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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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