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Judges discuss fundamental error, ineffective trial counsel assistance

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Fundamental error and prejudice for ineffective assistance of trial counsel present two substantively different questions, the Indiana Court of Appeals concluded Thursday in a post-conviction case.

In Gloria Benefield v. State of Indiana, No. 41A01-1006-PC-310, Gloria Benefield appealed the denial of her petition for post-conviction relief on grounds that she had ineffective assistance of trial counsel. Benefield was convicted of Class C felony forgery and was found to be a habitual offender after she presented a doctored letter at a job interview claiming she was a certified qualified medication aide. Benefield was not QMA certified.

On direct appeal, the Indiana Court of Appeals concluded that although Jury Instruction 6 improperly defined “defraud,” it didn’t rise to the level of fundamental error as she claimed.

The Court of Appeals Thursday had to determine whether the decision on direct appeal that Jury Instruction 6 didn’t result in fundamental error is effectively a decision that the trial counsel didn’t render ineffective assistance. The judges compared the standards for fundamental error with that for ineffective assistance prejudice, and cited several cases on this issue that traced back to Moore v. State, 649 N.E.2d 686 (Ind. Ct. App. 1995). Moore held that because the trial court’s instruction didn’t rise to the level of fundamental error, Moore’s appellate counsel couldn’t be deemed ineffective for failing to raise the issue on appeal. But Moore dealt with appellate counsel and appellate and trial counsel have different tasks, which result in different kinds of deficient performance and prejudice, wrote Judge Terry Crone.

The judges held that fundamental error and prejudice for ineffective assistance of trial counsel present two substantively different questions.

“Further, we conclude that when a claim of ineffective assistance of trial counsel is based on a failure to object, and that error was advanced as fundamental error on direct appeal, a finding that the error did not rise to fundamental error does not automatically rule out the possibility that the error resulted in prejudice sufficient to establish ineffective assistance,” wrote Judge Crone. “In addition, we conclude that the bar establishing fundamental error is higher than that for prejudice of ineffective assistance of trial counsel. Therefore, where an appellant has failed to prove ineffective assistance of trial counsel, our holding would exclude a finding of fundamental error.”

Benefield failed to carry her burden to show that, but for her counsel’s failure to object, there was a reasonable probability that she would have been found not guilty. Given the totality of the instructions provided to the jury, the judges were unable to say, but for her attorney’s failure to object, the outcome of the case would have been different.

The judges also found her attorney didn’t render ineffective assistance of trial counsel by not objecting to testimony Benefield believed was inadmissible hearsay evidence. The attorney explained he didn’t object to the testimony because he didn’t want to call any more attention to the information in Exhibit 7, a document from the company in which the Indiana Department of Health contracts to administer the test required to obtain QMA certification. The department's program director of administration testified that Benefield had signed Page 2 of the document stating that she knew she hadn’t passed the QMA certification test.

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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