Jones v. State

• Citation: 151 N.E.3d 790
• Decision Date: 31 July 2020
• Docket Number: Court of Appeals Case No. 19A-PC-3051
• Parties: Jerry JONES, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
• Court: Court of Appeals of Indiana

151 N.E.3d 790

Jerry JONES, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent

Court of Appeals Case No. 19A-PC-3051

Court of Appeals of Indiana.

FILED July 31, 2020

Attorneys for Appellant: Jeffrey A. Baldwin, Tyler D. Helmond, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana

Attorneys for Appellee: Curtis. T. Hill, Jr., Attorney General, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Jerry Jones appeals the denial of his petition for post-conviction relief (PCR), arguing that the post-conviction court clearly erred in determining that he failed to demonstrate that his guilty plea counsel provided ineffective assistance. Finding that he either failed to establish or waived the alleged errors, we affirm.

Facts and Procedural History

[2] Between July 1 and August 20, 2014, Jones, his wife Chauntel, and Anita Smith, with the intent to commit the crime of level 2 felony dealing in (manufacturing) methamphetamine in an amount over ten grams, agreed to commit that crime; and in furtherance of that agreement, Smith provided Jones with lye, cold packs, lithium batteries, and pseudoephedrine, and/or Jones manufactured methamphetamine. On August 20, 2014, Dearborn County Sheriff's Department officers obtained and simultaneously executed search warrants for Smith's residence and Jones's residence. Ex. Vol. at 11-13. At Jones's residence, police found sources and potential sources of pseudoephedrine

, lithium, sulfuric acid, organic solvents, hydrochloric acid, ammonium nitrate, and sodium hydroxide, and items used to manufacture methamphetamine including multiple plastic bottles containing white sludge and black flakes, multiple coffee filters with white residue, plastic bags with white residue, and a bowl containing white powder. Id. Police also found six firearms. Id. , Tr. Vol. 2 at 36.

[3] On August 22, 2014, the State charged Jones, Chauntel, and Smith with committing the following crimes between March 2014 and August 20, 2014: Count 1, level 2 felony dealing in (manufacturing) methamphetamine in an amount less than ten grams but more than five grams where an enhancing circumstance applied; Count 2, level 6 felony maintaining a common nuisance; and Count 3, level 2 felony conspiracy to commit dealing in (manufacturing) methamphetamine, and in furtherance of their agreement Smith provided Jones and Chauntel with lye, instant cold packs, lithium batteries, and pseudoephedrine, which are precursors used to manufacture methamphetamine. Ex. Vol. at 6. Jones was arrested, and at the police station, he waived his rights and gave a videotaped statement, in which he admitted that he had been manufacturing methamphetamine. Id. at 13.

[4] Attorney Kevin Moser was retained by family members to represent Jones and Chauntel. Tr. Vol. 2 at 6-7. Prior to entering his appearance in their cases, Moser spoke separately to Jones and Chauntel, who were being held in the detention center following their arrest, to advise them of the "concerns of dual representation" and to make sure that his representation of both would not create "some kind of irreconcilable conflict." Id. at 9, 29, 34. Jones and Chauntel both consented to his joint representation and signed a written waiver of any conflict of interest. Jones's written waiver is not in the record before us.¹ Id. at 34.

[5] The prosecutor offered Jones a plea agreement, pursuant to which Jones would agree to plead guilty to Count 3, level 2 felony conspiracy to dealing in (manufacturing) methamphetamine, and in exchange the State would dismiss the remaining counts and recommend a sentence of thirty years with ten years suspended. Ex. Vol. at 16-17. After reviewing the State's discovery, including Jones's videotaped confession, Moser believed that this was a favorable plea agreement for Jones. Tr. Vol. 2 at 10, 24-25. Moser knew that the prosecutor viewed Jones as the most culpable of the three defendants and would not offer Jones a more lenient agreement. Id. at 19. The prosecutor had told Moser that the State would seek consecutive sentences if the case went to trial. Id. at 20. In addition, Smith's counsel had informed Moser that Smith was willing to testify against Jones in exchange for a plea deal. Id. at 27. Moser believed that Jones would not "do better at trial if he went to trial" and that if he went to trial, "he could potentially get more time." Id. at 24. Moser also knew that Jones did not want to testify against his wife and "wanted to protect his wife and get it over with." Id. Neither Jones nor his wife "ever suggested even once that they were interested in testifying against the other one.... [T]hey stayed true to each other the entire time." Id. at 21-22.

[6] On January 21, 2015, Jones pled guilty pursuant to the plea agreement. At the guilty plea hearing, the trial court noted that Jones filed a written conflict-of-interest waiver on October 28, 2014, and that they had previously discussed a waiver of conflict in the matter. Ex. Vol. at 26-27. The trial court then asked Moser to reiterate the significance of the waiver to Jones, and Moser explained,

As we discussed earlier, and as we're discussing again today, you have the right to independent counsel at all times. That having me represent both of you throughout this proceeding could present a potential conflict of interest..... Are you today telling the Judge that you waive any potential conflict of interest in this case pursuant to the waiver that you filed earlier[?]

Id. at 27 (repetitions and hyphens omitted). Jones affirmed that he was. Id. Jones also testified that he was satisfied with Moser's representation. Id. at 28. The State moved to amend Count 3 to allege that Jones committed conspiracy to manufacture methamphetamine in an amount greater than ten grams between July 1 and August 20, 2014, thereby bringing the dates of the criminal conduct under the revised criminal code. Id. at 28-29. Jones had no objection, and the trial court granted the State's motion to amend.

[7] On December 7, 2017, Jones, by counsel, filed a petition for post-conviction relief, alleging that his guilty plea counsel provided ineffective assistance by representing both him and his wife, which presented counsel with a conflict of interest; failing to challenge the State's amendment to the charging information, thereby denying Jones the benefit of being sentenced under the allegedly more favorable prior version of the criminal code; and allegedly incorrectly advising him that he could be convicted of both Counts 1 and 3 and receive consecutive sentences for the convictions. Appellant's App. Vol. 2 at 9-11.

[8] On May 14, 2019, the post-conviction court held an evidentiary hearing, at which Jones and Moser testified. The parties filed proposed findings of fact and conclusions of law. On December 16, 2019, the post-conviction issued an order, finding that Jones failed to show by a preponderance of the evidence that he received ineffective assistance of counsel and denying Jones's petition for post-conviction relief. This appeal ensued.

Discussion and Decision

[9] Jones appeals the denial of his PCR petition. We observe that "[p]ostconviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State , 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b) ), petition for cert. filed, (July 6, 2020). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Id. A defendant who files a petition for post-conviction relief, "bears the burden of establishing grounds for relief by a preponderance of the evidence." Ind. Post-Conviction Rule 1(5) ; Humphrey v. State , 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:

Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Hinesley v. State , 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).

[10] Jones maintains that he is entitled to post-conviction relief because he was denied the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("[T]he right to counsel is the right to effective assistance of counsel.") (quoting McMann v. Richardson , 397 U.S. 759, 771, n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). When considering a claim of ineffective assistance of counsel, we strongly presume "that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Weisheit v. State , 109 N.E.3d 978, 983 (Ind. 2018), cert. denied (2019). A defendant must offer strong and convincing evidence to overcome this presumption. Ritchie v. State , 875 N.E.2d 706, 714 (Ind. 2007).

[11] We evaluate an ineffective assistance of counsel claim with the two-part test articulated in Strickland , 466 U.S. 668, 104 S.Ct. 2052. Humphrey , 73 N.E.3d at 682. First, " ‘the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the...