Spicer v. State
| Docket Number | 22A-PC-1694 |
| Decision Date | 06 July 2023 |
| Parties | Harry Spicer, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Dearborn Circuit Court The Honorable James D Humphrey, Judge Trial Court Cause No. 15C01-2003-PC-5
APPELLANT PRO SE Harry Spicer Wabash Valley Correctional Facility Carlisle, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana.
[¶1] Harry Spicer, pro se, appeals the denial of his petition for post-conviction relief (PCR). We affirm.
[¶2] In 2007, Spicer pled guilty to class B felony conspiracy to manufacture methamphetamine in cause 15D02-0610-FB-14 (FB-14). He received a fifteenyear sentence, with twelve years suspended to probation.
[¶3] On April 4, 2014, Spicer was charged with class A felony conspiracy to deal methamphetamine in cause 15C01-1404-FA-35 (FA-35). The relevant alleged facts supporting the FA-35 charge are that Spicer participated in providing pseudoephedrine to Vernis Newton, who used the pseudoephedrine to manufacture methamphetamine, a small portion of which Newton used to "pay" his pseudoephedrine providers. Spicer became involved in the enterprise through his association with Lisa Ellis and Spicer's brother, who were also providers. More detailed facts may be found in Spicer v. State, No. 15A04-1504-CR-148, 2015 WL 7075698, at *1-2 (Ind.Ct.App. Nov. 13, 2015) (Spicer 1), and Spicer v. State, No. 15A01-1512-CR-2205, 2017 WL 393266, at *1-3 (Ind.Ct.App. Jan. 30, 2017) (Spicer 2), trans. denied.
[¶4] On April 8, 2014, the State charged Spicer with violating his probation in FB-14 due to his FA-35 charge. On that same date, the court appointed attorney Justin Bartlett to represent Spicer in FA-35. In January 2015, attorney Blaine Burgess, Bartlett's colleague, began working on Spicer's FB-14 probation revocation case. Burgess represented Spicer in a March 3, 2015 hearing on the matter. Spicer's probation was revoked on March 10, 2015, and he appealed.
[¶5] On March 12, 2015, Burgess filed his appearance in FA-35. Burgess was substituted for Bartlett prior to the four-day jury trial held in early October 2015. Spicer was found guilty in FA-35. Meanwhile, a panel of this Court affirmed the probation revocation and the execution of Spicer's previously suspended FB-14 twelve-year sentence. Spicer 1, 2015 WL 7075698, at *4. At a November 18, 2015 hearing, the trial court ordered a forty-year executed sentence for Spicer's FA-35 conviction and specified that it be served in the Department of Correction consecutive to the twelve-year sentence Spicer was serving for his FB-14 probation revocation. Spicer appealed his FA-35 conviction and sentence. In a memorandum decision, another panel of this Court affirmed the trial court. Spicer 2, 2017 WL 393266, at *7.
[¶6] In March 2020, Spicer filed a pro se PCR petition. The court held an evidentiary hearing in August 2021. Proposed findings and conclusions were filed. In an eleven-page order issued in June 2022, the court denied Spicer's petition. He appeals that order.
[¶7] "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Bautista v State, 163 N.E.3d 892, 896 (Ind.Ct.App. 2021) (). "A defendant who files a petition for post-conviction relief 'bears the burden of establishing grounds for relief by a preponderance of the evidence.'" Id. (quoting Ind. PostConviction Rule 1(5)). "Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment[.]" Id. "Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the postconviction court's decision." Id. (quoting Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). "In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did." Id. "We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law." Wilkes, 984 N.E.2d at 1240.
[¶8] Spicer has brought this appeal pro se, "but this does not mean that we will treat his brief any differently than we would if he were represented by counsel." Receveur v. Buss, 919 N.E.2d 1235, 1238 n.4 (Ind.Ct.App. 2010), trans. denied. "Indeed, it has long been the rule in Indiana that pro se litigants without legal training are held to the same standard as trained counsel and are required to follow procedural rules." Id. (italics omitted). "We will not become an 'advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.'" Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016) (citation omitted), trans. denied (2017).
Section 1 - Spicer has not demonstrated ineffective assistance of counsel.
[¶9] On appeal from the denial of his PCR petition, Spicer raises multiple ineffective assistance allegations. "The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution." Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). "A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, [466 U.S. 668 (1984)]." Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). "First, the defendant must show that counsel's performance was deficient." Id. "This requires a showing that counsel's representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment." Id. (citations omitted). "There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the defendant to overcome that presumption." Peaver v. State, 937 N.E.2d 896, 900 (Ind.Ct.App. 2010), trans. denied (2011).
[¶10] "Second, the defendant must show that the deficient performance prejudiced the defense." Perez, 748 N.E.2d at 854. "To establish prejudice, a defendant 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." Id. "Although the two parts of the Strickland test are separate [inquiries], a claim may be disposed of on either prong." Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). " Id. (quoting Strickland, 466 U.S. at 697).
[¶11] Spicer asserts that he was not consulted about the defense theory or strategy and that he was denied the right to testify in FA-35 in 2015. Spicer claims that he was not permitted an opportunity to review audio or video discovery and hypothesizes that Burgess did not review the discovery. Spicer contends that his appointed counsel, Burgess, "had just passed the Bar Examination, and had never tried a case prior to this substitution to" Spicer's case. Appellant's Br. at 13. Spicer faults Burgess for an out-of-context statement and for not challenging the admission of certain cell phone and text message evidence. In addition, he maintains that Burgess should have objected to "bolstering" comments regarding a State's witness and inflammatory statements about the "blight" of methamphetamine. Id. at 17, 18.[1] On top of his other allegations, Spicer takes issue with his counsel's failure to object to the State "leading its witnesses" and failure to "file any pre-trial motions in limine or preliminary jury instructions[.]" Id. at 20, 22. We address each assertion in turn.
[¶12] Spicer's own testimony during the post-conviction hearing belies his assertions that his appointed attorney did not consult with him and barred him from testifying. Spicer testified that he met with Burgess more than once, "told him what happened," and stressed that he "wasn't even in the State of Indiana" when the alleged crime occurred. PCR Tr. Vol. 2 at 11. They discussed jurisdictional issues and potential witnesses, including Newton, Ellis, and Spicer's brother. Id. at 13-14, 18. Spicer also advised his counsel to "check" the statement of witness Ellis and shared with counsel his doubts about the veracity of Ellis's testimony. Id. at 16, 20. When asked whether he and Burgess ever discussed whether he should testify, Spicer answered: "[Burgess] said if I wanted to testify it was totally up to me." Id. at 14-15. When asked if he ever told his attorney that he wished to testify, Spicer replied, "No, I didn't say either way." Id. at 15. Spicer has not shown that Burgess performed deficiently in consulting with his client. And Spicer has not shown prejudice in how Burgess dealt with Spicer's right to testify. See Correll v. State, 639 N.E.2d 677, 682 (Ind.Ct.App. 1994) (...
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