Burse v. State
| Decision Date | 04 December 1987 |
| Docket Number | No. 1285S510,1285S510 |
| Parties | Darnell BURSE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Vickie Yaser, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of a petition for post-conviction relief. Pursuant to a plea agreement, appellant entered pleas of guilty to attempted robbery (class B felony), attempted robbery (class A felony), robbery, two counts of attempted murder and murder. In addition, he was required to testify against three individuals in various pending cases. In exchange, appellant received sentences of twenty years for the class B felony conviction and thirty years on all remaining counts, all sentences to be served concurrently. The post-conviction court determined that the robbery charge was used to support the felony murder conviction and therefore vacated the sentence for robbery.
These are the issues raised at the post-conviction hearing: (1) whether appellant received effective assistance of counsel; and (2) whether the guilty pleas were entered knowingly and voluntarily.
Appellant contends that his defense counsel provided ineffective assistance due to a conflict of interest and additionally due to several errors and omissions.
During his representation of appellant and prior to the completion of plea negotiations, defense counsel secured immunity from prosecution for certain members of appellant's family. At the post-conviction hearing, he testified that the State wished to talk with appellant's family concerning the location of the gun used in the murder with which appellant was charged. He stated he was concerned that members of the family might be peripherally involved so he negotiated immunity from prosecution in exchange for their cooperation. As a result of information provided by appellant's family, the murder weapon was recovered.
Appellant's assertion of ineffective assistance of counsel suggests that counsel's representation of his family negatively affected counsel's performance on his behalf. The murder weapon was located as a direct result of counsel's representation of appellant's family. The record before us is not detailed enough for us to determine the strength or weakness of the State's case without the murder weapon. We can only assume that possession of the weapon would be beneficial to the State. Had appellant gone to trial on the charges, the weapon could have been used against him and if his relatives testified, counsel might have been limited in his ability to cross-examine them on any areas he had knowledge of due to his representation of those family members. The cases did not go to trial but it is asserted that counsel's advice and recommendation to accept the plea agreement were influenced by his actions on behalf of appellant's family.
A combination of several United States Supreme Court cases determines the standard to be applied when ineffective assistance of counsel due to a conflict of interest is alleged in a guilty plea situation. In general, in order to prove ineffective assistance of counsel, a defendant must show two components: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. However, when a defendant opts to plead guilty rather than proceed to trial, the second component of the Strickland test is modified. A defendant, rather than needing to show prejudice, must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203.
The Supreme Court has also spoken specifically on cases where conflict of interest is raised as the basis for an ineffectiveness claim. The applicable standard, when a defendant proceeds to trial, is a showing of an actual conflict of interest together with a showing that that conflict adversely affected counsel's performance. Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333.
When a guilty plea is involved, the Cuyler standard must be modified in much the same manner as the Strickland standard. Since the focus in reviewing a guilty plea is whether the plea was knowingly and voluntarily entered, it seems logical that a defendant who pleads guilty and is now asserting ineffectiveness of counsel due to a conflict of interest must establish: (1) that there was an actual conflict of interest; and (2) that that conflict of interest adversely affected the voluntary nature of the guilty plea.
Appellant has established that an actual conflict of interest existed. While counsel's motive in seeking to protect appellant's family from possible prosecution was undoubtedly commendable, his representation of those family members compromised his representation of appellant. The State obtained the murder weapon through appellant's relatives. In the event of trial, the murder weapon and the testimony of the relatives could be used against appellant and counsel would be somewhat constrained in his ability to cross-examine.
Since an actual conflict of interest has been established, it now becomes necessary to determine if that conflict of interest adversely affected the voluntary nature of the guilty plea. In other words, but for counsel's conflict of interest, would appellant not have pleaded guilty and insisted on going to trial instead?
In a post-conviction proceeding, a defendant must prove his claims by a preponderance of the evidence. He stands in the position of one appealing from a negative judgment and it is only where the evidence is without conflict and leads to but one conclusion that it will be deemed contrary to law. Popplewell v. State (1981), Ind., 428 N.E.2d 15.
At the hearing on appellant's petition for post-conviction relief, he testified that he believed his counsel had been ineffective because he didn't subpoena witnesses and because up until the guilty plea hearing he believed he was going to plead guilty in exchange for a twenty year sentence instead of a thirty year total sentence. At no time did appellant himself testify that his counsel's representation of other family members in any way affected his decision to plead guilty. His post-conviction attorney argued this position but presented no evidence in support of it.
While possession of the murder weapon by police would have impacted appellant's defense to some extent had he gone to trial, there has been no showing that it was a factor in his decision to plead guilty. Appellant confessed each crime to police and admitted his involvement to his attorney. He was facing a 280 year maximum sentence for these charges with the minimum he could receive being the thirty years he ended up with. The murder weapon's importance to the State's case seems minimal in the face of appellant's confession. We are not persuaded that appellant's decision to plead guilty would have been altered if his attorney had not had a conflict of interest.
Appellant also asserts he received ineffective assistance of counsel due to his attorney's failure to investigate appellant's alibi defense, misrepresentation of the plea negotiations, misadvice concerning the penalty range to which appellant was subject, and failure to file motions to dismiss against defective informations.
Counsel's decision to forego investigating appellant's alibi defense is a matter of trial tactics with which we will not interfere. In addition to appellant's confessions, he had also been identified at a line-up as the trigger man in one of the shootings. Given counsel's testimony that appellant confessed his involvement in the crimes, the confession to police and the eye-witness identification, counsel's decision to forego exploration of the alibi defense is supportable.
Apparently there was some discussion between defense counsel and the prosecution about a plea agreement for a total sentence of twenty years. Appellant now claims that he did...
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