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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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