State v. Van Cleave

• Citation: 674 N.E.2d 1293
• Decision Date: 19 December 1996
• Docket Number: No. 49S00-9008-PD-541,49S00-9008-PD-541
• Parties: STATE of Indiana, Appellant-Respondent, v. Gregory VAN CLEAVE, Appellee-Petitioner.
• Court: Supreme Court of Indiana

Page 1293

674 N.E.2d 1293

STATE of Indiana, Appellant-Respondent, v. Gregory VAN CLEAVE, Appellee-Petitioner.

No. 49S00-9008-PD-541.

Supreme Court of Indiana.

Dec. 19, 1996.

Pamela Carter, Attorney General, Geoff Davis, Deputy Attorney General, Office of Attorney General, Indianapolis, for appellant-respondent.

Susan K. Carpenter, Public Defender, Thomas C. Hinesley, Joseph M. Cleary, Kenneth L. Bird, Office of the Public Defender, Indianapolis, for appellee-petitioner.

BOEHM, Justice.

The State appeals from a grant of postconviction relief to defendant Gregory Van Cleave. The postconviction court vacated Van Cleave's 1983 guilty plea for felony murder and the accompanying death sentence on the ground that Van Cleave had been denied his constitutional right to effective assistance of counsel. The State appeals only the reversal of the conviction. As explained below, we hold today that a defendant must demonstrate a reasonable probability of acquittal at trial to establish the "prejudice" from counsel's performance necessary to vacate a conviction resulting from a guilty plea. Because Van Cleave has failed to make this showing, we reinstate his felony murder conviction and remand for a new sentencing hearing.

I. Factual & Procedural Background

On the night of October 19, 1982 Van Cleave, James Brazelton, Robert Coleman, and Andrew Sims set out to commit a robbery. The four men were driving through a neighborhood in Indianapolis in Coleman's car when they spotted Robert Falkner caulking a window outside his home. Falkner had his television, which was visible to the four men, set up in his yard to watch the World Series as he worked. Van Cleave and Sims "hollered" for Coleman to stop the car so that the four could steal the television. While their two confederates waited in the bushes nearby, Van Cleave and Sims approached Falkner to demand the television. Van Cleave was carrying a sawed-off shotgun and Sims was carrying a handgun. Both guns were loaded. After a brief exchange of words between Falkner and the two men, Van Cleave shot Falkner at close range. Falkner later died of a single gunshot wound to the chest. Van Cleave, Sims, Brazelton, and Coleman fled the scene in Coleman's car without taking the television. All four were arrested in connection with the killing four days later. Each defendant gave a statement to the police.

On October 25, 1982 the State charged Van Cleave with felony murder and conspiracy to commit robbery. In accordance with a plea agreement, Van Cleave pleaded guilty on April 13, 1983 to felony murder and the State dismissed the conspiracy charge. Under the plea agreement, the sentencing judge could choose between 60 years in prison or the death penalty. After a lengthy sentencing hearing in which both sides presented evidence and cross-examined witnesses, the trial court issued findings of fact and a judgment dated May 27, 1983 entering a conviction and sentencing Van Cleave to death. We affirmed Van Cleave's conviction and death sentence on direct appeal. The facts and circumstances that led to Van Cleave's guilty plea are presented at some length in Van Cleave v. State, 517 N.E.2d 356, 359-63 (Ind.1987), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989).

Van Cleave filed a petition for postconviction relief on August 24, 1989, asserting that he had been denied his Sixth Amendment right to effective assistance of counsel. Van Cleave contended--and the postconviction court agreed--that his trial lawyer failed to uncover relevant evidence that, if discovered, would have caused Van Cleave to go to trial instead of entering a plea. The uninvestigated evidence related to difficulties in Van Cleave's childhood, including his parents' divorce and racial issues in his upbringing, and a nonverbal learning disorder that impaired Van Cleave's ability to understand visual, spatial, mathematical, and mechanical tasks. Additionally, counsel failed to view Van Cleave's videotaped statement to the police (in which Van Cleave confessed to shooting Falkner) before the plea hearing. The postconviction court further found that counsel had failed to scrutinize the strength and consistency of the State's evidence, particularly the credibility of some of the State's witnesses. Finally, Van Cleave's attorney did not investigate the viability of an intoxication defense.

In addition to failing to pursue these lines of inquiry, counsel misapprehended the mens rea necessary for Van Cleave to be eligible for the death penalty. Counsel wrongly believed that an aggravating factor in the death penalty statute¹ was triggered only by specific intent. Thus, counsel concluded that if Van Cleave pleaded guilty and demonstrated lack of premeditation, he would be spared execution. On postconviction review, counsel testified that the intent issue was a "key factor" in his decision to advise Van Cleave to plead guilty. Counsel further testified that had he been aware of all the evidence presented on postconviction review, he would have recommended that Van Cleave reject the plea offer and go to trial.

The postconviction court concluded that to prevail on a claim of ineffective assistance Van Cleave must show that his lawyer's performance was deficient and, but for counsel's errors, Van Cleave would not have pleaded guilty. After finding that counsel's mistakes constituted deficient performance, and that Van Cleave would have gone to trial had his lawyer not erred, the postconviction court ruled that Van Cleave had established a violation of his Sixth Amendment right to effective assistance of counsel. The court issued findings of fact and conclusions of law on November 22, 1994 vacating the guilty plea, conviction and death sentence. The State appeals.

II. Standard of Review

As we recently explained in Spranger v. State, 650 N.E.2d 1117 (Ind.1995), reh'g denied, the standard of review of a judgment granting postconviction relief is governed by Indiana Trial Rule 52(A), which is slightly different from its federal counterpart in referring to the "findings or judgment" as opposed to "findings of fact" as subject to a clearly erroneous standard of review. However, under Rule 52(A) the ultimate analysis is the same: "We reverse only upon a showing of 'clear error'--that which leaves us with a definite and firm conviction that mistake has been made." Id. at 1119. In reviewing a finding of ineffective assistance, we substantially defer under the "clear error" standard to the trial court's findings of fact but not to its conclusions of law.² A "clearly erroneous" judgment can result from application of the wrong legal standard to properly-found facts, and in that situation we do not defer to the trial court. We are not bound by the trial court's characterization of its results as "findings of fact" or "conclusions of law." Rather, we look past these labels to the substance of the judgment and will review a legal conclusion as such even if the judgment wrongly classifies it as a finding of fact. Indiana State Bd. of Public Welfare v. Tioga Pines Living Center, Inc., 575 N.E.2d 303, 306 & n. 1 (Ind.Ct.App.1991), trans. denied.

III. Issue Presented

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show two things: (1) the lawyer's performance fell below an "objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Effectiveness of counsel is a mixed question of law and fact. Id. at 698, 104 S.Ct. at 2070. At issue in this case is the second tier of this analysis--the "prejudice" prong.³ The question we decide today is one of first impression in Indiana: what must be proved to establish prejudice in claims of ineffective assistance where the defendant has pleaded guilty rather than gone to trial? Specifically, the issue is whether it is sufficient to set aside a conviction if the postconviction court concludes that there is a reasonable probability the defendant would not have pleaded guilty but for the deficient performance, or must the defendant establish a reasonable probability that the ultimate result--conviction--would have been different had counsel met the reasonableness standard.

We conclude that the showing of prejudice necessary to establish a constitutional claim requires that Van Cleave have shown a reasonable probability that he would not have been convicted at trial. In light of the lack of any evidence negating Van Cleave's culpability for felony murder and overwhelming evidence confirming it, we conclude Van Cleave has not shown a reasonable probability he would have been acquitted at trial, and therefore he has not shown any prejudice due to his lawyer's performance leading to his guilty plea. For this reason, the postconviction court erred as a matter of law in setting Van Cleave's conviction aside.

IV. U.S. Supreme Court Decisions in Strickland & Hill

It is clear that the necessary showing of prejudice in Sixth Amendment cases is not definitively settled.⁴ In Strickland, the Supreme Court established the two-part test for relief based on a violation of the right to effective assistance of counsel held applicable to the states under the Fourteenth Amendment.⁵ Under Strickland, the defendant must show deficient attorney performance and resulting prejudice. Strickland dealt with ineffectiveness claims that related only to sentencing but discussed the issue as it related to the trial as a whole. The Court reasoned that the purpose of the Counsel Clause is to ensure a fair trial and to protect the adversary process. Id. at 685-86, 104 S.Ct. at 2063-64. Courts are to focus on whether the trial produced a just...