Pryor v. State

• Decision Date: 29 August 2012
• Docket Number: No. 49A02–1202–CR–101.,49A02–1202–CR–101.
• Citation: 973 N.E.2d 629
• Parties: Willis PRYOR, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

973 N.E.2d 629

Willis PRYOR, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1202–CR–101.

Court of Appeals of Indiana.

Aug. 29, 2012.

Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Willis Pryor appeals his conviction for resisting law enforcement as a class A misdemeanor ¹ and argues that he received ineffective assistance of trial counsel. Pryor raises one issue, which we revise and restate as whether trial counsel's failure to preserve Pryor's right to a jury trial denied him the effective assistance of counsel. We reverse and remand.

The relevant facts follow. On July 19, 2011, the State charged Pryor with resisting law enforcement as a class A misdemeanor. On August 8, 2011, the court scheduled a hearing for November 1, 2011. On November 1, 2011, the court held a pre-trial hearing.² An “Off the Record Request for New Court Date” form signed by the deputy prosecuting attorney, Pryor, and defense counsel on November 1, 2011, included the date of “1–23–12” next to the pre-printed words “Bench Trial on” and the time of “1:00 pm” was circled. Appellant's Appendix at 24.

On January 17, 2012, Pryor, by counsel Daniel Cicchini, filed a request for a jury trial. On January 23, 2012, prior to the scheduled bench trial the court heard arguments and testimony from Pryor on Pryor's request for a jury trial. Pryor's counsel initially stated that he believed that the jury request had been timely filed due to the weekend and holiday. The court noted: “Well Judge Brown ³ looked at this just now, you know, as I walked in she was looking at it and denied the motion. She must have calculated the dates.” ⁴ Transcript at 5–6. Pryor's counsel then argued that, if the court was “not persuaded that the motion was timely, unfortunately [ ] Pryor has received ineffective assistance of counsel by the Public Defender's Agency,” that “[t]here's no strategic reason for filing a Jury Demand tardy,” and that “[i]t is reversible error on appeal if the defendant is wrongfully denied a jury trial,” citing Stevens v. State, 689 N.E.2d 487 (Ind.Ct.App.1997), and Lewis v. State, 929 N.E.2d 261 (Ind.Ct.App.2010). Id. at 6. Pryor testified, in response to questions from defense counsel, that he was represented by public defenders. When asked “[w]hen you spoke with members of, attorneys with the Public Defender's Agency, did you inform them that you wanted a jury trial,” Pryor testified “Yes, the last time I was here before.” Id. at 9. Pryor's counsel then argued that Pryor notified his attorneys that he wanted a jury trial, that the court has determined that the motion for a jury trial was filed untimely, that there is no strategic reason to file a late motion, and if Pryor is forced to proceed with a bench trial he would be deprived of his fundamental right to a jury trial through no fault of his own. The court denied Pryor's request and stated “well given all those circumstances and everything, I'm going to well, reaffirm if you will, Judge Brown's denial of the request for trial by jury and I don't see ineffective assistance of counsel being a remedy to get around a rule for, that's been in place ever since I can remember,” that “[i]t's very well defined, and if there was a slip up on somebody's behalf, I guess it would just say so be it,” and “[s]o we're going to go ahead with trial today then.” Id. at 11.

The court then proceeded to hold a bench trial, at which the State presented the testimony of Indianapolis Police Department Officer Todd Scroggins that on July 19, 2011, he had stopped Pryor for committing a traffic violation while riding his bicycle, that when an officer attempted to handcuff him, Pryor attempted to break the officer's grip, and officers placed Pryor on the ground and handcuffed him. The court stated that “I am not into the bike lane violation, but I think the evidence here supports the finding of guilty on the Resisting charge” and acknowledged that Pryor “has some infirmities and things and we appreciate that.” ⁵Id. at 55. The court found Pryor guilty as charged, sentenced him to 365 days with 359 days suspended, and ordered Pryor to be placed on probation for 180 days and to complete thirty hours of community service work.

The issue is whether trial counsel's failure to preserve Pryor's right to a jury trial denied him the effective assistance of 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. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh'g denied ), reh'g denied, cert. denied,534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). 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). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

When considering a claim of ineffective assistance of counsel, a “strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind.2001). “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind.2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), reh'g denied, cert. denied,

520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind.1986).

We observe that Pryor is raising a claim of ineffective assistance of counsel on direct appeal. In Lewis, we noted that a post-conviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim. 929 N.E.2d at 263 (citing Woods v. State, 701 N.E.2d 1208, 1219 (Ind.1998), reh'g denied, cert. denied,528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999)). We also noted that, “[n]evertheless, some claims of ineffective assistance of counsel can be evaluated on the trial record alone, and such claims are resolvable on direct appeal.” Id. “Some claims of ineffective assistance of trial counsel concern a decision by trial counsel that is perhaps within the range of acceptable tactical choices counsel might have made, but in the particular instance is claimed to be made due to unacceptable ignorance of the law or some other egregious failure rising to the level of deficient attorney performance.” Id. (citation and internal quotation marks omitted). “In those cases, the reasoning of trial counsel is sometimes apparent from the trial record.” Id. “When the reasoning of trial counsel is apparent from the record, the claim of ineffective assistance of trial counsel can be appropriately addressed on direct appeal.” Id. Here, Pryor's counsel presented arguments before the court and elicited sworn testimony from Pryor regarding his claim. There is sufficient evidence in the record to address Pryor's claim. See id. at 263 n. 4 (acknowledging that neither Lewis nor his attorneys testified under oath at the hearings in the matter but nevertheless concluding that there was sufficient evidence in the record to address Lewis's claim).

Pryor argues that he received ineffective assistance of counsel when his attorney failed to file a timely demand for a jury trial because he inadvertently miscalculated the deadline date. Pryor argues that “[t]he record is unclear as to when trial Attorney Cicchini learned of Pryor's desire to be tried by jury” but that “it must have been sometime on or before January 17, 2011.” Appellant's Brief at 7. Pryor points to this court's opinions in Stevens and Lewis and asserts that the failure to file a timely demand was a mistake and not a choice or strategy and that he was prejudiced by his trial counsel's deficient performance.

The State argues that, while Pryor claimed he had made a request for a jury trial the last time he was in court, the CCS shows that the last time Pryor was in court he signed a document requesting a bench trial, that “[t]he request for a bench trial on the same date that [Pryor] claims he requested a jury trial signed by both [Pryor] and the person who he purports to have informed of his request contradicts his later claim that he made such a request,” and that “[t]his Court should reject [Pryor's] testimony and find that the record indicates that he made no such request and affirm the trial court's denial of his request.” Appellee's Brief at 5. The State further argues that this court's “rule in Stevens and Lewis acts in contradiction to the Davis/ Hatton procedure” and that this court should reconsider Stevens and Lewis and “hold that the procedure outlined in Davis and Hatton is sufficient to the resolution of claims like these.” ⁶Id. at 8.

In his reply brief, Pryor argues that this court “decided Stevens fifteen years ago and its reasoning has never been questioned or viewed unfavorably by another Cou...