Johnson v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

N. Sean Harshey                   Karen M. Freeman-Wilson
Indianapolis, Indiana             Attorney General of Indiana

                                        Eileen Euzen
                                        Deputy Attorney General
                                        Indianapolis, Indiana




                                   IN THE

                          SUPREME COURT OF INDIANA



RAINIER L. JOHNSON,                     )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          ) Cause No. 49S00-9910-CR-613
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )








                    APPEAL FROM THE MARION SUPERIOR COURT
                  The Honorable Jane Magnus-Stinson, Judge
                       Cause No. 49G06-9711-CF-168333



                               August 29, 2000

SHEPARD, Chief Justice.


      Appellant Rainier Johnson pled  guilty  while  he  was  on  trial  for
murder.  He changed lawyers before sentencing  and  asked  to  withdraw  his
plea.  The trial court refused to let him do  so  and  proceeded  to  impose
sentence.

      Besides challenging these decisions, Johnson also seeks to claim  that
his first lawyer provided ineffective  representation,  notwithstanding  the
rule that one who pleads guilty cannot seek to set aside the plea on  direct
appeal.  As with other  kinds  of  contentions  concerning  pleas,  we  hold
Johnson’s claim should be heard  through  post-conviction  relief.   In  the
end, we affirm.


                                    Facts

      Johnson confessed to police that on September 25, 1997, he went to the
home of his boyfriend, Fred Raymundo.  Raymundo  offered  Johnson  fellatio,
but Johnson said he “just wasn’t in  the  mood.”   (R.  at  338.)   Raymundo
mocked Johnson until Johnson “just couldn’t help [him]self and  .  .  .  hit
Fred.”  (Id.)  After Johnson knocked Raymundo to the ground, he “choked  him
for about [five] minutes.”  (Id.)  Raymundo  did  not  get  up,  so  Johnson
moved him to the garage and went  home  to  watch  television.     The  next
morning, Johnson went back to the garage,  collected  Raymundo,  and  buried
him in a cornfield.  Then he “went back home and relaxed for a while.”   (R.
at 338.)


      Johnson took Raymundo’s car  and  drove  to  Raymundo’s  apartment  in
Denver, Colorado.  There, he took some of Raymundo’s possessions,  including
a television.  Using credit cards either owned solely  by  or  jointly  with
Raymundo,  Johnson  charged  expensive  purchases  including  furniture  for
Johnson’s girlfriend/fiancée’s apartment.  When Raymundo’s  mother  returned
from a trip, Johnson lied to her about Raymundo’s whereabouts.


      On November 11th, Johnson confessed to the killing and took police  to
the cornfield where he  buried  Raymundo.   The  following  day,  the  State
charged Johnson with murder.  The  prosecutor  eventually  added  five  more
counts,  including  criminal  deviate  conduct,   confinement,   and   child
molesting.


      The police later questioned Mike Myers, who  was  present  during  the
killing and helped Johnson move and bury the body.    The  record  indicates
Myers would have testified that Johnson choked Raymundo, put a  plastic  bag
over his head and pushed his head under water in a bathtub  to  be  sure  he
was dead.[1]  Myers pled guilty to conspiracy to commit murder.


      By contrast, Johnson proceeded to trial on the murder charge.  On  the
first day, Johnson decided to plead guilty  to  murder  in  return  for  the
State’s agreement to dismiss all other counts.


      By the time of  his  sentencing  hearing,  Johnson  had  obtained  his
present lawyer.  He sought to withdraw his plea of guilty.  At that  hearing
Johnson again largely admitted the above  actions,  but  he  denied  choking
Raymundo, saying, “I did not squeeze Fred’s neck at all. . . . It  was  sort
of a grip I had just to hold him down.”  (R. at 326.)  He  also  refused  to
admit to sexually molesting Myers.  Johnson said that  the  only  reason  he
pled guilty was that he felt his former counsel pressured  him.   The  Court
denied Johnson’s motion to withdraw his plea, and sentenced  him  to  sixty-
five years.


                        I.  Withdrawal of Guilty Plea

      Johnson claims that manifest injustice resulted from the trial court’s
failure to permit him to withdraw his guilty  plea.    Beyond  claiming  his
counsel pressured him, he  says  the  court  did  not  accurately  ascertain
whether there was an adequate factual basis  for  the  plea,  and  that  the
physical evidence does not contradict Johnson’s version  of  the  events  of
the killing.[2]


      A.  Standard of Review.  The Code provides a standard to apply when  a
defendant pleads guilty pursuant to an agreement with the  State,  and  then
requests to withdraw the plea:
      After entry of a plea of guilty . .  .  ,  but  before  imposition  of
      sentence, the court may allow the defendant by motion to withdraw  his
      plea . . . for any fair and just reason  unless  the  state  has  been
      substantially prejudiced by reliance upon the defendant’s plea. . .  .
      The ruling of the court on the motion shall be  reviewable  on  appeal
      only for an abuse of discretion.  However, the court shall  allow  the
      defendant to withdraw his plea . . .  whenever  the  defendant  proves
      that withdrawal of  the  plea  is  necessary  to  correct  a  manifest
      injustice.


Ind. Code Ann. § 35-35-1-4(b) (West 1986 & Supp. 1997).

      A trial court abuses its discretion as to plea agreements  only  “when
the failure of the trial court to grant the motion would result in either  a
manifest injustice to the defendant  or  in  substantial  prejudice  to  the
State.”  Weatherford v. State, 697 N.E.2d 32, 34  (Ind.  1998).   The  trial
court’s ruling on a motion to withdraw a guilty plea arrives  in  our  Court
with a presumption in favor of the ruling.  Coomer v. State, 652 N.E.2d  60,
62 (Ind. 1995).  One  who  appeals  an  adverse  decision  on  a  motion  to
withdraw must therefore prove the trial court abused  its  discretion  by  a
preponderance of the evidence.  Weatherford, 697 N.E.2d at 34.  We will  not
disturb the court’s ruling where it was based on conflicting evidence.  Id.

      B.  Pressure to Plead Guilty and  Inquiry  About  the  Plea.   Johnson
says his lawyer pressured him to plead guilty over the  lunch  hour  on  the
first day of trial, because that morning the court ruled to admit  extremely
damaging evidence about Johnson’s character.  Johnson also claims that  once
the plea agreement was submitted, the judge did  not  attempt  to  ascertain
accurately whether there was a substantial basis.


      Judge Magnus-Stinson questioned Johnson extensively  about  the  plea.
After swearing Johnson in, the judge double checked Johnson’s signature  and
asked whether Johnson had read the entire agreement and  discussed  it  with
his attorney before signing.  She  asked  whether  Johnson  could  read  and
write English well enough  to  understand  the  agreement.   She  asked  him
whether he understood that he did not have  to  plead  guilty  and  that  in
Indiana  a  defendant  cannot  plead  guilty  and  at  the  same  time  deny
committing the crime.  To each of these questions, Johnson answered yes.


      The judge also asked him whether anyone forced him to enter the  plea.
She asked whether anyone made any threats  or  promises  to  induce  him  to
plead guilty.  She asked whether Johnson was under the  influence  of  drugs
or alcohol.  To these questions, he answered no.  She informed him that  the
sentencing range for the crime  was  forty-five  to  sixty-five  years.   He
indicated that he  understood  the  potential  punishment.   Finally,  Judge
Magnus-Stinson asked why he  was  entering  into  the  plea  agreement,  and
Johnson replied, “I think it’s in my best interest.”  (R. at 203.)


      The answers  Johnson  gave  while  pleading  guilty  belie  his  later
assertion that the only reason he entered  a  guilty  plea  is  because  his
counsel pressured him.  Coomer, 652 N.E.2d at 63.  Johnson  acknowledged  in
open court that he read and understood the plea  agreement.   His  responses
were more than sufficient to indicate that his plea was voluntarily  entered
as “in his best interest.”  The record does not demonstrate that  permitting
withdrawal of the agreement was necessary to prevent a manifest injustice.

      C.  Physical Evidence.  Johnson claims that the physical evidence does
not contradict his version of the events on the night of the  killing.   The
prosecutor countered that much of the  forensic  evidence  that  would  have
proved or disproved Johnson’s story was obliterated when Johnson buried  the
victim’s body.     Faced  with  conflicting  versions  of  the  killing  and
limited physical evidence to back up either story, we cannot find  that  the
trial  court  abused  its  discretion  in  accepting  the  State’s  account.
Weatherford, 697 N.E.2d at  34  (reviewing  court  will  not  disturb  trial
court’s ruling  on  withdrawal  of  guilty  plea  if  based  on  conflicting
evidence).

      D.  Simultaneous Guilty Plea and Claim of Innocence.  It is true  that
a trial court cannot accept a  guilty  plea  from  a  defendant  who  pleads
guilty and maintains his innocence at the same time.   Ross  v.  State,  456
N.E.2d 420, 423 (Ind. 1983).  A trial court may, however,  accept  a  guilty
plea from a defendant who pleads guilty in open court,  but  later  protests
his innocence.  Moredock v. State, 540 N.E.2d 1230, 1231  (Ind.  1989).   In
this case, Johnson did not claim his innocence until nearly six weeks  after
he pled guilty.[3]

      Johnson has not overcome the  presumption  of  validity  accorded  the
trial court’s denial of  his  motion  to  withdraw  his  guilty  plea.   The
court’s refusal in this case is well within its discretion,  and  we  cannot
say that it constituted manifest injustice.


                               II.  Sentencing

      Johnson claims that his sentence  is  manifestly  unreasonable.   This
contention requires that we consider all valid  aggravating  and  mitigating
factors  to  consider  whether   the   sentence   imposed   was   manifestly
unreasonable in light of the nature of the offense and the character of  the
offender.  Allen v. State, 720 N.E.2d 707, 715 (Ind. 1999);  Ind.  Appellate
Rule 17(B).


      We review sentences with  the  knowledge  that  reasonable  minds  may
differ about what sentence is appropriate in any  given  case.   Allen,  720
N.E.2d  at  715.   We  generally  defer  to  a  trial   court’s   sentencing
determination.

      A.  Aggravators.  Johnson complains that in sentencing him, the  trial
court found non-statutory  aggravating  circumstances.    In  a  non-capital
case, however, a “trial court [i]s well within the law to  consider  .  .  .
non-statutory aggravator[s].”  Sauerheber v.  State,  698  N.E.2d  796,  807
(Ind. 1998).  The aggravating criteria listed in Ind. Code §  35-38-1-7.1(b)
are not exclusive; that is, the statute does not limit the matters  a  court
may consider in determining a sentence.  Ajabu v.  State,  722  N.E.2d  339,
344 n.8 (Ind. 2000).


      The trial court found that Johnson was  at  high  risk  of  committing
another crime, and that he was completely  lacking  in  remorse.   It  cited
Johnson’s  appropriation  of  Raymundo’s  property  after  the  killing   as
evidence of Johnson’s risk of recidivism and  his  callousness.   The  court
also discussed the nature and circumstances of the crime:  Johnson  hit  the
victim, probably choked  him,  and  buried  him,  greatly  compromising  the
ability to determine the cause of death.  Finally, it  relied  on  Johnson’s
“failure to seek first aid for  [Raymundo]  when  [he]  knew  something  was
wrong.”  (R. at 401.)[4]  We  consider  these  statements  well  within  the
appropriate consideration of the trial court.


      B.  Mitigators.  While the court found no mitigating factors, a  trial
court is not obliged to accept as mitigating each  of  the  circumstances  a
defendant  offers  up.   "Only  when  the  trial  court  fails  to  find   a
significant mitigator that is clearly supported by the  record  is  there  a
reasonable belief that it was improperly overlooked."  Legue v.  State,  688
N.E.2d 408, 411 (Ind. 1997) (citing Jones v.  State,  467  N.E.2d  681,  683
(Ind. 1984)).


      Johnson urged three mitigating circumstances at sentencing:  (1)  lack
of significant criminal history, (2) good character and  low  propensity  to
future crime, and (3) financial support  of  his  children.   Judge  Magnus-
Stinson rejected all three.


      As to criminal history, Johnson does not argue that he has no criminal
background, but rather that his criminal  record  is  not  significant.   We
agree with the trial court  that  this  factor  neither  cuts  in  favor  of
Johnson nor against him.  (R. at 400 (“Your prior criminal history is not  a
factor in my mind.”).)[5]  We cannot say that the  trial  court  abused  its
discretion in declining to find the defendant’s prior  criminal  behavior  a
mitigating circumstance.  See, e.g., Warlick v. State, 722 N.E.2d  809,  813
(Ind. 2000); Bacher v. State, 722 N.E.2d 799, 804 (Ind. 2000) (both  finding
under facts analogous to present case that record did  not  compel  lack  of
criminal history mitigator).


      The trial  judge  also  considered  Johnson’s  propensity  for  future
criminal behavior and determined  that,  if  anything,  it  was  aggravation
evidence.  (R. at 399 (“I do think that the potential if you don’t get  your
way on another occasion for you to  [resort] to a criminal act  .  .  .  [,]
it’s  a  high  likelihood.”).)   Judge  Magnus-Stinson  did  not  abuse  her
discretion in determining that Johnson’s claimed antipathy to  future  crime
did not amount to valid mitigation.


      The trial court found  the  defense  did  not  present  evidence  that
Johnson “did anything financial to support [his] dependents.”  (R. at  400.)
 Upon review of the record, we agree.  In  the  absence  of  such  evidence,
this circumstance is not a significant mitigator.   See,  e.g.,  Wilkins  v.
State, 500 N.E.2d 747, 749  (Ind.  1986)  (no  financial  support  mitigator
compelled by record when “there is no evidence  of  defendant’s  pattern  of
prior support to his dependents nor a showing that they would  suffer  undue
hardship as a result of his imprisonment.”).


      On appeal, Johnson presents four additional potential mitigators:  his
cooperation with authorities, willingness to testify about  the  last  hours
of  the  victim’s  life,  apologies  and  remorse,  and  the   circumstances
surrounding the killing.[6]  (Appellant’s Br. at 22-25.)  He  did  not  urge
any of these upon the trial judge, and the  record  suggests  that  none  of
them were compelled.[7]


      Whatever weight they might have is not dispositive.  It is  often  the
case that while a mitigator “may have been entitled to some weight, it  does
not command a change in the sentence.”  Page v. State, 689 N.E.2d  707,  712
(Ind. 1997).

      C.  Aggravators v. Mitigators.  A single aggravating circumstance  may
be sufficient to support the enhancement of a presumptive  sentence.   Price
v. State, 725 N.E.2d 82 (Ind. 2000).  As there are  no  mitigating  factors,
the significant aggravators adequately support the  trial  court’s  sentence
enhancement.




                   III.  Ineffective Assistance of Counsel

      Johnson claims that his former counsel was ineffective because counsel
opened the door to otherwise inadmissible character evidence, admitted  that
Johnson caused the victim’s death, and pressured Johnson  to  plead  guilty.
We recently reiterated the rule that “when a  defendant  pleads  guilty,  he
may challenge only sentencing errors on direct appeal,  not  alleged  errors
involving his guilty plea or conviction.”   Prowell  v.  State,  687  N.E.2d
563, 564 n.1 (Ind. 1997),  cert.  denied,  525  U.S.  841  (1998)  (emphasis
omitted)).


      Creating an  exception  to  this  rule  by  permitting  defendants  to
challenge  the  plea  through  IAC  claims  on  direct  appeal  would  be  a
particularly bad idea for most defendants.  Such a claim litigated  at  this
stage would necessarily rise or fall based only on the record  generated  in
open court during the guilty plea.  A claimant  would  thus  not  have  “the
type and  extent  of  evidentiary  hearing  afforded  at  a  post-conviction
proceeding . .  .  designed  to  allow  [an]  appellant  an  opportunity  to
establish the factual assertions  he  makes  concerning  his  guilty  plea.”
Crain v. State, 261 Ind. 272, 273, 301  N.E.2d  751,  751-52  (1973).   This
significant handicap is among the reasons we observed  that  post-conviction
is generally the preferred forum for adjudicating an ineffectiveness  claim.
 Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998), cert. denied, 120  S.Ct.
150 (1999).


      Moreover, a prisoner who litigates  a  trial  counsel  ineffectiveness
claim under this handicap will find that res judicata bars him from  raising
it more comprehensively in a collateral proceeding.  Sawyer  v.  State,  679
N.E.2d 1328, 1329 (Ind. 1997) (The defendant,  “having  once  litigated  his
Sixth Amendment claim concerning ineffective assistance of counsel,  is  not
entitled to litigate it again, by alleging different grounds.”).


      The present case demonstrates the wisdom of  this  approach.   Counsel
for Johnson effectively acknowledges that he cannot prove a Sixth  Amendment
violation under the standard of  Strickland  v.  Washington,  466  U.S.  668
(1984);  he  is  reduced  to  arguing  for  “a  new  hybrid  standard   that
acknowledges the vast area that exists between flawless  representation  and
the current standards required  to  demonstrate  ineffective  assistance  of
counsel.”  (Appellant’s Br. at 27.)


      The instant claim is not available on direct appeal.



                                 Conclusion


      We affirm the judgment of the trial court.






Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Myers also said that Johnson sexually molested him and forced him to
have sex with other men when he was twelve to fourteen years old.
[2] Johnson also claims that “the state’s strategic timing in filing felony
charges based on nothing more than self-serving accusations by a prisoner
seeking leniency on his own case, must give rise to a genuine question of
the propriety of Mr. Johnson’s guilty plea.”  (Appellant’s Br. at 13.)  He
provides no further explanation of why this “strategic filing” amounted to
a manifest injustice necessitating the approval of his request to withdraw
his plea.  We need not address such a claim without argument.  Ind.
Appellate Rule 8.3(A)(7).
      [3] Johnson seeks refuge in Patton v. State, 517 N.E.2d 374, 376 (Ind.
1987) (court should  not  sentence  on  plea  from  capital  defendant  when
defendant denies  intent  to  kill).   Patton  illustrates  the  great  care
required in capital cases.  We have not held that a subsequent  protestation
of  innocence  in  a  non-capital  case  requires   that   a   trial   court
automatically permit a defendant to withdraw his guilty  plea.   We  decline
to do so today.  Instead, we continue to hold  that  in  non-capital  cases,
only “a plea of guilty tendered by one who in the same breath  protests  his
innocence . . . is no plea at all.”  Harshman v. State, 232 Ind.  618,  621,
115 N.E.2d 501, 502 (1953).  (emphasis added).
[4] Johnson also argues that the trial court improperly considered that his
fiancée was underage when their first child was conceived.  (Appellant’s
Br. at 20; R. at 397.)  The court did not find this circumstance to be an
aggravating factor, and did not appear to place any undue weight upon it.
[5] Johnson had previously been convicted of theft and criminal conversion.
(Supp. R. at 419.)
[6] Johnson also offers a fifth circumstance, lack of extensive violent
criminal history, but we addressed it earlier in this subsection.
[7] It is true, for example, that Johnson initially cooperated with
authorities by offering a confession, but he later retracted certain key
statements to which he had sworn in his confession.