White v. State

Citation25 N.E.3d 107
Decision Date29 December 2014
Docket NumberNo. 29A05–1312–PC–641.,29A05–1312–PC–641.
PartiesCharles P. WHITE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtCourt of Appeals of Indiana

Andrea L. Ciobanu, Alex Beeman, Ciobanu Law, P.C., Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Larry D. Allen, Deputy Attorneys General, Gary D. Secrest, Assistant Attorney General, Indianapolis, IN, Attorneys for Appellee.



, Chief Judge.

Case Summary

Four months after Charles “Charlie” P. White was elected Indiana Secretary of State, a Hamilton County grand jury indicted him on seven felonies, including theft, perjury, and voter fraud. The charges arose from White's conduct while he was a member of the Fishers Town Council and a candidate for Secretary of State; specifically, he purchased a townhome outside his district but kept his town-council position; submitted a form to the Hamilton County Board of Voter Registration that changed his address from his apartment to his ex-wife's house, which was located inside his district; voted in the May 2010 primary election using his ex-wife's address; and applied for a marriage license using his ex-wife's address. Former Marion County Prosecutor Carl Brizzi defended White at trial. A jury convicted White of six of the seven counts, and the trial court sentenced him to one year of electronic home monitoring. His sentence was stayed pending appeal.

White utilized the Davis–Hatton procedure to temporarily suspend his direct appeal and seek post-conviction relief in the trial court. The trial court denied White's request for post-conviction relief, which alleged, among other things, that Attorney Brizzi was ineffective. White's reinstated direct appeal and the appeal of the denial of post-conviction relief are now before us.

We divide White's claims into direct-appeal and post-conviction issues, and we ultimately conclude that three of White's convictions must be vacated. As the State concedes, two of the convictions violate double-jeopardy principles. As for the third conviction, the perjury charge against White should have been dismissed because it was based on White's street address, which was not material to his marriage-license application—only the county of residency is material. As for White's post-conviction claims, we conclude that Attorney Brizzi was not ineffective.

We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

White and Nicole White (now Mills) were married in 1998, and they have one son who was born in 2001. State's Ex. 39. White and Nicole lived together at 7527 Broad Leaf Lane in Fishers (“Broad Leaf”), which is in Hamilton County, Delaware Township, Precinct 12. White was an attorney1 for the Indiana Department of Natural Resources (“DNR”); he was also the Hamilton County Republican Party Chairman and a member of the Fishers Town Council, representing District 2.2 Tr. p. 917. White made approximately $1000/month as a town-council member. State's Ex. 34.

In December 2006 White and Nicole divorced, and they shared joint custody of their son. Id. Nicole remained at Broad Leaf with their son, while White moved to an apartment at 6994 Pintail Drive in Fishers (“the Pintail apartment”), which was in Delaware Township, Precinct 14. Like Broad Leaf, the Pintail apartment was located within the district that White represented, District 2. Approximately one month after the divorce, White conveyed his interest in Broad Leaf to Nicole via quitclaim deed. State's Ex. 40.

About two years after the divorce, in November 2008, White began dating Michelle Quigley, and they later became engaged. P–C App. p. 926.

In January 2009 White formed a campaign committee aimed at his candidacy for Indiana Secretary of State. P–C Tr. p. 572. The duties of the Secretary of State, the third highest-ranking office in state government, include oversight of state elections. Indiana Secretary of State, About the Office, IN.GOV, http://www.in.gov/sos/2362.htm (last visited Dec. 21, 2014). White traveled approximately every other day while campaigning, sleeping at night in people's homes and hotels across the state. P–C Tr. p. 572–73.

White moved out of the Pintail apartment in May or June 2009. He notified the Town of Fishers to change his address to Broad Leaf, where his ex-wife and son still lived. State's Ex. 54.

In September 2009 White executed a purchase agreement and placed a deposit for the purchase of a townhome at 13086 Overview Drive in Fishers (“Overview”). State's Ex. 1, 2, & 16. Notably, Overview was located in Fall Creek Township, Precinct 5—not in White's town-council district. State's Ex. 54. Because White had problems getting approved for a mortgage, on November 5, 2009, he signed a lease for Overview until he could get an FHA mortgage for the townhome; the lease term began November 13, 2009. State's Ex. 17; Tr. p. 715–16, 772. White was the only tenant listed on the lease, and the lease agreement prohibited assignment and subletting of the lease without the prior written consent of the landlord/builder. State's Ex. 17. According to the lease, all notices concerning the townhome were to be sent to White at Overview. Id. When White executed the lease, he told the landlord/builder that he was living in his ex-wife's basement,” but White gave no indication that he would not be moving into the townhome. Tr. p. 776–77.

A special election was held in Hamilton County on November 10, 2009, regarding the Hamilton Southeastern School Corporation. State's Ex. 43. White voted in person at the Precinct 14 (the Pintail apartment) polling site. Id. He indicated in the poll book, however, that his address had changed from the Pintail apartment to Broad Leaf located in Precinct 12. Id.

White signed a mortgage application for Overview on January 28, 2010. On the documents, he listed Overview as his “Present” and “Mailing” addresses and Broad Leaf as his “Former” address. State's Ex. 22. White wrote that he had been living at Overview for “.2” years, or approximately 2.4 months. Id. When White left his job at DNR in February 2010, he told DNR to mail his final paycheck to Overview. State's Ex. 38.

On February 22, 2010, White filed an address change with the Hamilton County Board of Voter Registration indicating that his address had changed from the Pintail apartment to Broad Leaf.3 State's Ex. 46.

White signed another mortgage application for Overview on February 26, 2010, and again claimed to have been living there for .2 years. State's Ex. 22. The main difference between the January and February applications was the addition of Krieg DeVault LLP as White's new employer, as White had begun working there February 1.4 State's Ex. 14 & 22. Also on February 26, White executed closing and financing documents for Overview, including two Occupancy Statements required by FHA indicating that White either occupied or would occupy Overview as his “primary residence” within thirty or sixty days. State's Ex. 24 & 25.

On May 4, 2010, more than sixty days after White closed on the Overview townhome, White voted in the primary election in Precinct 12 using his ex-wife's address at Broad Leaf—not the Overview address located in Precinct 5—and wrote in the poll book that his address was “Unchanged.”5 State's Ex. 47. The next week, on May 11, White filed his Declaration of Candidacy with the Indiana Republican Party, stating that he was seeking the nomination at the 2010 Republican State Convention for the Office of Indiana Secretary of State. State's Ex. 50. He listed Broad Leaf as his residence. Id.

On May 18, 2010, White again listed Broad Leaf as his “Residence Address” when submitting an application to marry Michelle. State's Ex. 52 (State of Indiana Application for Marriage License). The application also requested a “New Address,” and White listed Overview. Id. Michelle listed her parents' address on Farragut Circle in Fishers as her “Residence Address” and Overview as her “New Address.” Id. White and Michelle were married over Memorial Day weekend 2010. State's Ex. 53.

In June 2010 White received the Republican Party's nomination as candidate for Secretary of State. State's Ex. 49. On June 22, 2010, the Republican Party submitted its certification of nomination—listing White as the party's candidate for Secretary of State—with the Indiana Election Commission. Id. The form listed Overview as White's residence and Broad Leaf as his mailing address. Id.

On September 21, 2010, while White was campaigning for Secretary of State, a former Democratic candidate for the Fishers Town Council held a news conference to call for White to withdraw from the race for Secretary of State because he used his ex-wife's address to vote in the May 2010 primary. State's Ex. 54. The former candidate also said a special prosecutor should be appointed to determine if White's actions were criminal and demanded that White repay the money he had earned as a town-council member while living outside his district. Id. White immediately stepped down from his position on the Fishers Town Council. Id. Following his resignation, White agreed to return the compensation he had received after becoming ineligible to serve. The deputy town treasurer helped White calculate the amount of money that he owed the Town of Fishers. Tr. p. 882; State's Ex. 34 & 35. White paid back a total of $5142.88, which reimbursed the Town of Fishers for compensation that he had received since mid-April 2010. State's Ex. 34 & 35.

On September 22, 2010, the day after White resigned, he submitted a voter-registration application changing his address from Broad Leaf to Overview. State's Ex. 48.

White ultimately won the November 2010 general election for Secretary of State, defeating his Democratic Party opponent Vop Osili by more than 300,000 votes. White v. Ind. Democratic Party ex rel. Parker, 963 N.E.2d 481, 484 (Ind.2012)

. On November 19, 2010, Daniel Parker, the...

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