McCullough v. State

• Decision Date: 16 May 2013
• Docket Number: No. 49A02–1209–PC–719.,49A02–1209–PC–719.
• Citation: 987 N.E.2d 1173
• Parties: Anthony McCULLOUGH, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

987 N.E.2d 1173

Anthony McCULLOUGH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1209–PC–719.

Court of Appeals of Indiana.

May 16, 2013.

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Anthony McCullough appeals the post-conviction court's partial denial of his petition for post-conviction relief. He contends that the post-conviction court erred in finding that his plea for Class C felony fraud on a financial institution was knowingly, intelligently, and voluntarily entered into because he had ineffective assistance of trial counsel for his Class D felony failure to register as a sex offender charge, and the pleas were part of a combined plea agreement. Finding that McCullough received effective assistance of trial counsel for his guilty plea for fraud and therefore pled guilty knowingly, intelligently, and voluntarily to that charge, we affirm.

Facts and Procedural History

On September 4 and 10, 2008, McCullough and Julee Kehoe gave false information on a loan application to Fifth Third Bank to purchase a car. On May 28, 2009, the State charged McCullough with Class C felony conspiracy to commit fraud on a financial institution, Class C felony fraud on a financial institution, Class D felony theft, and Class A misdemeanor check deception. On September 29, 2009, McCullough entered into a combined plea agreement in which he pled guilty to Class C felony fraud on a financial institution and an unrelated Class D felony failure to register as a sex offender charge under cause number FD–210841. The plea agreement called for concurrent sentences and capped the executed portion of the sentence at two years, but left the rest of sentencing to the trial court's discretion. In exchange for the plea, the State dismissed the remaining three counts in the fraud case, agreed not to argue for placement in the Department of Correction, and agreed not to file the habitual offender sentence enhancement. At the sentencing hearing, the trial court sentenced McCullough to eight years, with six years suspended, on the Class C felony fraud conviction and a concurrent two-year executed sentence on the Class D felony failure to register conviction. McCullough was ordered to serve the executed portion of his sentence on home detention through electronic monitoring services.

After being sentenced, McCullough learned of our Supreme Court's holding in Wallace v. State, 905 N.E.2d 371 (Ind.2009), reh'g denied, that the sex-offender registry requirements were not retroactive. His trial counsel had not previously advised him of the holding in this case. McCullough then filed a petition and was removed from the sex-offender registry because he never should have been required to register.

McCullough later filed a petition for post-conviction relief under both cause numbers. An evidentiary hearing was held, and the court took the matter under advisement. McCullough then filed a motion to withdraw his petition without prejudice, which was granted. McCullough filed a new petition for post-conviction relief under both cause numbers, which he moved to amend two months after filing. The post-conviction court granted the petition. The amended petition claimed that McCullough's guilty pleas were not knowing, intelligent, and voluntary due to ineffective assistance of trial counsel, specifically trial counsel's failure to advise him about the Wallace holding. An evidentiary hearing was held, and the post-conviction court entered findings of fact and conclusions of law. Post-conviction relief was granted in the Class D felony failure to register case, vacating that conviction, but denied in the Class C felony fraud case.

McCullough now appeals.

Discussion and Decision

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); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. 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. Id. The post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post–Conviction Rule 1(6). “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.” Id. (internal quotation omitted). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

McCullough contends that his plea was not knowing, intelligent, and voluntary because he received ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, failure to satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind.2008).

Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French, 778 N.E.2d at 824. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), reh'g denied. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001).

There are two different types of ineffective assistance of counsel claims that can be made in regards to guilty pleas: (1) failure to advise the defendant on an issue that impairs or overlooks a defense and (2) an incorrect advisement of penal consequences. Segura v. State, 749 N.E.2d 496, 500 (Ind.2001); see also Smith v. State, 770 N.E.2d 290, 295 (Ind.2002). Since McCullough is arguing that he was not properly advised about the possible defense he may have had to the Class D felony failure to register...