Mays v. State
Mays v. State
Concurring Opinion
concurring with opinion.
I completely concur with the majority’s analysis and conclusion. I write separately to note that although we are compelled by Mapp and Games to decline review of the stand-alone double jeopardy claims, Mays has failed to show how he was prejudiced by imposition of the concurrent sentences.
Opinion of the Court
OPINION
Appellant, Ahmed Mays, seeks review of the denial of his petition for post-conviction relief. Upon appeal, Mays presents three issues for our review, which we restate as: (1) whether Mays received ineffective assistance of counsel; (2) whether
We affirm.
On November 30, 1999, Mays pleaded guilty to Unlawful Possession of a Firearm by a Serious Violent Felon, as a Class B felony,
On January 11, 2001, Mays filed a pro se petition for post-conviction relief and also requested that an attorney be appointed to represent him. A public defender entered an appearance on behalf of Mays on February 14, 2001, but on November 28, 2001, Mays moved to proceed pro se, which motion the trial court granted. On July 29, 2002, Mays filed a memorandum of law in support of his petition for post-conviction relief, and the State filed its belated answer to Mays’ petition on September 10, 2002. A hearing on Mays’ petition was held on September 17, 2002. On October 24, 2002, the post-conviction court adopted the State’s proposed findings of fact and conclusions of law and thereby denied Mays’ petition for post-conviction relief.
In order to obtain post-conviction relief, the petitioner must demonstrate by a preponderance of the evidence that he is entitled to relief upon grounds enumerated in the post-conviction rules. Ind. Post Conviction Rule 1 § 5; Ford v. State, 755 N.E.2d 1138, 1141 (Ind.Ct.App. 2001), trans. denied. An appeal from a denial of post-conviction relief is therefore an appeal from a negative judgment, and the petitioner must establish that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. State v. Holmes, 728 N.E.2d 164, 169 (Ind. 2000), cert. denied 532 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001).
Here, Mays argues that the post-conviction court erred in concluding that he was not denied the right to effective assistance of trial counsel. To succeed on his claim of ineffective assistance of counsel, Mays was required to present strong and convincing evidence to overcome the presumption that his guilty plea counsel’s representation was appropriate. See Allen v. State, 743 N.E.2d 1222, 1234 (Ind.Ct.App. 2001), trans. denied. To do that, Mays was required to establish' the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Mays was required to show that his counsel’s representation was deficient in that it fell below
As Mays’ claim follows his guilty plea, we review the prejudice prong of the Strickland analysis under the standard set forth in Segurd v. State, 749 N.E.2d 496 (Ind. 2001). See Reynolds v. State, 783 N.E.2d 357, 358 (Ind.Ct.App. 2003). The Segura Court categorized two types of claims of ineffective assistance of counsel following a guilty plea, one of which involves errors which affect a defense or sentence. Segura, 749 N.E.2d at 501. Mays’ claim fits within this category in that double jeopardy violations may affect the sentence which could be imposed.
The post-conviction court concluded that Mays was hot entitled to relief because he presented no evidence in support of his claim that his counsel was ineffective. In his petition for post-conviction relief, Mays argued that he was prejudiced by his counsel’s performance, asserting that had he been adequately advised as to the double jeopardy implications, he would not have pleaded guilty, but rather would have requested a trial by jury. At the post-conviction hearing, however, Mays’ argument focused upon the double jeopardy implications of his convictions. The extent of Mays’ argument at the post-conviction hearing was as follows:
“Okay. Well first—first postconviction I put in was about the unlawful possession of a firearm by a serious violent felon, and the carrying a handgun without a license. And under the argument that I put in is that there’s—there’s a double jeopardy principle because both—it’s the same case under—under—with the same gun. It’s two different cases from this same gun. Then I put in another memorandum of law in support of double jeopardy issue for my postconviction petition, and it was for—about my sentencing—when ... I got sentenced.” Transcript at 5-6.
After the State declined cross-examination, Mays rested his case without presenting any evidence. The State presented no evidence, but asked the post-conviction court to take judicial notice of the court file, specifically drawing the court’s attention to the written plea agreement.
Even assuming that Mays could have established that he was prejudiced by the fact that he pleaded guilty to offenses which violated double jeopardy principles, Mays has failed to demonstrate how his counsel’s representation fell below an objective standard of reasonableness. While Mays claims that his counsel did not advise him of the double jeopardy implications of the offenses to which he was pleading guilty, Mays did not procure testimony or an affidavit from his counsel. Absent evidence in support of Mays’ assertion, the post-conviction court could infer that Mays’ counsel would not have corroborat
Thus, contrary to Mays’ claim that his counsel “allowed” him to plead guilty to three offenses which he considers blatant violations of double jeopardy principles does not in and of itself clearly demonstrate that he was denied his right to effective assistance of trial counsel. Mays did not present any evidence from which the post-conviction court could have evaluated his counsel’s performance to determine whether it fell below an objective standard of reasonableness. Although advising a defendant to plead guilty to offenses which violate double jeopardy principles may be seriously questioned, such is not per se ineffective assistance of counsel. Indeed, defendants may achieve an advantageous position where the State agrees to reduce an offense in exchange for a plea of guilty, notwithstanding the fact that the reduced offense, in conjunction with another offense, may constitute double jeopardy. See Mapp v. State, 770 N.E.2d 332 (Ind. 2002); Games v. State, 743 N.E.2d 1132 (Ind. 2001). Mays has not demonstrated that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.
In addition to arguing that his counsel was ineffective, Mays directly challenges his convictions as violative of double jeopardy principles of the United States and Indiana Constitutions.
Mays cites no authority, nor are we aware of any which requires a trial court to inform a defendant of possible double jeopardy violations or that by pleading guilty he waives his right to challenge his convictions as violative of double jeopardy. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (holding that before accepting a guilty plea, a trial court must be satisfied that the defendant is aware of certain rights, of which double jeopardy was not included); Ind. Code § 35-35-1-2 (Burns Code Ed. Repl. 1998) (setting forth the required advise-ments a trial court must give prior to accepting a plea of guilty).
The judgment of the post-conviction court is affirmed.
. Ind.Code- § 35-47-4-5 (Burns Code Ed. Supp. 2002).
. Ind.Code § 35-47-2-1 (Burns Code Ed. Repí. 1998); Ind.Code § 35-47-2-23 (Burns Code Ed. Repl. 1998).
. See Ind.Code § 35-50-2-8 (Burns Code Ed. Supp. 2002).
. See Ind.Code § 35-50-2-5 (Bums Code Ed. Repl. 1998).
. See I.C. § 35-50-2-8; I.C. § 35-50-2-5.
. See Ind.Code § 35-50-2-6 (Bums Code Ed. Repl. 1998).
. In his brief, Mays argues that the double jeopardy violations constituted a defense which was overlooked by his counsel and that such defense would likely have changed the outcome of the proceeding. Double jeopardy, however, is not a defense to a crime in the sense that one cannot be found guilty of multiple offenses which constitute double jeopardy; rather it is a limitation as to the punishment, i.e. entry of judgment of conviction or sentence, which may be imposed when two or more convictions constitute the same offense for double jeopardy purposes. See Carter v. State, 750 N.E.2d 778 (Ind. 2001).
. In his brief Mays make two separate double jeopardy arguments. Mays argues that his convictions violate double jeopardy principles in that the same prior felony conviction was used to prove his status as a serious violent felon, to enhance the carrying offense to a Class C felony, and as one of the two prior, unrelated felonies used to support the finding that he was a habitual offender. We first note that the habitual offender finding was used to enhance the serious violent felon offense. Assuming Mays is correct in that the same prior felony conviction established his status as a serious violent felon and as a habitual offender, there would appear to be a double jeopardy violation. See Conrad v. State, 747 N.E.2d 575, 595 (Ind.Ct.App. 2001), trans. denied.
Mays also argues that his convictions for unlawful possession of a firearm by a serious violent felon and carrying a handgun without a license violate double jeopardy principles in that the same gun was used to prove both offenses. Again, assuming what Mays asserts is true, the convictions may be contrary to double jeopardy principles. See Richardson v. State, 717 N.E.2d 32 (Ind. 1999); Alexander v. State, 768 N.E.2d 971 (Ind.Ct.App. 2002), aff'd upon reh'g 772 N.E.2d 476 (Ind.Ct.App. 2002), trans. denied.
. On numerous occasions our Supreme Court and this court have held double jeopardy violations to constitute fundamental error. Haggard v. State, 445 N.E.2d 969 (Ind. 1983); Cuto v. State, 709 N.E.2d 356 (Ind.Ct.App. 1999); Garcia v. State, 686 N.E.2d 883 (Ind.Ct.App. 1997); Odom v. State, 647 N.E.2d 377 (Ind.Ct.App. 1995), trans. denied. Be that as it
. Other than his claim that the trial court should have advised him of the possible double jeopardy implications of the offenses to which he was pleading guilty, Mays does not argue that the court’s required advisements prior to accepting his plea were inadequate.
Reference
- Full Case Name
- Ahmed MAYS, Appellant-Petitioner, v. STATE of Indiana, Appellee
- Cited By
- 5 cases
- Status
- Published