Berry v. State

171 N.E.3d 1053 (Table)

Dexter BERRY, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 20A-PC-992

Court of Appeals of Indiana.

FILED June 8, 2021

Appellant Pro Se: Dexter Berry, Carlisle, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[1] Dexter Berry appeals the post-conviction court's ("PC court") denial of his petition for post-conviction relief ("PCR"). Berry was originally charged with a string of storage facility burglaries in 2012, as well as one nearby residential burglary. During the pendency of those charges, the State added several more charges, based on the discovery of additional storage units that had been burglarized on the same date at the same location. Berry pleaded guilty to four counts of burglary, and the State dismissed four counts of theft. Berry now contends that the later-added charges lacked sufficient probable cause and that he was never considered a suspect in those burglaries. Failure to discover the lack of probable cause, Berry argues, constitutes ineffective assistance of counsel.

[2] Berry explicitly raises three issues in his brief: (1) whether a magistrate judge abused her discretion by entering a final order on Berry's PCR petition; (2) whether a magistrate judge abused her discretion by vacating a second evidentiary hearing related to Berry's PCR petition; and (3) whether Berry received ineffective assistance of trial counsel. We find that the first issue is moot, that the vacatur of the second evidentiary hearing was not an abuse of discretion, and that Berry did not receive ineffective assistance of trial counsel.

[3] Berry's PCR petition and the substance of his brief suggest that, additionally, he claims he was the victim of prosecutorial misconduct and misconduct on the part of the clerk. See Appellant's Br. pp. 29-31; Appellant's App. Vol. II pp. 119-20. We, therefore, address those claims as well, concluding that they are freestanding and, thus, not cognizable in the context of collateral review. We ultimately find that Berry has failed to meet his burden for any of his claims, and, accordingly, we affirm the denial of Berry's PCR petition.

Issues

[4] Berry raises five issues, which we consolidate and restate as:

I. Whether a magistrate judge committed an abuse of discretion in entering the PCR final order or by vacating a second evidentiary hearing.

II. Whether Berry received ineffective assistance of trial counsel.

III. Whether the prosecutor or clerk committed misconduct.

Facts

[5] On April 12, 2012, Berry broke and entered several storage units at a facility where Berry also owned a unit. Berry took numerous items from the units including a rifle, collectibles, and a television. Security footage from the facility captured Berry engaging in the burglaries. Police subsequently apprehended Berry during a nearby residential burglary. On May 2, 2012, the State charged Berry with Count I, burglary, a Class C felony; Count II, burglary, a Class C felony; Count III, theft, a Class D felony; and Count IV, theft, a Class D felony.

[6] On November 9, 2012, the State added four more charges: Count V, burglary, a Class C felony; Count VI, burglary, a Class C felony; Count VII, theft, a Class D felony; and Count VIII, theft, a Class D felony. The later-added charges stemmed from burglaries occurring on the "same date and in the same area." Tr. Vol. II p. 19.

[7] On November 13, 2012, Berry, represented by Attorney Benjamin Jaffe, entered a guilty plea on Counts I, II, V, and VI. As part of the plea, Berry acknowledged that the agreement "constitutes an admission of the truth of all facts alleged in the charge[s] or counts to which the Defendant pleads guilty and that entry of the guilty plea will result in a conviction on those charges or counts." Appellant's App. Vol. II p. 64. Berry further acknowledged his "satisfaction with Defense Counsel's representation and competency in this matter. The Defendant believes this agreement to be in the Defendant's best interest." Id. at 65.

[8] At the hearing wherein Berry entered his plea of guilty, the following colloquy ensued:

THE COURT: Have you talked this over with Mr. Jaffe, your lawyer?

DEFENDANT: Yes, on several occasions.

THE COURT: And he's explained everything and you've asked the questions you needed to ask?

DEFENDANT: Yes, Judge.

THE COURT: Okay. Are you satisfied with the help and advice he's given you on these matters?

DEFENDANT: Yes, Your Honor.

Id. at 69. Berry further admitted the factual basis for the charges:

DEPUTY PROSECUTOR MURPHY: Yes, Your Honor. Defendant, Dexter Berry on April 28th, 2012, went to a storage facility at 6940 Shore Terrance in Marion County, Indiana. He went to several specific storage units within the building and was able to jimmy the locks and get inside the units without permission from the persons that were leasing the units. He was able to get inside and take various items from different people. With respect to Count 1 he jimmied the lock to unit 18 in this storage facility. That was a unit that was being leased by Justin Spack. Mr. Spack did not give the Defendant permission to be inside the unit or take anything inside. The Defendant took a refrigerator and some furniture. With regard to Count 2, the Defendant went to unit 35. Again jimmied the lock. He took a moving cart without permission from the person who leased the unit and had property inside, Ms. Brenda Nell. With regard to Count 5, he went to unit 21. This was a unit of Tony Bennett. He again jimmied the lock, took a rifle, some football gear, coins and cards without permission from Tony Bennett. With respect to Count 6, he went to unit 458. This was Albert Thompson's unit. He jimmied the lock, took a T.V. screen from inside, some radios and some other electronics without the permission of Albert Thompson.

THE COURT: Did you hear Mr. Murphy?

DEFENDANT: Yes, ma'am.

THE COURT: Do you agree with what he said?

DEFENDANT: Yes, ma'am.

Id. at 78-79.

[9] On January 13, 2016, Berry filed a pro se petition for PCR. Berry amended the petition on September 9, 2016. The petition raised allegations of professional misconduct by prosecutors and clerks, as well as ineffective assistance of trial counsel. Berry alleged that Attorney Jaffe failed to adequately investigate the charges and that, in so doing, failed to recognize that four of the charges lacked probable cause. That error was then compounded, Berry argued, because an uniformed Attorney Jaffe subsequently advised Berry to plead guilty to charges for which there was insufficient evidence upon which to convict Berry.

[10] After a series of filings related to discovery and continuances, the PC court held an evidentiary hearing on June 20, 2017. At the hearing, Berry did not testify; rather, he called Attorney Jaffe as his lone witness. The bulk of Attorney Jaffe's testimony consisted of professions that Attorney Jaffe could not remember particulars about Berry's case or what Attorney Jaffe would have done. See, e.g. , Tr. Vol. II p. 32 ("I don't recall negotiating anything. I know that you pled guilty. My recollection is that you pled guilty. That's about as much as I recall about the involvement in this case."). At one point, Attorney Jaffe remarked of Berry: "If I saw you in the mall, I wouldn't know who you were." Tr. Vol. II. p. 32. Berry also submitted copies of letters Berry received after an apparent records request from the Indianapolis Metropolitan Police Department ("IMPD"), although he did not submit copies of the requests themselves.

[11] On February 21, 2020, after a series of additional non-pertinent filings, the PC court denied Berry's petition for PCR.¹ The PC court found, inter alia:

... [T]he post-conviction evidence shows no misconduct by the prosecutor and also shows: that trial counsel was fully prepared and willing to proceed to trial if Berry had chosen not to plead guilty, that Mr. Jaffe would not have allowed his client to plead guilty to any charges which were not supported by evidence, and that Berry was not placed in a position of grave peril.

* * * * *

... [T]rial counsel's post-conviction testimony and the Guilty Plea Hearing transcript show that Berry was fully informed of all charges against him and the evidence in support thereof. The court's minutes also show that Berry was present, in person and with counsel, at hearings on October 17, 2012, and November 7, 2012, at which the State's motion to add these counts was addressed and ultimately granted. In addition, Berry chose not to testify during his post-conviction evidentiary hearing, or to present transcripts of said two pretrial hearings. There is no evidence to show that Berry was uninformed or that these charges were unsupported by probable cause. There is also no evidence that Mr. Jaffe was uninformed of the State's evidence supporting counts 5, 6, 7, and 8, or that he failed to share the details about said supporting evidence with his client. With no deficient performance or prejudice here, this claim fails.

* * * * *

Petitioner presented no evidence to contradict trial counsel's post-conviction testimony and has failed to show any deficient performance regarding Mr. Jaffe's advice or his investigation. Accordingly, this claim fails.

Appellant's App. Vol. II pp. 12-16. Berry now appeals.

Analysis

[12] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State , 133 N.E.3d 673, 681 (Ind. 2019), reh'g denied, cert. denied ; Ind. Post-Conviction Rule 1(1)(b). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Gibson , 133 N.E.2d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The petitioner bears...