Barber v. State

141 N.E.3d 35

Charles E. BARBER, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent,

Court of Appeals Case No. 19A-PC-1234

Court of Appeals of Indiana.

Filed January 15, 2020

Case Summary and Issue

[1] In 1993, Charles Barber pleaded guilty to child molesting, a Class C felony, and was sentenced to eight years. In 2017, Barber filed a petition for post-conviction relief alleging that his counsel was ineffective for failing to request a competency evaluation and that he was denied his right to substantive due process when he pleaded guilty while incompetent. Following a hearing, the post-conviction court denied Barber's petition. Barber now appeals, raising two issues for our review which we consolidate and restate as whether the post-conviction court erred in denying his petition. Concluding Barber did not meet his burden of establishing his claims by a preponderance of the evidence and therefore, the post-conviction court did not clearly err in denying the petition, we affirm.

Facts and Procedural History

[2] In February 1993, the State charged Barber with child molesting. The trial court appointed Anthony Luber to represent him. In June 1993, Barber pleaded guilty to the charge in exchange for the State agreeing to forego adding an habitual offender enhancement. Barber was thirty-six years old at the time of his guilty plea. He had completed eighth grade but was unable to read or write. At the plea hearing, Luber informed the trial court that Barber was unable to read so Luber had read the plea agreement to him before he signed it. Barber "did ask several questions during that process and some of the terms and phrases were explained to him." Trial Exhibits, Volume 3 at 24. Barber confirmed to the trial court that his attorney had read the plea agreement to him and they had a chance to talk about it before he signed it. The trial court asked Barber if he had any physical, emotional, or mental condition that would make it difficult for him to understand things or make decisions. Barber answered, "Just ... reading and writing." Id. at 25. The trial court then asked, "But in terms of understanding what people are talking about and what ... you're deciding ..., no problem?" Id. Barber answered, "No." Id. The trial court advised Barber of the rights he would be waiving by pleading guilty and Barber confirmed he understood and indicated he wished to proceed with the guilty plea. Luber then questioned Barber about the precipitating incident in order to lay a factual basis. Barber responded appropriately to questions posed to him during the plea hearing.

[3] Before sentencing, Barber was referred for a diagnostic report from the Indiana Department of Correction ("DOC") because a psychological evaluation was required for him to be considered for a community corrections placement. At the sentencing hearing, Luber acknowledged that Barber "doesn't function at a very high level although he does have some intelligence.... He functions very well in an institutional setting. He has been a trustee in the jail because he is reliable. And if he is given a task to do, he does it." Id. at 7-8. Luber also referenced the DOC report, which indicated that "while he is illiterate, he does possess enough mental attributes to be able to overcome that." Id. at 9. Barber received an eight-year sentence with four and one-half years suspended to probation, the first year of which was to be served in community corrections. He completed his sentence in October 1999.

[4] On December 8, 2017, Barber filed a pro se Petition for Post-Conviction Relief alleging ineffective assistance of counsel and "knowing & voluntary plea" as grounds for relief. Appendix to Brief of Petitioner-Appellant, Volume Two at 16. The petition was later amended by counsel to elaborate upon those grounds for relief:

Petitioner Barber was denied his right to substantive due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana Constitution when he pled guilty while incompetent.

* * *

Petitioner Barber was denied his rights to due process of law and the effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana Constitution, when trial counsel failed to request a competency evaluation.

Id. at 31-32. The State's answer asserted the defenses of res judicata, laches, and waiver. At the beginning of the post-conviction hearing, however, the State informed the post-conviction court that it was not proceeding on res judicata or waiver, as Barber had not filed a direct appeal.

[5] Barber called Attorney Luber to testify during the post-conviction hearing. Luber had no recollection of specific conversations with Barber but described his typical way of handling his cases – for instance, he would usually meet with his clients after he was appointed, read through the discovery, and convey plea offers. When he received a plea offer, he would go through the agreement with his client, and if the client could not read, he would read the agreement to the client.

[6] With regard to his experience representing incompetent clients in his fifty-year career, Luber noted that there are "two issues dealing with the mental thing. One is whether or not the matter is a defense, and the other is a question about ... what the person knows and understands and can comprehend [about] what is going on." Transcript of Evidence [from PCR Hearing], Volume 2 at 12. He described his general practice at an initial meeting:

I try to go through a background with the person [and] I usually get signals about where a person is in some of those things. I ask simple questions ... [a]nd it gives me a hint about it.... And I think I'm sensitive to those things.... [I]f I don't think someone is understanding, I usually – it usually gets raised.

Id. at 12-13. Luber recalled that Barber was "clearly in the functioning level and had lived a life and had made adjustments[.] So I didn't think it was a thing that he was acting in a very low IQ kind of [way]." Id. at 14.

[7] Dr. James Cates also testified at the post-conviction hearing. Dr. Cates is a psychologist who conducted a competency evaluation of Barber for purposes of his post-conviction relief petition. This was only the second time he had been asked to determine in the present whether someone was competent in the past. Dr. Cates agreed with Luber's assessment that there are two basic types of competency: competency related to mental illness and competency related to intellectual disability. Barber falls into the latter category. Dr. Cates reviewed a number of documents provided to him by Barber's PCR attorney, "[t]he majority of them related to previous assessments which had been completed on Mr. Barber regarding his intellectual abilities regarding his vocational skills." Id. at 28. He disregarded some of the reports as "irrelevant." Id. at 47. The report with "the most comprehensive scores" was an IQ test from December 16, 1999, in which Barber achieved a "full scale IQ of 57." Id. at 29. After his review of these prior reports, Dr. Cates met once with Barber for several hours during which he administered four tests to assess Barber's academic ability and adaptive behavior.¹ Dr. Cates found Barber to be "pleasant, engaging, friendly, and very child-like[,]" id. , but his vocabulary was "much more limited" than he would expect from an adult, id. at 30. Results from the testing in 2018 showed Barber had a full scale IQ of 46, which Dr. Cates described as "rais[ing] a red flag that this is probably an individual who is going to have significant difficulty understanding what's going on in the courtroom and being able to assist their attorney in any kind of defense." Id. at 34. Dr. Cates testified that the change in IQ from 1999 to 2018 was not a "big difference[.]" Id. at 53. He acknowledged that the scores in and of themselves do not indicate incompetence, but the low academic ability indicated by Barber's scores cause concern that "even if information is read to him, he is going to have tremendous difficulty understanding it." Id. at 37. Dr. Cates thinks he can "do a pretty good job of assessing people's IQ just on the fly[,]" but after meeting Barber, "I would never have assessed him as low functioning as he is." Id. at 58.

[8] Dr. Cates' conclusion, "based on both historical data and the data [he] collected" about Barber's academic ability and adaptive behavior, was that Barber "is not now competent and was not competent in prior time to stand trial." Id. at 42. With regard to Barber's past competence, Dr. Cates opined that Barber "has been intellectually disabled across his life.... The records suggest a long standard pattern of intellectual disability, of poor adaptive functioning." Id. Although Barber suffered a stroke in 2017 that caused increased difficulty with his memory and numbness on his left side, Dr. Cates stated that "there is not evidence that [the stroke ] has significantly impaired his intellectual functioning or changed his intellectual functioning from what it was previously." Id. Dr. Cates' opinion as to Barber's competence at the time he pleaded guilty in this case was that "his competence in 1993 would not have been there. He was not competent in 1993." Id. at 43.

[9] The parties stipulated that the Indiana State Police detective who had investigated Barber's 1993 case died in 2015. Additionally, the court took judicial notice of the "flat file" in the criminal case. Id. at 63. The "flat file" apparently contained some but not all of the pleadings and documents from the underlying case. See id. at 22 (post-conviction court noting and the State agreeing the pre-sentence investigation and DOC diagnostic report were not contained in the "flat file" and therefore not part of the trial court's record).²

[10] The post-conviction court...