FILED
Dec 01 2016, 8:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey A. Baldwin Gregory F. Zoeller
Tyler D. Helmond Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Corey Middleton, December 1, 2016
Appellant-Defendant, Court of Appeals Case No.
32A01-1603-PC-592
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett Stuard,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D02-1502-PC-3
Altice, Judge.
Case Summary
[1] Corey Middleton appeals from the denial of his petition for post-conviction
relief. He asserts that the post-conviction court erred in rejecting his claim of
ineffective assistance of trial counsel.
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[2] We affirm.
Facts & Procedural History
[3] On December 1, 4, and 5, 2000, undercover officers met Middleton in a van in
a Kroger parking lot in Brownsburg and purchased cocaine and ecstasy from
him. On the third day, Middleton showed the officers his “baby,” a silver .380
caliber handgun that he pulled from his waistband. Middleton v. State, No.
32A04-0308-CR-412, slip op. at 3 (Ind. Ct. App. June 29, 2004). Middleton told
the officers that the handgun might be for sale later. The officers left the van
and signaled to other officers to move in. After Middleton was arrested, officers
found the handgun under the seat where Middleton had been sitting.
[4] On December 6, 2000, Middleton was charged with Class A felony dealing in
cocaine, two counts of Class B felony dealing in a controlled substance, four
counts of drug possession, and possession of a firearm by a serious violent felon
(SVF). Middleton initially requested that counsel be appointed, but a month
later, he retained his own attorney, Robert Williams. During the last pre-trial
conference on May 2, 2001, Middleton sought to have Williams replaced.
Later, during the same pre-trial hearing, Williams requested to withdraw as
Middleton’s attorney, citing lack of payment by Middleton. Given that there
were only three weeks until the scheduled trial date, the trial court denied both
requests.
[5] On May 23, 2001, Middleton failed to appear for his jury trial and was tried in
absentia. At the start of the trial, Williams informed the court that he had paged
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and called Middleton the night before but did not talk to him. Williams also
explained:
[Middleton] was aware this was the final trial date. . . . And he
was advised this was a first choice jury trial and the Court denied
my motion to withdraw so I talked to him later that day or the
following day with the new plea offer from the State. He refused
it and I said that was the last day. If he didn’t accept that we’d be
going to trial on the 23rd. I’ve had no further contact with him,
Your Honor.
Petitioner’s Exhibit 1, Transcript at 52-53.1 The jury trial proceeded.
[6] During voir dire, Williams posed the following question to prospective jurors:
I’d ask you, all of you the one question and that is Corey
Middleton happens to be a Negro, an African American or Black
whatever term is politically correct these days, so I need to ask all
of you and remember you’re under oath and please don’t take
that as an affront. I don’t mean it as an affront. But I still think
in this country there are some racial problems. So my job is to
make sure first of all if Corey Middleton, the black man, was
sitting there, would any of you have any problems forgetting he’s
black or forgetting he’s white or Indian or Chinese or whatever[?]
Does race make any difference to you in these proceedings
because if it does we need to know that right now[?]
Id. at 92. After a jury was selected, the State presented its evidence. To prove
Middleton was an SVF, the State offered into evidence a certified copy of
1
Additional comments by Williams indicate that he last spoke with Middleton the day of or the day after the
final pre-trial conference that was held on May 2, 2001.
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Middleton’s Michigan criminal history that showed he had a prior felony
conviction for possession with intent to deliver cocaine (under thirty grams).
Williams objected, arguing that Middleton was not there to confirm or dispute
its accuracy. The trial court overruled the objection. At the conclusion of the
evidence, the jury found Middleton guilty as charged. The trial court merged
several of the drug offenses due to double jeopardy concerns.
[7] In 2002, Middleton was located in Atlanta, Georgia. Middleton was arrested
and returned to Indiana. On May 27, 2003, the trial court sentenced him to an
aggregate forty-year term in the Department of Correction.2 Middleton was
appointed counsel to pursue a direct appeal. This court affirmed Middleton’s
SVF conviction, but ordered that the drug possession charges be vacated rather
than simply merged. See Middleton, slip op. at 130.
[8] On February 9, 2015, Middleton filed the instant petition for post-conviction
relief (PCR),3 in which he challenged his trial counsel’s performance.
Specifically, Middleton alleged that his trial counsel was ineffective for (1)
failing to adequately investigate,4 (2) failing to move to bifurcate the SVF
offense from the drug offenses; (3) referring to him as a “Negro” during voir
dire; (4) failing to object to the admission of evidence concerning a prior drug
2
Middleton was represented at the sentencing hearing by court-appointed counsel.
3
Middleton filed his first PCR petition, pro se, on November 1, 2004. In his petition he alleged ineffective
assistance of both his trial and appellate counsel. He was eventually appointed a public defender. The
action, however, was dismissed in 2007 for “lack of action.” Transcript at 32.
4
On appeal, Middleton does not advance any argument concerning failure to investigate.
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dealing conviction, and (5) failing to communicate to him a plea offer.5 The
post-conviction court held a hearing on November 20, 2015. Middleton did not
call Williams to testify. On February 22, 2016, the post-conviction court
entered its findings of fact and conclusions of law denying Middleton’s PCR
petition. Middleton now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
[9] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
5
In 2002 Williams was disbarred for serial neglect of several of his clients’ legal affairs and for refusing to
meaningfully participate in the Disciplinary Commission’s prosecution. See In re Williams, 764 N.E.2d 613
(Ind. 2002).
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[10] A petitioner will prevail on a claim of ineffective assistance of counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner.
Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must
demonstrate deficient performance, which is “representation that fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)).
[11] To satisfy the second element, the petitioner must show prejudice, which is “a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” Id. at 1139. “A reasonable probability is one that
is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). Because a petitioner must prove both deficient performance and
prejudice in order to prevail on a claim of ineffective assistance of counsel, the
failure to prove either element defeats such a claim. See Young v. State, 746
N.E.2d 920, 927 (Ind. 2001).
[12] There is a strong presumption that counsel rendered adequate service. Bethea,
983 N.E.2d at 1139. “We afford counsel considerable discretion in choosing
strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation ineffective.’”
State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State, 753
N.E.2d 591, 603 (Ind. 2001)).
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Communication of Plea Offer
[13] The Sixth Amendment right to the effective assistance of counsel extends to
plea negotiations. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). As the U.S.
Supreme Court recognized,
[t]he reality is that plea bargains have become so central to the
administration of the criminal justice system that defense counsel
have responsibilities in the plea bargain process, responsibilities
that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical
stages.
Id. at 1407. With this reality in mind, the Supreme Court thus held that, as a
general rule, “defense counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions that may be favorable
to the accused.” Id. at 1408; see also Woods v. State, 48 N.E.3d 374, 381 (Ind. Ct.
App. 2015).
[14] Counsel’s effectiveness at the plea stage is reviewed under the two-part test set
out in Strickland. It has been held that failure to communicate a plea agreement
and its terms and conditions constitutes deficient performance. See Frye, 132
S.Ct. at 1408; Woods, 48 N.E.3d at 381. As held by this court in Dew v. State,
843 N.E.2d 556, 571 (Ind. Ct. App. 2006), trans. denied, prejudice is established
when there is a reasonable probability that the petitioner would have accepted
the plea offer that was not communicated to him by defense counsel. As more
recently stated in Frye, the petitioner must establish that he would have
accepted the plea if it had been communicated, that the prosecution would have
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adhered to the plea, and that the trial court would have accepted the plea. 132
S.Ct. at 1411.
[15] Here, Middleton claims that Williams failed to communicate to him a plea
agreement that called for Middleton to plead guilty to one count of Class A
felony dealing in cocaine greater than three grams with the remaining counts to
be dismissed and for sentencing to be left to the trial court’s discretion.
Middleton further claims that he would have accepted the plea agreement had it
been communicated to him.
[16] The evidence before the post-conviction court was that Williams appeared at
Middleton’s jury trial and Middleton did not, having apparently already fled to
Georgia. In explaining Middleton’s absence, Williams stated:
[Middleton] was aware this was the final trial date. He was at
the Pre-Trial last time we were here [i.e., May 2, 2001]. . . . And
he was advised this was a first choice jury trial and the Court
denied my motion to withdraw so I talked to him later that day or
the following day with the new plea offer from the State. He refused it
and I said that was the last day. If he didn’t accept that we’d be
going to trial on the 23rd. I’ve had no further contact with him,
Your Honor.
Transcript at 52-53 (emphasis supplied). As noted by the post-conviction court:
“Middleton had an opportunity to dispute his attorney’s statement to the Court;
but he waived it by failing to attend his own jury trial.” Appellant’s Appendix at
60. Likewise, Middleton did not present any evidence at the PCR hearing aside
from his own self-serving testimony that would lead to a contrary finding.
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[17] Further, Middleton did not call Williams to testify. It is well established that
when counsel is not called as a witness to testify in support of a petitioner’s
arguments, the post-conviction court may infer that counsel would not have
corroborated the petitioner’s allegations.6 Oberst v. State, 935 N.E.2d 1250, 1254
(Ind. Ct. App. 2010), trans. denied. The post-conviction court made such an
inference here and we cannot say that it was error to do so. Thus, Middleton
did not satisfy his burden of showing his counsel rendered deficient
performance by failing to communicate a plea offer.
Bifurcation
[18] Relying on Pace v. State, 981 N.E.2d 1253 (Ind. Ct. App. 2013), Middleton
argues that Williams was ineffective for failing to file a motion to bifurcate the
SVF offense from the drug offenses. The decision regarding whether to file a
particular motion is a matter of trial strategy. Moore v. State, 872 N.E.2d 617,
620 (Ind. Ct. App. 2007), trans. denied. “‘To prevail on an ineffective assistance
of counsel claim based upon counsel’s failure to file motions on a defendant’s
behalf, the defendant must demonstrate that such motions would have been
6
Citing Schmittler v. State, 93 N.E.2d 184, 191 (Ind. 1950), overruled in part on other grounds by State v. Lindsey,
106 N.E.2d 230, 233 (Ind. 1952), Middleton asserts that this presumption applies only in instances where the
petitioner “did not produce or at least make an effort to produce the testimony of the witness.” Middleton
then points to his evidence that Williams had been disbarred over thirteen years prior to the post-conviction
hearing and that Williams did not respond to Middleton’s request to retrieve his file. Middleton’s evidence,
however, does not establish that he made any effort to secure Williams’s testimony at the post-conviction
hearing. Thus, the post-conviction court was left with Middleton’s claim that he was not advised of the plea
agreement and Williams’s direct statement made at the time of trial to the contrary. Under these
circumstances, Schmittler does not persuade us that the post-conviction court erred in inferring that Williams
would not have corroborated Middleton’s claim.
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successful.’” Id. at 621 (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct.
App. 2002), clarified on reh’g, 774 N.E.2d 116 (Ind. Ct. App. 2002), trans. denied).
[19] We do not find the decision in Pace to be dispositive of the outcome in this case.
In Pace, the court held that petitioner’s trial counsel was ineffective for failing to
move to bifurcate the trial of a dealing in amphetamine charge and a charge of
unlawful possession of a firearm by an SVF where his status as an SVF was
based on a prior conviction for dealing in cocaine. However, the key
component of the Pace court’s analysis was that the petitioner’s trial counsel
should have been aware of the Supreme Court’s decision in Hines v. State, 801
N.E.2d 634 (Ind. 2004), which was decided over nine months prior to
petitioner’s jury trial. In Hines, the Supreme Court held that “it was error to
refuse a defendant’s request to bifurcate a trial where there is an SVF charge
and another unrelated felony.” The Pace court thus found that trial counsel’s
decision not to request bifurcation was not a reasonable strategic decision in
light of Hines and that under the circumstances, a motion to bifurcate would
have been granted.
[20] Here, like in Hines and Pace, Middleton was charged with an SVF offense and
separate felony offenses. The State established Middleton’s SVF status by
offering into evidence a certified copy of Middleton’s criminal history in
Michigan that showed he had prior felony conviction for possession with intent
to deliver cocaine (under thirty grams). Middleton would have us hold that in
light of the holding in Hines, trial counsel’s failure to bifurcate amounted to
ineffective assistance. The Hines case, however, was not decided until several
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years after Middleton’s trial. It is well settled that “[f]or purposes of ineffective
assistance of counsel claims, the law requires consideration of legal precedent
available to counsel at the time of his representation of the accused, and counsel
will not be deemed ineffective for not anticipating or initiating changes in the
law.” Woodson v. State, 961 N.E.2d 1035, 1044 (Ind. Ct. App. 2012) (quoting
Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied), trans.
denied. Having been decided well after Middleton’s trial, the decisions in Pace
and Hines are not controlling.
[21] In light of his reliance on Pace, Middleton has not established his counsel
rendered deficient performance. Middleton also has not established prejudice.
Indeed, we note there was direct evidence from undercover police officers that
Middleton was in possession of and dealing cocaine on multiple occasions. As
already acknowledged by this court on direct appeal, there was “significant
independent evidence” to support the various drug convictions. As such, we
find there was no prejudice resulting from trying the SVF charge with the
possession/dealing drug charges.
Failure to Object to Admission of Evidence
[22] Middleton argues that his trial counsel was ineffective for failing to object to
admission of evidence relating to his prior drug dealing conviction on grounds
that such violated Evidence Rule 404. In order to prove ineffective assistance
due to the failure to object, the petitioner must prove that an objection would
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have been sustained and that he was prejudiced thereby. Timberlake v. State, 690
N.E.2d 243, 259 (Ind. 1997).
[23] As acknowledged by Middleton, this issue presents the same concerns as the
bifurcation issue. We conclude that the outcome is likewise the same. We first
note that there is no statutory requirement for bifurcation. Additionally,
Middleton’s trial counsel was not required to anticipate the development in the
law that occurred in Hines nearly three years after his trial or in Pace, which was
decided over ten years after his trial. Thus, at the time of Middleton’s trial,
there was no precedent or statutory provision that required bifurcation.
Without bifurcation, the prosecutor was required to introduce substantive
evidence of Middleton’s prior conviction to prove his SVF status. Given the
state of the law, Middleton has not established that an objection, if made,
would have been sustained. Further, as noted above, given the overwhelming
evidence in support of his convictions, Middleton cannot show that he was
prejudiced by admission of the evidence regarding his prior conviction.
Comment During Voir Dire
[24] Finally, Middleton argues that Williams was ineffective when, during voir dire,
he referred to Middleton as a “negro.” Petitioner’s Exhibit 1, Transcript at 92.
Trial counsel’s full statement is set forth above. Middleton asserts that
Williams’s use of a racial insult was unnecessary to describe his race, especially
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given that he was being tried in absentia.7 He maintains that Williams’s conduct
in this regard should be deemed to have “so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a
just result.” Appellant’s Brief at 18-19 (quoting Strickland, 466 U.S. at 686).
[25] Considering the entire context of Williams’s statement, it is evident that
Williams’s choice of words was in the manner of exploring possible bias of
prospective jurors. Even in this context, his choice of words was wholly
unacceptable and amounted to deficient performance. Nevertheless, Middleton
is not entitled to reversal because he has not established that but for counsel’s
error, the result of the proceeding would have been different. As noted
previously, there was overwhelming evidence to support his convictions.
[26] Judgment affirmed.
[27] Bradford, J., concurs.
[28] Pyle, J., concurs in result with opinion.
7
Although Middleton was not present during his trial, his race was made known to the jury through witness
testimony and admitted evidence.
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IN THE
COURT OF APPEALS OF INDIANA
Corey Middleton, Court of Appeals Case No.
32A01-1603-PC-592
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Pyle, Judge concurring in result with opinion.
[29] I concur with my colleagues holding, but I write separately because I believe
Middleton’s counsel’s performance fell below current objective professional
norms and also prejudiced Middleton. During voir dire, Middleton’s counsel
properly explored the issue of race with prospective jurors. However, counsel
referred to his absent client as a “Negro.” In a sterile environment, this word
might not be any more offensive than the next. But, we do not live in a sterile
environment. Words have power. Words convey explicit and implicit
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meanings they have acquired. While many dictionaries may still define the
term “Negro” as “a person of black African origin or descent[,]” it is also cross
referenced with the vile slur known euphemistically as “the N-word.” OXFORD
ENGLISH DICTIONARY, http://www.oed.com (last visited November 21, 2016)
[hereinafter OXFORD ENGLISH DICTIONARY]. “Negro” is not a word that is
used solely to distinguish one group of society from another; today’s usage of
this word does not embrace “‘that intent . . . . [I]t flows from the fountain of
purpose to injure.’” Randall Kennedy, NIGGER: THE STRANGE CAREER OF A
TROUBLESOME WORD 5 (2002) (quoting Hosea Easton, A Treatise on the
Intellectual Character and Civil and Political Condition of the Colored People of the
United States: and the Prejudice Exercised Towards Them (1837)) (emphasis added).
For this reason, the United States Census Department, among many other
public and private entities, has stopped using the term “Negro” on census
surveys.8 H. Yen, US stopping use of term ‘Negro’ for census Surveys, ASSOCIATED
PRESS, Feb. 5, 2013. The United States Army has also followed suit.
Associated Press, Army drops use of the term Negro in document, WASHINGTON
POST, (Nov. 6, 2014). While these are relatively recent examples of what has
long been understood, it seems likely that Middleton’s counsel also understood
the gravity of his choice of words; he quickly tried to correct himself and
reframe his error under the guise of “political correctness.”
8
“‘Negro’ is still, however, used in positive contexts as part of the names of certain organizations,
particularly the United Negro College Fund, and in historical context, with reference to baseball’s Negro
Leagues.” OXFORD ENGLISH DICTIONARY.
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[30] In the context of a criminal jury trial, counsel’s use of the term “Negro” to refer
to his client in front of the potential jurors, who would determine whether he
was guilty or not, goes far beyond “political correctness.” The right to counsel
is constitutional and indispensable to the fair administration of justice. See
Gideon v. Wainwright, 372 U.S. 335, 343 (1963). Connected to this right is
counsel’s legal duty to defend Middleton, to advocate for him, and to not act
against his interests. IND. ADMISSION AND DISCIPLINE RULE 22. While
counsel properly performed many other tasks on behalf of his client, he also
prejudiced his client. Before evidence had even been introduced, potential
jurors saw and heard Middleton’s attorney, the person who was supposed to be
his advocate, refer to Middleton in a racially offensive manner. While there is
no evidence that counsel intended harm to Middleton, the harm was
nonetheless inflicted. Middleton was presented to potential jurors in a racially
offensive manner. For these reasons, I believe counsel’s performance during
voir dire was deficient and also prejudiced Middleton. Nonetheless, in order
for us to reverse the trial courts denial of Middleton’s petition, we would have
to believe that “but for counsel’s errors, the result of the proceeding would have
been different.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010). In
this case, the evidence against Middleton was considerable. As a result, I am
not convinced that the result would have been different.
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Corey Middleton v. State of Indiana
Combined Opinion