustained a lower back injury when she was pulled off the bed and had pain and bruising in her wrists from being bound. Dailey suffered from severe anxiety after the robbery and was unable to sleep in her bed for four months. Dailey saw Gates get hit with a gun. Gates did not testify, but submitted a statement that was included in the presentence investigation report (“PSI”). Gates stated that he sustained bruises and abrasions and now suffers from more frequent seizures.

Bethea testified that his father was an alcoholic and a drug abuser who was physically, mentally, and sexually abusive to Bethea, his mother, and his siblings. Bethea was removed from his home at the age of six and lived in various foster homes and juvenile facilities in New York and Virginia for most of the rest of his childhood. Bethea testified that he was physically abused in some of these placements. Bethea stated that he had no juvenile record because any behavioral issues were dealt with through his placements and what would be the equivalent of a Child In Need of Services case in Indiana.

Bethea's adult record was outlined in the PSI. In 2000, he was charged with class B misdemeanor possession of marijuana in New York. A bench warrant was issued, and the PSI does not indicate any further action taken in that case. In 2001, Bethea pled guilty to obstructing justice, petit larceny, and two counts of being an accessory after the fact in Virginia and received suspended or partially suspended sentences on each conviction. In April 2002, Bethea pled guilty to possession of cocaine as a lesser-included offense of possession of cocaine with intent to distribute in Virginia, and he received a suspended sentence. In August 2002 and June 2003, Bethea was found guilty of violating his probation in Virginia. In 2004, notice of additional probation violations was filed in Virginia, and a warrant was issued that remains active. Since 2005, there have been three warrants issued in New York that remain outstanding—one for class A misdemeanor possession of a controlled substance, one for class A misdemeanor criminal impersonation, and one for class E felony possession of a credit card.

Bethea testified that he has two biological children, ages five and six, and helps to take care of a third child. The PSI indicates that his children live with their mothers, one in New Jersey and one in Virginia, and that Bethea has not been ordered to pay child support.

Bethea testified that he has ADHD and learning disabilities, and that he also has been diagnosed with schizophrenia and paranoia and has taken medication for those conditions. During the presentence investigation, Bethea reported having ADHD and learning disabilities, but no other mental health diagnoses. Bethea testified that he has used drugs and alcohol since the age of nine and has tried a wide range of drugs including PCP, marijuana, cocaine, embalming fluid, heroin, inhalants, and acid. He admitted to using PCP, marijuana, heroin, and cocaine the day of the robbery. He has never received treatment for his drug addiction, and he has never been ordered to do so. During the presentence investigation, Bethea stated that he knows the difference between right and wrong, makes his own decisions, and is easily influenced by drugs and alcohol.

Bethea testified that he did not know Seaton before the night of the offenses and did not know how old she was. He apologized for his actions, but denied having a weapon while committing the offenses.¹ To rebut Bethea's claim that he did not have a weapon, the State offered into evidence statements that Dailey and Seaton made to the police.

Trial counsel asked the court to consider that Bethea accepted responsibility by pleading guilty, that he was remorseful, that his incarceration would cause hardship on his dependents, that he had been abused by his father and in several of his placements, that he has had periods of gainful employment, that he has mental health problems, that he is addicted to drugs, and that he is relatively young (twenty-five at the time of the offense).

The State argued that Bethea's use of a juvenile in the commission of a crime should be considered an aggravator, and trial counsel argued that it should not be considered:

I don't believe that the presence of Tyler Seaton should be considered an aggravating factor in the sense of a juvenile being present. Tyler Seaton is not a victim in this case and she's not a witness in this case, she's a defendant in this case. She's riding along with her boyfriends and they stop and pick up Curtis Bethea. And she's right along in with it. She's a seventeen (17) year old acting like a twenty-five (25) year old. And of course, she's already been sentenced to four (4) years.

Sentencing Tr. at 61.

Trial counsel also asked the court to discount the State's argument that Bethea had not benefitted from prior attempts at...