Indiana Court Decisions — March 29-April 11, 2018

7th Circuit Court of Appeals

April 3

Criminal — Insufficient Counsel

LeeAnn Brock-Miller v. United States of America

16-3050

The U.S. District Court for the Southern District of Indiana must hold a hearing on a convicted drug offender’s motion for collateral relief after the 7th Circuit Court of Appeals determined the offender presented evidence to justify a hearing on deficient counsel performance.

In LeeAnn Brock-Miller v. United States of America, 16-3050, LeeAnn Brock-Miller was charged in one count of a 26-count indictment surrounding a conspiracy by Indiana Department of Correction inmates to use illicit cellphones to transfer heroin from Chicago to Indiana. Count Six, which mentioned Brock-Miller, alleged she was in possession of $6,000 that was to be used to obtain heroin in Chicago.

Brock-Miller — a drug addict with an extensive criminal history — later told a judge she agreed to give two other conspirators a ride to Chicago in exchange for one gram of heroin. One year after her indictment, Brock-Miller became subject to an enhanced 20-year minimum sentence based on the government’s decision to seek enhanced penalties against persons who commit drug offenses after a prior conviction for a felony drug offense became final.

The prior conviction cited in Brock-Miller’s case was for a 2008 charge of unlawful possession of syringes or needles under Indiana Code section 16-42-19-18 (2007). Her appointed counsel, however, filed an objection arguing she had not been convicted under I.C. 35-48-4-8.3, which the 7th Circuit Court of Appeals said was frivolous because the government had not asserted that statute as the basis for the enhancement.

The Southern District Court never ruled on the objection, and Brock-Miller pleaded guilty to conspiracy to possess with intent to distribute more than 100 grams of heroin in exchange for a 10-year prison sentence and eight years of supervised release. She also agreed to forfeit her right to appeal, so she filed for collateral relief under 28 United States Code section 2255, alleging ineffective assistance stemming from the frivolous objection. She also alleged she was inappropriately advised to plead guilty under an agreement that allowed her to be sentenced as a recidivist without filing a proper objection to the enhancement.

The district court denied Brock-Miller’s motion, finding her possession of syringes conviction qualified for the enhancement. However, Chief Judge Diane Wood wrote in an April 3 opinion that the district court incorrectly looked to the 2015, not 2007 version, of I.C. 16-42-19-18. The 2007 version only allowed convictions based on legend drugs, which does not include heroin, meaning Brock-Miller should have not been subject to the enhancement for a prior felony drug offense.

The appellate panel also agreed that Brock-Miller’s counsel’s failure to file a meritorious objection to the enhancement and instead to file the frivolous objection would, if proven, constitute deficient performance. Further, counsel’s advice that Brock-Miller take the plea agreement could have been based on deficient performance as well, Wood wrote.

“Brock-Miller has presented sufficient evidence to justify a hearing on both deficient performance and prejudice under (Strickland v. Washington, 466 U.S. 668 (1984)),” Wood wrote. “We therefore reverse the judgment of the district court, and remand for a hearing on the questions of whether counsel’s performance was deficient and, if so, whether Brock-Miller was prejudiced by counsel’s errors.”

Indiana Court of Appeals

March 29

Miscellaneous — Revocation of Bail License

Commissioner, Indiana Department of Insurance v. Alvin C. Putman

49A05-1706-MI-1402

A man convicted of misdemeanor battery after spanking his grandson must give up his bail agent license after a divided panel of the Indiana Court of Appeals determined his conviction was a qualifying offense warranting revocation.

After Alvin Putman was found guilty of Class A misdemeanor battery against his grandson, the Indiana Department of Insurance Enforcement Division moved the commissioner to revoke his bail agent license. The commissioner granted the motion and issued an order prohibiting Putman from reapplying for a license for five years from the date of his conviction or release, whichever is later.

Putman, however, maintained that his conviction was not a qualifying offense to revoke his license because it did not involve an element of violence. He took the issue to an administrative law judge, with his counsel arguing the act of spanking his grandson inflicted only transient pain and no injury. But Putman’s daughter testified that an inadvertent phone call made during the incident recorded her son screaming, “You’re choking me.”

Thus, the ALJ concluded the five-year restriction was appropriate, and the commissioner adopted the ALJ’s findings. The Indiana Court of Appeals upheld Putman’s conviction in 2016, but the Marion Superior Court reversed the department’s revocation of his license after finding Class A misdemeanor battery does not include an element of violence.

The trial court then granted a motion to correct error and remanded the case to the commissioner, who appealed in this case. A divided panel of the Indiana Court of Appeals upheld the commissioner’s original decision, with Judge Elaine Brown writing the commissioner’s interpretation of Indiana Code section 27-10-1-6 — which governs grounds for revocation — was reasonable.

“The offense for which Putman was convicted required more than simply physical contact with the victim; it required that the physical contact result in bodily injury,” Brown wrote for the majority joined by Judge John Baker. “It is not unreasonable to conclude that an offense which results in bodily injury also include an element which involves violence.”

The majority remanded the case to reinstate the commissioner’s original decision, but Judge Patricia Riley dissented. Writing separately, Riley said the statute defining Class A misdemeanor battery — I.C. 35-42-2-1(B)(c) — is silent on the element of violence, meaning a conviction under that statute does not meet the criteria for license revocation.

Riley said I.C. 27-10-1-6 would only allow revocation of Putman’s license if his offense “included” violence, but Brown — addressing that argument in a footnote — said the statute requires only the involvement of violence, not the inclusion.
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April 4

Post-Conviction — Ineffective Assistance of Counsel

Edward Ivy v. State of Indiana

82A04-1711-PC-2506

A man’s attempted murder conviction after a Vanderburgh County knife attack will be vacated after a divided Indiana Court of Appeals found his trial counsel erred by failing to object to two jury instructions.

In Edward Ivy v. State of Indiana, 82A04-1711-PC-2506, Jerald Clark and Robert Drake were at Clark’s home watching football when Edward Ivy and Antwain Russell knocked on the door. When Clark let them in, Russell approached Clark from behind and stabbed him multiple times with a knife, telling him to “leave (his) brother alone.”

Drake tried to stand up and intervene, but Ivy pulled out a gun and held it to Drake’s head. Clark managed to escape, and neighbors who saw him running away and bleeding from the neck called 911. Clark was taken to the hospital and twice lost vital signs, but he eventually was revived and survived his injuries.

Ivy was then charged with attempted murder, intimidation and being a habitual offender. He argued he did not act with the requisite culpability to be found guilty of attempted murder as an accomplice, but a jury found him guilty as charged.

The Indiana Court of Appeals originally upheld Ivy’s attempted murder conviction in 2014, so Ivy filed for post-conviction relief, arguing he received ineffective assistance of counsel. The Vanderburgh Superior Court denied the motion, but a majority of a new appellate panel disagreed and reversed in a April 4 opinion.

Specifically, the appellate panel found Ivy’s trial counsel was ineffective for failing to object to two jury instructions given at trial. As in Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App. 2005), Judge John Baker said here, Ivy’s counsel should have objected to two that failed to require the jury to find that Ivy “specifically intended that the victim be killed when he knowingly or intentionally aided Russell in the commission of attempted murder.” In contrast, one of the instructions in question required the jury to find Ivy was the principal actor, while the other did not require a finding that he intended Clark to be killed when he “knowingly and intentionally aided” Russell.

“Moreover, we find that there is a reasonable probability that had trial counsel objected to the instructions as given and tendered the appropriate instruction, the results of Ivy’s trial on the attempted murder charge may have been different,” Baker wrote for the majority joined by Judge Elaine Brown. “We therefore reverse the denial of the petition for post-conviction relief, vacate Ivy’s conviction for attempted murder, and remand for further proceedings.”  

But Judge Patricia Riley dissented, writing separately that when read together, the jury instructions “sufficiently apprised the jury of the essential elements necessary to convict Ivy of attempted murder under an accomplice liability theory.”
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April 5

Civil Plenary — Annexation

Town of Brownsburg, Indiana, Town Council of Brownsburg, Indiana, and Jeanette M. Brickler v. Fight Against Brownsburg Annexation, et al.

32A01-1702-PL-215

The Indiana Court of Appeals has upheld a special judge’s ruling that prohibited the town of Brownsburg from annexing nearly 4,500 acres of land, halting proposed plans to use the land for infrastructure, residential and school development.

The appellate court’s ruling comes after Judge Heather Welch ruled in November 2016 that the town failed to show the area to be annexed had an urban character or was needed for future development. Welch’s order came after a September 2016 bench trial in Hendricks Superior Court. A group of residents known as Fight Against Brownsburg Annexation remonstrated against the annexation of 4,462 acres of land outside of the town’s boundaries.

The town council adopted an ordinance approving the annexation in July 2013, but Welch’s 2016 ruling found it failed to meet the requirements of Indiana Code sections 36-4-3-13(b) and (c), which require that at least 60 percent of the land to be annexed be subdivided and set for development in the “reasonably near future.” The town argued it needed the land to extend Ronald Reagan Parkway, the Interstate 74 crossing and school and residential development, among other planned improvements. Remonstrators, however, claimed the annexation was a method of increasing tax revenues.

Relying on precedent from cases such as Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1241 (Ind. 1997), Welch’s findings agreed with the testimony of Hendricks County cartographer Lewis Dee Kirts, who found the annexation area was only 17.54 percent subdivided. But the judge also noted ambiguities in the definition of “subdivision,” which prompted her to look “in several directions” to arrive at a definition.

Those directions included a review of expert testimony, the map of the annexation area, Indiana Supreme Court precedent and Brownsburg’s subdivision control ordinance. That evidence, taken together, did not support a finding that Brownsburg could meet the 60 percent subdivision requirement, Indiana Court of Appeals Judge Elaine Brown wrote.

The special judge’s order also found that a substantial portion of the 4,500 acres was not needed, and the small sections that might be used would not be developed for 15 years. Further, former Town Council member David Richardson testified he believed the town was “biting off more than it could chew” considering the size of the annexed area, while the school superintendent testified that Brownsburg Schools had no plans for development in the area.

As with the definition of “subdivision,” Welch noted the phrase “reasonably near future” is not statutorily defined. But relying on Abell v. City of Seymour, 275 N.e.2d 547, 548 (Ind. Ct. App. 1971), the judge determined the five- to 15-year timeframe proposed for development of that annexation area would not meet any definition of the reasonably near future.

Brown wrote that Brownsburg’s arguments against that holding were merely requests to assess witness credibility and reweigh evidence, so the appellate court unanimously upheld Welch’s ruling as it related to subsection 13(c) as well.

The appellate victory for the remonstrators came after a similar 2015 victory, when the Court of Appeals determined the original trial judge, now-retired Hendricks Superior Judge David H. Coleman, erred in determining he lacked subject matter jurisdiction to determine whether the remonstrance petition was valid. The case was later moved to Welch as a special judge.
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April 10

Criminal — Operating While Intoxicated/Jury Admonition

Heath Poortenga v. State of Indiana

45A03-1709-CR-2148

The Indiana Court of Appeals has overturned a man’s Class A misdemeanor operating while intoxicated conviction after finding the trial court abused its discretion in admonishing the jury to ignore relevant evidence. But the appellate court also left the door open to a possible retrial on a lesser-included offense.

In Heath Poortenga v. State of Indiana, 45A03-1709-CR-2148, Lake County Sheriff’s Department Officer Kevin Fertig decided to initiate a traffic stop at 3 a.m. July 10, 2016 after observing a vehicle without working headlights and taillights. The driver, Heath Poortenga, began to pull over when Fertig activated his lights, but he did not stop his vehicle for two blocks.

When Poortenga finally stopped, Fertig observed that he was speaking slowly, had glossy eyes and smelled like alcohol. Poortenga admitted he had been drinking, then failed three field sobriety tests. A subsequent chemical breath test at the jail showed Poortenga had an alcohol concentration equivalent of 0.069, so he was arrested.

After the state charged Poortenga with Class A and C misdemeanor operating while intoxicated, his counsel repeatedly noted at trial that the results of the chemical test showed Poortenga tested below the legal limit of an ACE of 0.08, meaning he was not intoxicated at the time of his arrest. The judge, however, admonished the jury to ignore similar statements made during closing arguments, telling jurors “(t)hat is not part of this case.”

Poortenga was found guilty as charged, but the judge dismissed the Class C misdemeanor charge as a lesser-included offense of the Class A misdemeanor. The Indiana Court of Appeals, however, overturned the Class A conviction, with Judge Cale Bradford writing that evidence of a person’s ACE is relevant to proving intoxication.

“In reaching this conclusion, however, we do not intend to suggest that a finding that an individual’s ACE is under the legal limit of 0.08 per se proves that the individual was not intoxicated,” Bradford wrote. “Rather, we merely conclude that such a fact is evidence that may be considered when determining whether an individual was intoxicated.”

Thus, when the judge admonished the jury to ignore evidence of Poortenga’s ACE during closing arguments, she committed reversible error by admonishing the jury to ignore relevant evidence, Bradford wrote. Further, the appellate court concluded there was insufficient evidence to prove Poortenga was operating his vehicle in a manner that endangered others — the second element of a Class A misdemeanor OWI charge — and thus prohibited the state from retrying him on the Class A misdemeanor.

However, the court allowed the state to seek a retrial on the Class C misdemeanor charge because there was sufficient evidence to sustain a finding of intoxication.
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April 11

Criminal — Withdraw of Guilty Plea

Stephen Wirthlin v. State of Indiana

24A01-1711-CR-2662

The Franklin Circuit Court must withdraw a first-time felon’s pleas to two drug counts after erroneously finding the man knowingly, voluntarily and intelligently waived his right to counsel.

In February 2017, Stephen Wirthlin was charged with possession of methamphetamine and two counts of dealing in a synthetic drug or lookalike, all as Level 6 felonies. Wirthlin appeared pro se at his initial hearing and requested a speedy trial, but indicated multiple times he wasn’t sure if he would hire an attorney.

Wirthlin then began plea negotiations with the prosecutor and agreed, without consulting an attorney, to plead guilty to the possession charge and one count of dealing. He also signed a document regarding his rights at the guilty plea stage, including the right to counsel.

The parties returned to the Franklin Circuit Court on the same day as the initial hearing for a plea hearing, with Wirthlin telling the judge he understood that he was waiving his right to counsel. The court then accepted the plea and sentenced him to two years, with 16 months suspended to probation.

But in September 2017, Wirthlin — who was then represented by counsel — moved to withdraw his plea, arguing it was based on “his misunderstanding that a waiver of counsel was necessary to quickly resolve the case.” The trial court denied the motion, finding Wirthlin had been advised of his right to counsel orally and in writing.

Wirthlin then appealed in Stephen Wirthlin v. State of Indiana, 24A01-1711-CR-2662, and the Indiana Court of Appeals on Wednesday reversed the denial of his motion to withdraw. Judge John Baker initially noted that Wirthlin never explicitly waived his right to counsel orally, but only said he was “not sure” what he would do about an attorney. Baker specifically pointed to the initial hearing, when Wirthlin told the court, “I didn’t say I didn’t want (an attorney), I said I couldn’t afford one.”

“The fact that Wirthlin did not explicitly request appointment of a public defender is of no moment, and the trial court erred by burdening him with the obligation to do so,” Baker wrote. 

Similarly, Baker said Wirthlin’s signature on written forms advising him of his right to counsel and presented to him at the initial and plea hearings also did not constitute explicit and thorough waivers. Rather, those documents were boilerplate advisement of rights, he said.

Further, the trial judge never inquired into Wirthlin’s “decision” to waive his right to counsel, nor did it work with Wirthlin when he expressed confusion and uncertainty about the process, the appellate judge said.

“We acknowledge that Wirthlin signed the documents pointed to by the State, but those documents do not, and cannot, suffice to fulfill the trial court’s responsibility to ensure knowing, intelligent, and voluntary waiver of counsel.”

Thus, the appellate court remanded Wirthlin’s case with instructions to withdraw his plea, vacate his convictions and sentence and to continue the proceedings.•