VAIDIK, Chief Judge.
James E. Saylor was convicted of molesting his stepdaughter, pled guilty to being a habitual offender, and was sentenced to 138 years. We affirmed on direct appeal. Saylor then sought post-conviction relief raising numerous issues, including that his trial counsel was ineffective for conceding his guilt to two counts of Class A felony child molesting during closing argument and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.
As for Saylor's ineffective-assistance claim, Saylor's defense at trial was that he did not commit the crimes, and defense counsel consistently argued this during closing argument. Nevertheless, in making a point about the State's medical evidence, defense counsel inadvertently said that Saylor "was not the only person that was having sex with" the victim. Given Saylor's consistent defense and the fact that the State did not capitalize on this statement during its rebuttal argument, we find that defense counsel's inadvertent statement, although a mistake, was not a judicial admission to two counts of Class A felony child molesting. And in light of the overwhelming evidence of Saylor's guilt, we find that there is not a reasonable probability that, but for defense counsel's mistake, the result of the proceeding would have been different.
As for Saylor's argument that he did not personally waive his right to a jury trial on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed the personal-waiver requirement when a defendant proceeds to a bench trial in Horton v. State, No. 79S02-1510-CR-628, 51 N.E.3d 1154, 2016 WL 1612335 (Ind. Apr. 21, 2016). Although this case involves a guilty plea — and not a bench trial like in Horton — and there is a different statute that governs guilty pleas, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Accordingly, because Saylor did not personally waive his right to a jury trial — rather, his attorney did — when he pled guilty to being a habitual offender, we vacate his habitual-offender adjudication and remand for a new trial on that charge. We affirm the post-conviction court on all other issues that Saylor raises.
In April 2005, Saylor moved into a home in Madison with his wife ("Wife") and four children. B.D., then a ten-year-old
Over a period of approximately eighteen months, Saylor forced B.D. to have sexual intercourse and oral sex with him, forced M.D. and B.D. to have sexual intercourse and oral sex with each other while Saylor watched, and taught B.D. to have sex with the family dog. Saylor threatened to harm B.D. if she told anyone what was happening. But in July 2006, when B.D. was eleven years old, she told a family friend, Jasmine Mardello, who notified the Indiana Department of Child Services. Saylor was arrested the next day. Kathy Scifres, a forensic-nurse examiner, conducted a physical examination of B.D. The State ultimately charged Saylor with two counts of Class A felony child molesting (both involving B.D.), Class B felony vicarious sexual gratification (based on Saylor forcing B.D. to engage in sexual intercourse with M.D.), Class D felony intimidation (based on Saylor's threats to B.D. if she told anyone), and being a habitual offender.
A jury trial began in August 2007. The trial was bifurcated, with the first phase addressing the child-molesting, vicarious-sexual-gratification, and intimidation charges, and the second phase addressing the habitual-offender charge.
During the first phase of trial, B.D., M.D., and J.S. all testified that Saylor had sexual intercourse with B.D. and forced M.D. to have sexual intercourse with B.D. Mardello testified about B.D.'s initial disclosure to her, and Scifres testified about her physical examination of B.D., which revealed a healed vaginal tear and hymenal thinning that was consistent with the penetration of her vagina by a blunt or round object, such as a penis. Scifres also testified that B.D. told her that she had sexual intercourse with Saylor but that B.D. did not tell her that she had sexual intercourse with anyone else.
During closing argument, defense counsel argued that the State's medical evidence did not prove that Saylor molested B.D. because B.D. had sexual intercourse with other people, and they could have caused her injuries. As part of defense counsel's lengthy argument on this point, he said, "Mr. Saylor was not the only person that was having sex with [B.D.]." Tr. p. 908.
The jury found Saylor guilty of the child-molesting, vicarious-sexual-gratification, and intimidation charges. While the jury was in the jury room waiting for the habitual-offender phase of trial to begin, Saylor's trial counsel requested a brief recess to discuss the habitual-offender charge with Saylor. At the end of the recess, defense counsel told the trial court that Saylor had decided to plead guilty.
At sentencing, the trial court merged Saylor's conviction for intimidation with his conviction for vicarious sexual gratification and sentenced Saylor to 45 years for each of his child-molesting convictions, 18 years for his vicarious-sexual-gratification conviction, and 30 years for the habitual-offender enhancement, for an aggregate term of 138 years. We affirmed on direct appeal. Saylor v. State, No. 39A01-0712-CR-574, 2008 WL 4233304 (Ind.Ct. App. Sept. 17, 2008), trans. denied.
Saylor filed a petition for post-conviction relief in 2014. Following a hearing, the judge entered findings of fact and conclusions of law denying relief.
Saylor, pro se, now appeals.
Saylor contends that the post-conviction court erred in denying his petition. Defendants who have exhausted the direct-appeal process may challenge the correctness of their convictions and sentences by filing a post-conviction petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), reh'g denied. Post-conviction proceedings are not an opportunity for a "super-appeal." Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), reh'g denied. Rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Ind. Post-Conviction Rule 1(1); Timberlake, 753 N.E.2d at 597. In post-conviction proceedings, complaints that something went awry at trial are cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002).
Post-conviction proceedings are civil proceedings, requiring the petitioner to prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at 745. We review the post-conviction court's legal conclusions de novo but accept its factual findings unless they are clearly erroneous. Id. at 746. The petitioner must establish that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Smith v. State, 770 N.E.2d 290, 295 (Ind.2002).
Saylor raises two main issues on appeal. He contends that his trial counsel was ineffective for multiple reasons and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.
Saylor first contends that defense counsel was ineffective. We review claims of ineffective assistance of trial counsel under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pruitt v. State, 903 N.E.2d 899, 905-06 (Ind.2009), reh'g denied. To satisfy the first prong, the defendant must show that trial counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, "committing errors so serious that the defendant did not have the counsel guaranteed by the Sixth Amendment." McCary v. State, 761 N.E.2d 389, 392 (Ind.2002), reh'g denied. To satisfy the second prong, the defendant must show prejudice: "a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different." Id.
Saylor argues that defense counsel was ineffective for not objecting to (1) the trial court's failure to administer an oath to B.D. before she testified at trial and (2) the prosecutor's impermissible vouching during closing argument. To prevail on a claim of ineffective assistance due to the failure to object, the defendant must show an objection would have been sustained if made. Overstreet v. State, 877 N.E.2d 144, 155 (Ind.2007), reh'g denied. In determining whether an objection would have been sustained, we presume that the trial judge will act according to the law. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Saylor first argues that defense counsel was ineffective for not objecting when the trial court failed to administer an oath to twelve-year-old B.D. before she testified at trial. After opening statements, the State called B.D. as its first witness. When B.D. took the stand to testify, the judge asked B.D. the following questions in the presence of the jury:
Tr. p. 332-35.
Indiana Evidence Rule 603 requires that "[b]efore testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience." See also Ind. Const. art. 1, § 8 ("The mode of administering an oath or affirmation, shall be such as may be most consistent with, and binding upon, the conscience of the person, to whom such oath
In addition, Indiana Evidence Rule 601 addresses competency of witnesses. Rule 601 presumes that every person is a competent witness unless otherwise provided by statute or rule. "A child is only competent to testify if it can be established" that the child (1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Ackerman v. State, No. 49S00-1409-CR-770, 51 N.E.3d 171, 191-92, 2016 WL 1329532 (Ind. Apr. 5, 2016) (noting that it "seems highly unlikely that a three-year-old would be able to comprehend that she was under oath and required to only tell the truth"); Kien v. State, 866 N.E.2d 377, 385 (Ind.Ct.App.2007), trans. denied. Like oaths, there is no prescribed form to determine whether a child is competent to testify. See LeMaster v. State, 498 N.E.2d 1185, 1187 (Ind.1986). The trial court has discretion to determine whether a child witness is competent based on the court's observation of the child's demeanor and the child's responses to questions posed by counsel and the court. Richard v. State, 820 N.E.2d 749, 754-55 (Ind.Ct.App.2005), trans. denied.
Saylor claims that the trial court's "questioning was insufficient to constitute an oath" because "[n]othing in the trial court's questioning of B.D. made testifying truthfully binding upon her conscience." Appellant's Reply Br. p. 2. We disagree. The trial court examined B.D. to simultaneously (1) determine whether she was competent to testify and (2) administer an oath to her. The trial court explored whether B.D. was capable of understanding her obligation to tell the truth, inquired whether B.D. could distinguish between the truth and a lie and knew what the truth was, and was satisfied that B.D. had given an oath. Because the trial court properly administered an oath to B.D., Saylor has not demonstrated that the trial court would have sustained an objection by defense counsel.
Saylor next argues that his defense counsel was ineffective for not objecting to the prosecutor's impermissible vouching during closing argument. It is improper for a prosecutor to make an argument that takes the form of personally vouching for a witness. See Schlomer v. State, 580 N.E.2d 950, 957 (Ind.1991) ("I'm not gonna say Detective McGee is ever gonna be a brain surgeon or a rocket scientist, but I believe Detective McGee when he tell[s] us what happened...") Gaby v. State, 949 N.E.2d 870, 880 (Ind.Ct. App.2011) ("I cannot and would not bring charges that I believe were false."). However, a prosecutor may comment on a witness's
Saylor highlights ten statements from the State's thirty-page-long closing argument that he believes are the "most troublesome." Appellant's Br. p. 17. These statements focus primarily on B.D., Mardello, and M.D.
As for B.D., Saylor claims that the prosecutor impermissibly vouched for her during closing argument:
Tr. p. 884.
We find that the prosecutor properly commented on B.D.'s credibility because the assertions were based on reasons arising from the evidence presented at trial. B.D.'s credibility was a significant topic addressed by both sides during closing arguments. The State argued that B.D. was credible because her testimony was consistent with the medical evidence
Saylor next claims that the prosecutor impermissibly vouched for Mardello. He points to this portion of the prosecutor's closing argument:
Id. at 889.
Notably, the prosecutor did not argue that Mardello was credible because she was emotional; rather, the prosecutor argued that, based on Mardello's demeanor in court, the reasonable inference was that B.D. was telling the truth when she first revealed the abuse to Mardello. This was a proper argument based on the logical or reasonable conclusions from the prosecutor's analysis of the evidence. Accordingly,
Last, Saylor claims that the prosecutor impermissibly vouched for M.D. by arguing that M.D. "told the truth" because he could get in trouble for having sexual relations with B.D. Tr. p. 925. But the prosecutor argued the opposite — that M.D. could not be prosecuted based on his testimony in this case because the State promised not to prosecute M.D. See Ex. 13 (letter from the prosecutor to the children's guardian ad litem explaining that "none of the children in this matter will be subject to criminal prosecution as a result of any testimony they may provide concerning... Saylor.").
Saylor argues that defense counsel was ineffective because he admitted Saylor's guilt to both counts of Class A felony child molesting during closing argument. Saylor argues that defense counsel's admission "nullified the jury's need to determine guilt or innocence beyond a reasonable doubt" on those charges. Appellant's Br. p. 7.
An attorney's statements during opening statement or closing argument may constitute judicial admissions that are binding on the client. See 13 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence, § 801.421 (3d ed.2007); 32 C.J.S. Evidence § 599 (2008). To constitute a judicial admission, the attorney must make "a clear admission of a material fact." 32 C.J.S., supra, § 599. "Improvident or erroneous statements or admissions" resulting from "unguarded expressions or mistake or mere casual remarks, statements[,] or conversations" are not judicial admissions. Collins v. State, 174 Ind.App. 116, 366 N.E.2d 229, 232 (1977), reh'g denied. It is "particularly important" in criminal cases that the defendant "be protected from inadvertent slips of the tongue of his attorney" and be "protected against any and every statement of his counsel which is not definitely and purposely intended as and for an admission." Id. (quotation omitted). "[B]efore a statement by an attorney can be held to be [a judicial] admission it must be given a meaning consistent with the context in which it is found." 32 C.J.S., supra, § 599.
When taken in context, defense counsel did not admit that Saylor committed both counts of Class A felony child molesting. Saylor's defense at trial was that he did not molest B.D. or force M.D. to have sexual intercourse with B.D., and defense counsel vigorously and consistently argued this during closing argument. Nevertheless, in making a point about the State's medical evidence, defense counsel inadvertently said that Saylor "was not the only person that was having sex with" B.D. At the post-conviction hearing, defense counsel testified that he did not remember making this statement. P-C Tr. p. 10. And notably, the State did not capitalize on it during its rebuttal argument, which supports the conclusion that defense counsel did not intend for it to be an admission to both counts of Class A felony child molesting. Accordingly, we find that defense counsel's inadvertent statement, although a mistake, was not a judicial admission. See Collins, 366 N.E.2d at 232 (concluding that "an inadvertent admission made by counsel in the heat of argument" was not a judicial admission). Nevertheless, we are convinced that in light of the overwhelming evidence of Saylor's guilt, there is not a reasonable probability that, but for defense counsel's mistake, the result of the proceeding would have been different.
Finally, Saylor argues that when you consider the cumulative effect of defense counsel's errors, they amount to ineffective assistance of counsel. While the cumulative effect of a number of errors can render counsel's performance ineffective, see Grinstead v. State, 845 N.E.2d 1027, 1036 (Ind.2006), here there is only
Saylor next contends that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.
The record shows that while the jury was in the jury room waiting for the habitual-offender phase of trial to begin, defense counsel requested a brief recess to discuss the habitual-offender charge with Saylor. The following colloquy then occurred:
Tr. p. 932-34.
The Indiana Supreme Court recently reaffirmed the personal-waiver requirement in Horton v. State, No. 79S02-1510-CR-628, 51 N.E.3d 1154, 2016 WL 1612335 (Ind. Apr. 21, 2016). In that case, the State charged Horton with Class A misdemeanor domestic battery, which it sought to elevate to a Class D felony based on Horton's prior domestic-battery conviction. The trial was bifurcated. After Horton was found guilty of Class A misdemeanor domestic battery and while the jurors were still seated in the box, the trial court asked defense counsel how they intended to proceed on the Class D felony enhancement. Defense counsel responded, "as a bench trial." Horton, No. 79S02-1510-CR-628, 51 N.E.3d at 1156, 2016 WL 1612335.
On appeal, our Supreme Court noted that the jury-trial right is "a bedrock of our criminal justice system" and was guaranteed by both the federal and state constitutions. Id. at 1157-58, 2016 WL 1612335. The Court explained that "[i]n broad view, federal and Indiana constitutional jury trial rights guarantee the same general proposition — a criminal defendant must receive a jury trial, unless he waives it." Id. at 1157-58, 2016 WL
(Emphases added).
Applying these principles, the Court found that "the record [was] devoid of any personal waiver by Horton to the court — it shows waiver only by Horton's attorney." Horton, No. 79S02-1510-CR-628, 51 N.E.3d at 1159, 2016 WL 1612335. Although the State asked the Court to make an exception "where circumstances nevertheless imply waiver was the defendant's choice" — such as where "Horton had just experienced a jury trial and thus was probably `aware' of the right his attorney waived on his behalf" — the Court "decline[d] to carve out an exception." Id. at 1159, 2016 WL 1612335. Instead, given the "high stakes of erroneous jury-trial deprivation and the low cost of confirming personal waiver," the Court "maintain[ed]" its "time-honored" personal-waiver requirement. Id. Concluding that the trial court's "failure to confirm Horton's personal waiver before proceeding to bench trial was fundamental error," the Court vacated his Class D felony conviction for domestic battery and remanded for a new trial on that charge. Id.
We acknowledge that this case involves a guilty plea — not a bench trial like in Horton — and that there is a different statute that governs guilty pleas. Specifically, Indiana Code § 35-35-1-2 provides, in pertinent part:
Despite these differences, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Because the right to a jury trial is a bedrock of our criminal-justice system, the same protection should be afforded to defendants who plead guilty — and not just to those who proceed to a bench trial. Accordingly, when a defendant pleads guilty, he must personally waive his right to a jury trial.
Here, there is no evidence that Saylor personally waived his right to a jury trial on the habitual-offender charge. Instead, after the first phase of trial ended, defense counsel told the trial court that
Affirmed in part, and vacated and remanded in part.
BAILEY, J., and CRONE, J., concur.
