Opinion
23A-PC-2897
12-04-2024
Marques J. Harris, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Marques J. Harris Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Andrew J. Borland, Magistrate Trial Court Cause No. 49D32-1906-PC-23151
APPELLANT PRO SE
Marques J. Harris Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FOLEY, JUDGE
[¶1] Marques J. Harris ("Harris") appeals the denial of his petition for postconviction relief, contending that the post-conviction court erred. On appeal, he raises the following restated issues for our review:
I. Whether the post-conviction court erred in denying his petition because he alleges his trial counsel was ineffective for failing to investigate and argue his mental health status and history during the guilt and penalty stages of his trial; and
II. Whether Harris's guilty plea was knowing, voluntary, and intelligent.
[¶2] We affirm.
Facts and Procedural History
[¶3] On September 5, 2016, an Indianapolis Metropolitan Police Department officer received a report that twelve-year-old K.C. was being sexually abused by Harris, her mother's boyfriend, over several months. When the officer spoke with K.C., she reported that the abuse began approximately one year earlier when Harris offered to examine a hemorrhoid she had. K.C. explained that Harris would "check" her hemorrhoid and then would "want to try something" and would tell her that because she was "getting older" and was "a woman now . . . [she could] do stuff like this." Appellee's App. Vol. 2 pp. 5-6. Harris then "rubbed" K.C.'s vagina and told her "this is between me and you and nobody else." Id. at 6. A few weeks later, Harris asked K.C. "if he could do it again," and it was "the same as last time," with Harris again touching her vagina. Id. K.C. reported that the sexual abuse happened on three other occasions. These occurrences all happened in her mother's bedroom at night while her mother was at work. K.C. also disclosed that Harris performed oral sex on her four or five times in his bedroom at night while her mother was at work.
[¶4] After K.C. moved in with her father, Harris began sending her text messages. He sent her pictures of naked people and three images of a man and woman "having sex." Id. at 7. Harris also requested that K.C. send him pictures of her vagina. During Labor Day weekend of 2016, K.C.'s aunt discovered text messages on K.C.'s phone from Harris asking if K.C. was "sore down there" and if her underwear was wet. Id. at 9. Harris also sent a "meme" about oral sex and requested "crotch shots." Id. at 9-10. K.C.'s aunt noticed deleted messages that K.C. indicated contained "pictures of him" but denied they were of Harris's face, leading the aunt to conclude they were images of Harris's penis. Id. at 10.
[¶5] When interviewed by police, Harris claimed he only touched K.C.'s vaginal area externally to apply ointment for a rash and a hemorrhoid, stating he had informed K.C.'s mother when he did so. Harris alleged K.C. was "sexually active" toward him, was "very manipulative," and tried to seduce him. Id. at 14. While denying performing oral sex on K.C., Harris admitted sending text messages, claiming he was trying to get K.C. to send pictures as "proof" of her advances. Id.
[¶6] On September 19, 2016, the State charged Harris with Level 1 felony child molesting and Level 4 felony child molesting. On October 18, 2016, the charges were amended to add another count of Level 1 felony child molesting and Level 6 felony dissemination of matter harmful to minors. Harris was appointed trial counsel on September 19, 2016. The State also filed a notice of intent to seek habitual offender status.
[¶7] On June 6, 2017, Harris entered into a plea agreement where he agreed to plead guilty to one count of Level 1 felony child molesting in exchange for dismissal of the remaining counts. Pursuant to the plea agreement, the parties agreed that Harris would be sentenced to forty years executed in the Indiana Department of Correction ("the DOC") and required to register as a sex offender under Indiana law. During the guilty plea hearing, Harris was advised of the rights he was waiving by pleading guilty, and Harris indicated to the trial court that he was not under the influence of drugs or alcohol. Id. at 18. Harris was advised that the potential sentence for a Level 1 felony was between twenty and forty years, and his plea agreement was for a set term of forty years executed in the DOC. Id. at 19. Harris agreed that his plea was voluntary, that he understood the charges, and that he understood by pleading guilty he was admitting the truth of the facts contained in the information. Id. The trial court established a factual basis, Harris pleaded guilty, and the trial court accepted the guilty plea. On June 20, 2017, Harris was sentenced to forty years executed in the DOC.
[¶8] On June 11, 2019, Harris filed a petition for post-conviction relief, alleging that his trial counsel was ineffective for "failing to mention or argue [his] mental health status and history" and for failing to use mental health evidence as a defense or mitigating factor. Appellant's App. Vol. 2 pp. 16-17. At the postconviction evidentiary hearing, Harris's trial counsel testified. Harris questioned trial counsel about a sentencing memorandum the public defenders' office had prepared and why counsel did not submit the sentencing memorandum to the trial court or the prosecutor during plea negotiations. Trial counsel stated that he did discuss the issues within the sentencing memorandum with the prosecutor. Harris also questioned trial counsel regarding counsel's knowledge of Harris's mental health diagnoses and the fact that Harris was taking psychotropic medication. Trial counsel testified that he was aware of Harris's mental health diagnoses but did not believe that Harris had a viable defense based on mental disease or defect, nor did they cause counsel concerns about Harris's competency. Trial counsel also testified that he was aware that Harris was taking psychotropic medications, but that counsel did not believe that it affected Harris's competency. Trial counsel testified that, at no point did he have any concerns about Harris's competency because in every conversation that he had with Harris, Harris seemed coherent, knew what counsel's job was, and knew the roles of the prosecutor and the judge. Trial counsel also testified that he believed that Harris's sentencing exposure when he pleaded guilty was over 100 years. Trial counsel confirmed that, when Harris was pleading guilty, Harris was able to answer the trial court's questions and was also able to provide a factual basis.
The sentencing memorandum was not introduced as evidence in the post-conviction proceeding, and it was not filed in the underlying criminal proceeding. However, we note that Harris included the sentencing memorandum in his Appellant's Appendix. The document contained information gleaned from Harris and other sources pertaining to Harris's social history and areas of mitigation the defense could have raised at sentencing. Although included in the Appellant's Appendix, we do not consider the sentencing memorandum because it was not admitted in the post-conviction proceedings. See Gonser v. State, 843 N.E.2d 947, 951 (Ind.Ct.App. 2006) ("It is well established that we may not consider evidence or arguments not properly presented to the trial court.")
In his Appellant's Appendix, Harris included reports from the Marion County Jail about his mental health status while incarcerated prior to pleading guilty. Appellant's App. Vol. 2 pp. 24-32. These reports were neither admitted at the post-conviction hearing nor were they filed with the trial court in the underlying criminal case.
[¶9] Following the post-conviction hearing, the State submitted proposed findings of fact and conclusions of law, but Harris did not. The post-conviction court issued its order denying relief on October 30, 2023. In its order, the postconviction court concluded that the only ground for relief that Harris alleged in his petition was that his trial counsel was ineffective for "failing to raise and argue [Harris's] mental health status and history." Id. at 10. The postconviction court concluded that Harris had failed to prove that his trial counsel's performance was deficient or that he was prejudiced by his trial counsel's performance and denied relief. Harris now appeals.
Discussion and Decision
I. Ineffective Assistance of Trial Counsel
[¶10] Harris appeals from the denial of his petition for post-conviction relief. Postconviction actions are civil proceedings in which the petitioner must prove his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). A petitioner who fails to meet this burden and receives a denial of post-conviction relief, "proceeds from a negative judgment and on appeal must prove 'that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the postconviction court's decision.'" Bobadilla, 117 N.E.3d at 1279 (quoting Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). Pursuant to Post-Conviction Rule 1(6), the post-conviction court "shall make specific findings of fact[] and conclusions of law on all issues presented, whether or not a hearing is held." When reviewing the court's order denying relief, we will "not defer to the postconviction court's legal conclusions," and the "findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), cert. denied).
[¶11] Harris contends that the post-conviction court erred in denying his petition because he alleges his trial counsel was ineffective for failing to investigate and argue his mental health status and history during the guilt and penalty stages of his trial. "The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel and mandates that the right to counsel is the right to the effective assistance of counsel." Bobadilla, 117 N.E.3d at 1279. "We evaluate Sixth Amendment claims of ineffective assistance under the two-part test announced in Strickland." Rondeau v. State, 48 N.E.3d 907, 916 (Ind.Ct.App. 2016) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)), trans. denied. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation fell short of prevailing professional norms, and (2) counsel's deficient performance prejudiced the defendant such that 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 687-88, 698. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Rondeau, 48 N.E.3d at 916 (quoting Strickland, 466 U.S. at 694). "The two prongs of the Strickland test are separate and independent inquiries." Id. (citing Strickland, 466 U.S. at 697). "Thus, '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'" Id. (quoting Strickland, 466 U.S. at 697). "The Strickland standard is not limited to the trial or appellate phases in criminal proceedings but also applies when defendants allege ineffective assistance during the guilty plea phase." Bobadilla, 117 N.E.3d at 1280 (citing Segura v. State, 749 N.E.2d 496, 500-01 (Ind. 2001), disapproved of on other grounds in Bobadilla, 117 N.E.3d 1272).
[¶12] Harris was convicted pursuant to a guilty plea, and there are two main types of ineffective assistance of counsel claims with regard to guilty pleas: failure to advise the defendant on an issue that impairs or overlooks a defense and incorrectly advising the defendant about penal consequences. Manzano v. State, 12 N.E.3d 321, 326 (Ind.Ct.App. 2014), trans. denied, cert. denied. Harris's claim that his trial counsel failed to investigate his mental health history and failed to present such history during plea negotiations or as a mitigating factor during sentencing seems to fall into the first category. To establish a claim of ineffective assistance of trial counsel following a guilty plea where the alleged error is one that would have affected a defense, the petitioner must show a reasonable probability of success on the merits. Barber v. State, 141 N.E.3d 35, 42 (Ind.Ct.App. 2020) (citing Segura, 749 N.E.2d at 503), trans. denied. "[I]n the case of claims related to a defense or failure to mitigate a penalty, it must be shown that there is a reasonable probability that a more favorable result would have obtained in a competently run trial." Segura, 749 N.E.2d at 507. If a petitioner is convicted pursuant to a guilty plea "and later claims that his counsel rendered ineffective assistance because counsel overlooked or impaired a defense, the petitioner must show that a defense was indeed overlooked or impaired and that the defense would have likely changed the outcome of the proceeding." Maloney v. State, 872 N.E.2d 647, 650 (Ind.Ct.App. 2007).
[¶13] As to Harris's assertion that his trial counsel was ineffective for failing to investigate Harris's mental health, he alleges that his counsel was ineffective because counsel failed to conduct an investigation into Harris's mental health that would have led to either a question of competency, a mental health defense or to mitigating evidence in sentencing. Appellant's Br. pp. 10-11. "Establishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what an investigation, if undertaken, would have produced." Reeves v. State, 174 N.E.3d 1134, 1141 (Ind.Ct.App. 2021) (citing McKnight v. State, 1 N.E.3d 193, 201 (Ind.Ct.App. 2013)), trans. denied. This is necessary because success on the prejudice prong of a claim of ineffectiveness requires a showing of a reasonable probability of affecting the result. Id. "With the benefit of hindsight, a defendant can always point to some rock left unturned to argue counsel should have investigated further." Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that it deprived the defendant of a fair trial." Id. (citing Strickland, 466 U.S. at 686). During the post-conviction evidentiary hearing, Harris presented no evidence to the court regarding his mental illness diagnoses or what an investigation by counsel would have revealed. Further, Harris pleaded guilty to a fixed term plea agreement, and there was no reason for counsel to present mitigating evidence for sentencing purposes. Trial counsel testified at the evidentiary hearing that he did use Harris's mental health history during the plea negotiations with the State, and the negotiations resulted in a plea agreement under which Harris pleaded guilty to one count while the other three counts were dismissed and the possibility of a habitual offender adjudication was not sought. Accordingly, Harris failed to meet his burden of establishing his counsel was ineffective for allegedly failing to investigate his mental health.
[¶14] Harris also argues that his trial counsel was ineffective because he failed to present evidence that could have established that he was not competent to understand the proceedings. "A defendant is not competent to stand trial when he is unable to understand the proceedings and assist in the preparation of his defense." Barber, 141 N.E.3d at 44; see also Ind. Code § 35-36-3-1(a). When there is reason to believe a criminal defendant lacks the ability to understand court proceedings and assist his attorney, the trial court should set a hearing and appoint two or three disinterested professionals to evaluate his competency. Gross v. State, 41 N.E.3d 1043, 1047 (Ind.Ct.App. 2015); see also Ind. Code § 35-36-3-1(a), (b). However, the right to a competency hearing is not absolute. Barber, 141 N.E.2d at 44. "Such a hearing is required only when the trial court is confronted with evidence creating a bona fide doubt as to a defendant's competency." Id. at 43.
[¶15] Harris presented no evidence to suggest that he was incompetent at the time he pleaded guilty, was sentenced, or at any time during this case. Rather, the evidence adduced at the evidentiary hearing revealed the opposite. Trial counsel testified that at no point in his representation of Harris did he have "any concerns about [Harris's] competency." Tr. Vol. 2 p. 14. Trial counsel further testified that, in "[e]very conversation" they had, Harris "seemed coherent" and was able to identify the role of defense counsel, the prosecutor, and the judge. Id. Further, trial counsel testified that Harris was also able to answer questions and provide a factual basis.
[¶16] Moreover, to the extent that Harris argues that he did not have "full awareness" of the "direct consequences" of his guilty plea, including that he would be required to register as a lifetime sex offender, Appellant's Br. p. 13, he presented no evidence at the evidentiary hearing that he was unaware of the consequences of his guilty plea. We note that, when testifying at the evidentiary hearing, trial counsel mistakenly stated that he believed that Harris's plea agreement contained a sentence at a set term of the minimum sentence (as opposed to the maximum sentence for a Level 1 felony). See Tr. Vol. 2 pp. 11, 16. However, the evidence before the post-conviction clearly established that Harris was properly informed about the agreement and his sentence at the time he pleaded guilty. The written plea agreement and the advisements the trial court read to Harris that Harris initialed both indicated that he was aware he was receiving a forty-year sentence and that forty years was the maximum potential sentence for a Level 1 felony. Appellee's App. Vol. II pp. 19, 21. Harris presented no contrary evidence to dispute that, at the time he pleaded guilty, he was unaware of the sentence he faced.
[¶17] Further, Harris presented no evidence regarding how he was prejudiced by his trial counsel's alleged deficient performance. Although he asserts in his brief that there "exist[ed] a 'reasonable probability' that had [evidence of his mental health] been presented, the result of the guilt and penalty phases would have been different," Appellant's Br. p. 11, he presented no evidence supporting his position that he would have rejected the favorable plea agreement he was offered and would have instead chosen to go to trial. Before pleading guilty, Harris faced two Level 1 felonies, a Level 4 felony, and a Level 6 felony, and the State had filed its intention to seek a habitual offender enhancement. Trial counsel testified that Harris faced over 100 years if convicted of all charges. Tr. Vol. 2 p. 16. As a result of Harris's guilty plea to one count of Level 1 felony, the State agreed to dismissal of a Level 1 felony, a Level 4 felony, and a Level 6 felony, and it did not file a habitual offender enhancement, with Harris ultimately sentenced to forty years. Harris presented no evidence or argument at the evidentiary hearing that the outcome of his proceedings would have been different if his trial counsel had investigated and argued his mental health status and history during the guilt and penalty stages of his trial.
[¶18] Under these facts and circumstances, Harris failed to prove by a preponderance of the evidence that his trial counsel's performance was deficient in failing to investigate his mental health history and in failing to present such history as a defense or mitigating evidence that if raised, would have likely changed the outcome of this proceeding. See Maloney, 872 N.E.2d at 650. There was simply no contemporaneous evidence that cast doubt on his competence during the trial proceedings, and no evidence that Harris was unaware of the consequences of pleading guilty. Therefore, the post-conviction court did not clearly err in concluding that Haris failed to meet his burden and in denying his petition for post-conviction relief.
II. Guilty Plea
[¶19] Harris also argues that his guilty plea was not knowing, voluntary, and intelligent because he asserts that his counsel misled him as to the terms of the plea. However, Harris has waived such a challenge because he failed to raise it in his petition for post-conviction relief. The sole issue Harris raised in his petition for post-conviction relief was whether his trial counsel was ineffective by failing to "mention or argue" his "mental health status and history" and "failed to make a defense as to culpability." Appellant's App. Vol. 2 pp. 16-17. Accordingly, he has waived any claim that his guilty plea was not knowing, voluntary, and intelligent. See P-C. R. 1(8) ("All grounds for relief available to a petitioner under this rule must be raised in his original petition."). Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) ("Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal."), cert. denied.
Conclusion
[¶20] We, therefore, conclude that the post-conviction court did not err when it denied Harris's petition because he failed to establish that he received ineffective assistance of trial counsel. Additionally, Harris has waived his argument that his guilty plea was not knowing, voluntary, and intelligent.
[¶21] Affirmed.
Vaidik, J. and Weissmann, J., concur.