Opinion
23A-PC-2171
08-20-2024
Andrew C. Robinson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
APPELLANT PRO SE Andrew C. Robinson Michigan City, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Fayette Superior Court The Honorable Daniel L. Pflum, Senior Judge Trial Court Cause No. 21D01-1808-PC-654
APPELLANT PRO SE Andrew C. Robinson Michigan City, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Andrew Robinson, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. We affirm.
Issues
[¶2] Robinson raises three issues for our review:
1. Whether the trial court erred when it found that he had knowingly, intelligently, and voluntarily entered into his guilty plea.
2. Whether the post-conviction court erred when it concluded that he did not receive ineffective assistance of trial counsel.
3. Whether the post-conviction court erred when it concluded that he did not receive ineffective assistance of appellate counsel.
Facts and Procedural History
[¶3] On December 11, 2015, Robinson attacked an elderly couple at their home, stole one of the victim's wallets, and fled the scene. As a result of his actions, the State charged Robinson with eight counts in Cause Number 21A01-1512-F2-992 ("F2-992"). The State also alleged that he was a habitual offender. At the time the State charged him in the instant case, Robinson had pending theft charges against him in two other cause numbers.
[¶4] On April 3, 2017, Robinson and the State entered into a plea agreement. Pursuant to that agreement, Robinson agreed to plead guilty to robbery, as a Level 2 felony, and battery, as a Level 6 felony, in F2-992. In exchange, the State agreed to dismiss the remaining six charges and the habitual offender enhancement in F2-992 and all charges in the other two cause numbers. The parties additionally agreed "that Purposeful Incarceration is appropriate. The Court shall determine, after argument, both the length of the sentence and what amount of said sentence shall be served prior to eligibility for Purposeful Incarceration." Appellant's App. Vol. 2 at 22. Following a hearing at which Robinson admitted to the robbery and battery charges, the trial court took the plea agreement under advisement.
I.C. § 35-42-2-1(e).
Our reference to "Appellant's App. Vol. 2" refers to the post-conviction appendix.
[¶5] Thereafter, the trial court held a sentencing hearing, and it accepted Robinson's guilty plea. During that hearing, Robinson asked the court to place him in Purposeful Incarceration ("PI") "as soon as possible." Ex. Vol. 2 at 88. The court sentenced Robinson to an aggregate sentence of thirty years and provided that Robinson "can enter purposeful incarceration after 22 % years[.]"
[¶6] Robinson appealed and "raise[d] two issues related to his sentence[.]" Robinson v. State, No. 21A01-1706-CR-1229, 2017 WL 6045061, at *1 (Ind.Ct.App. Dec. 7, 2017). This Court affirmed, holding that, based on a clause in the plea agreement, Robinson had "knowingly and voluntarily waived his right to appeal by accepting the plea agreement and confirming his knowledge of-and agreement to-such waiver to the trial court." Id. at *3.
[¶7] On September 9, 2021, Robinson entered into a Recovery While Incarcerated program, which he completed on December 13. Thereafter, the Director of the Indiana State Prison Addiction Recovery Services sent a letter to the trial court. In part, that letter provided that, based on his successful completion of the "clinically indicated addiction recovery treatment program," Robinson "is designated as a SUCCESSFUL COMPLETION with regard to the PI program and is eligible to be considered for a sentence modification by your court." Ex. Vol. 2 at 135 (emphasis in original).
[¶8] Robinson then filed an amended petition for post-conviction relief. In that petition, Robinson alleged that the plea agreement attempted "to grant to the trial court authority to determine when Robinson entered a substance abuse program[.]" Appellant's App. Vol. 2 at 29. In particular, he asserted that, while a court "may make a recommendation" that he be placed in the PI program, "actual participation in the program is left to the discretion of" the Indiana Department of Correction ("DOC"). Id. at 37. In other words, he argued that the court could identify him as an individual who would benefit from participation but that the DOC "determines the timing of any treatment program for any participant." Id. As such, Robinson contends that the plea agreement's clause allowing the court to determine how much of his sentence he must complete prior to participate is "unenforceable." Id. at 38.
[¶9] Robinson further contends that, if the court wanted to identify him as a participant, it was required to include the following language in its sentencing order: "Upon successful completion of the clinically appropriate substance abuse treatment program as determined by the DOC, the Court will consider a modification to this sentence." Id. at 37. As a result, Robinson argued that the plea both contained "inappropriate language" and that it failed to include "required language[.]" Id .at 28.
[¶10] Stated differently, Robinson asserted that the trial court could designate him as appropriate for purposeful incarceration but could not require him to wait twenty-two and one-half years to participate. Thus, he maintained that, if the court wanted to identify him as appropriate for the program, it was required to accept the plea, strike the language regarding the timing of his participation, identify him as appropriate for the program in its sentencing order, and consider a modification upon his completion. In the alternative, Robinson asserted that, if the court did not want to consider a sentence modification upon his completion of the program, it must set aside the plea agreement and vacate his convictions.
[¶11] Based on that argument, Robinson sought post-conviction relief on three grounds. First, he contended that he did not enter into the plea knowingly, intelligently, or voluntarily because he was induced to enter the plea on the condition that he participate in the purposeful incarceration program, a condition that the trial court improperly sought to limit. Second, he asserted that he received ineffective assistance from his trial counsel when his trial counsel agreed to "inappropriate language in the plea agreement" and when counsel failed to ensure that "essential" language was included. Id. at 42. And third, he asserted that he received ineffective assistance from his appellate counsel because his appellate counsel failed to raise on appeal the alleged problems with the plea agreement.
[¶12] Following a hearing, the post-conviction court entered findings of fact and conclusions thereon denying Robinson's petition. In particular, the court found that the "plain language of the plea agreement is not ambiguous and is an enforceable contract," and that Robinson's sentence "is within the parameters of the plea agreement[.]" Id. at 59. The court further concluded that the "timing of Purposeful Incarceration eligibility is a determination that a sentencing court has the authority to make as Purposeful Incarceration is a mechanism by which a modification can be available[.] Id. at 59-60. The court also concluded that the "clear intent" of the sentencing order is that Robinson "serve 22 % years of the 30[-]year sentence (with applicable credit time) before being placed into Purposeful Incarceration and being able to file a petition for modification of his sentence." Id. at 60. Accordingly, the court concluded that the provisions of the plea were enforceable and that Robinson was not denied effective assistance of either trial or appellate counsel. This appeal ensued.
Discussion and Decision
[¶13] Robinson appeals the post-conviction court's denial of his petition for postconviction relief. As our Supreme Court has made clear, post-conviction proceedings are not a "super-appeal." Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013) (quotation marks omitted). Rather, they provide "a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal." Id. As the petitioner in such proceedings bears the burden of establishing relief in the post-conviction court, when he appeals from the denial of his petition, he "stands in the position of one appealing from a negative judgment." Id. To obtain our reversal of a negative judgment, the appealing party "must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court." Id. Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[a] post-conviction court's 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." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
[¶14] We initially note that Robinson's brief fails to comply with the Indiana Appellate Rules. Indiana Appellate Rule 46(A)(8)(a) requires an appellant to include in his brief an argument section that "contain[s] the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]" (Emphasis added.) Here, in his entire argument section, Robinson only provides one citation to one page of the record on appeal: "Volume (1) page #147." Appellant's Br. at 22. While he does not specify whether he is referring to a transcript, appendix, or exhibit volume 1, we discern from context that Robinson intended to cite to volume two of the post-conviction transcript. However, that transcript does not contain 147 pages. And we note that many of the citations in his Facts section are either to documents that do not exist, such as Appellant's Appendix Volume 8, or are incorrect citations. Further, Indiana Appellate Rule 48(A)(8)(b) requires that each argument "must include for each issue a concise statement of the applicable standard of review[.]" Robinson purports to raise several issues; however, he has not included a standard of review for any of his arguments.
Robinson proceeds pro se. "It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Basic v. Amouri, 58 N.E.3d 980, 98384 (Ind.Ct.App. 2016) (internal citation omitted).
Indeed, no document in the record on appeal contains 147 pages.
[¶15] In any event, we have read Robinson's brief. While his arguments are not clear, to the extent we can discern them, he appears to assert that his guilty plea was not knowing, intelligent, or voluntary; that he was denied the effective assistance of trial counsel; and that he was denied the effective assistance of appellate counsel. We address each argument in turn.
Robinson also appears to raise arguments regarding the trial court's restitution award. However, the postconviction court agreed with Robinson and amended the restitution claim. See Order on Motion to Correct Error at 1.
Guilty Plea
[¶16] Robinson first contends that his guilty plea was "not knowingly, intelligent, [or] voluntary." Appellant's Br. at 19. In particular, he contends that he "was not advised that the trial court lacked the authority to determine when he entered the Purposeful Incarceration program." Id. Robinson points to the fact that the plea agreement provides that the court shall determine both the length of his sentence "and what amount of said sentence shall be served prior to eligibility for Purposeful Incarceration." Ex. Vol. 2 at 28. And Robinson contends that that language is improper.
[¶17] To support his argument, Robinson relies on this Court's opinions in Hogan v. State, 95 N.E.3d 181 (Ind.Ct.App. 2018), and Sargent v. State, 158 N.E.3d 783 (Ind.Ct.App. 2020). In Hogan, this Court cited to DOC publications regarding the Purposeful Incarceration program, which provided that, to sentence a defendant, "the sentencing court must communicate with the IDOC that this offender is a [purposeful incarceration] offender." Id. at 183-84 (quotation marks omitted). Further, a trial court "must include" the following language in the sentencing order or abstract of judgment in order for the offender to be identified as a purposeful incarceration candidate: "Upon successful completion of the clinically appropriate substance abuse treatment program as determined by the IDOC, the court will consider a modification to this sentence." Id. at 184 (underline removed, quotation marks omitted). Because Hogan's abstract of judgment did not contain the language regarding a sentence modification, this Court held that the abstract of judgment was "erroneous" and remanded with instructions for the trial court to enter a new abstract of judgment. Id. at 185.
[¶18] In Sargent, this Court again stated that a trial court was required to include the same specific language if it recommended a defendant for purposeful incarceration. 158 N.E.3d at 786. And the Court noted that, although a trial court can make a recommendation, "actual participation in the program is left to the discretion of the IDOC." Id. The Court clarified that a trial court has a "limited role" in relation to purposeful incarceration, which is "simply to identify which defendants should be flagged as individuals most likely to benefit from participation in the program." Id.
[¶19] On appeal, Robinson appears to assert that, because his plea agreement did not contain the prescribed language and because it purported to give the trial court authority it did not have by delaying his participating in the program, the plea was not valid. As such, he contends that he did not enter into it knowingly, voluntarily, and intelligently.
[¶20] We acknowledge that the plea does not contain the language that the court will consider a sentence modification after completion of the program and that it purports to allow the trial court to determine how much of his sentence he must complete before participation in the program. However, despite any possible errors in the plea or the sentencing order, Robinson received what he bargained for. Indeed, the plea agreement provides that the parties agree that purposeful incarceration is appropriate. See Ex. Vol. 2 at 120. And, pursuant to that plea, the trial court stated that Robinson could participate in purposeful incarceration, thereby recommending to the DOC that he be placed in the program.
[¶21] We agree that the plea agreement appears to give authority to the trial court to decide when Robinson participates in the program and that the sentencing order states that he can participate after he has served twenty-two and one-half years. See id. at 120, 122. Despite that language, the DOC nonetheless placed Robinson in the purposeful incarceration program at the time it deemed appropriate, which program Robinson completed in December of 2021. Id. at 135. And the DOC sent a letter to the trial court alerting the court to Robinson's completion and stating that Robinson was eligible to be considered for a modification of his sentence.
[¶22] We recognize that Robinson completed the Recovery While Intoxicated program. But that does not entitle Robinson to a modification of his sentence. Rather, upon completion of a program, a court will "consider" a sentence modification. Hogan, 95 N.E.3d at 184. And, here, while the court's sentencing order cannot-and indeed did not-delay Robinson's participation in the purposeful incarceration program, it is clear that the court did not intend to consider a sentence modification until twenty-two and one-half years of his sentence had been served, which is well within the court's authority.
[¶23] Robinson received the benefit of his bargain when the court recommended him for purposeful incarceration and when the DOC placed him in a program, which he successfully completed. And because he completed the program, he will be ready for the court to consider a sentence modification after he has served twenty-two and one-half years. We therefore agree with the postconviction court that Robinson entered into the plea agreement knowingly, voluntarily, and intelligently. And we affirm the post-conviction court on this issue.
Effectiveness of Trial Counsel
[¶24] Robinson next asserts that he received ineffective assistance from his trial counsel.
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, "the defendant must show deficient performance: representation that fell below an objective
standard of reasonableness, committing errors so serious that the defendant did not have the 'counsel' guaranteed by the Sixth Amendment." McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 687-88). To satisfy the second prong, "the defendant must show prejudice: a reasonable probability (i.e.[,] a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different." Id. (citing Strickland, 466 U.S. at 694).Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[¶25] Robinson asserts that he received ineffective assistance from his trial counsel because his trial counsel "failed to inform" Robinson that the trial court could not delay his entry into the purposeful incarceration program and because his trial counsel failed to ensure "critical required language" was included in the sentencing order. Appellant's Br. at 19. And he asserts that, had counsel done either of those things, he would not have pleaded guilty.
[¶26] However, Robinson has not demonstrated that the result of the proceedings would have been different had counsel acted differently. As discussed above, Robinson received the benefit of his bargain when the court recommended him for the purposeful incarceration program and when the DOC placed him in one. In addition, we are not persuaded that he would not have pleaded guilty if the circumstances had been different. In exchange for his guilty plea, the State agreed to dismiss six other charges plus a habitual offender enhancement in F2-992 and the charges in two other cause numbers.
[¶27] As a result of pleading guilty, Robinson received a sentence of only thirty years with the opportunity for a sentence modification after twenty-two and one-half years. Had he not pleaded guilty, he faced the possibility of being found guilty on eight counts plus being adjudicated a habitual offender, which would have subjected Robinson to a sentence substantially longer than thirty years. While Robinson would have liked a shorter sentence or the possibility of a modification earlier than after having served twenty-two and one-half years, we are not persuaded that he would have rejected the plea agreement if it contained certain language and excluded other language. We therefore affirm the postconviction court's denial of Robinson's petition on this ground.
To the extent Robinson contends that his counsel was ineffective for failing to attend a suppression hearing, Robinson has not presented cogent argument. Indeed, the extent of Robinson's argument on this purported issue is that his trial counsel "failed to follow through with the motion to suppress hearing[.]" Appellant's Br. at 20. He makes no argument as to how he was prejudiced by that action. He has therefore waived the issue for our review. See App. R. 46(A)(8)(B).
Effectiveness of Appellate Counsel
[¶28] Finally, Robinson contends that he received ineffective assistance from his appellate counsel. We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000). Ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013).
[¶29] Here, Robinson's argument falls into the second category; he asserts that his appellate counsel was ineffective for failing to raise the validity of the plea agreement on appeal. To show that counsel was ineffective for failing to raise an issue on appeal, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To evaluate the performance prong when counsel failed to raise issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record, and (2) whether the unraised issues are "clearly stronger" than the raised issues. Id.
[¶30] Further, we must
"consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance . . . [and] should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made."Id. at 1195-96 (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997)) (omission and alteration original to Reed; emphasis added). In addition, "an ineffective assistance claim cannot be based upon counsel's failure to argue legal reasoning of cases not yet decided at the time of appeal." Id. at 1197.
[¶31] As discussed above, Robinson bases his entire argument on this Court's decisions in Hobart and Sargent. However, Robinson filed his direct appeal on August 4, 2017, and this Court handed down its decision affirming his sentence on December 7. Hobart was not decided until March 2018, and Sargent was not handed down by this Court until October 2020. As a result, the precedent set by those two cases was not available to Robinson's appellate counsel at the time of his appeal. Indeed, Robinson's appellate counsel testified that Hogan was handed down by this Court "after the [direct appeal] case was over." Tr. Vol. 2 at 13. Because this Court's precedent was not available at the time of his direct appeal, the post-conviction court did not err when it concluded that Robinson did not receive ineffective assistance from his appellate counsel.
Conclusion
[¶32] The post-conviction court did not err when it concluded that Robinson entered into his plea knowingly, voluntarily, and intelligently; that Robinson did not receive ineffective assistance of trial counsel; and that Robinson did not receive ineffective assistance of appellate counsel. We therefore affirm the postconviction court.
[¶33] Affirmed.
Altice, C.J., and Mathias, J., concur.