Roudebush v. State
| Decision Date | 14 March 2014 |
| Docket Number | No. 80A04–1301–PC–46.,80A04–1301–PC–46. |
| Citation | 17 N.E.3d 934 |
| Parties | Jason ROUDEBUSH, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Mark Small, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jason Roudebush appeals the denial of his petition for post-conviction relief. He asserts his trial counsel was ineffective for not communicating plea negotiations to him and for advising him to give a statement to police without securing an agreement from the prosecutor for Roudebush to receive leniency in return. We affirm.
On December 26, 2003, Roudebush, Ethan Pennington, and Shane Bramley robbed Morris Moody of money and drugs. In the course of the robbery, someone shot Moody in the head at close range and killed him. When arrested, Roudebush hired Karl Hadley (hereinafter, “Counsel”) to represent him. Shortly thereafter, police asked Roudebush to give a statement about the crime. Counsel discussed Roudebush's situation with the prosecutor, and the prosecutor indicated only that Roudebush should cooperate if he hoped for leniency later. Counsel told Roudebush he had the right to remain silent, but explained to Roudebush why he believed, based on his discussions with the prosecutor, that a statement could help Roudebush achieve the best possible plea deal. Roudebush decided to make a statement in which he admitted his involvement but claimed Bramley shot Moody.
The State charged Roudebush with felony murder1 and conspiracy to commit Class A felony robbery.2 Counsel and the prosecutor entered plea negotiations, but no agreement was reached. After a jury found Roudebush guilty as charged, the trial court entered convictions and pronounced a fifty-five year sentence. We affirmed the felony murder conviction, but reversed the conspiracy to commit robbery conviction on double jeopardy grounds. Roudebush v. State, No. 80A02–0701–CR–29, 2007 WL 4150828 (Ind.Ct.App. Nov. 26, 2007), trans. denied.
Roudebush sought post-conviction relief asserting his trial counsel was ineffective. After hearing evidence, the court denied his petition.
Post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002), reh'g denied, cert. denied sub nom. Davidson v. Indiana, 537 U.S. 1122, 123 S.Ct. 857, 154 L.Ed.2d 803 (2003). As post-conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-conviction judgment must establish the evidence is without conflict and, as a whole, unerringly points to a conclusion contrary to that reached by the post-conviction court. Id. Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we do not defer to the court's legal conclusions, but “the 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.” Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (quoting State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998) ), reh'g denied, cert. denied sub nom. Ben–Yisrayl v. Indiana, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004).
In reviewing a claim of ineffective assistance of counsel, we begin with a strong presumption “that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Ward v. State, 969 N.E.2d 46, 51 (Ind.2012), reh'g denied.
Trial counsel has wide latitude in selecting trial strategy and tactics, which choices will be subjected to deferential review. Id. A petitioner must offer “strong and convincing evidence to overcome this presumption” of adequate assistance and reasonable professional judgment. Ben–Yisrayl, 729 N.E.2d at 106.
To demonstrate ineffective assistance, a petitioner must establish both deficient performance and resulting prejudice. Pontius v. State, 930 N.E.2d 1212, 1219 (Ind.Ct.App.2010), trans. denied. Performance is deficient when trial counsel's representation falls below an objective standard of reasonableness causing errors sufficiently serious to amount to a denial of a defendant's Sixth Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.2003), reh'g denied. A fair evaluation of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight by evaluating the challenged conduct from counsel's perspective at the time. Nadir v. State, 505 N.E.2d 440, 441 (Ind.1987). Prejudice is established when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different.” Id. If a petitioner did not establish prejudice, we need not evaluate trial counsel's performance. Pontius, 930 N.E.2d at 1219.
Roudebush first argues Counsel was ineffective for advising him to give a statement to police without a guarantee of leniency in return. The State contends Roudebush cannot argue Counsel was ineffective because Roudebush had no right to counsel at the time he was advised to give the statement. We disagree with the State's contention.
Oberst v. State, 935 N.E.2d 1250, 1255 (Ind.Ct.App.2010) (quoting Davis v. United States, 512 U.S. 452, 456, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ), (citations omitted), trans. denied. Without a right to counsel, a defendant cannot complain that the assistance counsel provided was constitutionally ineffective. Id. at 1256.
The State relies on Oberst, in which a lawyer permitted Oberst to give a statement to police thirty days before charges were filed against him, and we held Oberst could not challenge the adequacy of counsel's assistance. Id. However, we hold Oberst does not control.
Although Roudebush gave his statement to police before charges were filed against him, the trial court had conducted Roudebush's initial hearing. A person arrested for a crime must be given an initial hearing before a judicial officer. See, e.g., Ind. Code § 35–33–7–1 (). At or before the initial hearing, the State must submit a probable cause affidavit so the judge may determine whether “there is probable cause to believe that any crime was committed and that the arrested person committed it.” Ind. Code § 35–33–7–2. If a person is arrested before charges are filed, then “an information or indictment shall be filed or be prepared to be filed at or before the initial hearing....” Ind. Code 35–33–7–3(a). However, if a prosecutor needs more time “to evaluate the case and determine whether a charge should be filed ... then the court shall recess or continue the initial hearing for up to seventy-two (72) hours.” Ind. Code § 35–33–7–3(b). “Before recessing the initial hearing and after the ex parte probable cause determination has been made, the court shall inform a defendant ... of the rights specified in subdivisions (1), (2), (3), (4), and (5) of section 5 of this chapter,” Ind. Code § 35–33–7–3(c), which includes the right to retain counsel and the right to have counsel assigned at no expense if a defendant is indigent. Ind. Code § 35–33–7–5.
Because the court decided the State had probable cause to continue holding Roudebush for commission of undisclosed crimes, the State had only 72 hours to determine what crimes to charge, and the court had informed Roudebush of his right to counsel, we hold his constitutional right to counsel, and the effective assistance thereof, had attached. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) () (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ).
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