A man convicted on a drug dealing charge and found to be a serious violent felon will have a new trial because his trial attorney did not file a motion to bifurcate the dealing and SVF charges, which prejudiced him, the Indiana Court of Appeals ruled.
Vance R. Pace appealed the denial of his petition for post-conviction relief, in which he sought to set aside his convictions of Class B felonies dealing in amphetamine and unlawful possession of a firearm by a serious violent felon. The charges stem from his arrest by Goshen police after they discovered drugs and a gun in the car Pace was riding in, as well as a large amount of cash on Pace.
Pace’s attorney, Juan Garcia Jr., did not request that the dealing charge be bifurcated from the SVF charge at trial. The jury heard, without objection from Pace, about his prior conviction for dealing cocaine as an element of the SVF charge, and other evidence and references were introduced during trial regarding that 1992 conviction. Pace was sentenced to 30 years total on the two charges.
Pace appealed, but his convictions were upheld. He then filed his petition for post-conviction relief, arguing ineffective assistance of trial counsel, Garcia, and appellate counsel, attorney Michael Greene. Pace’s petition was denied.
In Vance R. Pace v. State of Indiana, 20A03-1206-PC-378, the Court of Appeals found that Garcia’s performance was deficient enough to warrant a new trial. Nearly a year before Pace’s trial, the Indiana Supreme Court ruled on Hines v. State, 801 N.E.2d 634 (Ind. 2004), which held it was an error to refuse a defendant’s request to bifurcate a trial where there is an SVF charge and another unrelated felony. Garcia admitted at the post-conviction relief hearing that there was “no benefit” for the jury to hear that Pace had previously been convicted as a drug dealer, but didn’t file the motion because he thought Pace had a better chance proceeding with both charges at the same time.
The Court of Appeals concluded that the trial court would have granted a motion to bifurcate and Pace was prejudiced by Garcia’s deficient performance because the jury heard evidence of Pace’s prior dealing conviction when determining if he was guilty of the current dealing charge.
Because they found that Pace’s trial attorney’s performance required a new trial, the judges did not discuss Pace’s claims regarding his appellate attorney.