Perry v. State

• Docket Number: 23A-PC-544
• Decision Date: 28 November 2023
• Parties: Jason Perry, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

1

Jason Perry, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

No. 23A-PC-544

Court of Appeals of Indiana

November 28, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Posey Circuit Court The Honorable Craig Goedde, Judge Trial Court Cause No. 65C01-1505-PC-166

ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Bradford, Judge.

2

Case Summary

[¶1] In 2014, Jason Perry pled guilty to the murder of his ex-girlfriend after shooting her in front of numerous eyewitnesses, including the ex-couple's son. On May 11, 2015, Perry petitioned for post-conviction relief ("PCR"), in which he alleged that his trial counsel had provided him with ineffective assistance. Following a hearing, the post-conviction court denied Perry's PCR petition. We affirm.

Facts and Procedural History

[¶2] Prior to May of 2013, Perry and Jessica Tice had been involved in a volatile relationship and shared a son. On the morning of May 22, 2013, Perry and Tice were involved in an altercation at their then-thirteen-year-old son's school. After Perry left the school, he was recorded by surveillance video purchasing ammunition from Walmart. Later that morning, at 11:22 a.m., police responded to a disturbance between Perry and Tice outside of a restaurant. When police arrived, Perry "was upset about not being able to see his child." Ex. Vol. p. 50. Police were called back to the restaurant at 12:09 p.m., after receiving reports of shots fired. Witnesses informed police that Perry had shot Tice. Tice died as a result of her injuries.

[¶3] On May 23, 2013, Perry was charged with murder. He was subsequently alleged to be a habitual offender and subject to a firearms enhancement for using a firearm during the commission of the offense. On August 8, 2013, the

3

State requested that Perry be sentenced to life without the possibility of parole ("LWOP") if found guilty.

[¶4] On April 18, 2014, Perry pled guilty to murder and admitted to being a habitual offender. In exchange for his guilty plea, the State agreed to drop the firearms enhancement and its request for LWOP and to recommend that the trial court impose an eighty-five-year sentence. The trial court accepted Perry's guilty plea and, on May 19, 2014, sentenced Perry in accordance with the terms of the plea agreement. Perry did not file a direct appeal.

[¶5] Perry filed a pro-se PCR petition on May 11, 2015, alleging that he had received ineffective assistance of trial counsel.^[1] Perry alleged that his trial counsel had provided him with ineffective assistance in the following ways: trial counsel had failed to (1) inform him of a federal firearm charge, (2) move to suppress his confession and certain evidence recovered during a search of his vehicle, (3) remedy an alleged conflict of interest, (4) adequately investigate his case, and (5) raise a defense. Perry also alleged that his trial counsel had failed to properly advise him with regard to his guilty plea, which he claims rendered his plea invalid and illusory as he did not enter into the plea knowingly, intelligently, or voluntarily. The post-conviction court conducted a two-day evidentiary hearing, after which it took the matter under advisement. On March 10, 2023, the post-conviction court denied Perry's PCR petition.

4

Discussion and Decision

[¶6] "Post-conviction procedures do not afford the petitioner with a super-appeal." Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). "Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules." Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App. 1999), trans. denied.

[¶7] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, "leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745. "In other words, the [petitioner] must convince this Court that there is no way within the law that the court below could have reached the decision it did." Id. (emphasis in original). "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. "The post-conviction court is the sole judge of the

5

weight of the evidence and the credibility of the witnesses." Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

I. Post-Conviction Court's Reliance on Exhibit Tendered by Perry

[¶8] A post-conviction court "may receive affidavits, depositions, oral testimony, or other evidence." P-C.R. 1(5). "As the admission or exclusion of evidence is with the [post-conviction court's] sound discretion, a reviewing court defers to that court and will not disturb its ruling on review unless it has abused its discretion." Badelle v. State, 754 N.E.2d 510, 521 (Ind.Ct.App. 2001), trans. denied. Once evidence is properly before the court, it "may attach whatever weight and credibility to the evidence as [it] believe[s] is warranted." Parks v. State, 734 N.E.2d 694, 700 (Ind.Ct.App. 2000) (internal quotation omitted), trans. denied. Stated differently, "[i]t is within the province of the [postconviction court] to determine facts from evidence presented to it and then to judge the credibility of those facts." Dobbins v. State, 721 N.E.2d 867, 875 (Ind. 1999).

[¶9] Perry contends that the post-conviction court erred in relying on Exhibit R in its statement of the relevant facts. Exhibit R is a merit-review memorandum, which was prepared by an attorney for the Office of the State Public Defender. Perry acknowledges on appeal that he tendered the exhibit as evidence to the post-conviction court but claims that it was admitted "to help establish his claim that the Office of the State Public Defender did not complete a thorough

6

investigation" and not to "prove the truth of the factual and legal assertions contained" therein. Appellant's Br. p. 21. Thus, he claims that "the [postconviction] court admitted the memorandum for one purpose but then used it for another." Appellant's Br. p. 22.

[¶10] It is undisputed that evidence may be admitted for a limited purpose. See generally Ind. Evidence Rule 105 (providing that if the court admits evidence that is admissible for one purpose but not another, the court must restrict the evidence to its proper scope). However, the record in this case does not support Perry's assertion on appeal that Exhibit R had been tendered or admitted into evidence for a limited purpose. As the State points out, Perry tendered Exhibit R, and it was admitted into evidence, without limitation. See Tr. Vol. II pp. 171-72. While Perry could have requested that Exhibit R be admitted for a limited purpose only, he did not do so. As such, we agree with the State that once Exhibit R was admitted, "it was entirely within the post-conviction court's province to rely on the evidence admitted by [Perry] to reach its factual findings." Appellee's Br. p...