FOR PUBLICATION Dec 02 2014, 9:58 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. ANDREW PERKINS GREGORY F. ZOELLER
Peterson Waggoner & Perkins, LLP Attorney General of Indiana
Rochester, Indiana
MARJORIE LAWYER-SMITH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN SOUCY, )
)
Appellant-Petitioner, )
)
vs. ) No. 25A05-1406-PC-276
)
STATE OF INDIANA, )
)
Appellee-Respondent, )
APPEAL FROM THE FULTON CIRCUIT COURT
The Honorable A. Christopher Lee, Judge
Cause No. 25C01-1310-PC-686
December 2, 2014
OPINION – FOR PUBLICATION
BAILEY, Judge
Case Summary
Appellant-Petitioner Kevin C. Soucy appeals the denial of his petition for post-
conviction relief, which challenged his convictions following his pleas of guilty to two
counts of Intimidation, as Class D felonies, for which he received an aggregate sentence
of six years.1 We address the sole dispositive issue: whether Soucy was denied the
effective assistance of counsel when Soucy pled guilty to offenses of which he was
apparently actually innocent. We reverse.
Facts and Procedural History
On April 3, 2012 and April 4, 2012, Soucy placed telephone calls to his mother,
Beverly Stevens (“Stevens”), from the Fulton County Jail in which he was incarcerated.
During those telephone calls, Soucy made threats against Lorna Craig (“Craig”), who had
provided information that assisted police in arresting Soucy for a probation violation.
Soucy repeatedly insisted that Stevens contact Craig to relay the threats; Stevens
repeatedly refused to do so.
On April 23, 2012, the State charged Soucy with two counts of Intimidation,
alleging that he had communicated threats to Craig with the intent that Craig be placed in
fear of retaliation for a prior lawful act. On September 17, 2012, Soucy appeared for a
change of plea hearing. At that hearing, the trial court requested that the State present a
factual basis for the convictions and the State elicited Soucy’s admissions that he had
threatened to kill Craig and burn down her house and had, “over and over,” told Stevens
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Ind. Code § 35-45-2-1(a). This offense is now a Level 6 felony.
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that he wanted her to communicate those threats to Craig. (Guilty Plea Tr. 30.) Soucy
pled guilty and received consecutive sentences of three years each.
On October 29, 2013, Soucy filed a Petition for Post-Conviction Relief. Therein,
he alleged that he was denied fundamental due process and the effective assistance of
counsel because the record did not reveal an adequate factual basis for the Intimidation
convictions. Specifically, the record was devoid of evidence that a threat had been
communicated to Craig. The State conceded this but argued that direct communication
with the victim was not required.
An evidentiary hearing was conducted on February 10, 2014. Soucy testified that
he had believed, at the time of the guilty plea hearing, that his calls to his mother
constituted the crimes of Intimidation. Soucy’s trial counsel testified and denied that she
had ever obtained information during the discovery process suggesting that the threats
had been communicated from Stevens to Craig. She further testified that she lacked
specific recollection as to whether she had advised Soucy on the statutory elements of
Intimidation.
On May 22, 2014, the post-conviction court issued an order denying Soucy’s
petition for post-conviction relief. This appeal ensued.
Discussion and Decision
Indiana Code Section 35-45-2-1(a) provides in relevant part:
A person who communicates a threat to another person, with the intent: …
that the other person be placed in fear of retaliation for a prior lawful act;
… commits intimidation, a Class A misdemeanor.
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The offense is elevated from a Class A misdemeanor to a Level 6 felony (formerly Class
D felony) if the threat is to commit a forcible felony.
Soucy admitted, both at the change of plea hearing and the post-conviction
hearing, that he made verbal threats against Craig and insisted that his mother convey
those threats. However, the recording of the telephone calls reveals that Stevens
consistently refused to comply with Soucy’s demands; the record is devoid of evidence
that these threats were ever conveyed to Craig by any means. Nonetheless, despite
having the assistance of court-appointed counsel, Soucy pled guilty to offenses requiring
communication to the victim.
Soucy had the burden of establishing his grounds for relief by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5). A petitioner appealing from the denial of
post-conviction relief stands in the position of one appealing from a negative judgment.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). Thus, the decision will be disturbed as
being contrary to law only if the evidence is without conflict and leads to but one
conclusion, and the trial court has reached the opposite conclusion. Ben-Yisrayl v. State,
729 N.E.2d 102, 105 (Ind. 2000).
Ineffectiveness of counsel claims are evaluated under the standard of Strickland v.
Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of
counsel, a petitioner must show both deficient performance and resulting prejudice.
Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007). A deficient performance is a
performance which falls below an objective standard of reasonableness and involves
errors so serious that counsel was not functioning as counsel guaranteed by the Sixth
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Amendment. Id. Prejudice exists when a claimant shows “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
A post-conviction claim challenging a conviction pursuant to a guilty plea is
examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two
main types of ineffective assistance of counsel cases: (1) failure to advise the defendant
on an issue that impairs or overlooks a defense, and (2) an incorrect advisement of penal
consequences. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). In order to set aside a
conviction because of an attorney’s failure to raise a defense, a petitioner who has pled
guilty must establish that there is a reasonable probability that he or she would not have
been convicted had he or she gone to trial and used the omitted defense. Segura, 749
N.E.2d at 499 (citing State v. Van Cleave, 674 N.E.2d 1293, 1306 (Ind. 1996)).
In denying Soucy post-conviction relief, the post-conviction court stated that its
decision was based upon the holding in Ajabu v. State, 677 N.E.2d 1035 (Ind. Ct. App.
1997), the decision relied upon by the State at post-conviction proceedings to support its
argument that direct communication was unnecessary to support Intimidation
convictions. In Ajabu, the appellant had been charged with Intimidation after making
threats through media outlets against a prosecutor and the mother of two murder victims.
He moved to dismiss the indictment, contending that “a threat must be communicated
directly to the victim.” Id. at 1042. Dismissal was denied, Ajabu was convicted in a
bench trial, and he appealed, claiming that the evidence was insufficient as a matter of
law due to the lack of direct communication. See id. at 1041.
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The Ajabu panel of this Court concluded that the word “communicate”
encompasses threats “made known or transmitted to another person” and made the
following observation: “Ajabu’s threats were spoken before microphones and televisions
[sic] cameras and communicated through the media to members of the public, including
Nation and Meyer.” Id. at 1042. Ultimately, the Court held:
The evidence supports the conclusion that Ajabu used that media to
communicate threats that he knew or had good reason to believe would
reach Nation and Meyer, with intent to influence Nation’s conduct as a law
enforcement officer against his will and to place Meyer in fear of retaliation
for having supported Nation’s death penalty request. This was intimidation
under our statute.
Id. at 1043. Mindful that the terms of a criminal statute are to be strictly construed
against the State and “only those cases which are clearly within its meaning and intention
can be brought within the statute,” id. at 1042, we conclude that the post-conviction
court’s construction of Ajabu is overly broad. Although direct communication to the
intended victim is not required under the Intimidation statute, communication such as to
influence conduct or place a person in fear of retaliation is required. Here, because
Stevens refused to repeat the threats, there was no further dissemination of the threats so
as to influence or impact Craig.
On appeal, the State concedes that Ajabu is inapposite, but argues that testimony
presented at the change of plea hearing “indicates a clear intent on [Soucy’s] part for the
threats to be communicated to Craig, and he had good reason to believe that [t]he threats
would be conveyed to her.” (Appellee’s Brief at 12.) However, the statutory subsection
under which Soucy was charged requires communication of a threat to another person
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with “intent that the other person be placed in fear,” as opposed to “intent that the threat
be communicated.” See I.C. § 35-45-2-1(a).
In short, Soucy has shown a reasonable probability that he would have prevailed at
trial. Counsel’s failure to advise him on an overlooked defense of actual innocence
constitutes ineffective assistance of counsel.
Conclusion
Soucy is entitled to post-conviction relief on grounds of ineffective assistance of
counsel.
Reversed.
NAJAM, J., and PYLE, J., concur.
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