MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 13 2015, 9:45 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jeffrey D. Stonebraker Gregory F. Zoeller
Clark County Chief Public Defender Attorney General of Indiana
Jeffersonville, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeannie M. Hess, February 13,2015
Appellant-Defendant, Court of Appeals Case No.
10A05-1407-CR-317
v. Appeal from the Clark Circuit Court
The Honorable Vicki L. Carmichael
Cause No. 10C04-1110-FC-210
State of Indiana,
Appellee-Plaintiff
Bailey, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 1 of 5
[1] Jeannie M. Hess (“Hess”) challenges her adjudication as a habitual offender, 1
presenting the sole issue of whether she was denied the effective assistance of
counsel during the habitual offender phase of her trial for burglary. We affirm.
Facts and Procedural History
[2] On February 26, 2014, a jury convicted Hess of Burglary, as a Class C felony.2
Immediately after the verdict was returned, the jury reconvened for the habitual
offender phase of the proceedings.3 The prosecutor and defense counsel made
brief opening statements. The prosecutor then addressed the jury and proffered
certain exhibits for the jury’s consideration. Defense counsel declined to make
a closing statement, and the trial court remanded the jury to the jury room to
conduct deliberations.
[3] In a sidebar conference,4 the prosecutor indicated he was unsure if he had made
a formal motion to admit the exhibits that had been provided to the jury. The
1
Ind. Code § 35-50-2-8.
2
Ind. Code § 35-43-2-1. Burglary is now classified as a Level 1, 2, 3, 4, or 5 felony. We refer to the version
of the statute in effect at the time of Hess’s offense.
3
Hess was not present at this time to assist in her defense. Hess left during jury deliberations on the
underlying charge, and her counsel reported to the trial court that he had been unable to communicate with
her by cell phone or text.
4
It is unclear whether the jury was still in the courtroom. The transcript includes the following information
as to the sequence of events:
Court: you are now remanded to the jury room for your deliberations on this phase of the trial.
JURY RETIRES TO DELIBERATE
Prosecutor: Judge, may we approach before? (emphasis added)
Court: Yes, please do.
Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 2 of 5
trial court, with no objection from defense counsel, stated: “we will show that
those Exhibits are admitted.” (Tr. 212.)
[4] Hess was found to be a habitual offender. On June 9, 2014, Hess was
sentenced to eight years for the burglary conviction, to be enhanced by six years
due to her status as a habitual offender. This appeal ensued.
Discussion and Decision
[5] Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
SIDEBAR
(Tr. 212.)
Court of Appeals of Indiana | Memorandum Decision 10A05-1407-CR-317 |February 13, 2015 Page 3 of 5
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Id.
[6] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[7] Hess contends that her trial counsel was ineffective for failing to make a closing
statement or lodge an objection when exhibits were presented to the jury
without explicit admission into evidence. In essence, she claims that defense
counsel failed to correct the prosecutor’s oversight and did nothing to defend
her against the habitual offender allegation.
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[8] Certainly, it would have been procedurally preferable for defense counsel to
have insisted upon documents being withheld from the jury until formally
admitted into evidence. However, Hess does not claim that she had a viable
defense to the habitual offender allegation that her counsel failed to pursue.
She does not claim to be a victim of misidentification. She does not claim that
she lacks predicate felony convictions to support the habitual offender
adjudication. Although defense counsel stood silent in the habitual offender
proceedings after the opening statement, Hess was not prejudiced by the
silence.
[9] Affirmed.
Robb, J., and Brown, J., concur.
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