Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 27 2013, 7:23 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CYNTHIA M. CARTER GREGORY F. ZOELLER
Law Office of Cynthia M. Carter, LLC Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEFFREY BAKER, )
)
Appellant-Petitioner, )
)
vs. ) No. 67A01-1301-PC-1
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Gary Miller, Senior Judge
Cause No. 67C01-0812-FA-276
June 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Jeffrey Baker appeals the denial of his petition for post-conviction relief. We
affirm.
ISSUE
Baker raises two issues, which we consolidate and restate as: whether the post-
conviction court erred in determining that Baker did not receive ineffective assistance of
trial counsel.
FACTS AND PROCEDURAL HISTORY
On the evening of December 5, 2008, a police officer and employees of the
Indiana Department of Child Services (“DCS”) went to Baker’s home to investigate an
allegation that he had molested his then-thirteen-year-old stepdaughter, J.K. Baker
initially allowed them to enter, but upon learning why they were there he became angry,
interrupted their interview with J.K., and told them to leave. The DCS employees and the
officer went outside, and soon other officers arrived. The DCS employees reentered the
house when Baker’s wife arrived home; at that point, Baker went outside with the
officers. While he was outside, J.K. resumed her interview with the DCS employees and
told them that Baker had molested her on at least two occasions.
Next, the officers took Baker to jail. After being Mirandized, he agreed to answer
questions. During a recorded interview, Baker admitted that he had molested J.K. on
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“three or four” occasions. Direct Appeal Tr. p. 9.1 Although admitting to molestation, he
denied that he had ever penetrated J.K.’s vagina. However, when officers told Baker that
J.K. had said that he had penetrated her, Baker then said, “[S]he would know, I
wouldn’t.” PCR Ex. Vol., Petitioner’s Ex. B.
On December 8, 2008, the State charged Baker with two counts of child
molesting, one as a Class A felony and one as a Class C felony. Baker’s attorney began
plea negotiations with the State. The trial court set a cutoff date of April 16, 2009, to
submit plea agreements for the court’s approval. In addition, the court scheduled a trial
for May 13, 2009.
The State initially offered a plea agreement with a thirty-year sentencing cap,
which Baker’s counsel rejected. After further negotiations, the State offered a second
plea agreement with a sentence capped at twenty years in exchange for Baker’s plea of
guilty to the count of child molesting as a Class A felony. Under the circumstances,
counsel thought the offer was “a very good plea.” PCR Tr. p. 11. On April 20, 2009,
counsel sent Baker a letter outlining the proposed deal. Counsel advised Baker that it
would be in his best interest to accept the plea deal, asserting that the victim’s testimony
along with Baker’s own recorded statement would be used against him. He further
informed Baker in the letter that if Baker went to trial and was found guilty, there was the
possibility that the trial court might add additional time to the sentence because there
were separate incidents and the victim was Baker’s stepdaughter.
1
The documents presented in this appeal include documents from Baker’s direct appeal as well as
documents from post-conviction proceedings. We cite to the direct appeal transcript as “Direct Appeal
Tr.” and to the post-conviction hearing transcript and exhibits as “PCR Tr.” and “PCR Ex. Vol.”
3
Next, counsel spoke with Baker to follow up on the letter. Baker rejected the plea
agreement, continuing to assert that he had not committed child molesting as a Class A
felony because he had not penetrated J.K. as the term was defined by statute. After
further discussions on the subject, counsel went to the jail the next day and took along
with him the deputy prosecutor, and they both met with Baker. The deputy prosecutor
“laid out the case he was going to present” at trial. Id. Counsel conceded at the post-
conviction hearing that taking the deputy prosecutor to the jail was an “extraordinary”
step, but he was not “having success” convincing Baker that the plea agreement was a
good deal under the circumstances and wanted Baker “to hear . . . from somebody else”
that the deal “was in his best interest.” Id. at 11, 20.
Baker again rejected the plea deal, and counsel obtained from the trial court an
extension of the plea agreement deadline. However, counsel believed that the extended
deadline was not final because the judge was “one of the few judges that took a plea
during trial.” Id. at 21. On April 23, 2009, the parties appeared for a final pre-trial
conference, and in open court Baker again rejected the plea agreement.
On May 1, 2009, Baker filed a complaint with the Indiana Supreme Court
Disciplinary Commission (“the Commission”) concerning his attorney. The Commission
dismissed the complaint. Baker’s counsel was aware of the complaint and informed the
trial court. Counsel considered withdrawing from the case but concluded that the filing
of the complaint did not give rise to a conflict of interest.
On May 11, 2009, two days before trial, Baker’s attorney took J.K.’s deposition.
Baker was not present. Counsel told the post-conviction court that in general he
4
preferred not to take depositions of alleged child victims because if the child was later
deemed unavailable to testify at trial, the deposition testimony could be admitted without
cross-examination. Counsel further testified he took J.K.’s deposition, again, to “show
Mr. Baker what we [were] up against.” Id. at 34. During the deposition, J.K. stated that
Baker had molested her “to [sic] many that [sic] I can remember.” PCR Ex. Vol.,
Petitioner’s Ex. C, p. 24. She further testified the molestations had started as far back as
2005. Id. at 35. In addition, J.K. said that Baker had penetrated her vagina with his penis
on at least one occasion between November 5 and December 5, 2008. Id. at 22-23.
On May 12, 2009, the day before his jury trial was scheduled to begin, Baker
appeared before the court for a guilty plea hearing, apparently without a written plea
agreement from the State. He admitted that he had committed child molesting as a Class
A felony in exchange for the State’s dismissal of the count of child molesting as a Class
C felony. Direct Appeal Tr., Change of Plea Hearing, p. 8. The court accepted Baker’s
guilty plea and subsequently sentenced him to a forty-year term, with ten of those years
to be served on probation. The court further determined that Baker was a sexually violent
predator and would be required to register as a sex offender upon release from
incarceration.
Next, Baker, by counsel, filed a motion to correct error, challenging his sentence.
The trial court reduced his executed sentence by five years. PCR Tr. p. 25.
Baker obtained new counsel and appealed his sentence, arguing that it was
inappropriate. A panel of this Court affirmed the trial court’s judgment. See Baker v.
State, No. 67A01-0908-CR-425 (Ind. Ct. App. Jan. 22, 2010).
5
Next, Baker filed a petition for post-conviction relief. The court denied Baker’s
petition after an evidentiary hearing, determining that Baker’s trial counsel “did not
provide ineffective assistance.” Appellant’s App. p. 69. This appeal followed.
DISCUSSION AND DECISION
The only issue for our review is whether the post-conviction court erred in
determining that Baker did not receive ineffective assistance of trial counsel. A post-
conviction proceeding is not a substitute for a direct appeal and does not provide a
petitioner with a “super-appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The
post-conviction rules contemplate a narrow remedy for subsequent collateral challenges
to convictions. Id.
Post-conviction proceedings are, by nature, civil proceedings in which the
defendant must establish grounds for relief by a preponderance of the evidence. Wilkes v.
State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative judgment. Id.
On appeal, the petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite to that reached by the post-conviction court.
Kubsch v. State, 934 N.E.2d 1138, 1144 (Ind. 2010).
To prevail on a claim of ineffective assistance of trial counsel, a defendant must
demonstrate that counsel performed deficiently and that the deficiency resulted in
prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). To establish deficient
performance, the defendant must show that counsel’s representation fell below an
objective standard of reasonableness based on prevailing professional norms. Grinstead
6
v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). To establish prejudice, the defendant must
show that there is 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. Counsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this presumption.
Kubsch, 934 N.E.2d at 1147. An inability to establish either deficient performance or
prejudice is fatal to a claim of ineffective assistance. Rowe v. State, 912 N.E.2d 441, 443
(Ind. Ct. App. 2009), aff’d on reh’g, 915 N.E.2d 561 (2009), trans. denied.
Baker argues that his trial counsel provided ineffective assistance by failing to
convey to him the State’s initial offer of a thirty-year maximum sentence. Even if
counsel did not inform Baker of the offer, Baker must still show prejudice in order to
prevail. In order to establish prejudice, Baker must demonstrate: (1) he would have
accepted the plea agreement; and (2) the trial court would have accepted the plea
agreement. See id. at 444. Here, Baker did not testify during the post-conviction hearing
that he would have accepted the thirty-year deal. To the contrary, it is undisputed that the
record shows that Baker repeatedly rejected the State’s second offer of a twenty-year
maximum sentence. Given Baker’s refusal to concede that he committed Class A felony
child molesting until the day before his trial, it is difficult to conclude that Baker would
have accepted the initial offer of a thirty-year maximum sentence while rejecting a
subsequent offer of twenty years. The evidence does not unerringly and unmistakably
establish that Baker was prejudiced by any failure by counsel to convey to him the State’s
initial offer of a thirty-year maximum sentence.
7
Next, Baker asserts that trial counsel provided ineffective assistance by failing to
inform him in a timely manner of the State’s offer of a twenty-year maximum sentence.
He says the offer was not given to him until the day of the deadline for a plea agreement,
and he did not have sufficient time to consider the offer. We cannot agree. Counsel
testified that he obtained an extension from the court for submission of a plea agreement,
and in any event the judge was known to accept plea agreements on the eve of trial, so he
did not consider the deadline binding. Furthermore, Baker had three days, from the date
counsel sent a letter to him on April 20, 2008, until the final pre-trial hearing on April 23,
2008, to consider the State’s offer. During that period, Baker’s counsel followed up with
a personal conversation with Baker and a personal visit along with the deputy prosecutor,
who set forth his entire case before trial. We cannot conclude this amount of time was
insufficient. Baker’s argument on this point amounts to a request to reweigh the
evidence, which we cannot do.
Baker’s next claim is that counsel failed to adequately investigate the case. A
claim of ineffective assistance of counsel based on a failure to investigate requires a
showing of what additional information may have been garnered from further
investigation and how that additional information would have aided in the preparation of
the case. Turner v. State, 974 N.E.2d 575, 585 (Ind. Ct. App. 2012), trans. denied.
Here, Baker argues his counsel should have obtained reports from DCS regarding
J.K.’s allegations. However, he fails to demonstrate how those reports would have aided
in the preparation of his defense. The DCS reports were admitted into evidence at the
post-conviction hearing. One of the reports states that J.K. “disclosed that her step father
8
had sexual intercourse with vaginal penile penetration on at least two occasions” and that
Baker “stated that the allegations were true.” PCR Ex. Vol., Petitioner’s Ex. D. The
report is thus cumulative of the police report and Baker’s recorded interview, and was
even more damaging to Baker because it referred to multiple acts of molestation. There
can be no prejudice from counsel’s failure to review reports that would not have provided
new information or revealed inconsistent witness statements.
Baker further asserts that counsel should have obtained J.K.’s medical records and
taken J.K.’s deposition much earlier in the case, and that without that information
counsel’s advice to accept the State’s offer of a twenty-year maximum sentence was
invalid because it was not well-informed. Again, he has not demonstrated that receiving
the information earlier would have aided in the preparation of the case. His counsel had
access to the police report, which described an interview of J.K. by DCS and an officer.
According to the police report, J.K. set forth, in detail, acts committed by Baker that
formed the basis of the charges against him and other alleged acts of molestation. The
medical records and deposition, which were entered into evidence at the post-conviction
hearing, are cumulative of the police report as well as Baker’s recorded interview.
Furthermore, Baker agreed at the post-conviction hearing that he “would have felt more
comfortable accepting the plea offer” if he had been given access to those documents
earlier, PCR Tr. p. 39, but he did not state that he would have accepted the second offer
of a twenty-year maximum sentence. Baker has not established prejudice.
Baker next claims that he received ineffective assistance of counsel because
counsel had several conflicts of interest. Ineffective assistance of counsel can occur
9
where counsel is burdened by a conflict of interest. Johnson v. State, 948 N.E.2d 331,
334 (Ind. 2011), cert denied, 132 S. Ct. 1575, 182 L. Ed. 2d 194 (2012). A defendant
who did not object at trial must demonstrate that an actual conflict of interest adversely
affected counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708,
64 L. Ed. 2d 333 (1980). Baker did not object to his counsel’s representation during his
guilty plea or sentencing proceedings.
In this case, Baker contends his counsel attempted to coerce him into accepting the
offer of a twenty-year maximum sentence by bringing the deputy prosecutor to the jail to
lay out the case. Baker said he was “intimidated” and “strong armed,” PCR Tr. p. 40, and
he felt that his counsel had taken the State’s side. We disagree. Counsel asked the
deputy prosecutor to come present his case to Baker because counsel believed that the
proposed deal was very good and that it would be helpful for Baker to hear the case
against him from someone else. Based upon the totality of the circumstances, we cannot
say this was an unreasonable strategic decision. Furthermore, Baker’s claim that he was
intimidated is unavailing because he rejected the plea offer prior to and during the
meeting with counsel and the deputy prosecutor, and he did so again three days later in
open court at the final pre-trial hearing. Instead, Baker maintained his position that he
had not committed child molesting as a Class A felony because he had not penetrated the
victim, and he only changed his position after J.K.’s deposition. Baker’s claim of a
conflict is merely a request to reweigh the evidence.
Finally, Baker says his counsel had an actual conflict of interest because Baker
filed a complaint against him with the Commission while the case was pending. Our
10
Supreme Court has stated that filing a disciplinary complaint against counsel is a
“personal conflict of interest” to which the analysis in Cuyler does not apply. Johnson,
948 N.E.2d at 335 n.5. In any event, Baker cannot show prejudice. He refused to accept
the State’s offer of a twenty-year maximum sentence due to his belief that he did not
penetrate J.K., not due to poor advice from counsel. By the time Baker changed his mind
and was willing to admit he was guilty of child molesting as a Class A felony, the State
had withdrawn its offer. Thus, his claim of an actual conflict that adversely affected
counsel’s performance must fail.
CONCLUSION
For the reasons stated above, we affirm the judgment of the post-conviction court.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
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Jeffrey Baker v. State of Indiana
Combined Opinion