Dew v. State, 49A02-0508-PC-800.
| Citation | 843 N.E.2d 556 |
| Decision Date | 10 March 2006 |
| Docket Number | No. 49A02-0508-PC-800.,49A02-0508-PC-800. |
| Parties | Maurice DEW, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Court of Appeals of Indiana |
Hilary Bowe Ricks, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, for Appellee.
Maurice Dew appeals the denial of his petition for post-conviction relief. We reverse and remand.
The dispositive issue is whether the failure of Dew's attorney to inform him about a plea offer from the State constitutes ineffective assistance of counsel.
We excerpt the following facts from Dew's direct appeal:
On September 1, 2001, twenty-year-old T.C. came home from college for the weekend. She was watching television during the early morning hours, and her stepfather, Dew, returned home and told T.C. that he was "so drunk." Dew sat next to T.C. and tried to place his head on her lap. T.C. told him to go to bed. Dew went into his bedroom and returned wearing only a robe. Dew again tried to place his head on T.C.'s lap, but she refused. T.C. turned off the television and told Dew that she was going to read her Bible and go to bed. When Dew followed T.C. into her bedroom and tried to talk to her, T.C. took his arm, walked him to his bedroom, and told him to go to sleep. Dew then grabbed T.C.'s arm, pulled her into the bedroom, and put her on the bed. Dew then lay on top of T.C. and hugged her. After hugging him back, T.C. told Dew to get off of her, but Dew tried to pull T.C.'s leg up and "cuff it under his arm." Dew told T.C., "I'm tired of waiting." While trying to "put [her] leg up," Dew inserted his fingers into T.C.'s vagina. T.C. kept saying, "Please don't do this." When T.C. resisted, Dew placed his hands on her neck and started to choke her. Dew told T.C. that he would "choke the [shit] out of [her]." Dew then held T.C.'s hands above her head, moved the crotch of T.C.'s pajama shorts aside, and inserted his penis into her vagina. T.C. was a virgin and "felt like [she] was getting ripped from the inside out."
The next day, T.C. told a friend and the friend's mother about the incident, and they took her to Wishard Hospital. Dr. Adrienne Rasbach found that T.C.'s hymen was torn and that T.C. had redness and irritation between the vaginal opening and the rectum. Dew's seminal material or spermatozoa were identified on the vaginal and cervical slides and swabs, the external genital swab, and the vaginal wash. As a result of the incident, T.C. became pregnant and had a child who was born on May 21, 2002.
Dew v. State, 802 N.E.2d 60, 49A02-0303-CR-265, slip op. at 2-3 (Ind.Ct.App. Dec.29, 2003) (), trans. denied (2004).
On September 21, 2001, the State charged Dew with class B felony rape and class B felony criminal deviate conduct. A jury trial commenced on October 28, 2002. During trial, Dew expressed an interest in pleading guilty. The prosecutor offered to dismiss the criminal deviate conduct charge in exchange for a guilty plea on the rape charge, with a cap of six years on the executed portion of the sentence.1 Dew rejected the offer, and the trial ended in a hung jury.2
A second trial was set for January 30, 2003. Dew's counsel did not meet with his client during the interim. On December 27, 2002, the State filed a supplemental notice of discovery compliance stating that it intended to call eight additional witnesses at trial. Dew's counsel did not interview those witnesses and did not tell Dew about them. On January 27, 2003, the prosecutor faxed a plea offer to Dew's counsel. The draft plea agreement states that in exchange for dismissal of the criminal deviate conduct charge, Dew would plead guilty to the rape charge and receive "a cap of six (6) years on the original executed portion of the sentence, any probation time will be left to the Court's discretion[.]" Petitioner's Ex. E at 2. The first page of the fax reads in relevant part: Id. at 1. Dew's counsel did not tell Dew about the plea offer.
At trial, Dew testified that his encounter with T.C. was consensual and that the use of his left arm was limited due to a gunshot injury. Five of the State's additional witnesses appeared at trial; at least three testified to T.C.'s subdued demeanor after the incident,3 and one testified that Dew was able to play basketball before the incident. The jury found Dew guilty as charged. On February 28, 2003, the trial court sentenced Dew to concurrent twenty-year terms. Dew appealed his convictions and sentence. On December 29, 2003, another panel of this Court affirmed the trial court in all respects. See Dew, slip op. at 13.
On August 24, 2004, Dew filed a petition for post-conviction relief alleging ineffective assistance of trial counsel on several grounds, including counsel's failure to interview the State's additional witnesses and to advise him of the State's plea offer prior to the second trial. On May 18, 2005, the post-conviction court denied Dew's petition. The court's order contains the following conclusions:
2. As his sole issue for Post-Conviction Relief, Defendant asserts he was a victim of ineffective assistance of trial counsel. The Record does not support that assertion. Defendant's arguments boil down to two simple assertions—that trial counsel should have followed the same strategy used in the first trial or that he should have done more to encourage defendant to accept the State's plea offer. The self-serving claims presented at the evidentiary hearing do not support the conclusion that trial counsel's performance was deficient or that counsel's performance prejudiced the defense. Defendant merely demonstrates that the trial strategy from his second trial was less successful than the strategy from the f[i]rst setting, but the fact the outcome differed does not establish that counsel erred—the first trial did not result in an acquittal so counsel tried a different approach which failed. This alone does not support Defendant's claims.
....
4. Defendant argues that counsel was ineffective for failing to interview witnesses added prior to the second trial. [Counsel] testified that the witnesses were "demeanor" witnesses, [i.e.,] witnesses who would testify as to the victim's demeanor after the assault, who[m] he deemed to be of little significance. The witnesses' testimony was what counsel anticipated and Defendant fails to demonstrate any prejudice arising from [counsel's] decision.
5. Defendant also complains that [counsel] did not visit him in jail between the two trials. However, Defendant fails to advise the Court, either in his argument[,] in his written Petition[,] or in the evidence produced at the evidentiary hearing, what prejudice resulted from this. As such, the allegation does not justify relief.
6. Defendant additionally complains that counsel failed to discuss the State's plea offer with him in light of the new witnesses added by the State. As noted above, however, the new witnesses' testimony was of only marginal effect and both [counsel] and Deputy Prosecutor Kramer testified that there was no new offer. Defendant had previously rejected the State's original offer and the deci[s]ion to [forgo] fruitless negotiations does not rise to the level of ineffective assistance.
PCR App. at 31. Dew now appeals.
Dew asserts that the post-conviction court improperly denied his petition for relief. We apply the following standard:
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made. In this review, findings of fact are accepted unless clearly erroneous, but no deference is accorded conclusions of law.
Hoaks v. State, 832 N.E.2d 1061, 1063 (Ind.Ct.App.2005) (some citations omitted), trans. denied. "Because the post-conviction court is the sole judge of the evidence and the credibility of witnesses, it is not our function to reweigh the evidence or judge the credibility of the witnesses." Jarrett v. State, 580 N.E.2d 245, 248 (Ind.Ct.App.1991), trans. denied (1992).
Dew asserts that counsel's failure to inform him of the State's plea offer prior to the second trial deprived him of the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.4 In Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court stated that
"the right to counsel is the right to the effective assistance of counsel." Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance."
Id. at 686, 104 S.Ct. 2052 (citations omitted).
Prior to Strickland, however, the U.S. Supreme Court "had not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases—that is, those...
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