NAJAM, Judge.
Derrell Woods appeals the post-conviction court's denial of his amended petition for post-conviction relief. Woods presents a single dispositive issue for our review, namely, whether the post-conviction court erred when it concluded that Woods was not denied the effective assistance of trial counsel. We reverse.
We summarized the facts and procedural history of this case in Woods' direct appeal, Woods v. State, No. 20A04-0401-CR-46, slip op. at 2-3, 818 N.E.2d 155 (Ind.Ct.App. November 12, 2004), as follows:
Woods raised four issues on direct appeal, including the sufficiency of the evidence and the appropriateness of his sentence. We affirmed his conviction and sentence. Id.
On December 19, 2012, Woods filed a pro se petition for post-conviction relief, and he filed an amended petition, by counsel, on September 11, 2013. In his amended petition, Woods alleged that his trial counsel was ineffective when he: failed to introduce certain mitigating evidence at sentencing; and failed to communicate to Woods a guilty plea offer prior to trial. Following a hearing, the post-conviction court denied Woods' petition. This appeal ensued.
Woods appeals the post-conviction court's denial of his amended petition for post-conviction relief. Our standard of review is clear:
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.App.2008), trans. denied.
Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). "Although we do not defer to the post-conviction court's legal conclusions, `[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.'" Overstreet v. State, 877 N.E.2d 144, 151 (Ind.2007) (citation omitted).
Woods contends that he was denied the effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution. A claim of ineffective assistance of counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the "counsel" guaranteed by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, 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. at 694, 104 S.Ct. 2052.
Woods contends that his trial counsel's performance was deficient in two respects. However, because we find one of Woods' allegations dispositive on appeal, we need only address whether his trial counsel was ineffective when he did not communicate to Woods a guilty plea offer from the State. In particular, Woods presented evidence to the post-conviction court, without objection, that, on June 23, 2003,
Pet. Ex. 11. Woods also presented evidence that Zook received that letter on June 25, 2003.
Woods testified at the hearing on his petition for post-conviction relief that Zook never communicated that plea offer to him and that, if he had, Woods would have accepted the offer. Woods testified further that, sometime after June 2003, Zook communicated an offer to have Woods plead guilty to the A felony robbery with sentencing left to the trial court's discretion. Zook recommended to Woods that he reject that offer, which Woods did.
Zook was deceased at the time of Woods' post-conviction hearing. In lieu of Zook's testimony, Woods called Clifford Williams, the Chief Public Defender for Elkhart County, who had worked with Zook and who had reviewed Zook's file regarding Woods' defense in cause numbers FA-90 and FB-100. In support of his contention that the June 23, 2003, plea offer had been made by the State but not communicated to Woods, Woods submitted into evidence a document entitled "Motion to Withdraw Plea of Not Guilty and Enter Plea of Guilty and Plea Agreement and Disclosure." Pet. Ex. 8. That motion contained the same terms of the plea offer issued by Maciejczyk on June 23, 2003, but it is neither signed nor dated. Williams testified that such a document "would have been prepared by [the public defender's office] as a result of the plea offer which was extended in the letter" of June 23, 2003. Tr. at 139. Maciejczyk did not testify at the post-conviction hearing, but he submitted an affidavit stating that he did not have any recollection of plea negotiations in Woods' case.
Williams also testified, without objection by the State, that Zook had made handwritten notes on a copy of the June 23, 2003, offer letter. In particular, the words "30 cap" were written and crossed out, and the words "no cap" were written next to that notation. Pet. Ex. 6. The "B" in "Class B Felony" was crossed out in the first paragraph of the offer letter, and the letter "A" was written above it. Id. And there were some notations at the bottom of
In its findings and conclusions, the post-conviction court stated in relevant part as follows:
Appellant's App. at 147-48 (emphases added).
On appeal, Woods first contends, and we agree, that the evidence does not support the post-conviction court's findings with respect to the June 23, 2003, plea offer letter. The post-conviction court found that "it was not ascertainable from where the document originated" and that the offer letter was "non-discernible hearsay." Id. While some of the handwritten notations on Zook's copy of the offer letter, submitted as Petitioner's Exhibit 6, are "non-discernible," the original type-written letter on official letterhead, signed by Maciejczyk,
We hold that the evidence does not support the post-conviction court's findings that the origin of the June 23, 2003, plea offer letter is not ascertainable and that the letter consists wholly of "non-discernible hearsay." To the contrary, there was no dispute at the hearing that the letter was prepared by Maciejczyk, signed and dated, and transmitted to Zook, whose office received the letter two days later. Neither was there any dispute that the letter contained a plea offer with clear terms.
Second, in paragraph 42 of the court's findings and conclusions, the court notes that "Mr. Williams stated that it was uncertain if the document was prepared by the Public Defender's Office or the State." Appellant's App. at 148 (emphasis added). In the sentences leading up to that sentence in paragraph 42, when the trial court refers to "several scribbles and writings on the document," the court is clearly referring to Exhibit 6, the copy of the plea offer letter with Zook's handwritten notes. While Williams initially testified that he was not sure whether his office or the prosecutor's office had prepared the motion to withdraw guilty plea (Exhibit 8),
Here, Maciejczyk made a formal plea offer with a fixed expiration date, and the terms of the plea offer were favorable to Woods. Because the undisputed evidence shows that Zook did not communicate the June 23, 2003, offer to Woods, his performance was deficient.
Having shown that Zook's performance was deficient, Woods must demonstrate that he was prejudiced by Zook's failure to communicate the plea offer to him. Woods maintains that, had Zook told him about the June 23, 2003, plea offer, he would have accepted it. That plea offer left sentencing to the trial court's discretion, and Woods would have faced a maximum sentence of twenty years for the Class B felony in FA-90. Because Woods went on to be convicted of Class A felony robbery at a bench trial and the court sentenced him to forty-five years, Woods maintains that the prejudice to him here is obvious. Further, the undisputed facts show that Woods never denied having participated in the robbery and that his trial strategy was to admit to the Class B felony robbery, both of which are consistent with his testimony that he would have accepted the plea offer if he had known about it.
In support of his contention, Woods cites Dew v. State, 843 N.E.2d 556, 571 (Ind.Ct.App.2006), trans. denied, where this court held that a defendant satisfies the prejudice prong of Strickland if he shows that, that, but for counsel's actions, there was a reasonable probability that he would have accepted the plea offer that had not been communicated to him by defense counsel. And in Dew, we agreed with the United States Court of Appeals for the Sixth Circuit that a defendant is not required to submit objective evidence to prove that he would have accepted the State's plea offer but for counsel's actions. Id. at 568 n. 9 (citing Magana v. Hofbauer, 263 F.3d 542, 547 n. 1 (6th Cir.2001)). Thus, here, where Woods testified that he would have accepted the June 23, 2003, plea offer but for Zook's actions, which would have resulted in a maximum twenty-year sentence as opposed to the forty-five year sentence imposed after the bench trial, Woods has satisfied the prejudice prong under Strickland.
Nonetheless, the State contends that, in addition to showing that he would have accepted the plea, Woods must also show "a reasonable probability the plea would have been entered without the prosecution cancelling it." Appellee's Br. at 22 (citing Frye, 132 S.Ct. at 1409). And the
Here, in contrast to the defendant in Frye, Woods was in jail awaiting trial when the June 23, 2003, plea offer was made and, thus, there is no indication that intervening circumstances like an arrest would have led the State to retract the offer or the trial court to disapprove of the plea agreement. In addition, Woods' codefendant, who was nineteen years old at the time of the offense, pleaded guilty to Class A felony robbery approximately seven months after the offense, and the trial court approved the plea agreement and sentenced the codefendant to thirty-two years with ten years suspended. The evidence is largely undisputed that Woods' codefendant, not Woods, was the one who pushed the victim to the ground, causing the leg fracture. And, while Woods' criminal history at that time was extensive, the trial court would have likely accepted that plea agreement because it would have saved the State the time and resources required for a trial. Indeed, the trial court was likely to accept the plea agreement given how common plea agreements are in resolving criminal charges. See, e.g., Frye, 132 S.Ct. at 1407 (noting that "ninety-four percent of state convictions are the result of guilty pleas"). Finally, there is no evidence that the State retracted the plea offer after it was extended to Zook.
In Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the defendant alleged that he was denied the effective assistance of counsel when his defense counsel gave him bad advice, which resulted in his rejection of a favorable plea offer and conviction after trial. The Sixth Circuit had held that the defendant's counsel had rendered ineffective assistance in that regard. On appeal to the United States Supreme Court, the State conceded that counsel had rendered ineffective assistance, but the State disputed the defendant's contention that he was prejudiced thereby.
The United States Supreme Court held that the defendant had shown that "but for counsel's deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea" that the defendant had rejected on counsel's bad advice. Id. at 1391 (emphasis added). In support of that holding, the Court cited two pages from the Sixth Circuit's decision where the court stated in relevant part that the defendant's self-serving statement that he would have accepted the plea but for his counsel's bad advice, along with evidence showing that defendant would have benefited from that plea agreement by receiving a shorter sentence than was imposed following trial, was sufficient to prove prejudice.
In sum, two weeks after the instant offense, police arrested then-fifteen-year-old Woods, and he immediately confessed to the robbery. Witnesses, including the victim, agreed that Woods' codefendant was the one who had pushed the victim to the ground, causing the leg fracture. Two months after Woods' arrest, the State extended a plea offer to Zook for Woods to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court's discretion. That plea would have resulted in a maximum possible aggregate sentence of twenty-six years. The undisputed evidence shows that Zook never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, the trial court sentenced Woods to forty-five years with ten years suspended.
We hold that Zook rendered ineffective assistance of counsel when he did not communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods when he was convicted of Class A felony robbery and sentenced to forty-five years. We therefore reverse the post-conviction court's judgment and Woods' conviction. On remand, we instruct the court and the parties to proceed as if Woods has just received the June 23, 2003, plea offer, and he shall have four business days from the certification of this opinion to accept or reject the offer.
Reversed.
MAY, J., dissents with separate opinion.
MAY, Judge, dissenting.
When a petitioner appeals the denial of a petition for post-conviction relief, which is a negative judgment, we may reverse only if that petitioner demonstrates "the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court." Hollowell v. State, 19 N.E.3d 263, 269 (Ind.2014). I do not believe Woods has met that burden and, accordingly, I dissent.
Regarding whether Zook's performance was deficient, the majority holds: "Because the undisputed evidence shows that Zook did not communicate the June 23, 2003, offer to Woods, his performance was deficient." Slip op. at ¶ 15. However, Zook is deceased and Maciejczyk has no memory of the plea negotiation process. Thus, even presuming there was a valid plea offer for Class B Felony robbery,
Woods had the heavy burden of overcoming the "strong presumption that counsel rendered adequate service." Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013). Because I do not believe, based on the record before us, that our standard of review permits us to overturn the post-conviction court's decision, I would affirm it.
However, in Lafler, again, the issue was not whether defense counsel had communicated a plea offer to the defendant, but whether defense counsel's performance was deficient when he gave the defendant bad advice in rejecting the plea offer. In Lafler, the United States Supreme Court held that defendant's self-serving testimony that he would have accepted the plea offer but for defense counsel's bad advice, together with evidence that defendant would have benefited by the plea, was sufficient to prove prejudice. Likewise, here, Woods' testimony that Zook did not extend the plea offer to him, absent any evidence to the contrary, is sufficient to prove prejudice. Indeed, Woods' testimony in support of his post-conviction petition correlates with both his initial confession to police and his theory at trial that he was guilty of Class B, not Class A, felony robbery. Given that consistent position by Woods throughout the pendency of his case, there is no reason to doubt that Woods would have accepted the plea offer had Zook communicated it to him. In short, the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the postconviction court, namely, that Zook did not communicate the plea offer to Woods.
