Carlos Ramirez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 20 2017, 6:27 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Carlos Ramirez Curtis T. Hill, Jr. Pendleton, IN Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, IN

IN THE COURT OF APPEALS OF INDIANA

Carlos Ramirez, September 20, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1703-PC-495 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Appellee-Plaintiff Shewmaker, Judge Trial Court Cause No. 20C01-1512-PC-54

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Case Summary [1] Carlos Ramirez sought post-conviction relief alleging that his trial counsel was

ineffective because he did not inform him of a plea offer from the State before

trial. The post-conviction court denied relief, finding that trial counsel had in

fact informed Ramirez of the plea offer and that Ramirez had turned it down.

Because we do not reweigh the evidence or judge the credibility of the

witnesses, we affirm the post-conviction court’s denial of relief.

Facts and Procedural History [2] In the summer of 2008, a confidential informant purchased cocaine from

Ramirez in Goshen on three separate occasions. The State charged Ramirez

with three counts of dealing in cocaine, two as Class B felonies and one as a

Class A felony. Brent Zook, an attorney since the late 1970s and a public

defender in Elkhart County, represented Ramirez at trial. The jury found

Ramirez guilty as charged. The trial court sentenced him to fifteen years for

each of the Class B felonies and forty years for the Class A felony, to be served

concurrently. On direct appeal, we found that Ramirez’s sentences were

inappropriate and remanded for the trial court to impose a thirty-year sentence

for the Class A felony and a ten-year sentence for each of the Class B felonies,

to be served concurrently. Ramirez v. State, No. 20A03-0907-CR-337 (Ind. Ct.

App. Feb. 25, 2010).

Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017 Page 2 of 6 [3] In 2015, Ramirez filed a pro se petition for post-conviction relief, which was

later amended. Specifically, Ramirez alleged that Attorney Zook failed to

inform him of a plea offer from the State before trial. A hearing was held in

2016. Attorney Zook had passed away by this time. Ramirez testified at the

hearing that there was a twenty-five-year plea offer from the State that Attorney

Zook never told him about and that had he known about the offer he would

have accepted it. See P-C Tr. Vol. II p. 7. In response, the State presented

testimony from Clifford Williams, the Chief Public Defender for Elkhart

County since 1985. Williams testified that he was familiar with the customs

and practices of the public defenders in his office, that most criminal cases

involve an attempt to negotiate a plea, that public defenders have a legal and

ethical obligation to discuss every plea offer with their clients, and that

ultimately it is the defendant’s choice whether to accept a plea offer. Williams

testified that Attorney Zook was a “thorough” attorney who handled serious

felony cases and “many, many, many” jury trials. Id. at 23-24. In addition,

Williams brought Attorney Zook’s file from Ramirez’s case with him to the

hearing. Williams confirmed that it was Attorney Zook’s file based on his

familiarity with Attorney Zook’s handwriting. Inside the file, there was a sheet

called “Attorney Notes.” See Ex. 1. Williams described the purpose of the

“Attorney Notes” sheet as follows: “[B]asically you put in a date of . . . possibly

a jail visit or the date maybe when you’ve interviewed someone or the date

when you’ve looked at a video, that sort of thing. It’s kind of [a] log of what

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you’ve done . . . .” P-C Tr. Vol. II p. 25. On May 28, 2009,1 Attorney Zook

handwrote that Ramirez “turn[ed] down the deal of 25 cap on A [felony].” Ex.

1. [4] The post-conviction court denied relief, reasoning:

Considering that there is physical evidence indicating that [Attorney Zook] made a note in the case file that [Ramirez] turned down a deal of 25 cap, [Ramirez’s] self serving statement that counsel never brought a plea offer to him for consideration carries very little weight and [Ramirez’s] assertion is not credible. Therefore, the Court cannot draw the conclusion based on the evidence before it that [Attorney Zook] was ineffective in his representation of [Ramirez] with respect to any plea negotiations in this case.

Appellant’s App. Vol II p. 40. [5] Ramirez, pro se, now appeals.

Discussion and Decision [6] Defendants who have exhausted the direct-appeal process may challenge the

correctness of their convictions and sentences by filing a petition for post-

conviction relief. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied.

Post-conviction proceedings are not an opportunity for a “super-appeal,” and

1 The CCS reveals that a hearing was held on May 28, 2009. Ramirez’s jury trial then began on June 1, 2009.

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not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001),

reh’g denied. Rather, subsequent collateral challenges to convictions must be

based on grounds enumerated in the post-conviction rules. Ind. Post-

Conviction Rule 1(1); Timberlake, 753 N.E.2d at 597. In post-conviction

proceedings, complaints that something went awry at trial are cognizable only

when they show deprivation of the right to effective counsel or issues

demonstrably unavailable at the time of trial or direct appeal. Sanders v. State,

765 N.E.2d 591, 592 (Ind. 2002). [7] Post-conviction proceedings are civil proceedings, requiring the petitioner to

prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

745. We review the post-conviction court’s legal conclusions de novo but

accept its factual findings unless they are clearly erroneous. Id. at 746. We will

not reweigh the evidence or judge the credibility of the witnesses; we examine

only the probative evidence and reasonable inferences that support the decision

of the post-conviction court. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind.

2007), reh’g denied. 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. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). [8] A defendant claiming that his attorney was ineffective must show by a

preponderance of the evidence that (1) counsel’s performance fell below the

objective standard of reasonableness based on “prevailing” professional norms

and (2) the defendant was prejudiced by this substandard performance, i.e.,

there is a “reasonable probability” that, but for counsel’s errors or omissions,

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the outcome of the case would have been different. Stephenson, 864 N.E.2d at

1031. [9] Ramirez notes the general principle that criminal-defense attorneys have a duty

to inform their clients of plea agreements proffered by the prosecution and that

failure to do so constitutes ineffective assistance of counsel. See, e.g., Dew v.

State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006), trans. denied. He then claims

that Attorney Zook was ineffective because he “did not proffer a plea agreement

to the Appellant for 25 years.” Appellant’s Br. p. 5. Ramirez fails to

acknowledge, however, that the post-conviction court found, based on the

evidence presented at the hearing, that (1) Attorney Zook informed him of the

twenty-five-year plea deal, (2) Ramirez turned down that deal, and (3)

Ramirez’s “self serving” claim to the contrary was “not credible.” Because we

do not reweigh the evidence or judge the credibility of the witnesses, we affirm

the post-conviction court’s denial of relief. [10] Affirmed.

Mathias, J., and Crone, J., concur.

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