Middleton v. State, 32A01–1603–PC–592.

• Decision Date: 01 December 2016
• Docket Number: No. 32A01–1603–PC–592.,32A01–1603–PC–592.
• Citation: 64 N.E.3d 895
• Parties: Corey MIDDLETON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

64 N.E.3d 895

Corey MIDDLETON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 32A01–1603–PC–592.

Court of Appeals of Indiana.

Dec. 1, 2016.

Rehearing Denied Jan. 9, 2017.

Jeffrey A. Baldwin, Tyler D. Helmond, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ALTICE, Judge.

Case Summary

[1] Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel.

[2] We affirm.

Facts & Procedural History

[3] On December 1, 4, and 5, 2000, undercover officers met Middleton in a van in a Kroger parking lot in Brownsburg and purchased cocaine and ecstasy from him. On the third day, Middleton showed the officers his "baby," a silver .380 caliber handgun that he pulled from his waistband. Middleton v. State, No. 32A04–0308–CR–412, slip op. at 3, 812 N.E.2d 872 (Ind. Ct.App. June 29, 2004). Middleton told the officers that the handgun might be for sale later. The officers left the van and signaled to other officers to move in. After Middleton was arrested, officers found the handgun under the seat where Middleton had been sitting.

[4] On December 6, 2000, Middleton was charged with Class A felony dealing in cocaine, two counts of Class B felony dealing in a controlled substance, four counts of drug possession, and possession of a firearm by a serious violent felon (SVF). Middleton initially requested that counsel be appointed, but a month later, he retained his own attorney, Robert Williams. During the last pre-trial conference on May 2, 2001, Middleton sought to have Williams replaced. Later, during the same pre-trial hearing, Williams requested to withdraw as Middleton's attorney, citing lack of payment by Middleton. Given that there were only three weeks until the scheduled trial date, the trial court denied both requests.

[5] On May 23, 2001, Middleton failed to appear for his jury trial and was tried in absentia. At the start of the trial, Williams informed the court that he had paged and called Middleton the night before but did not talk to him. Williams also explained:

[Middleton] was aware this was the final trial date.... And he was advised this was a first choice jury trial and the Court denied my motion to withdraw so I talked to him later that day or the following day with the new plea offer from the State. He refused it and I said that was the last day. If he didn't accept that we'd be going to trial on the 23rd. I've had no further contact with him, Your Honor.

Petitioner's Exhibit 1, Transcript at 52–53.¹ The jury trial proceeded.

[6] During voir dire, Williams posed the following question to prospective jurors:

I'd ask you, all of you the one question and that is Corey Middleton happens to be a Negro, an African American or Black whatever term is politically correct these days, so I need to ask all of you and remember you're under oath and please don't take that as an affront. I don't mean it as an affront. But I still think in this country there are some racial problems. So my job is to make sure first of all if Corey Middleton, the black man, was sitting there, would any of you have any problems forgetting he's black or forgetting he's white or Indian or Chinese or whatever[?] Does race make any difference to you in these proceedings because if it does we need to know that right now[?]

Id. at 92. After a jury was selected, the State presented its evidence. To prove Middleton was an SVF, the State offered into evidence a certified copy of Middleton's Michigan criminal history that showed he had a prior felony conviction for possession with intent to deliver cocaine (under thirty grams). Williams objected, arguing that Middleton was not there to confirm or dispute its accuracy. The trial court overruled the objection. At the conclusion of the evidence, the jury found Middleton guilty as charged. The trial court merged several of the drug offenses due to double jeopardy concerns.

[7] In 2002, Middleton was located in Atlanta, Georgia. Middleton was arrested and returned to Indiana. On May 27, 2003, the trial court sentenced him to an aggregate forty-year term in the Department of Correction.² Middleton was appointed counsel to pursue a direct appeal. This court affirmed Middleton's SVF conviction, but ordered that the drug possession charges be vacated rather than simply merged. See Middleton, slip op. at 130.

[8] On February 9, 2015, Middleton filed the instant petition for post-conviction relief (PCR),³ in which he challenged his trial counsel's performance. Specifically, Middleton alleged that his trial counsel was ineffective for (1) failing to adequately investigate,⁴ (2) failing to move to bifurcate the SVF offense from the drug offenses; (3) referring to him as a "Negro" during voir dire; (4) failing to object to the admission of evidence concerning a prior drug dealing conviction, and (5) failing to communicate to him a plea offer.⁵ The post-conviction court held a hearing on November 20, 2015. Middleton did not call Williams to testify. On February 22, 2016, the post-conviction court entered its findings of fact and conclusions of law denying Middleton's PCR petition. Middleton now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[9] In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134, 1138 (Ind.2013). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004) ). In order to prevail, the petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-conviction court's conclusion. Id. Although we do not defer to a post-conviction court's legal conclusions, we will reverse its findings and judgment only upon a showing of clear error, i.e., "that which leaves us with a definite and firm conviction that a mistake has been made." Id. (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) ).

[10] A petitioner will prevail on a claim of ineffective assistance of counsel only upon a showing that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the petitioner. Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must demonstrate deficient performance, which is "representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment." Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) ).

[11] To satisfy the second element, the petitioner must show prejudice, which is "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 1139. "A reasonable probability is one that is sufficient to undermine confidence in the outcome." Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind.2010) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Because a petitioner must prove both deficient performance and prejudice in order to prevail on a claim of ineffective assistance of counsel, the failure to prove either element defeats such a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind.2001).

[12] There is a strong presumption that counsel rendered adequate service. Bethea, 983 N.E.2d at 1139. "We afford counsel considerable discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective,’ " State v. Hollin, 970 N.E.2d 147, 151 (Ind.2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001) ).

Communication of Plea Offer

[13] The Sixth Amendment right to the effective assistance of counsel extends to plea negotiations. Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). As the U.S. Supreme Court recognized,

[t]he reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.

Id. at 1407. With this reality in mind, the Supreme Court thus held that, as a general rule, "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id. at 1408 ; see also Woods v. State, 48 N.E.3d 374, 381 (Ind.Ct.App.2015).

[14] Counsel's effectiveness at the plea stage is reviewed under the two-part test set out in Strickland. It has been held that failure to communicate a plea agreement and its terms and conditions constitutes deficient performance. See Frye, 132 S.Ct. at 1408 ; Woods, 48 N.E.3d at 381. As held by this court in Dew v. State, 843 N.E.2d 556, 571 (Ind.Ct.App.2006), trans. denied, prejudice is established when there is a reasonable probability that the petitioner would have accepted the plea offer that was not communicated to him by defense counsel. As more recently stated in Frye, the petitioner must establish that he would have accepted the plea if it had been communicated, that the prosecution would have adhered to the plea, and that the trial court would have accepted the plea. 132 S.Ct. at 1411.

[15] Here, Middleton claims that Williams failed to communicate to him a plea agreement that called for Middleton to plead guilty to one count of Class A felony dealing in cocaine greater than three grams with the remaining...