Opinion
23A-PC-2200
06-19-2024
Dequarius Walker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Amy E. Karozos Indianapolis, Indiana Victoria Christ Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian Mclean 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Shatrese M. Flowers, Judge The Honorable James K. Snyder, Magistrate Trial Court Cause No. 49D28-2010-PC-031858
ATTORNEYS FOR APPELLANT Amy E. Karozos Indianapolis, Indiana Victoria Christ Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian Mclean Supervising Deputy Attorney General Indianapolis, Indiana
Altice Chief Judge and Bradford Judge concur.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Walker was convicted of murder and sentenced to 58 years in the Indiana Department of Correction. We affirmed Walker's conviction on direct appeal, and he subsequently filed a petition for post-conviction relief ("PCR"). The PCR court denied Walker's petition. Walker presents one issue on appeal: Whether the PCR court clearly erred in concluding that Walker did not receive ineffective assistance of trial counsel.
[¶2] We affirm. Facts and Procedural History
[¶3] We previously established the facts of the underlying case in Walker's direct appeal:
In May 2018, Jalisa Lacey lived on the West side of Indianapolis with her three young daughters. Walker and Lacey were in a relationship, and Walker fathered Lacey's youngest daughter; however, the couple's relationship had ended prior to May 2018.
In the early morning hours of May 2, 2018, Lacey and her friend, Dennis Hendon, were drinking together on Lacey's porch while Lacey's young daughters slept inside the house. While Lacey and Hendon were on the porch, Walker approached from the back side of Lacey's home. Walker also lived in the neighborhood with his girlfriend. When Walker approached Lacey, Walker appeared to be "drunk." Walker asked Lacey what she was doing outside late at night, took Hendon's cigarettes, and poured Lacey's drink on her.
Lacey requested Walker leave several times, but Walker refused. Lacey telephoned Walker's aunt, Marilyn Johnson, to encourage Walker to leave Lacey's home. Meanwhile, Walker continued to act disrespectfully to Lacey and Hendon and called Lacey names such as "w****." Johnson arrived and Walker became upset that Lacey called Johnson. Johnson also believed that Walker had been drinking based on Johnson smelling the alcohol on Walker. After Johnson asked Walker to leave Lacey's home, Walker responded that he would not leave.
Subsequently, a series of events unfolded which Lacey and Johnson understood differently. According to Lacey's testimony, Lacey went inside her home and Walker followed her. Then, Lacey and Walker went outside and Walker "grabb[ed her] hair, [and tried] to choke [her]." The altercation between Lacey and Walker occurred near Johnson's car. Lacey testified that Johnson told Walker to leave Lacey alone during the altercation.
Lacey further testified that Hendon picked up a "baseball bat"- which the evidence revealed to be a wooden board-and hit Walker while telling Walker to "leave [Lacey] alone." Surveillance video from the nearby store shows Hendon picking up the board off the sidewalk. Walker then "[took] the [same board] and start[ed] hitting [Hendon]." Lacey ran away after Hendon hit Walker with the board. Lacey testified that she was not exactly sure where Walker hit Hendon on his body or how many times Walker hit Hendon.
According to Lacey's testimony, after Walker hit Hendon, Walker ran away through a nearby alley. Hendon appeared to be "dazed out" on the ground. Johnson and Lacey picked Hendon up off the ground, and Lacey called the police.
Johnson's account differs from Lacey's. Johnson testified that she never saw Walker touch Lacey. Johnson also testified that,
at the time of the incident, Johnson asked Lacey if Walker touched Lacey, to which Lacey responded that Walker had not. Johnson testified that, while her back was to the men, she did not hear any arguing or yelling; however, Johnson heard "one loud crack." Johnson then turned around and observed Walker standing over Hendon with the board. Walker "again" attempted to hit Hendon with the board; however, Johnson took the board from Walker and "popped [Walker] with it twice" before she shoved Walker to the ground. Johnson also acknowledged that she told the police that Walker was "beating on [Hendon]" because Hendon was "talking noise to [Walker] all day."
Walker also testified in his defense and told a completely different version of events. Walker stated that he was speaking with Lacey when suddenly he felt something hit the back of his head and turned to see Hendon with the board. Walker testified that Hendon hit him about six times, then Walker tried to defend himself by taking the board away, and in doing so, Hendon fell down when Walker was finally able to take the board away from Hendon. Walker claims that he also attempted to help Hendon up once he fell.Walker v. State, 132 N.E.3d 926, No. 19A-CR-124, slip op. at ¶¶ 3-9, 11 (Ind.Ct.App. 2019) (alterations in original) (internal citations omitted). Hendon died from injuries sustained in the incident, and the State charged Walker with murder. Id. at ¶¶ 14, 16.
[¶4] The trial court held a jury trial in November 2018. Walker, slip op. at ¶ 17. Michael Diehl and John Alden represented Walker at trial. Prior to voir dire, Alden wanted to make a record of plea negotiations, and the following discussion occurred:
THE COURT: Okay. So what was the State's most recent offer?
[STATE]: Thank you, Judge. It wasn't quite a formal offer. We had tendered an option to the Defense to see if he was interested and then we would have to take it up the ladder to get final approval. But it was to Voluntary Manslaughter, a Level Two felony, executed time towards the high end which it's ten to 30 years. Okay. So it would be on the higher end. And we didn't get any more negotiation or detail from there.
THE COURT: All right. So, Mr. Walker, you are able to hear and understand the prosecutor's offer; is that correct?
[WALKER]: Yes, ma'am.
THE COURT: All right. So the sentencing range for Murder is 45 to 64 with a presumptive of 55. In other words, if you were convicted of Murder the judge who sentence you would start at 55 years. He or she could add on time up to 65 or take off time down to 45.
What they're offering instead is Voluntary Manslaughter, a Level Two felony. That is non-suspendible if you've got a prior felony conviction. The minimum is ten years. The maximum is 30. The presumptive or advisory sentence for that is l7 and-a-half. So they're saying it would probably be for a set amount, somewhere between l7 and-a-half and 30 that they would recommend.
[STATE]: Actually we were thinking between 25 and 30 years executed.
THE COURT: Okay.
[STATE]: That's where we were leaning.
THE COURT: All right. So do you understand What that offer is?
[WALKER]: Yes, ma'am.
THE COURT: If you were to plead guilty today, that's what they would offer you in terms of sentencing.
[WALKER]: Yes, ma'am.
Prior Case Tr. Vol. II at 16-18. Walker was then sworn in, and Diehl questioned him about plea negotiations.
MR. DIEHL: Mr. Walker, the judge just asked if you wanted to have a second to discuss that offer with us; right?
[WALKER]: Yes, Sir.
MR. DIEHL: And what you said was you wanted to talk about it but only if that was for a Level Five and not for the Level Two; right?
[WALKER]: Yes, ma'am. Yes, sir.
MR. DIEHL: So you're not interested in the Level Two offer that the State has just made?
[WALKER]: No, Sir.
MR. DIEHL: Okay.
THE COURT: Okay. All right. Is there anything else you wanted to put on the record, Mr. Alden?
MR. ALDEN: Well, I countered their offer with a Level Five which would be Involuntary Manslaughter and they indicated that they would not be offering that to him.
[STATE]: That's correct, Judge.
MR. ALDEN: So I did that at the request of the defendant and they have declined to do that.
THE COURT: Okay. All right. Well, that's why we're having a trial.Id. at 18-19.
[¶5] After he rested his case, Walker requested a jury instruction on involuntary manslaughter as a lesser included offense. The trial court denied this request because, based on the State's charging information against Walker, involuntary manslaughter was not a lesser included offense. The jury found Walker guilty of murder, and the trial court issued a 58-year sentence to be served in the Indiana Department of Correction.
[¶6] Walker appealed his convictions, and we affirmed the trial court's decision. Walker, slip op. at ¶ 48. On August 18, 2022, Walker filed an amended PCR petition, alleging he received ineffective assistance of trial counsel. The PCR court conducted an evidentiary hearing where Alden, Diehl, and Walker testified. The PCR court denied Walker's petition. Walker now appeals. Additional facts will follow.
Discussion and Decision
Standard of Review
[¶7] Walker argues that the PCR court erred in denying his petition, and he asks that we either remand for a new trial or allow him to accept a guilty plea to voluntary manslaughter. Our Supreme Court has explained the review for PCR decisions:
Post-conviction actions are civil proceedings, meaning the petitioner (the prior criminal defendant) must prove his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). If he fails to meet this burden and receives a denial of post-conviction relief, then he 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 post-conviction court's decision." Wilkes, 984 N.E.2d at 1240 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the court's order denying relief, we will "not defer to the post-conviction 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)).Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). Walker claims that the trial court erred in denying his claim that he received ineffective assistance of trial counsel.
[¶8] "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 (internal quotation marks omitted) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). We use "the well-established, two-part Strickland test" to evaluate a defendant's ineffective-assistance-of-counsel claim. Id. at 1280 (citing Humphrey, 73 N.E.3d at 682). To succeed on such a claim, "[t]he defendant must prove: (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms; and (2) counsel's deficient performance prejudiced the defendant, i.e., but for counsel's errors the result of the proceeding would have been different." Id. (citing Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012)).
1. Trial Counsels' Performance Was Deficient
[¶9] Walker contends that Diehl and Alden provided ineffective assistance of counsel for being unaware that the State had "foreclosed" on involuntary manslaughter as a lesser included offense. In assessing deficiency, we ask "whether, 'considering all the circumstances,' counsel's actions were 'reasonable[ ] under prevailing professional norms.'" Wilkes, 984 N.E.2d at 1240 (quoting Strickland, 466 U.S. at 688). Our review of trial counsel's performance is "highly deferential." Id. at 1240-41 (quoting Strickland, 466 U.S. at 689). "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Id. at 1241 (quoting Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010).
[¶10] If there is an evidentiary dispute during trial, a defendant may request an instruction for a lesser included offense. Webb v. State, 963 N.E.2d 1103, 1108 (Ind. 2012). Upon this request, the trial court must first determine whether the instruction relates to an inherently included or factually included lesser offense. See Young v. State, 30 N.E.3d 719, 724 (Ind. 2015). "[A] lesser offense is inherently included when it may be established by proof of the same material elements or less than all the material elements defining the crime charged...." Id. (internal quotation marks omitted) (quoting Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995)). A lesser included offense is factually included if "the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense." Id. (quoting Wright, 658 N.E.2d at 567.) The State can foreclose on the possibility of a lesser included offense at trial based on how it drafts the charging information. Id.
[¶11] Here, the State foreclosed on the possibility of the lesser included offense of involuntary manslaughter. "Involuntary manslaughter is not an inherently included lesser offense of murder." Evans v. State, 727 N.E.2d 1072, 1081 (Ind. 2000) (emphasis in original) (citing Wright, 658 N.E.2d at 569); compare Ind. Code § 35-42-1-1 (2017) with id. § 35-42-1-4 (2017). Involuntary manslaughter can be a factually included lesser offense of murder "only if the charging instrument alleges that the killing was accomplished by a battery." Champlain v. State, 681 N.E.2d 696, 702 (Ind. 1997) (citing Wright, 658 N.E.2d at 569-70). Walker's charging information alleges he "did knowingly or intentionally kill another human being, to-wit: Dennis Hendon." Prior Case Appellant's App. Vol. II at 23. Thus, involuntary manslaughter was not a factually lesser included offense available for Walker at trial. See Champlain, 681 N.E.2d at 702.
[¶12] Diehl and Alden should have been aware that the State had foreclosed on the possibility of involuntary manslaughter as a lesser included offense. At the time of Walker's trial, Champlain had been settled law for 20 years. Further, this court echoed the holding of Champlain months before Walker's trial. See McDowell v. State, 102 N.E.3d 924, 931 n.7 (Ind.Ct.App. 2018) (citing Champlain, 681 N.E.2d at 702) ("Because the charging information did not allege facts that would establish a battery, involuntary manslaughter was not a factually included offense.") At the PCR hearing, Diehl and Alden testified that they approached Walker's trial with the belief that involuntary manslaughter could be factually included as a lesser offense but were unaware of relevant case law. In its proposed conclusions of law provided to the PCR court, the State conceded that this lack of knowledge of the law amounted to deficient performance, and we agree with this conclusion.
2. Trial Counsels' Deficient Performance Did Not Cause Prejudice
[¶13] We now must determine if this deficient performance prejudiced Walker. See Bobadilla, 117 N.E.3d at 1280. Walker claims that but for trial counsels' deficient performance the proceedings would be different in two ways: (i) he would have accepted an offer to plead guilty to voluntary manslaughter and (ii) he would not have proceeded to trial on a claim of self-defense.
a. There Was No Formal Plea Offer to Accept
[¶14] Walker contends that but for trial counsels' incorrect guidance on the availability of involuntary manslaughter as a lesser included offense he would not have rejected the State's plea offer of voluntary manslaughter. To demonstrate that this reliance and subsequent rejection amounts to prejudice, Walker
must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Lafler v. Cooper, 566 U.S. 156, 164 (2012). However, this analysis is not necessary if the State did not provide a plea offer to the defendant. Id. at 168 (noting "[i]f no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise.") The PCR court determined that Walker did not make the requisite showing of prejudice because the State never made a plea offer for Walker to reject, and we agree.
[¶15] A criminal defendant has no constitutional right to receive a plea offer or participate in a plea-bargaining process. Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013) (quoting Coker v. State, 499 N.E.2d 1135, 1138 (Ind. 1986)); Gibson v. State, 133 N.E.3d 673, 688 (Ind. 2019) (citing Missouri v. Frye, 566 U.S. 134, 144, (2012)). Further, the State has no duty to engage in the plea-bargaining process. Bethea, 983 N.E.2d at 1144. We look to principles of contract law for guidance when analyzing plea agreements and the negotiation process. Archer v. State, 81 N.E.3d 212, 216 (Ind. 2017); see Loveless v. State, 896 N.E.2d 918, 920-22 (Ind.Ct.App. 2008).
[¶16] "An offer is defined as the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Clark Cnty. REMC v. Reis, 178 N.E.3d 315, 319 (Ind. 2021) (quoting Zimmerman v. McColley, 826 N.E.2d 71, 77 (Ind.Ct.App. 2005)). In order for an offer to be valid, meaning acceptance of the offer creates a binding agreement, the offer must convey "the terms and conditions of the promises made" with "reasonable certainty." Id. (quoting Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 813 (Ind. 2009)).
[¶17] We have previously addressed whether plea negotiations amounted to formal offers in the context of PCR ineffective-assistance-of-counsel claims. Roudebush v. State, 17 N.E.3d 934, 939-40 (Ind.Ct.App. 2014); Schmid v. State, 972 N.E.2d 949, 953-54 (Ind.Ct.App. 2012). In Roudebush v. State and Schmid v. State, the defendants alleged that they received ineffective assistance of counsel because trial counsel failed to communicate a plea offer. Roudebush, 17 N.E. 3d at 939; Schmid, 972 N.E.2d at 953. The PCR court in both cases determined that no formal plea offer was made and therefore the defendant did not receive ineffective assistance of counsel. Roudebush, 17 N.E. 3d at 939; Schmid, 972 N.E.2d at 954.
[¶18] In Schmid, the State had charged Schmid with murder, and defense counsel engaged in informal discussions with the State about "a possible compromise that would allow Schmid to plead guilty to Class C felony reckless homicide." 972 N.E.2d at 954. At Schmid's PCR hearing, her trial counsel testified that there was no plea offer. Id. We rejected Schmid's claim on appeal that these discussions about a reckless homicide plea amounted to a plea offer. Id. In Roudebush, the prosecutor offered the possibility of a plea agreement if Roudebush gave a statement to law enforcement regarding his co-defendants. Roudebush, 17 N.E. 3d at 939. After Roudebush provided a statement, defense counsel and the State "discussed the possibility a plea might be negotiated, but the parties never arrived at a specific agreement or committed anything to writing." Id. We affirmed the PCR court, concluding that "no formal plea offer was ever made." Id.
[¶19] Here, the record shows that the State engaged in negotiations with Walker about a possible plea agreement but never tendered a plea offer to Walker. At trial, Alden attempted to make a record of the last plea offer made to Walker. When the trial court asked about the State's latest offer, the prosecutor stated "it wasn't quite a formal offer" and continued to describe the latest stage of negotiations. Prior Case Tr. Vol. II at 16. Then, the trial court, Alden, and the prosecutors discussed the possibility of a guilty plea to voluntary manslaughter where prosecutors were "leaning" towards a sentence between 25 and 30 years executed. Id. at 17.
[¶20] After this discussion of negotiations, Walker testified that he was not interested in pleading guilty to voluntary manslaughter. On appeal, Walker claims that this testimony amounted to the rejection of a formal plea offer. However, prosecutors had already noted that if Walker was interested, they would still "have to take it up the ladder to get final approval," Prior Case Tr. Vol. II at 16, meaning Walker could not have created a binding agreement by expressing interest in a guilty plea for voluntary manslaughter. Thus, the discussion of a guilty plea for voluntary manslaughter did not amount to a valid offer. See Clark Cnty. REMC, 178 N.E.3d at 319. This conclusion is further supported by the testimony provided at the PCR hearing. Alden and Walker both testified that there was not a formal offer for a voluntary manslaughter plea. Therefore, the PCR court did not err in concluding that trial counsels' deficient performance did not prejudice Walker in the plea negotiations.
b. In the Absence of a Better Defense Strategy, Self-Defense Was a Legitimate Defense Strategy
[¶21] Next, Walker argues that he would not have proceeded on a claim of selfdefense but for trial counsels' failure to recognize that the State had foreclosed on an involuntary manslaughter instruction. On appeal, Walker claims that he was forced to proceed on a theory of self-defense that was "exceptionally weak." Appellant's Br. at 35. The PCR court rejected this argument and concluded that Walker was not prejudiced by pursuing a self-defense claim. We agree.
[¶22] Walker's intent was to go to trial on a theory of self-defense, and there was evidence to support this theory. "A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force." Ind. Code § 35-41-3-2 (2013). At trial, Walker testified that Hendon was beating him with a board from behind, so he turned around and tried to take the board from Hendon. Walker claims the struggle over the board caused Hendon to fall and hit his head. Further, the neurosurgeon that treated Hendon after the incident testified that the head injuries "could have been from a fall." Prior Case Tr. Vol. II at 144. The jury was ultimately persuaded by other testimony which alleged that Walker had beat Hendon in the head with the board. Walker, slip op. at ¶ 20.
[¶23] At the PCR hearing, Walker reasserted that he acted in self-defense, and Alden testified that Walker had rejected the idea of a voluntary manslaughter plea because he wanted to go to trial and pursue a self-defense claim. Walker's ultimate goal was to prove his self-defense claim and be found not guilty. We are unpersuaded by Walker's current argument that the self-defense claim was weak merely because the jury did not find it credible. Additionally, Walker has not presented an alternative defense strategy that should have been used at the trial court. Walker has not demonstrated that the self-defense claim was a result of trial counsels' deficient performance or that proceeding on this theory was prejudicial. Thus, we conclude that the PCR court did not err in finding that Walker was not prejudiced by pursuing a self-defense claim.
Conclusion
[¶24] We conclude that trial counsels' failure to realize that an involuntary manslaughter instruction was unavailable did not prejudice Walker in plea negotiations or in his self-defense claim. The PCR court did not err in denying Walker's PCR petition.
[¶25] Affirmed.
Altice, C.J., and Bradford, J., concur.