Crowder v. State

• Decision Date: 16 January 2018
• Docket Number: Court of Appeals Case No. 02A03–1704–PC–824
• Citation: 91 N.E.3d 1040
• Parties: Bradford M. CROWDER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

91 N.E.3d 1040

Bradford M. CROWDER, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

Court of Appeals Case No. 02A03–1704–PC–824

Court of Appeals of Indiana.

FILED January 16, 2018

Attorneys for Appellant : Stephen T. Owens, Public Defender of Indiana, Anne C. Kaiser, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Bradford M. Crowder appeals the denial of his petition for post-conviction relief. He raises four issues which we consolidate as whether the postconviction court erred in denying his petition. We affirm in part and reverse in part.

Facts and Procedural History

[2] On April 19, 2011, the State charged Crowder with Count I, child molesting as a class A felony, and other counts including child molesting as a class C felony, three counts of sexual misconduct with a minor as class B felonies, three counts of sexual misconduct with a minor as class C felonies, four counts of child exploitation as class C felonies, and vicarious sexual gratification as a class D felony.

[3] On August 12, 2011, Crowder entered a plea agreement, which stated: "COMES NOW the State of Indiana by Karen E. Richards, Prosecuting Attorney, 38th Judicial Circuit, pursuant to I.C. 35–35–3–3, and respectfully notifies the Court ...." Appellant's Appendix Volume II at 59. The agreement then listed ten numbered items which each had a line preceding the item. The first item indicated that Crowder would plead guilty to all of the charges except for child molesting as a class A felony, and the line preceding the item was not initialed. Item 2, which had a line containing no initials, provided:

That at sentencing the Defendant, and Defendant's attorney, and the State may present facts and argument, but under all circumstances the Court shall have the final and full authority to impose the sentence it deems proper, including the minimum and maximum allowed by Indiana law. Nothing in this agreement shall be construed to limit any victim privilege or right provided by law or the discretion of the Court.

Id. The line preceding item 6 which discussed the possibility of deportation was initialed by Crowder. Item 9, which had a line containing no initials, stated: "The Defendant knowingly, intelligently and voluntarily waives his/her right to challenge the reasonableness of the sentence received in this case under Appellate Rule 7(B). Defendant also knowingly, intelligently and voluntarily waives his/her right to challenge the sentence on the basis that it is erroneous." Id. at 60. Item 10, which had a line containing no initials, stated: "At sentencing the State agrees to dismiss COUNT I, CHILD MOLESTING, a CLASS A FELONY." Id. Crowder and his counsel signed a document stating:

I, Bradford M. Crowder, represent that I am the defendant and that I have read this plea agreement or I have had my attorney read it to me. I represent that I understand the plea agreement and accept same voluntarily and without force, threat or other promises from anyone (other than the plea agreement).

I further understand that I have a right to a speedy, public trial by court or by jury in the county in which the offense allegedly occurred; I have a right to require witnesses to be present at any hearing or at the trial for the purpose of testifying on my behalf and at my request subpoenas will be issued by the court requiring witnesses to appear for me; and, I have a right to remain silent and that I cannot be required to give any testimony or make any statement against myself to anyone. I understand that this plea of guilty waives (gives up) the aforesaid rights.

Id. at 61.

[4] Also on August 12, 2011, the court held a hearing. Crowder stated that he had never been treated for any mental illness and had not suffered from a mental or emotional disability. He stated that he was not under the influence of alcohol or any drugs and that it was his intention to enter a plea of guilty. The court explained Crowder's rights, and Crowder indicated that he understood he would be giving up those rights by pleading guilty. The court read the plea agreement, including the provisions that Crowder "knowingly, intelligently and voluntarily waives his right to challenge the reasonableness of the sentence received in this case under Appellate Rule 7(B)" and "also knowingly, intelligently and voluntarily waives his right to challenge the sentence on the basis that it is erroneous." Guilty Plea Transcript at 17. Crowder indicated that he understood he was giving up his right to appeal his sentence. He indicated that he had not received any promises other than the plea agreement in order to induce him to plead guilty, that no one had forced or threatened him to induce him to plead guilty, and that pleading guilty was his own free and voluntary act.

[5] On September 30, 2011, the court held a sentencing hearing. Crowder's counsel stated:

We would submit that in October to January a time period during which these offenses occurred should represent an episode of single episode of criminal conduct and at the very least the non-child molesting laded [sic] allegations we would concede that that would be considered violent in nature so that one could be ran consecutively. However, the remainder of these charges should based [sic] upon his single episode of criminal conduct we would submit should be ran concurrently and further that, that means that the combined sentence should not exceed what would be the next highest, the advisory on the next highest which would be the A so we would submit that a thirty (30) years cap here is in play.

Sentencing Transcript at 8. The prosecutor stated that Count I, child molesting as a class A felony, was dismissed because

[S.] came in to my office and told me that while the abuse began when she was thirteen (13) there was more of the grooming techniques. He did not actually begin putting his penis in her mouth till she turned fourteen (14) and that's why that charge is dismissed that it started with him coming in and fondling her and touching her and grooming her and it was after she turned fourteen (14) that he began the more, more heinous sexual acts. And that's why that count was dismissed and why he pled guilty to the other charges.

Id. at 15–16.

[6] The court found Crowder's guilty plea and acceptance of responsibility as mitigating circumstances. The court stated:

Your attorney has further asked that I consider that these offenses be considered a single episode of conduct to justify concurrent sentencing and I think the case law clearly indicates that that is not correct. I certainly understand your Attorneys [sic] advancement of that argument but the case law does not support it. It's a series of events closely related in time, place and circumstances that makes something a series of single episode of conduct and this is clearly not one (1) instance. I don't know how many times you molested your daughter but it certainly wasn't once, or twice or even three (3) times.

Id. at 25. It found Crowder's criminal record and the extraordinary impact on Crowder's daughter as aggravators.

[7] The court sentenced Crowder to four years for child molesting as a class C felony, ten years each for the three counts of sexual misconduct with a minor as class B felonies, four years for each of the two counts of sexual misconduct with a minor as class C felonies, one year and 183 days for each of the two counts of vicarious sexual gratification as class D felonies, and four years for each of the four counts of child exploitation as class C felonies. The court ordered the sentences to be served consecutive to each other for an aggregate sentence of sixty-one years.

[8] On September 17, 2012, Crowder filed a petition for post-conviction relief. On June 26, 2015, the trial court entered an order granting Crowder's motion for permission to file a belated appeal and holding his petition for post-conviction relief in abeyance. In his appellate brief, Crowder argued that his sentence was inappropriate. On October 7, 2015, the State filed a motion to dismiss arguing that Crowder waived the right to appeal the appropriateness of his sentence in his plea agreement and because Crowder should have raised his challenge to the validity of his plea agreement by filing a petition for post-conviction relief. On November 20, 2015, this Court granted the State's motion to dismiss the appeal with prejudice. On January 22, 2016, this Court denied Crowder's petition for rehearing and stated that the appeal remained dismissed.

[9] On June 8, 2016, Crowder filed an amendment to his petition for postconviction relief which alleged that his guilty plea was not entered knowingly, intelligently, and voluntarily and that he was denied the effective assistance of trial counsel.

[10] On September 30, 2016, the court held a hearing on Crowder's petition. The court admitted a letter dated July 29, 2011, from the deputy prosecuting attorney to Crowder's counsel which states:

As I explained to you on the phone yesterday, I met with [S.]. [S.] clarified some issues that I had. She explained that the molestation began when she was 13 years old and her mother was pregnant with her little brother. The molestations started by her father coming into her room at night and touching her. This type of touching occurred several times. The touching was on top of her clothes on her breast. The first act of oral sex did not occur until after she turned 14.

Based on this information the State will dismiss Count I prior to trial. However, the State is confident that we will secure a conviction on the 12 remaining counts based on [S.'s] testimony, your client's admission to the Detective that he began touching [S.] when she was thirteen, and the videos he took which we have.

The State will give Mr. Crowder one final opportunity to plead guilty and avoid trial. He can plead to one of

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