Jr. v. State Of Ind.
| Decision Date | 01 September 2010 |
| Docket Number | No. 38A02-1002-PC-137.,38A02-1002-PC-137. |
| Citation | 932 N.E.2d 1263 |
| Parties | Paul E. ARMSTRONG, Jr., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Paul E. Armstrong, Jr., Pendleton, IN, pro se.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Petitioner, Paul E. Armstrong, Jr. (Armstrong), appeals the denial of his petition for post-conviction relief.
We affirm.
Armstrong presents four issues for our review, which we restate as:
(1) Whether his first trial counsel provided ineffective assistance of counsel when she permitted Armstrong to plead guilty;
(2) Whether Armstrong's plea of guilty was knowing, intelligent, and voluntary;
(3) Whether a sufficient factual basis was established to support his plea of guilty to delivering methamphetamine, as a Class A felony, under former Ind.Code § 35-48-4-1; and
(4) Whether the trial court violated Armstrong's right to counsel by conducting a sentencing hearing after his first counsel had withdrawn her appearance, but before appointed counsel entered an appearance on his behalf.
On August 28, 2001, the State filed an Information charging Armstrong with dealing in a narcotic drug, as a Class B felony, I.C. § 35-48-4-1. On August 29, 2001, attorney Jill Gonzalez (Gonzalez) entered her appearance for Armstrong. On October 12, 2001, the State filed an additional Information in addition to the prior charge: Count 2, dealing in methamphetamine, a Class A felony, I.C. § 35-48-4-1(a)(1), and Count 3, dealing in methamphetamine, as a Class A felony, I.C. § 35-48-4-1(a)(2). On November 6, 2001, Armstrong filed a motion to suppress, which the trial court denied after a hearing on February 12, 2002. Armstrong requested permission to file an interlocutory appeal of the denial of his motion to suppress, but this request was denied by our court on June 4, 2002.
On October 30, 2002, Armstrong and the State entered into a written plea agreement. The plea agreement originally read that Armstrong agreed to plead guilty to “Count 1: Dealing in Methamphetamine a class ‘A’ felony,” and that the State agreed to dismiss “Count 2: Dealing in Methamphetamine a class ‘A’ felony” and “Count 3: Dealing in Methamphetamine a class ‘B’ felony.” (Appellant's App. p. 123). However, the trial court noticed that the counts as listed on the written plea agreement did not match the counts on the charging information. The trial court noticed the discrepancy and discussed the matter with Gonzalez and the State who informed the trial court that Armstrong intended to plead guilty to either Count 2 or Count 3, which were both Class A felonies, it did not matter which. The trial court then wrote on the plea agreement a “2” over the typed “1” to change the number for the Count to which Armstrong was pleading guilty and had Armstrong, Gonzalez, and counsel for the State place their initials next to the change. (Appellant's App. pp. 40, 123).
Thereafter, the trial court asked Armstrong “is it your intention to withdraw your former plea of not guilty to Count # 2, and enter a plea of guilty to that charge today?” (Appellant's App. p. 40). Armstrong responded affirmatively and confirmed that he understood that Count 2 was a Class A felony, and admitted that he had “knowingly deliver[ed] methamphetamine, having a weight of three (3) grams or more, in violation of Indiana Code [section] 35-48-4-1(a)(1).” (Appellant's App. p. 41). Armstrong also confirmed that he understood the potential penalty for a Class A felony, and that, because of a prior felony conviction, he was required to serve at least the minimum sentence. Armstrong verified that the plea agreement called for a forty-year sentence with ten of those years suspended to probation, and that he was agreeing to those terms. The trial court took the plea agreement under advisement and set a sentencing hearing for January 6, 2003.
At the sentencing hearing, the trial court noted that Gonzalez had filed a motion to withdraw her appearance at Armstrong's request. Armstrong informed the trial court that he was unsatisfied with Gonzalez “because of what I've found out and things I know today.” (Appellant's App. p. 52). The trial court granted the motion to withdraw and proceeded with the sentencing hearing. Armstrong stated that he wished to withdraw his plea of guilty, but the trial court noted that no written verified motion was before the trial court at that time and sentenced Armstrong in accordance with the plea agreement. After the trial court announced his sentence, Armstrong asked “what do I need to do now, ‘cause I need counsel.’ ” (Appellant's App. p. 63). The trial court inquired about Armstrong's resources to hire his own counsel and appointed pauper counsel to consider whether filing a motion to withdraw his guilty plea was warranted.
On February 4, 2003, Armstrong filed a verified motion to withdraw his guilty plea. On March 3, 2003, the trial court conducted a hearing on the motion. Armstrong testified that his first trial counsel advised him that he would likely receive the maximum sentence on all Counts for an aggregate sentence of 120 years. He also testified that he did not understand that he would be placed on probation for 10 years after serving the executed portion of his sentence. Furthermore, Armstrong testified that he did not sell any methamphetamine to anyone, but did use methamphetamine and tried to manufacture some for his own use. Armstrong did not call Gonzalez to testify.
On March 5, 2003, the trial court issued its Order denying Armstrong's motion to withdraw his guilty plea. The trial court found that Armstrong's testimony at the hearing was incredible:
[I]n light of his conflicting testimony and selective memory, as well as the timing of his motion. Plea negotiations had been ongoing. [Armstrong] demonstrated [an] understanding of his rights, the potential penalties, and the nature of the charges. No manifest injustice would result if his motion is denied and the decision of whether to grant or deny the motion is within the discretion of the [c]ourt.
On April 14, 2003, Armstrong filed a petition for post-conviction relief. On March 23, 2005, a petition for belated direct appeal was filed, which was denied by the post-conviction court on May 5, 2005. Armstrong appealed the denial of his petition for a belated direct appeal, and we affirmed the denial on November 14, 2005. On February 14, 2006, Armstrong amended his petition for post-conviction relief. On November 2, 2009, the post-conviction court held an evidentiary hearing where Armstrong presented the transcripts of the plea hearing, sentencing hearing, and the hearing on the motion to withdraw his guilty plea, as exhibits. In addition, Armstrong filed an affidavit from Gonzalez. Armstrong did not present any live testimony. On January 14, 2010, the postconviction court denied Armstrong's petition for post-conviction relief.
Armstrong now appeals. Additional facts will be provided as necessary.
The petitioner has the burden of establishing the grounds for post-conviction relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because Armstrong is appealing from a negative judgment, to the extent his appeal turns on factual issues, he must provide evidence that as a whole unerringly and unmistakably leads us to believe there is no way within the law that a post-conviction court could have denied his postconviction relief petition. See Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), reh'g denied, cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law. Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied. Post-conviction hearings do not afford defendants the opportunity for a “super appeal.” Moffitt v. State, 817 N.E.2d 239, 248 (Ind.Ct.App.2004), trans. denied. Rather, post-conviction proceedings provide a narrow remedy for collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Ross v. State, 877 N.E.2d 829, 832 (Ind.Ct.App.2007), trans. denied.
Armstrong contends that Gonzalez provided him ineffective assistance of counsel by permitting him to plead guilty. Specifically, he argues that Gonzalez did not investigate the facts or research the law to determine if he could be convicted of dealing methamphetamine as a Class A felony, and she “impelled” Armstrong to sign-off on the change of his plea agreement. (Appellant's Br. p. 12).
Armstrong alleges that Gonzalez provided ineffective performance in violation of Article 1, Section 13 of the Indiana Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. In order to demonstrate ineffective assistance of counsel Armstrong must establish both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied. Lee v. State, 880 N.E.2d 1278, 1280 (Ind.Ct.App.2008). The defendant must prove (1) his or her 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 failure to meet prevailing professional norms, the result of the proceeding would have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind.Ct.App.2005), reh'g denied, trans. denied (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Essentially, the defendant must show that counsel was deficient in his or her performance...
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