Deputy Public Defender
Attorneys for Appellee
Attorney General of Indiana
James B. Martin
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
June 21, 2002
Defendant was arrested and charged with six counts of theft, six counts of
forgery, and one count of burglary on January 9, 1997. In exchange
for having the burglary charge dropped, Defendant pled guilty to the six counts
of theft and six counts of forgery on Febr
uary 28, 1997. The
plea bargain allowed a maximum sentence of 20 years. However, on March
27, 1997, Defendant orally moved to withdraw his guilty plea. The trial
court denied Defendants motion after viewing the videotape of the February 28 hearing.
The trial court imposed a combination of concurrent and consecutive sentences totaling
six years on the theft counts and 14 years on the forgery counts
for a grand total of 20 years executed time.
Defendant then filed a pro-se petition for post-conviction relief on April 23, 1997,
which was amended by counsel on August 18, 1999. The post-conviction court
denied relief both on the merits and on grounds of laches and Defendant
appealed this denial to the Court of Appeals. The Court of Appeals
held that Smiths guilty plea was unintelligent and therefore invalid on two grounds.
First, he had not been advised by counsel or the court that
if he did not plead guilty and went to trial he could only
be convicted of one count of theft (rather than the six with he
was charged) because in stealing a single checkbook he had only committed one
larceny. Second, he had not been advised by counsel or the court
that if he did not plead guilty and went to trial the maximum
sentence he could receive for one count of theft and six counts of
forgery was limited to ten years (compared to the maximum of twenty authorized
by the plea) under Indiana Code § 35-50-1-2(b) because the conduct constituted a
single episode of criminal conduct.
Smith v. State, 748 N.E.2d 895, 903
(Ind. Ct. App. 2001).
We granted transfer.
Smith v. State, 761 N.E.2d 413 (Ind. 2001) (table).
The Court of Appeals discussed this provision in Tedlock v. State, 656 N.E.2d
273, 275 (Ind. Ct. App. 1995). There the Court of Appeals held
that where a complete account of a crime can be given without referring
to the other offense, the offenses are not a single episode of criminal
conduct. Id. at 276. In Tedlock, the defendant had fraudulently sold
securities on four occasions and as the Court of Appeals analogized, [t]hat Tedlock
sold the same type of security to each of his victims
not make all four transactions one criminal episode any more than a robbers
use of the same gun to commit four different robberies upon four different
victims on four different occasions would constitute one criminal episode. Id.
In considering whether a series of offenses constitutes a single episode of criminal conduct, Tedlock emphasizes the timing of the offenses. Citing the American Bar Association standard, Tedlock refers to the simultaneous and contemporaneous nature of the crimes which would constitute a single episode of criminal conduct. Tedlock, 656 N.E.2d at 276 (citing State v. Ferraro, 800 P.2d 623, 628 (Haw. Ct. App. 1990)).
Here, Defendant stole from two victims, Horace Harvey and Geraldine Harvey. D
stole one checkbook on October 18, 1996, and proceeded to deposit six checks
at six different banks in the Marion County area. The six checks
were deposited within the course of the afternoon on October 18, 1996.
Looking at the timing of the deposits, we find that they were not
simultaneous nor were they contemporaneous with one another. Tedlock, 656 N.E.2d at
276. Defendant went from one bank branch to another branch, with about
a half hour to an hour between visits, depositing checks (not in numerical
order) for differing amounts of money. The first visit was at 1:23PM,
depositing check #480 in the amount of $2700. The second visit was
at 2:23PM, depositing check #476 in the amount of $3500. The third
visit was at 2:41PM, depositing check #477 in the amount of $3195.
The fourth visit was at 3:09PM, depositing check #479 in the amount of
$3000. The fifth visit was at 3:51PM, depositing check #481 in the
amount of $3000. The sixth, and last, visit was at 4:09PM, depositing
check #482 in the amount of $1800.
In addition, we can recount each of the forgeries without referring to the other forge ries. Each forgery occurred at a separate time, separate place and for a separate amount of money from the other. We are satisfied that Defendants conduct does not constitute a single episode of criminal conduct under Indiana Code §35-50-1-2.
The post-conviction relief Smith seeks is the invalidation of the plea agreement he
ntered into and the subsequent convictions and sentence imposed by the trial court.
As noted, the Court of Appeals granted him that relief based in
part but only in part on its erroneous conclusion on the
single episode of criminal conduct issue. Because we have reversed the Court
of Appeals on that issue, we must now look at Smiths claim for
relief as a whole to determine whether he is entitled to relief on
any other basis.
Smith advances four arguments for relief: that his plea, convictions, and sentence should
be vacated because (1) his plea lacked an adequate factual basis, (2) his
plea was not knowing, voluntary, or intelligent, (3) the plea agreement was illusory,
and (4) he would not have entered the agreement but for the ineffective
assistance of his counsel. At the trial on his petition for post-conviction
relief, Smith had the burden of establishing his grounds for relief. Ind.
Post-Conviction Rule 1(5). The post-conviction court rejected each of these four arguments.
Therefore, he is now appealing from a negative judgment. When an
appeal is from a negative judgment, a court on review must be convinced
that the evidence as a whole was such that it leads unerringly and
unmistakably to a decision opposite that reached by the trial court.
v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). It is only where
the evidence is without conflict and leads to but one conclusion, and the
trial court has reached the opposite conclusion, that the decision will be disturbed
as being contrary to law. Id. (quoting Fleenor v. State, 622 N.E.2d
140, 142 (Ind.1993), cert. denied, 513 U.S. 999 (1994)).
To the extent that Smiths claims for post-conviction relief are grounded in his
ntion that he did not receive the minimum level of effective assistance from
his trial counsel that the Constitution requires, we analyze such claims according to
Segura v. State, 749 N.E.2d 496 (Ind. 2001).
A post-conviction claim of ineffective assistance of counsel requires the defendant to show
two things: first, that counsels performance fell below an objective standard of
reasonableness, and, second, a reasonable probability that, but for counsels unprofessional errors, the
result of the proceeding would have been different. Id. at 500-01 (citing
Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Segura categorizes two main types of ineffective assistance of counsel cases. The first is where the defendants lawyer fails to advise the defendant on an issue that impairs or overlooks a defense. The second type of case is where the defendants lawyer incorrectly advises the defendant as to penal consequences. Id. at 500.
Without belaboring the point, we find that Smith is entitled to relief because
we think he has made out a colorable claim of ineffective assistance of
counsel on this issue. Ho
wever, we are not convinced that even if
Smith could not have been convicted and sentenced following a trial for more
than one count of theft, his plea lacked an adequate factual basis.
See Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001) (Defendants who plead
guilty to achieve favorable outcomes in the process of bargaining give up a
plethora of substantive claims and procedural rights.).
Segura formulation, Smith has shown that his attorneys performance during the
plea bargaining process fell below an objective standard of reasonableness. Segura, 749
N.E.2d at 500-01. As Smith points out, his attorney should have advised
him of the single larceny rule. During the post-conviction trial, Smiths attorney
testified that he had heard of the single larceny rule but could not
summarize the rule. (R. at 296) Smith is correct in his
contention that had he gone to trial, he would not have been convicted
of six counts of theft. Rather, he would (at most) have been
convicted of just one count of theft. See Segura, 749 N.E.2d at
501. Therefore, Smith would have had a more favorable outcome at trial
on this issue.
Although we find Smith is entitled to relief on this issue based on
stance of counsel, this does not entitle Smith to start the entire
process over. We discuss Smiths remedy in part III, infra.
First, he says that he was charged with burglary but that he could
not have been co
nvicted because there was never any evidence of an unlawful
breaking or entering. Thus, the States promise to drop the burglary charge
in return for the plea bargain was illusory. On this issue, the
post-conviction court found:
45. That there was a reasonable basis to believe that the d
efendant/petitioner could have
been convicted of Count I-Burglary, class B felony as alleged in the charging
46. That it is true that mere presence at a crime scene is not sufficient to sustain a conviction for Burglary, the unchallenged evidence shows not only was the defendant/petitioner at the scene of the Harvey household when the check[s] were stolen, he was in possession of recently stolen checks, which is sufficient to satisfy a conviction of Count I-Burglary, class B felony.
The post-conviction court was incorrect in saying that this evidence would have been enough to satisfy a conviction for burglary because, as Smith points out, it does not include any evidence of breaking and entering. But we have never required the State to be able to demonstrate evidence on every element of an offense in order to file a charge or utilize a potential charge in plea negotiations. Here the State argues that the State could have presented evidence that Smith had illegally entered the Harveyss home and took the checks. (Brief of Appellee at 10.) More to the point, the State correctly argues that:
While the State did not present evidence establishing an illegal entry at the post-conviction hearing, Smith did not eliminate the possibility of the States ability to do so should the charge go to trial. [Smiths counsel] testified that he was concerned about the possibility of finding an unlawful[ ] entry. Smith fails to show that the evidence led without conflict to a conclusion contrary to the post-conviction courts finding that a reasonable basis existed to believe that Smith could have been convicted of the burglary.
Id. at 11. Here, the State had discretion to file burglary charges against Smith. Marshall v. State, 590 N.E.2d 627, 631 (Ind. Ct. App. 1992), trans. denied. We do not find that the burglary charge was an improper threat that made Smiths plea agreement illusory.
Second, Smith says that he was improperly charged with six separate counts of
theft where the facts only support one count. Again, the State had
unlimited discretion to charge Smith with multiple counts of theft, as the Court
of Appeals has stated, [a]lthough a defe
ndant charged and found guilty may not
be convicted and sentenced more than once for the same offense or for
single larceny, the State has unrestricted discretion to file alleged repetitive charges.
Marshall, 590 N.E.2d at 631 (footnote omitted). The States actions here were
not improper, and in any event, we have already found that Smith is
entitled to relief on the single larceny rule issue under an ineffective assistance
of counsel analysis in part II-A.
Lastly, Smith says that the third improper threat made by the State was
the threat of his sentence if he did not agree to the plea
bargain. Smith says that the State threatened him with maximum consecutive sentences
that totaled sixty-six years. Smith bases this claim on the assumption that
his actions constituted a single episode of conduct. However, as we di
in part I, Smiths actions did not constitute a single episode of conduct.
As such, Smith was not entitled to the sentencing limit the Legislature
has placed on a single episode.
Had we agreed with the Court of Appeals that there was a single
episode of criminal conduct here triggering the ten year limitation, we would agree
with Judge Baker. Ho
wever, we have found that the ten year limitation
does not apply but do agree with the Court of Appeals that the
five erroneous theft convictions should be vacated. The trial court imposed a
two-year sentence for each theft conviction, in a combination of consecutive and concurrent
sentences for a total of six years, and a total of 14 years
for the six forgery convictions. Adopting Judge Bakers general approach, we reverse
five of the theft convictions and the respective sentences thereof, thereby leaving one
theft conviction and the six forgery convictions in place with a total sentence
of 16 years.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.