MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jul 30 2015, 5:43 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 ATTORNEYS FOR APPELLEE
Mark W. Rutherford Gregory F. Zoeller
Thrasher Buschmann & Voelkel, P.C. Attorney General of Indiana
Indianapolis, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Farris, July 30, 2015
Appellant-Petitioner, Court of Appeals Case No.
67A04-1411-CR-533
v. Appeal from the Putnam Circuit
Court.
The Honorable Jeffrey V. Boles,
State of Indiana, Special Judge.
Appellee-Respondent. Cause No. 67C01-0411-FA-120
Garrard, Senior Judge
[1] Jeremy Farris appeals the post-conviction court’s denial of his motion for
partial summary disposition. We affirm.
[2] In August 2005, a jury determined that Farris was guilty of murder, a felony;
battery on a child causing death, a Class A felony; dealing in
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methamphetamine, a class B felony; possession of methamphetamine, a class D
felony; possession of marijuana, a class A misdemeanor; and possession of
paraphernalia, a class A misdemeanor. The State had presented evidence
including testimony from Manuwell Ross, who had been incarcerated with
Farris after Farris’s arrest. Ross described for the jury several incriminating
statements by Farris. Ross also testified that the State had not offered him any
leniency in exchange for his testimony against Farris. Within a month of
testifying against Farris, the State dismissed two criminal cases against Ross
and a petition to revoke Ross’s probation in a third case.
[3] Farris appealed his convictions. In a memorandum decision, the Court
affirmed in part the trial court’s judgment but remanded with instructions to
vacate the convictions of possession of methamphetamine and battery on a
child causing death. Next, Farris filed with the Court a petition for rehearing.
The Court granted rehearing but did not change the memorandum decision.
[4] Next, Farris filed a petition for post-conviction relief. He alleged ineffective
assistance of trial counsel. He also raised a claim of newly discovered evidence.
Specifically, Farris claimed he had discovered that the State had dismissed two
cases against Ross and a petition to revoke Ross’s probation, and that the
dismissals were proof of a deal between the State and Ross that should have
been disclosed at trial.
[5] Farris filed a motion for partial disposition, accompanied by a designation of
evidence and memorandum of law. He argued, among other claims, that he
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was entitled to summary disposition of his claim of newly discovered evidence.
The State filed a response, and the post-conviction court denied Farris’s motion.
[6] The post-conviction court held an evidentiary hearing on Farris’s petition for
post-conviction relief. After the hearing, the post-conviction court issued
1
findings of fact and conclusions thereon, denying Farris’s petition. This appeal
followed.
[7] Farris claims that the post-conviction court should have granted his motion for
partial summary disposition because he demonstrated that Ross made a deal
with the State for his testimony against Farris. He concludes that the deal is
newly discovered evidence that requires a new trial.
[8] The State argues that Farris’s claim is moot because the post-conviction court
issued a final judgment after denying his motion for partial summary
disposition. We disagree with the State and address Farris’s claim. See Kindred
v. State, 674 N.E.2d 570, 576 (Ind. Ct. App. 1996) (addressing the denial of
petitioner’s motion for partial summary disposition even though the post-
conviction court also issued a final judgment on the petition for post-conviction
relief), trans. denied.
1
Farris did not include the final judgment in his Appellant’s Appendix. Instead, he merely attached the final
judgment to his Notice of Appeal. Although he purports to appeal the denial of his motion for partial
summary disposition rather than the final judgment, we remind Farris that the Appellant’s Appendix should
contain “parts of the record on appeal that are necessary for the Court to decide the issues presented.” Ind.
Appellate Rule 50(A)(1).
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[9] Indiana Post-Conviction Rule 1(4)(g) provides, in relevant part:
The court may grant a motion by either party for summary
disposition of the petition when it appears from the pleadings,
depositions, answers to interrogatories, admissions, stipulations
of fact, and any affidavits submitted, that there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
[10] This appeal turns on whether Farris proved the absence of a genuine issue of
material fact as to the existence of a leniency agreement between Ross and the
State at the time of Farris’s trial. A prosecutor has a duty to disclose to the jury
“a confirmed promise of leniency in exchange for testimony.” Rubalcada v.
State, 731 N.E.2d 1015, 1024 (Ind. 2000). When a witness hopes for leniency in
exchange for testimony, and the State neither confirms nor denies that hope,
there is no concrete agreement requiring disclosure. Id. Preliminary
discussions are not matters which are subject to mandatory disclosure. Seketa v.
State, 817 N.E.2d 690, 694 (Ind. Ct. App. 2004).
[11] In this case, the evidence presented to the post-conviction court on summary
disposition was as follows. Ross was released from jail to home detention on or
shortly after the day he told the sheriff about Farris’s incriminating statements.
At that time, Ross had two misdemeanor criminal cases pending against him,
as well as a petition to revoke probation in a third case. In all three cases, Ross
and the State jointly filed status reports with the court indicating that they were
discussing plea agreements.
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[12] Farris’s case proceeded to trial. Ross testified that he did not have any deal
with the State for leniency. The jury returned its verdict in August 2005. In
September 2005, the State dismissed the two pending cases against Ross and the
petition to revoke Ross’s probation. The State denied the existence of any
leniency agreement with Ross in its post-conviction discovery responses.
[13] This evidence does not establish the absence of a genuine issue of material fact
as to the existence of a leniency agreement at the time of Farris’s trial. Ross’s
release to home detention may not necessarily have been related to informing
on Farris, and it was Farris’s burden to establish a link. The plea negotiations
between Ross and the State while his cases were pending appear to have been
preliminary discussions rather than confirmed promises. Finally, the mere
dismissal of Ross’s pending cases after testifying against Farris is insufficient to
indisputably establish the existence of a leniency agreement, and the State
denied the existence of such an agreement. See Lambert v. State, 743 N.E.2d
719, 749 (Ind. 2001) (insufficient proof of a leniency agreement where a witness
was released from prison on a sentence modification approved by the State six
days after testifying against the defendant).
[14] In Rubalcada, our supreme court ruled that
When a witness hopes for leniency in exchange for his testimony
and the State neither confirms nor denies that hope, there is no
concrete agreement requiring disclosure. The witness’s
expectations, coupled with evidence of a deal after the in-court
testimony of the witness, are insufficient to require that a
disclosure be made.
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731 N.E.2d at 1024 (citations omitted).
[15] Thus, as a matter of law, Farris’s evidence fails to disclose the existence of a
leniency agreement that was required to be disclosed at his trial. Therefore,
partial summary disposition was properly denied. For the same reason, Farris’s
claim of newly discovered evidence fails because the evidence would have no
likelihood of changing the result at trial.
[16] For the reasons stated above, we affirm the trial court’s judgment.
[17] Affirmed.
Baker, J., and Crone, J., concur.
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