Downs v. State

827 N.E.2d 646

Jerry L. DOWNS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-0404-CR-371.

Court of Appeals of Indiana.

May 24, 2005.

Transfer Denied August 11, 2005.

Thomas D. Margolis, Muncie, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Jerry L. Downs appeals the denial of his motion to dismiss, motion to correct error, and petition for post-conviction relief. We affirm.

Issues

Downs raises various issues, which we consolidate and restate as follows:

I. Whether the trial court properly denied Downs's motion to dismiss the State's motion to revoke his suspended sentence;

II. Whether the trial court's two-year sanction for direct contempt was appropriate; and

III. Whether the trial court properly denied Downs's petition for post-conviction relief.

Facts and Procedural History

We have been provided with the following sketchy facts of the relevant events:

On April 18, 2003, [Downs] placed a 911 call to report the murder of Michele Jaynes. Michael Andry with the Grant County Sheriff's Department arrived at [Downs's] residence and found [Downs] outside his home. [Downs] told Deputy Andry that he had witnessed Michael Collins murder the victim. Later Sergeant James Kinzie received Collins's statement about [Downs's] involvement in the incident.

Appellee's Br. at 3 (citations omitted). Downs adds that the State charged Collins¹ with Jaynes's murder, "and other charges were placed against" Downs. Appellant's Br. at 4. More specifically, the chronological case summary reveals that on April 21, 2003, the State charged Downs, under cause number 27C01-0304-FB-32, with a total of eight counts: two counts of criminal confinement as class B felonies; possession of a firearm by a serious violent felon as a class B felony; possession of chemical reagents or precursors with intent to manufacture as a class D felony; dealing cocaine/methamphetamine as a class B felony; maintaining a common nuisance as a class D felony; possession of a machine gun as a class C felony; and neglect of a dependent as a class D felony. Appellant's App. at 1.

On June 24, 2003, Downs signed a plea agreement with an addendum attached thereto. The relevant terms of the agreement follow:

1. That [Downs] will enter a plea of guilty to the crime of: Count 1, Criminal Confinement, a Class B Felony, Count 3, Possession of a Firearm by a Serious Violent Felon, a Class B Felony, Count 5, Dealing in Methamphetamine, a Class B Felony, each of which carries a maximum sentence of twenty (20) years incarceration, a minimum sentence of six (6) years incarceration and a maximum fine of $10,000. Count 7, Possession of a Machine Gun, a Class C felony, which carries a maximum sentence of eight (8) years incarceration, a minimum sentence of two (2) years incarceration, and a maximum fine of $10,000.

2. That the STATE OF INDIANA and [Downs] agree that the sentence shall be on Count 1, Count 3, and Count 5, twenty (20) years incarceration with a cap of fifteen (15) years executed. The suspended portion of the sentence shall be served on supervised probation. Count 7, eight (8) years incarceration with a cap of six (6) years executed. The suspended portion of the sentence shall be served on supervised probation.

3. That Counts 2, 4, 6, and 8 shall be dismissed.

....

5. That Counts 1, 3, and 7 shall run concurrent to each other but it is left up to the discretion of the Court whether Count 5 runs concurrent or consecutive to Counts 1, 3, and 7.

Id. at 8-9. The addendum required Downs to "testify truthfully in State v. Michael Collins, Cause # 27C01-0304-MR-31." Id. at 12.

On August 22, 2003, the trial court sentenced Downs as follows:

The Court now sentences [Downs] to the custody of the Indiana Department of Correction for twenty (20) years on Counts 1, 3 and 5 and eight (8) years on Count 7. The Court now orders that Counts 1, 3, and 7 run concurrently but that Count 5 run consecutively to Counts 1, 3 and 7. The Court now suspends five (5) years of [Downs's] sentence on Counts 1, 3, and 5 and two (2) years on Count 7, it being the intention of the Court that [Downs] receive a total incarcerated sentence of thirty (30) years followed by ten (10) years of probation.

Id. at 14-15.

On October 10, 2003, David Payne, Downs's counsel, withdrew. On October 14, 2003, Downs filed a pro se petition for post-conviction relief, asserting that Payne was ineffective for failing to review evidence with him, not filing a motion to suppress evidence obtained from the search, and failing to adequately explain or challenge the plea agreement. Also on that date, Thomas Margolis entered his appearance for Downs.

On February 4, 2004, Downs refused to testify at Collins' trial. In response, the court in that case advised Downs of the consequences of not testifying and then permitted Downs to consult with his attorney on the matter. After hearing the court's advisement and consulting with his lawyer, Downs still refused to testify. Hence, on that date, the court issued an order, under cause number 27C01-0304-MR-31, finding Downs to be in direct criminal contempt pursuant to Indiana Code Section 34-47-2-2(1). Noting that the direct contempt brought confusion to the State's presentation of its case against Collins, the court ordered a two-year sentence "to run consecutively with [Downs's] sentence in 27C01-0304-FB-32." Exh. 1 at 2.

On February 10, 2004, the State filed a petition to revoke Downs's suspended sentence and noted the aforementioned finding of direct contempt. On February 20, 2004, Downs filed a motion to dismiss the State's petition to revoke his suspended sentence. On March 3, 2004, Downs filed a motion to correct error, in which he challenged the appropriateness of the two-year sentence for the finding of contempt. On March 10, 2004, the State filed an amended petition for revocation of suspended sentence, citing Downs's obstruction of justice for refusing to testify in Collins's trial, and the finding of direct contempt. Following a March 12, 2004 hearing, the court denied Downs's motion to dismiss and his motion to correct error. On April 6, 2004, Downs filed his notice of appeal.

On May 3, 2004, Downs filed an amended petition for post-conviction relief. Four days later, the court granted the State's motion to revoke Downs's suspended sentence and found that Downs had committed "a new crime, obstruction of justice, which amounts to a violation of his suspended sentence." Appellant's App. at 59. Accordingly, the court "reimposed" the ten years that had been suspended. Id. Following a hearing, the court also denied Downs's petition for post-conviction relief, finding that Downs had failed to meet his burden of demonstrating either that his counsel had been ineffective or that his consent was involuntary or unknowing due to his psychological condition. Downs filed an amended notice of appeal on May 14, 2004.

Discussion and Decision

I. Denial of Motion to Dismiss the State's Motion to Revoke Suspended Sentence

Downs titles the first of his three arguments, "Motion to Dismiss." Appellant's Br. at 12. Yet, the substance of his first argument concerns a claim that Downs breached his plea agreement by refusing to testify in Collins' trial, and that therefore the agreement should be void. If the agreement is void, Downs's argument continues, then he could challenge the evidence seized from his residence. Relying on the successful motion to suppress filed by Collins in his murder case, Downs contends that had his counsel filed a motion to suppress, it too would have been granted. Downs then states:

Further, there was the matter of the exposure to the revocation of the 10 year suspended sentence of the Plea Agreement, which flowed from the Plea Agreement and its clear and unambiguous terms and condition.

[Downs] requests that the finding of the trial court be reversed, and remanded with the instructions to void the Plea Agreement in the matter.

Appellant's Br. at 14.

The State responds that Downs's argument is unstructured, develops nothing concerning his motion to dismiss, and therefore should be waived for "failure to present a cogent argument." Appellee's Br. at 7. In the alternative, the State contends that the trial court correctly revoked Downs's suspended sentence because he violated a term of his probation when he committed a new criminal act by refusing to testify at Collins' trial.

Downs's first issue, as well as his brief as a whole, is hardly a model of clarity or conformity with our appellate rules. Indeed, although Downs lists six issues both in his table of contents and in his statement of the issues, his argument section is divided into only three unnumbered sections with headings that do not necessarily correlate with the substance beneath them. Appellant's Br. at 1.² Moreover, he begins the "arguments" with a list of cases and an extremely brief summary of each. He then follows up with various assertions that may or may not concern the previously cited cases. To the extent that we can discern Downs's arguments, we will address them. See Breeck v. City of Madison, 592 N.E.2d 700, 705 (Ind.Ct.App.1992) ("given our preference to decide appeals on their merits, we address [the] arguments as best we can discern them."), trans. denied; see also Poynter v. Poynter, 590 N.E.2d 150, 152 (Ind.Ct.App.1992) (noting that a party's contention barely approached the required cogent argument standard, yet addressing because "we are able to discern the crux of" it), trans. denied.

The heart of the matter is whether the court properly revoked Downs's probation and reinstated his suspended sentence. In determining whether there is sufficient evidence to support a probation revocation, we use the same standard of review as with any other sufficiency matter. Richeson v. State, 648 N.E.2d...