Bingham v. State

• Decision Date: 16 December 2011
• Docket Number: No. 49A05-1107-PC-409,49A05-1107-PC-409
• Parties: JERYL R. BINGHAM, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
• Court: Indiana Appellate Court

JERYL R. BINGHAM, Appellant-Petitioner,

v.STATE OF INDIANA, Appellee-Respondent.

No. 49A05-1107-PC-409

COURT OF APPEALS OF INDIANA

Filed: December 16, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT:

STEPHEN T. OWENS

Public Defender of Indiana

KEVIN R. HEWLATE

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

The Honorable Christine R. Klineman, Master Commissioner

Cause No. 49G05-0403-PC-46260

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary

Jeryl Bingham appeals the post-conviction court's denial of his petition for postconviction relief. We affirm.

Issues

Bingham raises two issues, which we restate as:

I. whether he was denied the effective assistance of appellate counsel by counsel's failure to argue on appeal that the waiver of Bingham's right to a jury trial was not knowing, intelligent, and voluntary; and

II. whether Bingham's waiver of his right to a jury trial was knowing, intelligent, and voluntary.

Facts

The facts as stated in Bingham's direct appeal follow:

Sometime in 1999, Bingham became romantically involved with Veronica Davis and moved into her Indianapolis home with her children. Bingham was mildly mentally handicapped with an I.Q. of 55. His cognitive abilities were limited and his reading ability was at a second grade level. At some point during their ten-year relationship, Bingham began having sex with one of Davis's daughters-L.D.-who was four years old at the time.

L.D. eventually reported the sexual abuse to Davis and other relatives. Detective Gustavia Dodson of the Indianapolis Police Department interviewed L.D., at which time she told the detective that she did not report Bingham's abuse earlier because she was afraid of being taken from her mother. Thereafter, the State charged Bingham with four counts of child molesting for abuse that had occurred at three different times. Count I alleged that Bingham had sexual intercourse with L.D. in 2000 while they were all living in the Meadows apartment complex in Indianapolis. Count II alleged that Bingham had sexual intercourse with L.D. when she was twelve years old, and Count III alleged that Binghamhad sexual intercourse with L.D. when she was thirteen years old. Finally, Count IV alleged that Bingham fondled or touched L.D. with the intent to arouse his sexual desires when L.D. was thirteen years old.

On March 17, 2004, Bingham met with Detective Gregory Norris of the Indianapolis Police Department. After being informed of his Miranda rights, Bingham admitted to Detective Norris that he had had sex with L.D. on multiple occasions. . . .

Bingham v. State, No. 49A02-0601-CR-46, slip op. at 2-3 (Ind. Ct. App. Sept. 1, 2006).

At the pre-trial conference, Bingham submitted a waiver of trial by jury signed by himself, his attorney, and the deputy prosecutor. Judge Grant Hawkins then questioned Bingham about the waiver. Bingham indicated that his attorney read the waiver to him and that he understood it, and Bingham's sister indicated that Bingham understood the waiver. The following discussion then occurred:

The Court: By signing this document you're saying you want me or someone like me to do the jury's job, is that right?

Mr. Bingham: Yes, sir.

The Court: You understand you won't be able to change your mind later?

Mr. Bingham: I understand.

The Court: All right. Now, your lawyer didn't twist your arm to get you to sign it, did he?

Mr. Bingham: No, sir.

The Court: After talking with him you think this is the best way for the case to be resolved?

Mr. Bingham: Yes, sir.

The Court: Okay. Did he promise you something good would happen, that some friendly judge would do you a real favor?

Mr. Bingham: No, sir.

The Court: Did he say that if you went to trial by jury that something mean or bad would happen to you?

Mr. Bingham: No, sir.

The Court: You just think this is the best way to resolve it? Mr. Bingham: Yes, sir.

* * * * *

The Court: Okay, now, Judge Rubick has a lot of involvement in this case. The next time I hear evidence will be the first and I' m not sure Judge Broyles has ever heard about this case. Those are the primary three jurists available for a day-long court trial. Have the parties had any discussion - I know there's some unusual issues and you may or may not want Judge Rubick to hear it. I know that at one point you thought he was going to hear it. Has there been discussion of a preference?

[Deputy Prosecutor]: We haven't but I'm okay with yourself or Judge Rubick. I think that's what [Defense Counsel] would prefer so either one of you two are fine with me.

[Defense Counsel]: That is correct, Judge.

* * * * *

The Court: Let me make one more - clear up one more thing. You indicated subtly a preference for myself or Judge Rubick, I'm taking it there's no problem with Judge Broyles, it's just we're the two you've seen the most on this case?

[Defense Counsel]: Yes.

[Deputy Prosecutor]: Yes.

The Court: All right, then.

PCR Petitioner's Exhibit B pp. 6-10.

The bench trial was presided over by Judge Nancy Broyles, who was serving as the pro tem judge. Bingham objected at the beginning of the trial to Judge Broyles presiding over the trial. Bingham argued that Judge Hawkins or Commissioner Steven Rubick should preside over the trial. Judge Broyles overruled Bingham's request. After the bench trial, Judge Broyles found Bingham guilty as charged.

Bingham filed a direct appeal and argued that: (1) the trial court erred by admitting his confession into evidence; (2) the trial court erred by denying his request for a mistrial; and (3) the trial court abused its discretion by ordering consecutive sentences. We concluded that the trial court did not err by admitting Bingham's confession or denying his mistrial request but that the trial court abused its discretion by ordering consecutive sentences.

Bingham then filed a petition for post-conviction relief, arguing that: (1) he received ineffective assistance of appellate counsel for her failure to argue on appeal that the waiver of his right to a jury trial was not knowing, intelligent, and voluntary; and (2) the waiver of his right to a jury trial was not knowing, intelligent, and voluntary. After an evidentiary hearing, the post-conviction court entered findings of fact and conclusions thereon denying Bingham's petition for post-conviction relief. Bingham now appeals.

Analysis

Bingham appeals the post-conviction court's denial of his petition for post-conviction relief. A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). "The findings must be supported by facts and the conclusions must be supported by the law." Id. Our review on appeal is limited to these findings and conclusions. Id. Because the petitioner bears the burden of proof in the post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing P-C.R. 1(5)). "A petitioner appealing from a negative judgment must show that the evidence as a whole 'leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.'" Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review, "[we] will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Id.

I. Ineffective Assistance of Appellate Counsel

Bingham argues that his appellate counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or her counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied). A counsel's performance is deficient if it falls below an objective standard ofreasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). 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." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

Bingham argues that his appellate counsel was ineffective because she failed to argue his waiver of jury trial was unknowing, unintelligent, and involuntary. Because the strategic decision regarding which issues to raise on appeal is one of the most important decisions to be made by appellate counsel, appellate counsel's failure to raise a specific issue on direct appeal rarely constitutes ineffective assistance. See Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court has adopted a two-part test to evaluate the deficiency prong of these claims: (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. Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. denied. If this analysis demonstrates deficient performance by counsel,...