Black v. State
| Citation | 54 N.E.3d 414 |
| Decision Date | 12 May 2016 |
| Docket Number | No. 02A03–1511–PC–1875.,02A03–1511–PC–1875. |
| Parties | Brandon T. BLACK, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Court of Appeals of Indiana |
Stephen T. Owens, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Brandon T. Black appeals the denial of his petition for post-conviction relief. Black raises two issues which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.
[2] In 2010, the State charged Black with battery and neglect of a dependent as class A felonies.1 On November 22, 2010, a public defender entered an appearance on behalf of Black. On November 23, 2010, the court held a hearing, and Black orally moved to proceed pro se. The court granted the motion with the public defender appointed as standby counsel.
[3] At some point while Black was proceeding pro se, the State made a plea offer in which he could plead guilty to battery and receive an executed sentence of thirty-five years and the State would dismiss the neglect charge, and Black rejected the offer.
Black later waived his right to self-representation, and the public defender was appointed to represent him.
[4] On May 2, 2011, the court held a change of plea hearing. Black indicated a desire to plead guilty to neglect of a dependent as a class A felony. The plea agreement provided that the State agreed to dismiss the charge of battery as a class A felony.2 The court informed Black of his rights and stated: Guilty Plea Transcript at 7. Black responded: “Yes sir.” Id. Upon the court's questioning, Black indicated that he read and discussed the plea agreement with his attorney before signing it and that he was satisfied with his attorney.
[5] Black testified that on September 13, 2010, he failed to watch K.T., an eleven-month-old boy, that the cause of K.T.'s death was a skull fracture
and bleeding to the brain, and that K.T. also suffered other injuries including to his abdomen and chest. Upon questioning by his counsel, Black indicated that in his view K.T. suffered the injuries because he was not watching him and K.T. fell down a large stairway. He also testified that he was aware that K.T. sustained a broken arm approximately a month earlier while he was engaged in some sort of activity with another child. The prosecutor stated that the State was prepared for trial for both the battery and the neglect charge. The trial court took the matter under advisement and later accepted the plea agreement.
[6] On June 3, 2011, the court held a sentencing hearing. Dr. Pramond K. Carpenter, a forensic pathologist, testified that he performed an autopsy on K.T. in September 2010. Following Dr. Carpenter's identification of an exhibit as containing photographic evidence that was collected during the autopsy of K.T., Black's counsel objected on the basis that the nature and extent of the injuries sustained by the infant were not relevant because Black pled guilty to neglect and that what Dr. Carpenter's testimony “will go to is the fact that in this witness's opinion this was perhaps an intentional act” to which Black had not pled guilty and that the court had dismissed the intentional act. Sentencing Transcript at 9. The court stated that it believed “[w]hether or not Mr. Black is directly responsible for the injuries sustained, I think proof of the situation into which he was placed causing his death is relevant and therefore we'll overrule the objection.” Id. at 11.
[7] Dr. Carpenter testified that K.T. suffered multiple circular bruises in the chest and similar circular contusions or bruises on the lower part of the abdomen consistent with being caused by either the tips of the fingers or knuckles. Dr. Carpenter also testified that there was a healing fracture which had been repaired on the right arm several weeks earlier and healed scratch marks on the left arm. He testified that the most severe injury and the cause of death was a skull fracture
. He also testified that the head trauma and chest and abdomen injuries would not have been caused by a fall down stairs.
[8] The court recognized Black's guilty plea and difficult childhood as mitigating circumstances, but found that the aggravating circumstances, which included Black's criminal history and the nature of the offense, substantially outweighed the mitigating circumstances. The court sentenced Black to fifty years with ten years suspended.
[9] Black filed a pro se petition for post-conviction relief on January 23, 2012, and an amended petition by counsel on July 31, 2014. Black alleged that he pled guilty involuntarily and that he was denied the effective assistance of trial counsel. Black asserted that, when he pleaded guilty, he thought that he could receive a sentence of one hundred years were he to proceed to trial and be found guilty as charged while in fact he could receive a sentence of only fifty-three years. On August 28, 2014, the State filed an answer in which it in part admitted that Black's maximum sentencing exposure was fifty-three years.
[10] On March 13, 2015, the post-conviction court held an evidentiary hearing. Black's trial counsel testified that he met with Black several times and that they had “a lot of conversations.” Post–Conviction Transcript at 7. When asked if he explained how many years he was facing if he went to trial and was convicted on both counts, trial counsel stated: Id. at 6. When asked if it was possible that he told Black that he was facing one hundred years if he was convicted as charged, trial counsel stated that he did not think he would have told Black that. Trial counsel testified that he did not have any specific recollection of any actual advice he gave Black, but that based upon the file, he thought that his advice would have been that the charges would have to merge and that his maximum sentence would be “[f]ifty—a little over fifty.” Id. He testified that he always leaves the choice to accept a plea agreement to the client and that he attempts to provide the client with enough information relevant to the charges against them, that he discusses any offers that the State makes, and that he would never advise a client to take an offer.
[11] On cross-examination, trial counsel testified that he thought that the charges would probably merge because the facts of the battery and the neglect were so closely related and intertwined. He testified that he was aware of the rule that two felonies could not be elevated on the basis of the same injury. When asked whether his “advice to Mr. Black about how much he was facing would have taken that into account,” trial counsel answered: “Definitely.” Id. at 9. Trial counsel indicated that that would be another reason why he would not have told Black that he was facing one hundred years. Trial counsel also stated that he did not remember Black ever giving him any indication that he thought he was facing one hundred years and that, if Black had given him any indication of that, he “would have tried to dispel him of that, uh, mistaken notion.” Id. at 9–10.
[12] Black testified that he knew when he was charged that the sentencing range for a class A felony was twenty to fifty years. He testified that he met with his trial counsel at the jail once on this matter and twice on another matter and that the first time trial counsel spoke to him about this case he did not give any advice about how much time he was facing. During direct examination, the following exchange occurred:
Id. at 13–14. Black indicated that he thought that the worst case scenario was that he was facing one hundred years. Black testified that he rejected the initial plea offer in which he would have pled guilty to battery because he did not want to plead guilty of “harming anyone or doing any, um, malicious things to a child.” Id. at 17.
[13] When asked why he accepted the plea agreement that he did, Black answered:
Because, uh, [trial counsel] stated to me right here, um, we was (sic) sitting at the table, that, uh, he didn't understand how he was gonna—I was gonna be able to beat the charge and of being the responsible adult, not about the battery. And, uh—and if, uh—if the Judge—if the Judge so pleased that this could go anywhere if you lose both cases then I would most likely be maxed out if I went to trial, so.
Id. at 17–18. He testified that he thought that if he accepted the plea he “would take 50 years automatically off ... the table, and I would just have to worry about, uh, dealing with one charge instead of two.” Id. at 18. He testified that he...
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