Bethea v. State
| Decision Date | 12 March 2013 |
| Docket Number | No. 18S05–1206–PC–304.,18S05–1206–PC–304. |
| Citation | 983 N.E.2d 1134 |
| Parties | Curtis A. BETHEA, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
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.
On Petition to Transfer from the Indiana Court of Appeals, No. 18A05–1107–PC–416
In his Petition for Post–Conviction Relief, Curtis Bethea argues he received ineffective assistance of counsel for failure to challenge the aggravating factors used by the trial court in determining his sentence. Specifically, he claims a trial court cannot aggravate a defendant's sentence with an essential element of a charge that was dismissed pursuant to a plea agreement. We hold that the trial court finding that the injury suffered by the victim to be an aggravating factor was proper despite the plea agreement that dismissed that count.
In December 2005, Curtis Bethea, Jerry Gore, Eddie Wilson, and Tyler Seaton went to the home of Angela Dailey and Jason Gates. Bethea and Gore entered the home wielding guns. Gates was “pistol whipped” and Dailey was pulled out of bed and thrown to the floor. Bethea bound Gates' arms with tape. Gore and Bethea ransacked the house looking for money and drugs.
Bethea was arrested and charged with nine counts which included: Count I, Class A felony Burglary Resulting in Bodily Injury; Count II, Class B felony Armed Robbery of Gates; Count III, Class B felony Armed Robbery of Dailey; Count IV, Class B felony Criminal Confinement of Gates; Count V, Class B felony Criminal Confinement of Dailey; Count VI, Class C felony Intimidation of Gates; Class VII, Class C felony Intimidation of Dailey; Count VIII, Class D felony Auto Theft of Dailey's vehicle; and Count IX, Class B felony Criminal Confinement of Dailey.
In February 2007, Curtis Bethea pled guilty to two counts, Count II, Class B felony Armed Robbery of Gates, and Count V, Class B felony Criminal Confinement of Dailey. His plea agreement left the sentences open to the discretion of the trial court. At the sentencing hearing, Bethea testified that his father was an alcoholic and drug user who was physically, mentally, and sexually abusive to Bethea, his mother, and his siblings. Bethea lived in various foster homes from the age of six, and in juvenile facilities in New York and Virginia. Bethea further testified that he used drugs and alcohol since the age of nine, including PCP, marijuana, cocaine, embalming fluid, heroin, inhalants, and acid. To counter the mitigating evidence, the State presented evidence of Bethea's extensive criminal history and testimony of one of the victims. The trial court noted the harm, injury, and loss suffered by the victims was significant.
The trial court determined that the aggravating circumstances outweighed the mitigating circumstances and imposed the maximum sentence of twenty years on each count. The court ordered the sentences served consecutively which resulted in an aggregate sentence of forty years, the maximum allowed by the plea.
Bethea appealed his sentence, but the Court of Appeals affirmed the trial court. Bethea v. State, No. 18A02–0703–CR–247, 2007 WL 3378461 (Ind.Ct.App.2007) (memorandum decision). Bethea then filed for post-conviction relief, arguing ineffective assistance of counsel by both trial counsel and appellate counsel. Following a hearing, the trial court denied Bethea relief. On appeal to the Court of Appeals, Bethea argued the post-conviction court erred in finding that appellate counsel's failure to raise an Indiana Appellate Rule 7(B) claim and a challenge to the improper factors did not result in ineffective assistance of counsel. Secondly, Bethea argued the post-conviction court erred in finding that trial counsel's failure to object to and tender evidence negating an unsupported aggravating factor did not result in ineffective assistance of counsel. The Court of Appeals issued a split decision affirming the trial court.
In the petition for post-conviction relief, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). We do not defer to a post-conviction court's legal conclusions; however, “[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.’ ” Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) ().
To prevail on a claim of ineffective assistance of counsel, the petitioner must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced him. Coleman v. State, 694 N.E.2d 269, 272 (Ind.1998) ( citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To satisfy the first prong, the defendant must show deficient performance: “representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) ( citing Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052). To satisfy the second prong, the defendant must show prejudice: a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. There is a strong presumption that counsel rendered adequate service. Coleman at 272. There is nothing in the record that rebuts this presumption.
We agree with the Court of Appeals and summarily affirm their analysis that “Bethea has not persuaded us that trial counsel's [strategy] was not an acceptable strategy.” Bethea v. State, 964 N.E.2d 255, 264 (Ind.Ct.App.2012). We turn our focus to the adequacy of representation Bethea received from appellate counsel.
There are three categories of ineffective assistance of appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind.2001). We have previously stated that
[w]hen a petitioner claims the denial of effective assistance of appellate counsel because counsel did not raise issues the petitioner argues should have been raised, reviewing courts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. But this does not end our analysis. Even if we determine that counsel's choice of issues was not reasonable, a petitioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been different in order to prevail.
Taylor v. State, 840 N.E.2d 324, 338 (Ind.2006) (internal citations omitted). We must determine “(1) whether the unraised issues are significant and obvious from the face of the record; and (2) whether the unraised issues are clearly stronger than the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind.Ct.App.2006).
The issue before us is whether Bethea was prejudiced by appellate counsel's failure to cogently challenge the aggravating factors in the underlying sentence. Sentencing decisions are reviewed for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007). An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court. Id. If the trial court has used improper aggravating factors, we will remand for resentencing “if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. at 491.
The trial court found the following circumstances supporting sentence enhancement:
(1) Defendant has the following convictions in Virginia: Obstruction of Justice, March 14, 2001 (# 810GC010075700); and Petit Larceny, March 21, 2001 (# 710CR0100457900). The Court gives these two convictions minimal weight as they appear similar to misdemeanor offenses in Indiana, and they are not similar to the offenses involved in this case.
(2) Defendant was convicted of two counts of Accessory after the Fact in a felony, and Defendant was sentenced as a misdemeanor in both counts, in Norfolk, Virginia, # 711GC0101928900, on December 11, 2001. The Court gives these convictions some weight; although they were entered as misdemeanor convictions, the charges involved two counts of Robbery, and Defendant is convicted of Robbery in this case.
(3) Defendant has a conviction for Possession with Intent to Distribute Cocaine as a felony, in Norfolk, Virginia (# CR01004579 and CR 02000494); on May 31, 2002, Defendant received a three year suspended sentence and was placed on probation. The Court gives this conviction significant weight, as it relates to a crime that could have been a significant felony in Indiana, and the conviction reflects a pattern developing of Defendant's continuing involvement in criminal activity.
(4) Defendant has two adjudicated probation violations related to # CR01004579, in Norfolk, Virginia. The Court gives these violations (to which Defendant...
To continue reading
Request your trial
-
Wright v. State
...than not, we have "held that evidence of a difficult childhood is entitled to little, if any, mitigating weight." Bethea v. State , 983 N.E.2d 1134, 1141 (Ind. 2013) (citing cases). And we see no reason to do otherwise here.While Wright's troubled childhood certainly elicits some sympathy, ......
-
Myers v. State
...proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134 (Ind.2013). “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgme......
-
Hanks v. State
...A post-conviction petitioner bears the burden of showing he is entitled to relief by a preponderance of the evidence. Bethea v. State , 983 N.E.2d 1134, 1138 (Ind. 2013) ; Ind. Post–Conviction Rule 1(5). A petitioner appealing the denial of his petition thus appeals from a negative judgment......
-
Guzman v. State
...a dismissed charge. However, Farmer and Roney were explicitly abrogated by the Indiana Supreme Court's recent opinion in Bethea v. State, 983 N.E.2d 1134 (Ind.2013). In Bethea, the Indiana Supreme Court held that “it is not necessary for a trial court to turn a blind eye to the facts of an ......