Brightman v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

John F. Crawford                  Steve Carter
Indianapolis, Indiana             Attorney General of Indiana

                                        Eileen Euzen
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



PAUL BRIGHTMAN,                   )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 49S00-0010-CR-584
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Gary L. Miller, Judge
                       Cause No. 49G05-9801-CF-013515



                              November 15, 2001

SHEPARD, Chief Justice.


      Appellant Paul L. Brightman  pled  guilty  to  two  counts  of  murder
pursuant to a plea agreement.  In exchange for his  plea  and  agreement  to
testify  in  the  trial  of  Sean  Rich,  the  State  dismissed  Brightman’s
remaining charges (including two other murder counts,  nine  felony  counts,
and a misdemeanor).


      In this direct appeal, Brightman challenges the trial  court’s  denial
of his motion to withdraw his guilty plea, and  the  denial  of  his  motion
seeking to prevent the State from opposing his withdrawal.





                        Facts and Procedural History


      On January 28, 1998, the State charged Brightman with four  counts  of
murder, one count of burglary, two  counts  of  confinement,  one  count  of
arson, two counts of battery, one count of theft, and one count  of  cruelty
to an animal.  The court appointed public defender Mark Inman  to  represent
him.

      These charges resulted from Brightman’s conduct on December 15,  1996,
when he and Sean Rich broke into the Indianapolis home of Rev. C.  Frederick
Mathias and his wife Cleta to steal  property.   After  entering  the  home,
Brightman  “kicked  and  killed  the  Mathias  cat.”  (R.  at  236-37.)   As
Brightman and Rich ransacked the home,  the  Mathiases  arrived.   Brightman
struck each of the Mathiases in the head with a gun,  went  to  the  garage,
found an ax and carried it back inside  the  home.   Rich  then  killed  the
Mathiases by striking them both in the head with the  ax.   Rich  started  a
fire to destroy the evidence and took  a  hundred  dollars  from  the  home.
Brightman took a pocketknife.

      Five days after Brightman’s trial commenced, he  pled  guilty  to  two
counts of murder. The plea agreement provided that Brightman would  “testify
truthfully at any and all proceedings in State v. Sean Rich,” and  that  the
State would forego prosecution  of  the  other  ten  charges  and  recommend
concurrent sentences of sixty-five years for the two murder counts.  (R.  at
171-72, 220, 223.)


      Judge Gary Miller ascertained whether Brightman understood the  effect
of his plea by asking him several  questions  about  the  plea,  Brightman’s
rights, and his satisfaction with his attorney’s  performance.   He  invited
Brightman  to  ask  for  further  explanation  about  anything  he  did  not
understand.


      Brightman’s answers revealed that he understood each  charge  and  the
range of potential sentences that could be imposed.   He  also  acknowledged
comprehending the rights that he waived by pleading  guilty.   He  said  the
plea agreement had been read to him, that he had asked his lawyer  questions
about it, and understood it.


      Brightman confirmed that the factual  basis  for  the  plea  agreement
presented by the State was substantially  correct  and  that  he  wished  to
plead guilty.  Judge Miller accepted Brightman’s guilty plea,  saying,  “The
Court finds that you are nineteen (19) years  old,  you  do  understand  the
charges that you  are  pleading  guilty  to,  you  understand  the  possible
sentence that could be imposed upon  conviction.  Your  plea  of  guilty  is
being made freely and voluntarily and a factual basis does  exist  for  it.”
(R. at 238.)  The court deferred sentencing until after Rich’s trial.


      Brightman testified at Rich’s trial during February  1999.   The  jury
found Rich guilty on four counts and hung  on  seven  others.   In  December
1999, Brightman gave a deposition in which he recanted his prior  deposition
and trial testimony regarding his involvement or knowledge  of  the  Mathias
murders.    Consequently, on February 29,  2000,  the  State  moved  to  set
aside Brightman’s plea because he failed to testify truthfully in  the  Rich
proceedings.


      On the same day, Brightman, now represented by attorney Jack Crawford,
moved to withdraw his guilty plea.  He asserted then, as he does here,  that
he is innocent, that his guilty plea was involuntary, and that  his  counsel
was  ineffective.     Brightman  also  sought  to  prevent  the  State  from
opposing his motion to withdraw his plea, inasmuch as the State  was  itself
seeking to set it aside.

       The  court  denied  the  State’s  motion  and  Brightman’s   motions.
Following the plea agreement, the court sentenced  Brightman  to  concurrent
sentences of sixty-five years.


                        I. Withdrawing a Guilty Plea

      Brightman first argues that the trial court abused its discretion when
it  denied  his  motion  to  withdraw  his  plea.   He  says  his  plea  was
involuntary[1] and his counsel was ineffective.    In  response,  the  State
argues that  Brightman  cannot  challenge  the  voluntariness  of  his  plea
because he pled guilty.


      We first address the State’s  claim  that  Brightman  is  barred  from
presenting this issue on direct appeal under Tumulty v.  State,  666  N.E.2d
394 (Ind. 1996).  In Tumulty, we held  that  once  judgment  is  entered,  a
defendant may not subsequently challenge his guilty plea on  direct  appeal.
Id. at 395-96.  The  correct  avenue  for  such  claims  is  post-conviction
relief.  Id. at 396.


      The present case differs from Tumulty in a significant way.  Brightman
sought to withdraw his guilty plea prior to sentencing.   In  response,  the
trial court heard evidence on the motion, reviewed the claim,  and  rejected
it.


      Indiana Code § 35-35-1-4(b) governs motions to withdraw guilty  pleas.
After a defendant  pleads  guilty  but  before  a  sentence  is  imposed,  a
defendant may motion to withdraw a plea of  guilty.   Id.   The  court  must
allow a defendant to withdraw a guilty  plea  if  “necessary  to  correct  a
manifest injustice.”[2]  Id.


      By contrast, the court must deny the motion if withdrawal of the  plea
would “substantially prejudice[]” the State.[3]  Id.  In  all  other  cases,
the court may grant the defendant’s motion to withdraw a  guilty  plea  “for
any fair and just reason.”  Id.


      A trial court’s ruling on a motion to withdraw a guilty plea  “arrives
in this Court with a presumption in favor of the ruling.”  Coomer v.  State,
652 N.E.2d 60, 62 (Ind. 1995).  We will reverse the trial court only for  an
abuse of discretion.  Id.  In determining whether a trial court  has  abused
its discretion in denying a motion to withdraw a  guilty  plea,  we  examine
the statements made by the defendant at his guilty plea  hearing  to  decide
whether his plea was offered “freely and knowingly.”  Id.


      Voluntariness of the Plea.  Judge Gary Miller began the  plea  hearing
by questioning whether Brightman wanted to plead guilty, as his  lawyer  had
indicated.  Brightman responded affirmatively.   The  judge  then  explained
that he was  going  to  ask  Brightman  several  questions  about  the  plea
agreement and his rights.  The judge said,  “If  you  don’t  understand  the
questions I ask, please stop me and we will go over them;  okay?”     R.  at
224.  Brightman again answered positively.

      Further  dialogue  between  the  court  and  Brightman  revealed  that
Brightman understood that he did not have to plead  guilty  to  any  of  the
State’s charges and had enough time to  speak  to  a  lawyer.   (Id.)   When
questioned, Brightman explained that he had  a  ninth  grade  education,  is
able to read, but does not comprehend  everything.[4]   (R.  at  225.)   The
judge then confirmed with Brightman’s attorney that he had read the  charges
to his client.  (Id.)


      Judge Miller next read both murder  counts  contained  in  Brightman’s
plea agreement.  (Id.)  Brightman asserted that he thought the first  murder
count charged “felony murder and not the  regular  murder.”   (R.  at  226.)
Judge Miller clarified that the first count does charge  felony  murder  and
explained, “Felony murder occurs when during  the  commission  of  a  felony
someone is killed.  (Id.)  And that’s the description  of  that  charge;  do
you understand that charge?”  (Id.)  After  conferring  with  his  attorney,
Brightman said he understood.  (Id.)

      Before discussing the possible penalty for each of the murder  counts,
the judge again asked Brightman if he understood his charges.  (R. at  227.)
 Brightman responded, “Yes, sir.”  (Id.)   The judge also explained  that  a
guilty plea waives certain rights including his constitutional rights  to  a
public and speedy trial by  jury  and  to  personally  confront  and  cross-
examine witnesses presented against him.  (R. at 228-29.)   The  judge  then
asked Brightman, “And, finally do  you  understand  by  pleading  guilty  to
these two (2) charges you are  admitting  you’ve  committed  the  crimes  of
murder . . . that I read to you a couple of  minutes  ago?”   (R.  at  229.)
Brightman answered, “Yes, sir.”  (Id.)

       Judge  Miller  next  reviewed  Brightman’s  plea   agreement,   which
Brightman previously  discussed  with  his  attorney  and  his  mother.   He
questioned whether Brightman had read the entire  agreement  before  signing
it.  Brightman replied, “It was read to me.  I read most of  it  just  so  I
understood it.  If I had questions during it I asked [Inman].”  R.  at  231.
The following exchange also occurred:
      THE COURT:  Do you believe your  plea  of  guilty  to  these  two  (2)
                       charges is being made freely and voluntarily?
      DEFENDANT:       I don’t understand the question, sir.
      THE COURT:       Well, has anybody forced you or threatened you to get
                       you to plead guilty?
      DEFENDANT:       No, sir.
      THE COURT:       Did anybody promise you anything to get you to  plead
                       guilty other than what is contained in  this  written
                       plea agreement?
      DEFENDANT:       No, sir.
      THE COURT:       Are you doing this on your own free will?
      DEFENDANT:       Yes, sir.
      THE COURT:       Are you satisfied with the services of Mr.  Inman  in
                       this case?
      DEFENDANT:       Yes, sir.
      THE COURT:       Can you think of anything that he hasn’t done for you
                       that you think he should have done?
      DEFENDANT:       Gag order but that’s nothing.


(R. at 232-33.)

      After the prosecutor read the factual basis for the plea, (R. at  233-
37), the judge asked Brightman whether he  heard  what  the  prosecutor  had
said and whether  the  facts  were  substantially  correct.   (R.  at  237.)
Brightman answered each question by saying, “Yes,  sir.”   (Id.)   Brightman
also confirmed that he “still wish[ed]  to  plead  guilty”  to  both  murder
counts.  (R. at 238.)  The trial court  accepted  his  guilty  plea.   About
seven months later Brightman moved to withdraw the plea.[5]


      These  hearing  statements  adequately  demonstrate   that   Brightman
voluntarily and knowingly pled guilty.


      Before denying Brightman’s withdrawal motion, Judge Miller  considered
Brightman’s  statements  from  the  guilty  plea  hearing  as  well  as  his
assertions  at  the  hearing  on  his  request  to  withdraw.    The   judge
explained:
      I have had the opportunity to observe Mr. Brightman give a  number  of
      statements, the television interviews, the interviews with the Sheriff
      . . . I saw his testimony in the Sean Rich trial.  I heard him discuss
      his involvement at the guilty plea.  I’ve  also  seen  the  deposition
      given afterwards in which he denies his involvement, as  well  as  his
      testimony at [this] hearing.  I find that . . . his testimony  in  the
      matters before us today . . . is not credible . . . .


(R. at 354-55.)  Having reviewed these  same  materials,  we  are  satisfied
that the trial court did not abuse its  discretion  in  denying  Brightman’s
request to withdraw his guilty plea.

      Effective Assistance of Counsel.  Brightman also contends  his  lawyer
was ineffective within the meaning of Strickland  v.  Washington,  466  U.S.
668 (1984).   Brightman  claims  his  lawyer  would  not  render  assistance
because he believed Brightman was guilty, forced him to lie, and  failed  to
adequately communicate with him throughout the course of representation.

      To  prevail  on  an  ineffective  assistance  of  counsel  claim,  the
defendant must show both  deficient  performance  and  resulting  prejudice.
Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999).   Deficient  performance
is performance that falls below an  objective  standard  of  reasonableness.
Strickland, 466 U.S. at 687.   Prejudice  exists  when  a  defendants  shows
“there  is  a  reasonable  probability  [i.e.,  probability  sufficient   to
undermine confidence in the outcome] that, but for counsel’s  unprofessional
errors, the result of the proceeding would have  been  different.”   Id.  at
694.

      Counsel  is  presumed  competent,  and  whether  a  lawyer   performed
reasonably under the circumstances is determined by examining the  whole  of
the lawyer’s work on a case.  Id. at 690.
A defendant must offer  strong  and  convincing  evidence  to  overcome  the
presumption  that  counsel  prepared  and  executed  an  effective  defense.
Burris v. State, 558 N.E.2d 1067, 1072 (Ind. 1990), cert. denied,  516  U.S.
922 (1995).

      Brightman  first  asserts  that  his  counsel  would  not  render  him
assistance because  his  counsel  believed  Brightman  was  guilty.[6]   The
record reveals that after Brightman made several  incriminating  statements,
his attorney sought to suppress them.     After a suppression  hearing,  the
court denied the motion, and Brightman’s attorney prepared for  trial.   The
record further reveals that Brightman’s attorney  participated  in  numerous
pre-trial hearings, participated  in  voir  dire,  used  several  peremptory
challenges to remove potential  jurors,  offered  an  opening  statement  at
trial, and participated in  five  days  of  trial.   Only  after  the  State
presented its  evidence  –  including  the  admission  of  the  three  taped
confessions  to  television  stations,  numerous  taped  statements  to  the
police, and the deposition of Brightman’s girlfriend who stated he  admitted
to the crimes – did Brightman withdraw his not guilty plea and enter into  a
plea agreement with the  State.   Brightman  has  not  presented  sufficient
evidence to overcome the presumption that counsel performed competently.

      Brightman next claims that his counsel forced him to  lie.[7]    In  a
hearing on his motion to withdraw his guilty  plea,  Brightman  asserted  he
was innocent and claimed his counsel told his mother, “He’s  going  to  have
to take the plea bargain or he’s going to  get  the  rest  of  his  life  in
prison.  I’m not going to do anything for him.”   Brightman’s  attorney  was
appointed on January 29, 1998, and  the  two  met  for  the  first  time  on
February 10, 1998.  Before the appointment, Brightman had given three  taped
confessions to  the  police,  and  three  videotaped  confessions  to  local
television  reporters.   Judge  Miller  was  warranted  in  concluding  that
Brightman’s attorney did not prompt Brightman to  lie  before  ever  meeting
him.

      Looking at the whole of counsel’s performance, Brightman’s lawyer  had
to confront the  fact  that  his  client  had  given  over  eight  hours  of
inculpatory interviews on videotape, that Brightman  had  confessed  to  the
murders during interviews to three television stations, and that  the  State
had sixty witnesses on its list for trial.  In the face of this  significant
evidence, Brightman’s counsel negotiated an  agreement  that  called  for  a
plea to two of twelve felony charges, dismissal of the rest,  and  a  sixty-
five year concurrent sentence for the heinous murders of a minister and  his
wife.

      We find the previously quoted remarks of Judge  Miller,  (R.  at  354-
55), in ruling on Brightman’s motion  to  withdraw  his  guilty  plea,  very
relevant.  Judge Miller  made  clear  that  he  found  Brightman’s  repeated
admissions  of  guilt  credible  and  his  later  assertion   of   innocence
incredible.  With regard to Brightman’s counsel’s performance,  he  went  on
to say:  “Mr. Inman’s representation was way  above  the  minimum  that  our
Supreme Court, both at the state and federal  levels,  require  for  meeting
the constitutional definition of effective  legal  assistance  of  counsel.”
(R. at 355-56.)

      Brightman has not persuaded us that  his  counsel’s  performance  fell
below an objective  standard  of  reasonableness.   Accordingly,  he  cannot
succeed on his claim that he received constitutionally deficient  assistance
of counsel.



                              Judicial Estoppel



      Brightman also appeals the trial  court’s  denial  of  his  motion  to
prevent the State’s presentation of evidence in opposition to his motion  to
withdraw his plea.  (Appellant’s Br.  at  13.)   Brightman  says  the  State
should be estopped because the State “sought the same remedy in  its  motion
to set aside the plea.”  (Id.)

      As the Court of Appeals correctly explained  in  Shewmaker  v.  Etter,
644 N.E.2d 922 (Ind. Ct. App. 1994), aff’d sub nom., Hammes v. Brumley,  659
N.E.2d  1021  (Ind.  1995),  “[j]udicial  estoppel  prevents  a  party  from
assuming a position in a legal proceeding inconsistent with  one  previously
asserted.”  Id. at 931.  The doctrine seeks to  “protect  the  integrity  of
the judicial  process  rather  than  to  protect  litigants  from  allegedly
improper conduct by their adversaries.”  Wabash Grain, Inc.  v.  Smith,  700
N.E.2d 234, 238 (Ind. Ct. App. 1998) (citing 31 C.J.S. Estoppel  and  Waiver
§ 139(b) (1996)).

      The State sought to set aside Brightman’s guilty plea  based  upon  an
assertion that Brightman “substantially breached  the  plea  agreement  made
between him and the State.”  (R.  at  194.)   Essentially,  the  remedy  the
State sought for the alleged breach  was  a  rescission  of  the  agreement,
“restoring the parties to  their  precontractual  positions.”   Black’s  Law
Dictionary 1308 (7th ed. 1999); (R. at 193-94).  Brightman’s  precontractual
position was that of a defendant having a plea of not guilty.

      The State’s opposition to Brightman’s motion to  withdraw  his  guilty
plea addressed Brightman’s challenge to the validity of the plea  agreement.
(R. at 348-54.)  The State asserted that Brightman voluntarily  entered  the
agreement and that it was factually based.  (Id.)


      The State’s opposition to  Brightman’s  motion  to  withdraw  was  not
contrary the State’s position with regard to its own  motion  to  set  aside
the guilty  plea.   In  fact,  consistency  required  the  State  to  oppose
Brightman’s motion in order to support its position that there was  a  valid
agreement and Brightman breached it.


      Moreover, even if the State’s position was contrary  to  its  previous
one, judicial estoppel would apply only  if  the  court  had  acted  on  the
state’s prior request.  See Shewmaker, 644 N.E.2d  at  931.    At  the  time
that the State sought to oppose Brightman’s  withdrawal  motion,  the  court
had not yet ruled on the State’s  motion  to  set  aside  the  guilty  plea.
Therefore, the trial court properly denied Brightman’s motion for estoppel.









                                 Conclusion


      We affirm the judgment of the trial court.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Brightman contends that  his  plea  was  “involuntary  because  he  felt
‘trapped’ and abandoned by his trial counsel.” (Appellant’s Br. at 12.)   He
also claims that his plea was not knowing or intelligent because he did  not
have any “meaningful interaction with his attorney  prior  to  entering  the
plea.”  (Id.)
[2] Brightman does not claim the existence of a manifest injustice.
[3] The State does not assert that it  relied  on  Brightman’s  guilty  plea
such that its withdrawal would have been substantially prejudicial.
[4] Brightman suffered from dyslexia.  (R. at 331).
[5] The trial court accepted Brightman’s plea on January 25, 1999.   (R.  at
221.)  Brightman moved to withdraw his plea on September 6,  1999.   (R.  at
277, Def. Exh. A.)
[6] The following exchange occurred during  cross-examination  of  Brightman
by the State:

      Q:    You indicated that when you pled guilty on January 25, 1999, you
           pled guilty because you were trapped.  You  indicated  that  Mr.
           Inman said he was never going to do anything to help you because
           you were guilty; is that correct?
      A:    Yes, ma’am.
      Q:    Your statement to this  Court  is  that  that  was  Mr.  Inman’s
           position from the very first time you ever met with him; is that
           correct?
      A:    Yes, ma’am.

(R. at 257-58.)
[7] The following dialogue occurred at the hearing:

      Q:    Okay.  Are you telling the Court that you  told  both  of  those
           people, “My lawyer – I’ve told my lawyer I’m going to lie.   I’m
           innocent, but I’ve told my lawyer  I’m  innocent  and  he  says,
           ‘You’re guilty;  I won’t help and  you’ve  got  to  lie  to  the
           Court’”?  Did you tell your mother and your minister that?
      A:    Yes, I did.

(R. at 263.)