Opinion
23A-PC-1526
08-30-2024
Andrew Patterson, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent.
ATTORNEY FOR APPELLANT Russell W. Brown, Jr. The Region Lawyers, Inc. Merrillville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause Nos. 71D08-2008-PC-25, 71D08-2008-PC-26,
71D08-2008-PC-27
ATTORNEY FOR APPELLANT Russell W. Brown, Jr. The Region Lawyers, Inc. Merrillville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
SHEPARD, SENIOR JUDGE.
[¶1] Andrew Patterson appeals the denial of his petition for post-conviction relief, contending the court erred by rejecting his claims of ineffective assistance of counsel and deprivation of right to counsel of his choice. Finding no error on either claim, we affirm.
Facts and Procedural History
[¶2] From 2006 to 2008, Patterson was charged with thirteen felonies in four separate causes. In 2006, the State charged Patterson with the Class D felonies of auto theft and theft in Cause 71D03-0601-FD-41. He pleaded guilty to the auto theft charge, and the court sentenced him to three years, a portion of which was suspended to probation. In 2007, the State charged Patterson with Class D felony theft in Cause 71D03-0703-FD-277. Patterson pleaded guilty to this charge and was sentenced to three years suspended to probation. The State subsequently filed probation violations in both these causes.
[¶3] In 2008, the State charged Patterson with Class B felony robbery, five counts of Class C felony robbery, three counts of Class D felony auto theft, and alleged he is an habitual offender in Cause 71D03-0801-FB-2. In 2009, the State charged Patterson with C felony robbery and again alleged he is an habitual offender in Cause 71D08-0907-FC-173.
[¶4] In 2010, Patterson entered into an open plea agreement with the State that disposed of all four cases. In Causes FD-41 and FD-277, Patterson agreed to admit to violations of probation. In the new cases, Causes FB-2 and FC-173, he agreed to plead guilty to a total of seven counts of Class C felony robbery and two counts of Class D felony auto theft. He also agreed to admit to being an habitual offender.
[¶5] At sentencing, the court imposed eight years on each of the seven C felonies, all consecutive, totaling fifty-six years; three years on each of the two D felonies, concurrent to the C felonies; and an habitual offender enhancement of twelve years.
As for the probation violations, the court ordered Patterson to serve the remainder of his original three-year sentence in Cause FD-41 and to continue his probation in Cause FD-277 after he has served all of his sentences.
[¶6] Patterson moved to correct error, which the court denied. Patterson then appealed, challenging the validity of his guilty plea and the propriety of his sentence. A panel of this Court dismissed the appeal because challenges to convictions resulting from pleas of guilty must be brought by a petition for postconviction relief and because, in his plea agreement, Patterson explicitly waived his right to challenge his sentence. See Patterson v. State, No. 71A04-1009-CR-664 (Ind.Ct.App. April 27, 2011) (mem.).
[¶7] In August 2020, Patterson petitioned for post-conviction relief. The post conviction court denied his petition, and this appeal followed.
Issues
[¶8] Patterson presents two issues for our review, which we restate as:
I. Whether the post-conviction court erred by denying Patterson's claim of ineffective assistance of trial counsel; and
II. Whether the court erred by denying Patterson's claim of deprivation of his right to counsel of choice.
Discussion and Decision
[¶9] To prevail in the appeal of a post-conviction proceeding, the petitioner must establish clear error by showing that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Ingalls v. State, 213 N.E.3d 544, 548 (Ind.Ct.App. 2023). In our review, we accept the post-conviction court's findings of fact unless clearly erroneous, though we do not defer to its legal conclusions. Id.
I. Assistance of Counsel
[¶10] Patterson first contends his trial counsel afforded him ineffective assistance by failing to properly and accurately advise him of the penal consequences of his plea. Specifically, he asserts he was never advised by counsel that he faced a possible sentence of sixty-eight years. Rather, he claims that at his plea hearing counsel advised him that his offenses constituted a single episode of criminal conduct, which would limit his total exposure under the plea agreement to ten years, and that his sentences would be concurrent.
[¶11] Our analysis of Patterson's claim is guided by a two-part test. First, Patterson must establish that counsel's performance was deficient. Black v. State, 7 N.E.3d 333, 338 (Ind.Ct.App. 2014). Such deficiency is established by a showing that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that the defendant was denied the counsel guaranteed by the Sixth Amendment. Id. (quoting Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)).
[¶12] Second, Patterson must prove that counsel's deficient performance prejudiced the defense. Black, 7 N.E.3d at 338. This part of the test requires proof that counsel's errors were so serious that the defendant was deprived a fair trial. Ingalls, 213 N.E.3d at 548. A presumption exists that counsel's performance is effective, and a defendant must present strong and convincing evidence to overcome this presumption. Id. A failure to satisfy either part of the test will cause the claim to fail, and most ineffective assistance claims can be resolved by a prejudice inquiry alone. State v. Pearson, 191 N.E.3d 892, 898 (Ind.Ct.App. 2022).
[¶13] At Patterson's plea hearing, the court explained that the sentencing range for a C felony was two to eight years and then applied that to Patterson's plea agreement stating that seven C felonies multiplied by eight years on each count amounts to a maximum of fifty-six years if they are ordered to be served consecutively. Trial Tr. p. 47. The court also discussed the possibility of a sentence cap if Patterson's offenses constituted a single episode of criminal conduct. However, the court cautioned that it could not "assure you that there's a limitation on the total sentence that could be imposed ...." Id. at 49.
The court then summarized:
Here's the bottom line. It may be that there is a limitation -where you got a whole bunch of counts in one case and you're being sentenced, there may be a limitation of how much I can stack them in terms of consecutive and in terms of the sentence executed or suspended. Could be.
But it could also be - I'm telling you I think it could also be that if there is not that limitation that you could be getting . . . them all consecutive and max. If there's a finding of certain things that would allow that, it could be that every one of these C's could be an eight year sentence and all stacked up like a big pillar. So you could be looking at 56 years. You got [sic] assume that as worse [sic] case scenario because we're not certain.Id. at 52.
[¶14] The court further advised Patterson:
The second thing we got to give you a caution about is that limitation she just read about, that it can't be higher than the next higher. You're pleading to a C. The next higher is B. The advisory is ten years for the B. Right? So technically if it comes under that restriction, you couldn't get a total prison of more
than ten years. Every one you get would have to be concurrent up to ten years. Got it? ....
If she's right. If it's an episode. If it's an episode [sic], I'm telling you it is fact specific as to times, dates, places, and I think there have been some Supreme Court cases that have held that if there's even similar charges but they arise out of totally different things and if there's some passage of time which may be as short as a day or so, that it may not be an episode. And it may not have that limitation, and I can stack them. I can say 56 years, seven times eight. I'm not saying I will, but I'm not saying I won't. I don't know. Do you understand that? Do you understand that we don't know if it's limited?Id. at 55-56. Patterson responded, "Yes," and the court continued:
And what I say - if people are making a plea, I'm supposed to tell you what the least is and what the worst is. And if I say to you, look, here's an issue here and it might be that it could be this bad, if you're offering a plea where we're not sure of what that max could be, you got to assume that it could be the max, the worst, and that the judge might do it. That doesn't mean the judge is going to do it, and I'm not emphasizing that way. But I'm not saying - I can't promise you one thing or another. That's why when you offer a plea you got to know what the possibles [sic] are, and I'm saying to you that I believe - are these events over a period of some days?Id. at 56-57. When defense counsel responded affirmatively, the court concluded, "I don't think they are going to find that that's a limitation of an episode." Id. at 57.
[¶15] Upon hearing the court's advisements, Patterson requested that the plea hearing be postponed until a decision was reached as to whether his offenses constituted an episode of criminal conduct. He told the court that if his offenses did not qualify as such, he did not want to accept the plea deal. The court allowed Patterson to "tentatively go forward," but warned him that, without a plea agreement, the State could decide to go to trial on all the pending charges, as well as file charges for conduct that, up to that point, had remained uncharged. Id. at 60.
[¶16] The court then explained the sentencing possibilities for each cause, beginning with Cause FB-2:
On this big case, the one with the eight counts you're pleading to or nine counts you're pleading to, we don't know if they can all be stacked up or not. It may have that limitation that your attorney talked about but it may not because it may not be an episode under the law.
On the habitual in that [cause], you got some C's and you got a couple D's. Right? Now, this I know absolutely and not even a question. I will enhance one count. I have to name what the count is, and I have to say how much it's enhanced. And the court can enhance a C, and the court can enhance a D. And if the court enhances either one, the rule is it can be up to three times - it's either an enhancement equal to the advisory sentence of that count or it's up to three times the advisory sentence of that count. ....
It could be attached to a C felony. The advisory for that is four years. So therefore the advisory could be - as the prosecutor said if it was attached to that charge, the C, it could be four more years up to twelve more years which is three times four. So it could be worse [sic] case scenario, eight years enhanced by another twelve years which is twenty years. Right?Id. at 62, 63. Concerning the C felony in Cause FC-173, the court advised Patterson that the sentence could be as much as eight years and that it had to be executed because he was on probation for another felony at the time. In addition, the court advised that the sentences in the two causes have to be consecutive to each other and that both have to be consecutive to any time for his probation violations.
[¶17] In summary, the court stated:
So here's the deal, and it can't get any better. I mean there's nothing that can get better on this. You got an eighteen month sentence on one that's probation. You got an eighteen month sentence on another I believe. Those two have got to be added together. That's three years. Then you got the big long case with all the stuff and we're not sure what it could be. It could be all those sentence ranges we were talking about. And the [sic] finally you got the last case where you could have two to eight. . . . And before we would go forward in the next hearing, I'm telling you I would find out which way this goes on stacking everything.Id. at 64-65. The court explained it would determine the applicability of the single episode statute to Patterson's offenses (i.e., the "stacking") and notify his counsel prior to the sentencing hearing probably by letter. See id. at 65.
[¶18] On April 27, 2010, the trial court issued "Court's Findings on Issue of Limitation on Consecutive Terms" concluding that Patterson's offenses did not constitute a single episode of criminal conduct and, consequently, that the statutory sentencing limitation for such conduct did not apply. Dir. Appeal Appellant's App. Vol. I, pp. 41-42. The court's order shows that copies were to be distributed to defense counsel, Patterson, and the State, and the order was entered on the trial court's CCS in both Causes FB-2 and FC-173. Id. at 8, 13.
[¶19] Thereafter at the sentencing hearing, the court asked Patterson if he was "still pleading on this plea agreement," and Patterson replied in the affirmative. Trial Tr. p. 100. The court then asked: "[I]n April I had filed on the question of the issue of limitation of consecutive terms. Was there any disagreement with that?" Id. at 105. Patterson did not respond, but his counsel told the court there was no disagreement. Later, in making her sentencing argument to the court, defense counsel argued for concurrent sentencing but acknowledged, "[W]e realize that the - each of the cases must run consecutively] to the others in this case and these various cause numbers.... While I recognize that legally the Court is not required to do so because as the Court has noted it is not legally a single episode of criminal conduct ...." Id. at 112-13. When Patterson addressed the court, he made no inquiries about the judge's conclusion in his April filing, his counsel's statements, or consecutive sentencing.
[¶20] At the post-conviction hearing twelve years after the sentencing hearing, Patterson's trial counsel testified that she had no independent recollection of him or his case. When asked whether she recalled the trial court's order concerning consecutive sentences and whether she discussed the order and sentencing possibilities with Patterson, she testified that she had no recollection of the case and no recollection of her specific actions in it. She explained, however, that her normal practice would be to discuss any such issues and rulings with her client.
[¶21] Our Supreme Court has recognized that, to show prejudice from allegedly erroneous advice during plea proceedings, a defendant must demonstrate a "'reasonable probability'" that, but for counsel's deficient representation, he would have rejected the guilty plea and insisted on going to trial. Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind. 2019) (quoting Lee v. U.S., 137 S.Ct. 1958, 1965 (2017)). To prove he would have rejected the plea and insisted on trial, a defendant must show some special circumstances that would have supported that decision; it is not enough for a defendant to simply say he would have gone to trial. Bobadilla, 117 N.E.3d at 1284 (discussing Hill v. Lockhart, 474 U.S. 52 (1985)). In other words, "'Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.'" Bobadilla, 117 N.E.3d at 1286 (quoting Lee, 137 S.Ct. at 1967).
[¶22] We assume, for the sake of our analysis, that Patterson's trial counsel's performance was deficient for incorrect advice as to the maximum sentence he could receive as a result of his guilty plea. The question then becomes whether Patterson showed a reasonable probability that, but for this deficiency, he would have rejected the guilty plea and instead insisted on going to trial.
[¶23] First, it would not have been reasonable for Patterson to forego the plea agreement and risk going to trial. His chances at trial were less than slim; there was no plausible chance that Patterson would have been acquitted because, as he readily acknowledges, he admitted to the authorities that he committed the offenses. See Trial Tr. p. 115. Further, the State presumably would have tried him on the B felony robbery in Cause FB-2 rather than the C felony to which he was permitted to plead, as well as the D felony that was dismissed and any additional charges the State had refrained from filing as part of his plea agreement. Thus, it would not have been sensible for Patterson, in these circumstances and with his concern for the length of his executed sentence, to reject the plea agreement and insist on trial.
[¶24] Second, Patterson has presented no evidence of special or unique circumstances to substantiate his claim that, but for counsel's errors, he would have insisted on going to trial. The trial court's advisements at his plea hearing made it very clear that consecutive sentences were possible, even likely, but the court told Patterson it would look into the sentencing issue and advise the parties of its determination. Despite the court issuing its findings on that specific issue several months prior to sentencing, Patterson made no inquiries about consecutive sentences or the judge's decision regarding such, even when the issue was discussed at his sentencing hearing. And when the court asked Patterson if he still planned to plead guilty, he replied affirmatively. Contra Bobadilla, 117 N.E.3d at 1288 (finding existence of special circumstances demonstrating reasonable probability that, had defendant been fully informed of plea's consequences, he would have rejected it and insisted on trial where guilty plea resulted in his possible deportation).
[¶25] Patterson has not shown any special circumstances to prove he would have rejected the plea agreement and insisted on trial. Accordingly, we cannot say the post-conviction court erred when it denied Patterson's claim that he received ineffective assistance from his trial counsel.
II. Right to Counsel
[¶26] Patterson next claims the trial court violated his right to counsel of his choosing by refusing to release a portion of his posted bond so that he could retain private counsel. A relative of Patterson's posted a cash bond of $10,000 on his behalf. At a hearing in October 2009, Patterson requested the court release a portion of his bond so he could hire private counsel. The court denied his request, private counsel withdrew his appearance, and Patterson was assigned a public defender. Patterson now appeals the court's denial, reasoning that, because he was ordered to be held without bond on another case, the bond in this case was no longer necessary to ensure his appearance in court.
[¶27] The Sixth Amendment grants a defendant the right to assistance of counsel. U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). This includes the right, when the defendant has the means to retain his own attorney, to be represented by counsel of choice. Id. A denial of such right constitutes "'structural error[,]'" id. at 150 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)), which is error that affects a right other than the right to be free from erroneous conviction. McCoy v. Louisiana, 584 U.S. 414, 427 (2018) (quoting Weaver v. Massachusetts, 582 U.S. 286, 295 (2017)). Structural errors justify reversal without an inquiry into resulting prejudice. Weaver, 582 U.S. at 290.
[¶28] Yet, "[a] voluntary, subsequent guilty plea generally operates as a waiver of claims of constitutional error that occurred before the plea." Nix v. State, 212 N.E.3d 194, 206 (Ind.Ct.App. 2023), trans. denied. And this is true even for a claim of structural error. Id. (quoting U.S. v. Williams, 29 F.4th 1306, 1314 (11th Cir. 2022)). Thus, Patterson waived his claim by pleading guilty.
[¶29] Waiver notwithstanding, Patterson's claim fails. "[T]he right to counsel of choice is not absolute[,]" and an alleged denial of this right is reviewed to determine whether the court acted unreasonably and arbitrarily. Lewis v. State, 730 N.E.2d 686, 689, 690 (Ind. 2000).
[¶30] In denying the request for release of a portion of Patterson's bond, the court based its decision on the statutory conditions for allowing a defendant to post bail, stating that, should there be a conviction, the bond is to be available for court costs, fines, public defender fees, and restitution. See Trial Tr. p. 7. Indeed, Indiana Code section 35-33-8-3.2 provides that all or part of a defendant's bond may be retained to pay publicly paid costs of representation, fines, costs, fees, and restitution that the court may order the defendant to pay if convicted. Accordingly, we conclude that the trial court was within its discretion to deny Patterson's request for release of his bond and that it did not act arbitrarily or unreasonably in doing so.
Conclusion
[¶31] Under these circumstances, we conclude the post-conviction court did not err by rejecting Patterson's claims of ineffective assistance of counsel and deprivation of right to counsel of his choice.
[¶32] Affirmed.
Vaidik, J., and Brown, J., concur.