Burton v. State
| Decision Date | 18 June 2015 |
| Docket Number | No. 33A01–1501–PC–5.,33A01–1501–PC–5. |
| Citation | 35 N.E.3d 675 (Table) |
| Parties | Ryan M. BURTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Stephen T. Owens, Public Defender of Indiana, Richard Denning, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] Ryan Burton appeals from the trial court's denial of his petition for postconviction relief. Burton presents the following restated issues for review:
[2] We affirm.
[3] On March 24, 2009, Burton, then eighteen years old, delivered OxyContin1 pills belonging to his mother to an undercover Drug Task Force Officer. The transaction occurred within 1000 feet of Country Park Apartments, a family housing complex. On or about June 2, 2009, Burton again sold oxycodone to an undercover officer.
[4] On August 24, 2009, the State charged Burton with Count I, dealing in a schedule II controlled substance2 as a class A felony and Count II, dealing in a controlled substance, a class B felony. On June 3, 2010, Burton entered into a plea agreement with the State in which he agreed to plead guilty to Count I and in exchange, the State agreed to dismiss Count II. With regard to sentencing, the plea agreement provided for a cap of twenty-five years and also provided that Burton waived his right to appellate review of the sentence imposed.3
[5] The trial court held a sentencing hearing on August 10, 2010. In his statement to the court, Burton admitted that he had been helping his mother illegally sell prescription drugs since he was fourteen years old. In addition, the court noted that at the age of sixteen, Burton committed the offense of child molesting, which would be a class B felony if committed by an adult, and was subsequently adjudicated a delinquent. Prior to pronouncing the sentence, the trial court identified two aggravating factors: (1) Burton's adjudication for class B felony child molesting and (2) Burton's admission that during the time he was on probation, he participated in the conduct that led to the current offense. The court noted as mitigating that Burton had pleaded guilty and his young age. Finding that a mitigated sentence was warranted, the trial court sentenced Burton to twenty-two years with ten years suspended, five of which to be served on formal probation and two to be served on informal probation.
[6] Burton, pro se, filed a petition for post-conviction relief on March 14, 2013. On September 15, 2014, Burton, this time by counsel, filed an amended petition for post-conviction relief. The post-conviction court held a hearing on November 12, 2014. The post-conviction court entered its findings of fact and conclusions of law denying Burton post-conviction relief on December 15, 2015. Burton now appeals.
[7] In a post-conviction 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 judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004) ). In order to prevail, the petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-conviction court's conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer to a post-conviction court's legal conclusions, we will reverse its findings and judgment upon a showing of clear error, i.e., “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) ).
[8] Burton first argues that he received ineffective assistance of counsel because his counsel failed to present mitigating evidence at sentencing. Specifically, Burton argues that his counsel failed to investigate and explain the circumstances surrounding his prior juvenile adjudication for child molesting4 and did not explain that he failed to attend counseling mandated during his prior probation because his mother refused to provide transportation. Burton maintains that had the trial court been made aware of these circumstances, it likely would have imposed a lesser sentence.
[9] Indiana's standard for evaluating claims of ineffective assistance of counsel is well-settled. A petitioner will prevail on a claim of ineffective assistance of counsel only upon a showing that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the petitioner must demonstrate deficient performance, which is “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.” Id. at 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) ). To satisfy the second element, the petitioner must show prejudice, which is “a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. at 1139. There is a “strong presumption” that counsel rendered adequate service. Id. Because a petitioner must prove both elements in order to succeed, the failure to prove either element defeats the claim. See Young v.. State, 746 N.E.2d 920 (Ind.2001). Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. State v. Hollin, 970 N.E.2d 147 (Ind.2001).
[10] As noted above, the trial court identified two aggravating circumstances: (1) that Burton had a prior adjudication for child molesting and (2) that Burton was dealing drugs while on probation. Although Burton's failure to attend mandated counseling was noted in the pre-sentence investigation report (PSI), the trial court did not indicate that it considered such as an aggravating circumstance. Thus, any explanation for such failure would likely have had no impact on the court's sentencing determination.
[11] To the extent Burton claims his counsel failed to investigate his reasons for failing to attend counseling or inquire about the circumstances of Burton's prior adjudication, we note that Burton's counsel testified that he reviewed the PSI and asked Burton if there was any information he wished to contest in the PSI or present at the hearing, as was his usual procedure. Burton does not explain what further investigation, aside from asking Burton himself, his counsel could have undertaken to discover why Burton did not attend counseling or to uncover the circumstances surrounding his adjudication for child molesting. Burton has provided no evidence suggesting that the trial court would have imposed a different sentence if trial counsel would have presented Burton's desired evidence during sentencing. Burton has not established that the postconviction court erred in finding that his counsel rendered effective assistance during sentencing.
[12] Aside from the fact that there is no evidence to support a finding of deficient representation by Burton's counsel, Burton has not established that he was prejudiced. Burton's counsel negotiated a plea agreement providing for a cap on the sentence that was five years below the advisory sentence for a class A felony. The trial court evaluated the aggravating and mitigating factors and concluded that an even greater mitigated sentence than was permissible under the plea agreement was warranted. The trial court ultimately sentenced Burton to twenty-two years with ten years suspended. The trial court was very thorough in its sentencing statement and in explaining the sentence it imposed. Burton has not shown that counsel's failure to explain why Burton did not attend mandated counseling or explain the circumstances of his underlying juvenile adjudication had any impact on the trial court's sentencing decision. Accordingly, Burton has not established prejudice.
[13] Burton argues that enforcement of the savings clause in the new criminal code violates article 1, section 18 of the Indiana Constitution. Article 1, section 18 of the Indiana Constitution provides, “The penal code shall be founded on the principles of reformation, and not of vindictive justice.” It is well settled that this section applies only to the penal code as a whole, not to individual sentences. Hazelwood v. State, 3 N.E.3d 39 (Ind.Ct.App.2014).
[14] The Indiana reformed criminal code went into effect on July 1, 2014. Under the new code, felonies are delineated by levels rather than classes. Under the old code, there were five classes of felonies, A through D, and murder. The new code contains seven levels of felonies, 1 through 6, and murder. Pertinent to the case at hand is that the code no longer contains the enhancement provision to increase the severity of a felony for dealing in a controlled substance due to the crime being committed within 1000 feet of a public housing complex. Burton's crime under the prior code was classified as a class A felony that carried a fixed term of imprisonment of between twenty and fifty years with the advisory sentence being thirty years. Under the new code, because there is no longer an applicable enhancement provision, Burton's crime would be classified as a level 5 felony, carrying a fixed sentencing range of between one and...
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