Schwartz v. State

• Court: Indiana Appellate Court
• Writing for the Court: KIRSCH, Judge.
• Citation: Schwartz v. State, 66 N.E.3d 1007(Table) (Ind. App. 2016)
• Decision Date: 07 November 2016
• Docket Number: No. 02A03–1602–PC–279.,02A03–1602–PC–279.
• Parties: Theodore T. SCHWARTZ, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.

66 N.E.3d 1007 (Table)

Theodore T. SCHWARTZ, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 02A03–1602–PC–279.

Court of Appeals of Indiana.

Nov. 7, 2016.

Stephen T. Owens, Public Defender of Indiana, Joanna Green, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

KIRSCH, Judge.

[1] Theodore T. Schwartz ("Schwartz") appeals the post-conviction court's partial denial of his petition for post-conviction relief. On appeal, he raises the following consolidated, restated, and reordered issues:

I. Whether Schwartz received ineffective assistance of both trial and appellate counsel; and

II. Whether Schwartz entered his guilty plea knowingly, intelligently, and voluntarily.

[2] We affirm.¹

Facts and Procedural History

[3] The facts supporting Schwartz's convictions as set forth by this court in an unpublished memorandum decision on his direct appeal are as follows:

On August 19, 2009, Schwartz escaped from the Berne Police Station. He went to J.H.'s house in Allen County where he had previously done restoration work on her barn. Schwartz parked the car he was driving behind J.H.'s barn and broke into her house. When J.H. returned home from work at 6:15 p.m., she unlocked the door, and Schwartz accosted her. Schwartz grabbed J.H. and told her to give him money. J.H. told Schwartz her money was in her car, and he led her outside. J.H. gave Schwartz the money from her purse. When Schwartz tried to get J.H. to go back inside, a struggle ensued. Schwartz struck J.H. in the face, causing her head to go through the glass window. He also placed his hands on J.H.'s throat, causing her to momentarily stop breathing.

Schwartz forced J.H. back into the house, retrieved a knife from the kitchen, and forced her upstairs. Schwartz cut off some of J.H.'s clothing with the knife, fondled her, forced her to perform oral sex on him, and performed oral sex on her. Schwartz also forced J.H. to have intercourse with him. At one point, Schwarz put a pillow over J.H.'s head and tied a bandana around her mouth to keep her from screaming. J.H. believed she was going to die. After the sexual assault, Schwartz attempted to tie up J.H. with a belt and the reins from a horse bridle. He also tried to lock her in a closet.

In the meantime, J.H.'s mother, who lived nearby, saw the strange car parked behind the barn and J.H. struggling outside. J.H.'s mother investigated and sought help from neighbors, who called police. When police arrived, Schwartz jumped out of a second story window, stole J.H.'s car, and fled. Schwartz was eventually apprehended in Wells County.

Schwartz v. State, No. 02A05–1010–CR–714, 2011 WL 1204832, at *1 (Ind.Ct.App. Mar. 31, 2011) (footnotes omitted), trans. denied.

[4] On October 8, 2009, the State charged Schwartz with fifteen felony counts. Schwartz was initially represented by a public defender; however, attorney Stanley Campbell ("Campbell") was later hired to represent Schwartz during his plea proceedings. During an August 20, 2010 guilty plea hearing, the trial court questioned Schwartz concerning his mental health. Schwartz informed the trial court that he was being treated for depression, but was able to understand the proceedings, was able to assist in his defense, was not under the influence of drugs or alcohol, and was competent to enter a plea. Guilty Plea Tr. at 5 –6. The trial court also informed Schwartz of the charges against him and the rights he would be giving up by pleading guilty. That same day, Schwartz pleaded guilty to: Count 1, rape as a Class A felony (armed with a deadly weapon); Count 2, criminal deviate conduct as a Class A felony (armed with a deadly weapon); Count 3, criminal deviate conduct as a Class A felony (armed with a deadly weapon); Count 4, burglary as a Class A felony (resulting in bodily injury); Count 5, robbery as a Class A felony (resulting in serious bodily injury); Count 6, criminal confinement as a Class B felony (armed with a deadly weapon); Count 7, battery as a Class C felony (resulting in serious bodily injury); Count 9, strangulation, a Class D felony; and Count 10, auto theft as a Class D felony. Sentencing was left to the trial court's discretion. There was no agreement as to: Count 8, forgery, a Class C felony; Count 11, receiving stolen auto parts as a Class D felony; Count 12, dealing in methamphetamine as a Class B felony; Count 13, possession of methamphetamine as a Class D felony; Count 14, possession of chemical reagents with intent to manufacture methamphetamine as a Class D felony; and Count 15, possession of a controlled substance as a Class D felony. Following a sentencing hearing, Schwartz was committed to the Indiana Department of Correction for an aggregate sentence of 100 years.

[5] In arriving at the sentence, the trial court considered Schwartz's guilty plea to be a mitigating factor and his criminal history to be neither a mitigator nor a significant aggravator. The trial court rejected Schwartz's argument that his methamphetamine use was a mitigating factor, reasoning that Schwartz had a history of substance abuse, and his claim—that drug use prevented him from knowing what he was doing—lacked credibility. The trial court considered the offenses to be either property-related or sex-related .² The trial court sentenced Schwartz to fifty years for the property-related offenses, consisting of fifty years each for the burglary and robbery convictions and one and one-half years for the auto theft conviction, all of which were to be served concurrently. Sentencing Tr. at 49.³ The trial court sentenced Schwartz to fifty years on each of the Class A felony sex-related convictions, ten years on the criminal confinement conviction, and one and one-half years on the strangulation conviction and ordered those sentences to be served concurrent with each other. The trial court entered no sentence for the battery, merging that conviction into the robbery. The trial court justified this sentence on the basis of the nature of the offenses, i.e., the brutality and injury suffered by J.H., and the number of different offenses, and noted that the sentence was "far from a maximum." Id. at 50. The trial court then ordered the sentences for the two groups of offenses to be served consecutively and committed Schwartz to the Indiana Department of Correction for a period of 100 years. At the conclusion of the sentencing hearing, Counts 8, 11, 12, 13, 14, and 15 were dismissed.

[6] Schwartz filed a direct appeal and, again, was represented by Campbell. There, Schwartz alleged that the trial court abused its discretion by relying on facts not supported by the record to establish aggravating circumstances and by finding his addiction was not a mitigating circumstance. Schwartz also argued that his sentence was inappropriate in light of the nature of the offenses and the character of the offender. Our court affirmed Schwartz's 100–year sentence. Schwartz, 2011 WL 1204832, at *5.

[7] In November 2014, Schwartz filed "Amendment to Petition for Post–Conviction Relief,"⁴ alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that his guilty plea was not knowing, intelligent, and voluntary. Schwartz alleged that Campbell rendered ineffective assistance as trial counsel when he: (1) failed to ask the State to eliminate alleged "double jeopardy enhancements," such as use of the knife and bodily injury; (2) failed to argue that J.H.'s injuries did not constitute serious bodily injury; (3) failed to argue that Schwartz did not use the knife throughout the four crimes for which it was used as an enhancement; and (4) allowed Schwartz to plead guilty while a competency evaluation was pending in another county. Id. at 59–60, 247–48. Schwartz also alleged that Campbell rendered ineffective assistance as appellate counsel when he: (1) waived the issue of whether J.H.'s injuries constituted serious bodily injury; (2) failed to argue alleged double jeopardy violations; and (3) failed to include, as evidence on appeal the five character letters written in support of Schwartz and offered during sentencing. Id. at 61, 248. Finally, Schwartz alleged that his plea was not knowing, intelligent, and voluntary because he did not understand the definition of serious bodily injury or the double jeopardy implications of his plea. Id.

[8] At the April 2015 post-conviction relief ("PCR") evidentiary hearing, Schwartz offered the records pertaining to his guilty plea proceedings and his direct appeal, as well as records pertaining to J.H.'s medical examination following the attack. Schwartz also offered the testimony of two witnesses, attorneys Larry Mock ("Mock") and Campbell. Mock, who had represented Schwartz in a Wells County case around the same time as the instant offense, testified that he had filed a request in January 2010 for appointment of medical experts "to determine [Schwartz's] ability to assist in his defense" in that separate action. Pet'r's PCR Ex. 3. Campbell knew that a competency evaluation had been requested in Schwartz's Wells County case. Schwartz asserted that his trial counsel was ineffective for failing to determine he was competent prior to allowing him to plead guilty.

[9] Campbell represented Schwartz during his guilty plea proceedings, at sentencing, and on direct appeal. During the PCR hearing, Campbell testified that he did not recall discussing with the prosecutor as part of plea negotiations the issues of double jeopardy or whether the serious bodily injury enhancement was supported by the evidence. PCR Tr. at 15 –16. However, Campbell did recall that there had been three different plea agreements offered and that the prosecutor "was pretty entrenched in her position in terms of a plea offer" and did not seem inclined to dismiss charges.⁵ Id. at 16. The...