Segura v. State
Decision Date | 05 June 2000 |
Docket Number | No. 10A01-9906-PC-218.,10A01-9906-PC-218. |
Citation | 729 N.E.2d 594 |
Parties | Jose Daniel SEGURA, Appellant-Defendant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Stephen T. Owens, Deputy Public Defender, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
OPINION ON PETITION FOR REHEARING
On April 4, 2000, we issued a Memorandum Decision, Segura v. State, 726 N.E.2d 906, as follows:
Appellant, Jose Daniel Segura (Segura), appeals the post-conviction court's denial of his successive petition for post-conviction relief.
We affirm.
The facts most favorable to the judgment reveal that on January 26, 1995, Segura pleaded guilty to two counts of Dealing in Cocaine,1 a Class B felony and failure to pay the Controlled Substance Excise Tax,2 a Class D felony as part of a plea agreement. He was sentenced to two ten (10) year fixed terms for each of the counts of dealing in cocaine and one and one-half (1½) years for failure to pay the controlled excise tax. The sentences were to run concurrently.
In the first post-conviction proceeding, one count of dealing in cocaine and one count of failure to pay the controlled substance excise tax3 were "dismissed"4 upon double jeopardy considerations. The post-conviction court denied Segura's initial petition for post-conviction relief on the remaining count.
(quoting Strickland v. Washington (1984) 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674) (counsel, it is not necessary to address both parts of the standard "`if the defendant makes an insufficient showing on one' of them"). that in a claim for ineffective assistance of Segura has not presented any evidence to establish a reasonable probability of acquittal if this case had gone to trial.5 The only evidence of ineffective assistance of counsel which Segura has brought forth is that his attorney failed to advise him of the possible deportation consequences of his guilty plea. This does not establish a reasonable probability that Segura would have been acquitted if he had chosen to go to trial.
The judgment is affirmed.
Segura has petitioned for rehearing which we grant for the sole purpose of clarifying our reading of State v. Van Cleave (1996) Ind., 674 N.E.2d 1293, reh'g granted in part upon other grounds, cert. denied (1998) ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121, in light of the recent United States Supreme Court opinion in Williams v. Taylor (2000) ___ U.S. ___, 120 S.Ct. 1495, 146 L.Ed.2d 389.
Williams clearly articulates that Lockhart v. Fretwell (1993) 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180, was not intended to modify Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and that in deciding claims of ineffective assistance of counsel, the test as set forth in Strickland applies. The Indiana Supreme Court in State v. Holmes (Ind.2000), 728 N.E.2d 164, recently considered Williams as to its effect upon the Strickland test and noted:
"In Williams, the Court instructed that Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), should not be read to modify the Strickland test by requiring `a separate inquiry into fundamental fairness when [the defendant] is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding.'"
Therefore, we must look to how Strickland has developed in Indiana. It has developed pursuant to Van Cleave. Be that as it may, whether or not the Indiana Supreme Court's reading of Fretwell, as set forth out in Van Cleave, has been undercut by Williams6 is not in itself determinative because Van Cleave also relied upon Hill v. Lockhart (1985) 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203.
Hill adopted the Strickland test for ineffective assistance of counsel in a guilty plea setting. Hill, supra at 57, 106 S.Ct. at 370. Hill, however, contains language susceptible to varying constructions. In Hill, the Court noted that "[t]he second, or `prejudice' requirement ... focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" and that "in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370. This language suggests that in guilty plea settings, "prejudice" is viewed in the context of the outcome of the plea proceedings.
In Hill, however, the Court also stated that in assessing whether failure to discover or investigate potentially exculpatory evidence "prejudiced" the defendant "will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial" and that "the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Id. at 59, 106 S.Ct. at 370-71. This language suggests that in guilty plea settings "prejudice" is a function of the probable outcome if a trial had taken place.
Regardless of the proper construction, Van Cleave chose the construction in which a defendant must show "a reasonable probability of acquittal" at trial in order to prevail in a post-conviction attack based upon a claim of ineffective assistance of counsel, and that is the law in Indiana...
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Segura v. State
...light of the Williams decision. The Court of Appeals granted the petition and again affirmed the denial of relief. Segura v. State, 729 N.E.2d 594, 597 (Ind.Ct.App. 2000). The Court of Appeals acknowledged that this Court's opinion in Van Cleave had relied in part on an interpretation of Lo......
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...claim following a guilty plea has been called into question, as another panel of this court recently noted. See Segura v. State, 729 N.E.2d 594, 596-97 (Ind.Ct.App. 2000), trans. pending, (holding that Van Cleave is the law in Indiana today and any change in the law as set forth in Van Clea......