Primmer v. State

• Decision Date: 18 November 2014
• Docket Number: No. 79A04–1308–PC–394.,79A04–1308–PC–394.
• Citation: 23 N.E.3d 864 (Table)
• Parties: Jack E. PRIMMER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

23 N.E.3d 864 (Table)

Jack E. PRIMMER, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 79A04–1308–PC–394.

Court of Appeals of Indiana.

Nov. 18, 2014.

Jack E. Primmer, Pendleton, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MATHIAS

, Judge.

Jack E. Primmer (“Primmer”) filed a petition for post-conviction relief in Tippecanoe Superior Court, which the court denied. Primmer appeals pro se and presents three issues for our review, which we restate as:

I. Whether Primmer was provided with the ineffective assistance of trial counsel;

II. Whether Primmer's rights under the Fourth and Fifth Amendments to the United States Constitution were violated; and

III. Whether the prosecuting attorney committed misconduct.

We affirm.

Facts and Procedural History

At the time relevant to this appeal, Primmer was a convicted sex offender who had been released on parole in November 2004.¹ The terms of Primmer's parole included a prohibition against contact with children. Nevertheless, Primmer began a relationship with C.B., who had four young sons. One of these sons, eleven-year-old J.B., had a learning disability. At one point, Primmer was helping J.B. with a bath and inappropriately touched J.B. Specifically, Primmer later admitted that he had “washed [J.B.] a little too long.” Appellant's App. pp. 37–38. On another occasion, Primmer fondled J .B.'s penis when the boy was in bed with Primmer. Primmer later admitted that he was sexually aroused by these incidents.

Primmer's behavior toward J.B. was eventually reported to the authorities. As a result, J.B. was interviewed at home by a caseworker for the Department of Child Services. J.B. told the caseworker that he did not like it when Primmer took showers with him. The caseworker then set up another interview with J.B. at Heartford House,² and J.B. was interviewed by an investigator from the prosecutor's office. During this interview, J.B. stated that Primmer had touched his penis when the two were in bed.

As a result of these interviews, two detectives from the Lafayette Police Department went to Primmer's place of employment to speak with him. Primmer told the detectives that he knew they wanted to talk with him and had planned to go to the police station after work. The detectives indicated that they preferred to speak with Primmer then and offered him a ride to the police station. Primmer declined and drove himself to the police station.

During the first portion of the interview, the detectives told Primmer that he was free to leave, and Primmer acknowledged that he was there voluntarily. Primmer stated that J.B. was like a son to him and generally denied touching J.B. improperly. He admitted that he had helped J.B. bathe and had showered with him once to help wash J.B.'s hair. He also admitted that J.B. had gotten into his bed one night, but denied intentionally touching J.B.'s penis. When Primmer indicated that he needed to go back to work, the detectives ended the interview. In the meantime however, Primmer's parole officer had secured a warrant for Primmer's arrest for violating the terms of his parole. As Primmer was leaving, but before he actually left the police station, his parole officer took him into custody. Primmer then asked to speak with his parole officer alone, and the detectives left the room. Primmer admitted to his parole officer that he had washed J.B.'s penis “for a prolonged period,” and admitted to fondling J.B.'s penis in bed.

The parole officer then informed the detectives that Primmer had made incriminating statements, at which point they advised Primmer of his Miranda rights. Primmer acknowledged his rights and signed a waiver-of-rights form. During this second portion of the interview, Primmer admitted to fondling J.B.'s penis over his underwear when J.B. was in Primmer's bed and also admitted that he “washed [J.B.] a little too long with a [wash] rag.” Appellant's App. p. 37.

On April 22, 2005, the State filed charges against Primmer for child molesting and for being a repeat sexual offender. The State later moved to add an additional charge of child molesting and a charge of obstruction of justice. Primmer was represented during the trial phase by private counsel. Prior to trial, Primmer's trial counsel filed a motion to suppress Primmer's statements to the police, but the trial court denied the motion. Also prior to trial, the trial court conducted a child hearsay hearing. At this hearing, J.B. testified that he had told the truth to the investigators at Heartford House and indicated that he knew the difference between the truth and a lie. The prosecutor also indicated that J.B. was prepared to testify at trial.

As explained in our opinion on Primmer's direct appeal, the following events then occurred:

On February 6, 2006, the day before Primmer's jury trial was to be held, Primmer entered into a plea agreement under which he was to plead guilty to child molesting and to being a repeat sexual offender in exchange for an agreement that the executed portion of his sentence for these two charges would not exceed nine years. However, at the plea agreement hearing, the following exchange took place:

By the Court: Has anybody forced or threatened to place you or anybody else in fear to get you to plead guilty today?

By Mr. Primmer: Your Honor, uh, I believe another person was placed in fear to get me to sign the Plea Agreement, Your Honor.

By the Court: Who, who put you in fear?

By Mr. Primmer: Uh, no, it was not me that was put in fear. It was another person.

By the Court: I'm asking you, has anybody put you in fear, and you say no—

By Mr. Primmer: In a sense, yes, they have, sir.

Transcript at 97–98. The trial court then stopped the hearing and ordered that the case proceed to trial the following day. The next day, Primmer entered into another plea agreement under which he was to plead guilty to child molesting and to being a repeat sexual offender, this time in exchange for an agreement that the executed portion of his sentence would not exceed twelve years. The trial court held another plea agreement hearing, at which Primmer indicated that no one was put into fear in order to convince him to plead guilty. Primmer stated:

Yesterday was just a confusing day. It just happened all so quick. I'm sorry it had to come down to twelve years, but it was just, it happened too quick and I didn't have a chance to ... talk to my family or anything about it.

Tr. at 102. The trial court accepted Primmer's plea and scheduled a sentencing hearing.

Prior to the sentencing hearing, Primmer sent the trial court a letter indicating he had not in fact committed the crimes to which he had pled guilty. Primmer stated he pled guilty because the State had coerced the child whom Primmer was accused of molesting and the child's mother into agreeing to testify falsely against Primmer, and he did not want them to have to go through the experience of lying on the stand. At the sentencing hearing, Primmer again proclaimed his innocence stating:

“I signed the Plea Agreement because of harassment and threats made against [the mother and child] by the prosecution and the people working for her. That's why I signed the Plea Agreement, Your Honor. I did not commit this crime. I signed the Plea Agreement because my father told me to to [sic] get it over with and to keep [the mother and child] from having—pardon my expression—the hell harassed out of ‘em like they have been this past year, Your Honor.”

Tr. at 121. Primmer later stated, “I mean I don't, I really don't think this is fair, Your Honor, because, like I said, I didn't commit this crime,” and that “I know I pled guilty, Your Honor. And I've explained why I've pled guilty.” Id. at 123.

The trial court then sentenced Primmer to the statutory maximum of eight years for Class C felony child molesting. The trial court sentenced Primmer to an additional ten years pursuant to the repeat sexual offender statute. Of the aggregate eighteen-year sentence, the trial court suspended six years and ordered that Primmer serve twelve years.

Primmer v. State, 857 N.E.2d 11, 13–14 (Ind.Ct.App.2006)

(footnotes omitted).

On appeal, Primmer claimed that the trial court should have treated his statements at the sentencing hearing as a motion to withdraw his guilty plea and should have granted that motion. Noting that Primmer never filed a motion, much less a written, verified motion, to withdraw his guilty plea, we held that the trial court did not abuse its discretion in not withdrawing Primmer's guilty plea before sentencing. Id. at 15

. We also noted that, to the extent that Primmer's arguments attacked the voluntariness of his plea, this issue was not available on direct appeal and should instead be presented in a petition for post-conviction relief. See id. (citing Jones v. State, 675 N.E.2d 1084, 1090 (Ind.1996) ).

With regard to Primmer's appeal of his sentence, we first noted that the trial court did not abuse its discretion in failing to consider Primmer's guilty plea as a significant mitigating factor. Id. at 16–17

. However, we also held that the trial court had imposed an improper sentence enhancement under the repeat sexual offender statute:

At the sentencing hearing, the prosecutor incorrectly informed the court that the maximum penalty allowed for the repeat sexual offender enhancement was twelve years. Tr. at 175. The trial court stated at the sentencing hearing that it would sentence Primmer to twelve years for the enhancement. Tr. at 207. Before the trial court issued its sentencing order, it apparently reconsidered, and instead sentenced Primmer to ten years under the enhancement. The repeat sexual offender statute authorizes neither the twelve-year sentence identified at the sentencing hearing nor the ten-year sentence actually imposed. Therefore, Primmer's sentence is illegal.

Id. at 18 (footnotes...