Marcie L. Grant v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
FILED
May 02 2012, 9:18 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
JOANNA GREEN ERIC P. BABBS
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARCIE L. GRANT, )
)
Appellant-Petitioner, )
)
vs. ) No. 13A01-1109-PC-422
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable Kenneth L. Lopp, Judge
Cause No. 13C01-1105-PC-001
May 2, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Marcie L. Grant (“Grant”) pleaded guilty to Class B felony dealing in cocaine and
Class C felony dealing in a Schedule IV controlled substance and was sentenced to an
aggregate sentence of ten years with four years suspended. Grant then filed a petition for
post-conviction relief claiming that her plea was invalid and that she was denied the
effective assistance of trial counsel. The post-conviction court denied Grant’s petition,
and Grant appeals. On appeal, Grant presents three issues, which we restate as:
I. Whether the post-conviction court erred in concluding that there was an
adequate factual basis for Grant’s plea of guilty to Class B felony dealing in
cocaine;
II. Whether the post-conviction court erred in concluding that Grant was not
denied the effective assistance of trial counsel; and
III. Whether the post-conviction court erred in concluding that Grant’s plea was
knowingly, voluntarily, and intelligently entered.
We affirm.
Facts and Procedural History
On July 1, 2008, an individual informed the police that he had been at a certain
residence in Crawford County, in which he had seen a large amount of cocaine,
marijuana, and Xanax. This informant also told the police that he had purchased Xanax
at this residence the day before and that the substance was located in the master bedroom.
Based on this information, the police obtained a warrant to search the house referred to
by the informant.
During the subsequent search of the house, the police found three people in the
master bedroom: defendant Grant, her husband Clinton Grant (“Clinton”), and Leroy
Weyrauch (“Weyrauch”). Clinton and Grant told the police that they owned the house.
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When the police asked if there was anything in the house that the police should know
about, both Clinton and Grant told them that there was cocaine in a trunk located
underneath the bed. When the police searched the trunk, they discovered that it contained
a white, powdery substance that field-tested positive as cocaine. Also inside the trunk
were 150 plastic sandwich bags, a set of digital scales, and 250 dollars in cash. In or near
the trunk, the police also found a sheet of paper with names and dollar amounts written in
a list. A silver container located on a table beside the bed also contained a substance
which field-tested positive as cocaine. The police also found marijuana and Xanax pills
in the bedroom.
While the police searched the house, Grant, Clinton, and Weyrauch were read
their Miranda rights. Clinton waived his rights and informed the police that he had been
selling cocaine for approximately four weeks. He also told the police that his customers
would typically purchase the cocaine and consume it at the house. Grant also waived her
rights and admitted to selling Xanax. Grant also told the police that she had discovered
that her husband had been dealing cocaine about two weeks earlier. Grant further told the
police that Weyrauch had been prepared to consume cocaine when the police came to the
house, at which time he flushed his cocaine down the toilet.
On July 3, 2008, the State charged Clinton with Class A felony dealing in cocaine,
Class C felony possession of cocaine, Class C felony dealing in a schedule IV controlled
substance, i.e. alprazolam,1 Class D felony maintaining a common nuisance, and Class A
misdemeanor possession of marijuana. On January 25, 2010, Grant agreed to plead
1
Xanax is a brand name for alprazolam. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000807/.
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guilty to dealing in cocaine, but as a Class B felony instead of a Class A felony, and Class
C felony dealing in a controlled substance. In exchange, the State agreed to dismiss the
remaining charges. Also, pursuant to the plea, the sentences Grant received were to be
served concurrently.
At the guilty plea hearing, the trial court informed Grant of her rights, and the
following colloquy took place:
Court: Alright, let’s see if there’s a factual basis. Please raise
your right hand.
(Witness sworn)
Grant: Yes sir.
Court: Alright, on the 2nd day of July, 2008, at or near 140
North Richardson Lane in Milltown, Crawford County,
State of Indiana . . . were you present?
Grant: Yes sir.
***
[Defense counsel]: Okay Ms. Grant, at that address . . . that’s your
residence with your husband, correct?
Grant: Correct.
[Defense counsel]: And his name is?
Grant: Clinton Grant.
[Defense counsel]: Okay and Clinton, at that time, had cocaine in the
house, didn’t he?
Grant: Yes he did.
[Defense counsel]: And he was dealing cocaine in the house, wasn’t he?
Grant: Yes he was.
[Defense counsel]: And you knew about the dealing of the cocaine?
Grant: Yes sir.
[Defense counsel]: And you benefited from that dealing of cocaine?
Grant: Yes sir.
[Defense counsel]: So to the Class “B” Felony, Dealing in Cocaine, how
would you plead?
Grant: Guilty.
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Appellant’s App. pp. 24-26. At the end of the hearing, the trial court took Grant’s plea
under advisement and ordered the probation department to prepare a pre-sentence
investigation report.
On April 29, 2010, the trial court accepted Grant’s guilty plea and sentenced Grant
to ten years on the Class B felony conviction with six years executed and four years
suspended to probation. The trial court also sentenced Grant to a concurrent term of eight
years on the Class C felony conviction, with four years executed and four years
suspended to probation. Thus, Grant received an aggregate term of ten years, with four
years suspended. Grant did not file a direct appeal.
On May 19, 2011, Grant filed a petition for post-conviction relief. The post-
conviction court held a hearing on Grant’s motion on June 7, 2011. The trial court then
issued an order denying Grant’s petition on June 13, 2011. Grant filed a motion to
correct error on June 30, 2011, requesting a hearing so that she could present testimony
from her trial counsel. The post-conviction court granted this motion in part and held an
evidentiary hearing on July 27, 2011. The post-conviction court then issued another
order affirming its earlier denial of Grant’s post-conviction petition. Grant now appeals.
Post-Conviction Standard of Review
Post-conviction proceedings are not “super-appeals” and provide only a narrow
remedy for subsequent collateral challenges. State v. Cooper, 935 N.E.2d 146, 148-49
(Ind. 2010). The post-conviction petitioner bears the burden of establishing his grounds
for relief by a preponderance of the evidence. Id. (citing Ind. Post-Conviction Rule 1(5)).
A petitioner who appeals from the denial of his petition for post-conviction relief appeals
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from a negative judgment. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore,
to the extent that the appeal turns on factual issues, the petitioner must convince the court
on appeal that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. Id. “In other words, the defendant
must convince [the court on appeal] that there is no way within the law that the court
below could have reached the decision it did.” Id.
I. Factual Basis
An Indiana court cannot accept a guilty plea unless there is an adequate factual
basis for the plea. State v. Cooper, 935 N.E.2d 146, 150 (Ind. 2010) (citing Ind. Code §
35-35-1-3(b) (2008)). The purpose of the factual basis requirement is to ensure that a
person who pleads guilty is truly guilty. Id. As the court in Cooper explained:
[T]he court should satisfy itself that the defendant could be convicted if he
or she elected to stand trial. A factual basis exists when there is evidence
about the elements of the crime from which a court could conclude that the
defendant is guilty. The presentation about facts need not prove guilt
beyond a reasonable doubt. The original trial court’s determination that the
factual basis was adequate is clothed with the presumption of correctness.
935 N.E.2d at 150 (citations and internal quotations omitted). In light of these declared
purposes for the requirement of a factual basis, claims about omissions in the factual
basis have been unavailing when the omissions do not seem to demonstrate doubt about
actual guilt. Id.
A court need not find evidence proving guilt beyond a reasonable doubt to
conclude that a factual basis exists, as such a high standard would “transform the guilty
plea hearing into a veritable bench trial, the very process that one pleading guilty seeks to
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avoid.” Butler v. State, 658 N.E.2d 72, 77 (Ind. 1995). Instead, a factual basis exists
when there is evidence about the elements of the crime from which a court could
reasonably conclude that the defendant is guilty, and even relatively minimal evidence
has been held to be adequate. Id.
Here, Grant claims that there was an insufficient factual basis for her plea of guilty
to Class B felony dealing in cocaine. Specifically, she insists that the evidence before the
court at her guilty plea hearing demonstrates only that her husband, but not Grant, was
guilty of dealing in cocaine.
The statute defining the offense of dealing in cocaine provides that a person
commits dealing in cocaine if they: (1) knowingly or intentionally manufacture, finance
the manufacture of, deliver, or finance the deliver of cocaine, or (2) possess cocaine with
the intent to manufacture, finance the manufacture, delivery, or finance the delivery of
cocaine. Ind. Code § 35-48-4-1(a) (2006).2 Grant argues that there was no evidence in
the factual basis that she possessed any cocaine with the intent to deliver.
Grant acknowledges that the post-conviction court noted the factors that are
relevant when considering whether a defendant is guilty as an accomplice. But Grant
claims that she was not charged with accomplice liability and that she did not plead guilty
to being an accomplice. We disagree.
Contrary to Grant’s claims, the State was not required to charge her or otherwise
“prosecute” her as an accomplice. It is well established that a person can be charged as a
2
“Delivery” is defined by statute as “(1) an actual or constructive transfer from one (1) person to another
of a controlled substance, whether or not there is an agency relationship; or (2) the organizing or
supervising of an activity described in subdivision (1).” Ind. Code § 35-48-1-11.
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principal and convicted as an accomplice. Specht v. State, 838 N.E.2d 1081, 1092 (Ind.
Ct. App. 2005). This is so because the accomplice liability statute does not set forth a
separate crime, but merely provides a separate basis of liability for the crime that is
charged. Id. Thus, an individual who aids another person in committing a crime is as
guilty of the crime as the actual perpetrator. Id. at 1093. In other words, “a defendant
may be convicted as a principal upon evidence that he aided or abetted in the perpetration
of the charged crime.” Id.; see also Ind. Code § 35-41-2-4 (“A person who knowingly or
intentionally aids, induces, or causes another person to commit an offense commits that
offense.”). And an accomplice need not participate in each and every element of the
crime in order to be convicted of it. Specht, 838 N.E.2d at 1092. In fact, the State can
change its theory of the case during the trial. Suggs v. State, 883 N.E.2d 1188, 1192 (Ind.
Ct. App. 2008).
In determining whether a person aided another in the commission of a crime, a
court should consider the following four factors: (1) the defendant’s presence at the scene
of the crime; (2) the defendant’s companionship with another engaged in criminal
activity; (3) the defendant’s failure to oppose the crime; and (4) the defendant’s conduct
before, during, and after the occurrence of the crime. Vandivier v. State, 822 N.E.2d
1047, 1054 (Ind. Ct. App. 2005) (citing Garland v. State, 788 N.E.2d 425, 431 (Ind.
2003)). Although the defendant’s mere presence during the commission of the crime or
her failure to oppose the crime are, by themselves, insufficient to establish accomplice
liability, the jury may consider them along with other facts and circumstances tending to
show participation. Id. A defendant may be convicted as an accomplice where she
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merely had a tangential involvement in the crime. Ajabu v. State, 693 N.E.2d 921, 937
(Ind. 1998). Indeed, our supreme court has noted that even a person who merely
comforted or assisted the perpetrator after the offense may be convicted as an accomplice.
Id. (citing Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997)). Evidence that the
accomplice acted in concert with those who physically committed the elements of the
crime is sufficient to support a conviction as an accomplice. Porter v. State, 715 N.E.2d
868, 870 (Ind. 1999).
Here, Grant was present at the scene of the crime, she was married to the principal
who was engaged in the criminal activity, and she did not oppose the crime. Furthermore,
she admitted to selling a controlled substance at the same location that her husband sold
cocaine. She also admitted that she knew that her husband was dealing cocaine and that
she benefited from his dealing. From this factual basis, the trial court could have
reasonably concluded that Grant was guilty of aiding, inducing, or causing her husband to
deal cocaine. See Echols v. State, 722 N.E.2d 805, 807 (Ind. 2000) (holding that
evidence was sufficient to support defendant’s conviction for murder and attempted
murder under a theory of accomplice liability where defendant drove his nephew to an
apartment complex, guns were clearly visible inside the car, and nephew shot at a crowd
at the apartment complex); B.K.C. v. State, 781 N.E.2d 1157, 1165 (Ind. Ct. App. 2003)
(holding that evidence was sufficient to support juvenile adjudication, under a theory of
accomplice liability for robbery where juvenile accompanied perpetrator to restaurant,
did nothing to oppose perpetrator when he brandished a weapon, ran and hid with
perpetrator when other customers entered the restaurant, and demanded that restaurant
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employee open a door through which juvenile and perpetrator fled). Therefore, the post-
conviction court did not err in rejecting Grant’s claim that there was no factual basis to
support her plea of guilty to Class B felony dealing in cocaine.
Moreover, even if we were to assume that there was an inadequate factual basis to
support Grant’s plea of guilty, she must still demonstrate that this failure impacted her
decision to plead guilty. See State v. Eiland, 723 N.E.2d 863, 865 (Ind. 2000). Here,
Grant claims that she would not have pleaded guilty because the evidence showed only
that her husband actually dealt cocaine. Again, we disagree.
Grant was in a bedroom with her husband and a customer who had just purchased
cocaine. Grant knew where the cocaine was hidden in the room and was herself dealing
Xanax from the room. She admitted that she had known for about two weeks that her
husband had been dealing cocaine. And she admitted that she benefitted from her
husband’s illegal activity. In exchange for her plea, the State agreed to reduce the
dealing in cocaine charge to a Class B felony and dismiss several other charges against
Grant. Given the evidence against her, the post-conviction court could have reasonably
concluded that Grant would have still chosen to accept the State’s plea offer even if a
proper factual basis had not been established at the guilty plea hearing.
II. Ineffective Assistance of Trial Counsel
Grant also claims that her trial counsel was ineffective for advising her that she
could be found guilty of dealing in cocaine and encouraged her to accept the State’s plea
offer. To prevail upon a claim of ineffective assistance of trial counsel, a defendant must
demonstrate both that her trial counsel’s performance was deficient and that she was
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prejudiced by such deficient performance. Polk v. State, 822 N.E.2d 239, 244 (Ind. Ct.
App. 2005), trans. denied (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Here, Grant claims that her trial counsel was ineffective for advising her that she
could be found guilty of dealing in cocaine. Based upon our discussion above with
regard to the factual basis, we conclude that this was not inaccurate advice. While the
evidence of Grant’s guilt might not have been overwhelming, it was sufficient to support
a conviction for dealing in cocaine as an accomplice. Because Grant’s trial counsel’s
advice was not erroneous, her trial counsel was not ineffective for rendering this advice
to her.
III. Knowing, Voluntary, and Intelligent Plea
Lastly, Grant claims that her plea was not made knowingly, voluntarily, or
intelligently. Because a guilty plea constitutes a waiver of constitutional rights, this
waiver requires the trial court to evaluate the validity of every plea before accepting it.
Davis v. State, 675 N.E.2d 1097, 1102 (Ind. 1996). For a guilty plea to be valid, it must
represent a voluntary and intelligent choice among the alternative courses of action open
to the defendant. Diaz v. State, 934 N.E.2d 1089, 1094 (Ind. 2010).
Here, Grant argues that her plea was not voluntarily or intelligently made because
it was based upon her counsel’s allegedly inaccurate advice that she could be found guilty
and convicted of dealing in cocaine. We have already concluded that Grant’s trial
counsel was not incorrect in his assessment. Because Grant’s claim that her plea was
based on erroneous advice is incorrect, the post-conviction court properly denied her
claim that her plea was not knowingly, voluntarily, and intelligently entered.
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Conclusion
The post-conviction court did not err in concluding that Grant’s guilty plea was
supported by an adequate factual basis, that Grant’s trial counsel was not ineffective, or
that Grant’s plea was knowingly, voluntarily, and intelligently entered.
Affirmed.
ROBB, J., and BAILEY, J., concur.
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