Jervis v. State

• Decision Date: 07 April 2015
• Docket Number: No. 87A05–1404–PC–171.,87A05–1404–PC–171.
• Citation: 28 N.E.3d 361
• Parties: Mark M. JERVIS, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

28 N.E.3d 361

Mark M. JERVIS, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 87A05–1404–PC–171.

Court of Appeals of Indiana.

April 7, 2015.

Mark M. Jervis, Carlisle, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant–Petitioner, Mark Jervis (Jervis), appeals the post-conviction court's denial of his petition for post-conviction relief.

[2] We affirm.

ISSUE

[3] Jervis raises two issues on appeal which we consolidate and restate as the following single issue: Whether Jervis was denied effective assistance of trial and appellate counsel.

FACTS AND PROCEDURAL HISTORY

[4] We adopt the recitation of facts as set forth in Jervis's direct appeal as follows:

On August 14, 1993, Terri Boyer went on a drinking spree with her husband, her brother and the brother's girlfriend. The four began in the early afternoon in Hatfield, their home town, and took the brother's truck to visit several bars, the last in Newburgh. In Newburgh, Boyer and her husband got into an argument that resulted in Boyer leaving the truck. The other three drove back to Hatfield, leaving an intoxicated Boyer to fend for herself. Just before 10 p.m. Boyer found her way to Frenchie's, a tavern in Newburgh, where she asked several patrons to give her a ride back to Hatfield. All refused. At some point, defendant Jervis entered the bar, met Boyer, and offered to take her to Hatfield. The two had no prior acquaintance.

Jervis and Boyer were seen leaving the bar together some time around midnight, but no one actually saw them drive away in Jervis's car. Witness Terry Timberlake testified that he saw a car resembling Jervis's station wagon pull into the Newburgh Cinema parking lot around 11:30 p.m. Timberlake stated that two people, one male and one female, appeared to be in the car, but he could not positively identify them as Jervis and Boyer. Approximately thirty minutes later, Timberlake saw the station wagon leave the Cinema parking lot and park in an adjacent lot of a daycare center where it remained for about ten minutes. It then returned to the Cinema parking lot, and finally drove away. Jervis returned to Frenchie's alone around 12:30 to 1:30 a.m. the same night, telling those present that he was unable to take Boyer to Hatfield because his car had broken down. Jervis went home a half hour later. At approximately 12:30 p.m. the next day, the owner of Newburgh Cinema found Boyer's body on a grass strip next to the Cinema parking lot. Boyer was nude below her waist and her bra and shirt were pushed up to her shoulders. An autopsy concluded that Boyer had been strangled and had died around midnight.

On September 5, 1993, Jervis was charged [ ] with Boyer's murder. The State's case against Jervis was largely circumstantial and included the following evidence: (1) an envelope, pencil and pen Boyer had been carrying in her purse were found in Jervis's trash can outside his apartment; (2) Boyer's driver's license and her daughter's library card were found in Jervis's car; and (3) DNA evidence established a strong likelihood that a blood stain on Jervis's shirt and a pubic hair found on his pants were Boyer's. Several witnesses also testified as to Jervis's whereabouts on the night in question. The jury was unable to reach a verdict in Jervis's first trial in 1994. The State retried Jervis in 1995 and a second jury convicted him.

[5] Jervis v. State, 679 N.E.2d 875, 876–77 (Ind.1997). Jervis filed a direct appeal challenging his conviction. In that appeal, Jervis raised several issues relating to the admission of several pieces of evidence and jury misconduct. On May 12, 1997, our supreme court affirmed Jervis's conviction. Id. On March 18, 2003, Jervis filed his pro se petition for post-conviction relief and subsequently amended it on September 14, 2012. On October 1, 2013, the post-conviction court conducted Jervis's post-conviction hearing. Subsequently, both parties filed their proposed findings and conclusion of law, and on March 24, 2014, the post-conviction court denied Jervis's petition.

[6] Jervis now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[7] Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post–Conviction Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974–75 (Ind.Ct.App.2002). To succeed on appeal from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 975. The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Id. If an issue was available on direct appeal but not litigated, it is waived. Id.

II. Ineffective Assistance of Counsel

[8] Jervis contends that he was denied the effective assistance of both trial and appellate counsel. The standard by which we review claims of ineffective assistance of counsel is well established. In order to prevail on a claim of this nature, a defendant must satisfy a two-pronged test, showing that: (1) his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind.Ct.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh'g denied ) trans. denied. The two prongs of the Strickland test are separate and independent inquiries. Id. Thus, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Timberlake, v. State, 753 N.E.2d 591, 603 (Ind.2001) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052 ) reh'g denied; cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002).

[9] Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord those decisions deference. Id. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. Furthermore, we will not speculate as to what may or may not have been advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at 997.

A. Trial Counsel

[10] According to Jervis, his trial counsel was ineffective in three respects: (1) counsel failed to recommend that he accept the State's plea deal, (2) counsel failed to object to the State's destruction of evidence, and (3) counsel failed to move for mistrial due to jury bias.¹ We will address each issue in turn.

1. Plea Negotiations

[11] Jervis first argues that he would have accepted the State's plea offer limiting his sentence to forty years had he been offered meaningful consultation. During Jervis's post-conviction hearing, counsel stated that when he took the plea offer to Jervis, he explained the deal and left the decision to Jervis. Jervis argues that because the decision was left to him; counsel was ineffective and he was prejudiced within the meaning of the Sixth Amendment.

[12] We first note that the Sixth Amendment is an instrumental right designed to ensure a fair trial. Thus, “[t]he right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected. That right applies to all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 2086, 173 L.Ed.2d 955 (2009).

[13] In advancing his claim, Jervis states that the applicable standard for judging prejudice in the plea context is explained in Hill v. Lockhart, 474 U.S. 52, 61, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill, the United States Supreme Court held that the two-part test adopted in Strickland for evaluating claims of ineffective assistance of counsel applies to guilty-plea challenges based on ineffective assistance of counsel. Id. at 57, 106 S.Ct. 366. The language from Hill, standing alone, suggests that prejudice is a function of the outcome of the plea proceedings, i.e., if the defendant would not have pleaded guilty but for the attorney's shortcomings, the prejudice prong of Strickland is satisfied. Notably, Hill stands for the proposition that a petitioner's guilty plea may be invalid if counsel provided incorrect advice pertinent to the plea. However, we do not find Hill controlling for the simple reason that the case at bar is not a challenge to a guilty plea. Rather in this instance, we rely on Missouri v. Frye, –––U.S. ––––, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 1380, 182 L.Ed.2d 398 (2012), which both addressed issues of ineffective assistance of counsel based on improper or insufficient advice leading to the acceptance or rejection of a plea deal.

[14] In Frye, the Supreme Court held that trial counsel performed deficiently by failing to inform Frye of a written plea offer before it expired. Id. However, the Supreme Court reversed the appeals court's holding that Frye had established prejudice and remanded because, even though Frye could show he would have accepted...