Vance R. Pace v. State of Indiana , 981 N.E.2d 1253 ( 2013 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
VICTORIA CHRIST JAMES B. MARTIN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
FILED
Feb 05 2013, 10:26 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
VANCE R. PACE, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1206-PC-378
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1103-PC-9
February 5, 2013
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Vance R. Pace (“Pace”) appeals from the post-conviction court’s order denying his
petition for post-conviction relief, which sought to set aside his convictions for Class B
felony dealing in amphetamine and Class B felony unlawful possession of a firearm by a
serious violent felon (“SVF”) based on claims of ineffective assistance of trial and
appellate counsel, stemming from trial counsel’s failure to file a motion to bifurcate1
Pace’s jury trial on his dealing in amphetamine and SVF charges.
We reverse and remand.
ISSUE
Whether the post-conviction court erred by denying Pace’s petition for
post-conviction relief.
FACTS
The facts of Pace’s crimes were set forth in the opinion from Pace’s direct appeal
as follows:
1
Throughout the post-conviction proceedings, the parties use the terms “sever” and “bifurcate” when
discussing trial counsel’s failure to request separation of Pace’s dealing charge from his SVF charge. We
note that the procedural effect of a motion to sever is different from a motion to bifurcate, as the former
would result in two separate trials and the latter would result in two stages of one trial. Nevertheless, for
the most part, the parties seem to use these terms interchangeably. For example, in Pace’s post-
conviction petition, he alleges that trial counsel was ineffective for failing to file a “motion to sever or
bifurcate” the dealing charge from the SVF charge. (App. 7). However, during the post-conviction
hearing, Pace’s post-conviction counsel seemed to predominantly use the term “sever” when questioning
Pace’s trial counsel regarding his decision not to separate the two charges. From our review of the record,
as well as the argument on appeal, it appears clear that Pace’s post-conviction claim is based on an
allegation that trial counsel was ineffective for failing to file a motion to bifurcate the trial on the dealing
and SVF charges based on our Indiana Supreme Court’s holding in Hines v. State, 801 N.E.2d 634 (Ind.
2004), reh’g denied, and not an allegation that trial counsel was ineffective for failing to file a motion to
sever under Indiana Code § 35-34-1-11. Thus, in this opinion, we will use the term bifurcate and will
address Pace’s ineffective assistance of trial counsel argument in terms of the failure to request
bifurcation. Even if we were to review the issue as a failure to file a motion to sever, our holding would
not change.
2
On January 24, 2004, the Goshen Police Department was
investigating Pace for allegations of drug dealing using both uniformed and
undercover police officers. Lieutenant Shawn Turner, Captain Wade
Branson, and Officer Daniel Young were following Pace in unmarked
vehicles. Lieutenant Turner saw Pace drive into Win Pines Trailer Park
with another person in the passenger seat. The officers lost sight of Pace’s
vehicle for approximately three minutes, and then another undercover
officer spotted the vehicle with only one person visible inside. Lieutenant
Kirk Maggert and Sergeant David Miller, uniformed and in marked
vehicles, stopped Pace’s vehicle. They removed the driver from the vehicle
and found Pace lying in the back seat partially covered with clothing and
feigning sleep. The officers removed Pace from the vehicle and placed him
in handcuffs.
Upon searching the vehicle, the police discovered a baggie
containing four smaller individually wrapped baggies that each contained
one-sixteenth of an ounce of methamphetamine, a quantity known on the
street as a “teenager” or “teenie.” In total, the police found 8.87 grams of
methamphetamine in the vehicle. A loaded .32 caliber handgun was in the
center console of the vehicle. Pace had $386 in cash on his person as well
as various notes of mathematical figures, names, and specific street
terminology that indicated the notes were drug related.
On January 24, 2004, the State charged Pace with dealing in
methamphetamine in excess of three grams as a class A felony and SVF.[2]
On February 12, 2004, the State amended the Information to include an
allegation that Pace was a habitual offender. On November 4, 2004, the
State again amended the Information to reduce the dealing count to a class
B felony.[3]
The trial court bifurcated the habitual offender phase of the trial
from the other two charges, and Pace did not request that the dealing charge
be bifurcated from the SVF charge. The jury trial commenced on
November 8, 2004. In the preliminary instructions, the trial court listed,
without objection, Pace’s prior conviction for dealing cocaine as an element
of the SVF charge.[4]
2
Pace’s SVF charge alleged that Pace was a serious violent felon for having been convicted of Class B
felony dealing in cocaine in August 1992.
3
The dealing charge was amended from Class A felony dealing methamphetamine to a Class B felony
dealing a schedule II controlled substance based on his possession of amphetamine with intent to deliver.
4
The trial court’s instruction set forth the SVF charge as follows:
3
Pace v. State, No. 20A03-0504-CR-158, slip op. at 2-3 (Ind. Ct. App. Aug. 2005). See
also (App. 201-02). During the State’s opening argument, the prosecutor also mentioned
Pace’s prior conviction for dealing in cocaine.
Prior to resting its case, the State entered into evidence—without objection from
Pace—State’s Exhibit 7, which consisted of the following documents from Pace’s 1992
dealing in cocaine case under cause number 20C01-9208-CF-063: (1) the charging
information charging Pace with “three counts of delivery of cocaine[;]” (2) a negotiated
plea agreement; (3) a sentencing order; (4) a judgment of conviction; and (5) an abstract
of judgment. (Pace’s Ex. C at 150; App. 148). In relation to these documents, Pace
stipulated that he was “the same Vance R. Pace in the State of Indiana -vs- Vance
Richard Pace, Cause No. 20C01-9208-CF-063.” (Pace’s Ex. F at 69; App. 108; see also
Pace’s Ex. C at 150; App. 148).
The jury found Pace guilty of the dealing and SVF charges. The jury also
determined that Pace was an habitual offender. During Pace’s sentencing hearing, “[t]he
State moved for judgment notwithstanding the conviction on the habitual offender
finding due to a technicality[,]” and “[t]he trial court found that Pace was not a[n]
habitual offender for purposes of sentencing.” Pace v. State, No. 20A03-0504-CR-158,
[O]n or about the 14th of January, 2004, at the County of Elkhart and State of Indiana, one
VANCE R. PACE, a serious violent felon, knowingly possessed a firearm, to wit: a .32
caliber Keltec handgun, after having been convicted of a serious violent felony, to wit:
Dealing Cocaine, a Class B felony, on the 17th day of December, 1992, in the Elkhart
Circuit Court, Elkhart[.]
Pace’s Ex. F at 51.
4
slip op. at 3. See also (App. 202). The trial court imposed a ten (10) year sentence on
Pace’s dealing conviction to be served consecutively to a twenty (20) year sentence on
his SVF conviction. The trial court ordered the sentences to be served at the Department
of Correction.
Thereafter, in 2005, Pace filed a direct appeal from his convictions, arguing that
the trial court committed fundamental error when it (1) referred to Pace’s 1992 dealing in
cocaine conviction when reading his SVF charging information during preliminary
instructions; and (2) did not sua sponte bifurcate or sever his SVF charge from his
dealing charge. Our Court affirmed Pace’s convictions, holding that there was no
fundamental error. We noted that there was no statutory provision specifically requiring
bifurcation of an SVF charge, and we explained that the case of Hines v. State, 794
N.E.2d 469 (Ind. Ct. App. 2003), adopted on transfer by Hines v. State, 801 N.E.2d 634(Ind. 2004), reh’g denied—which “held it was error to refuse a defendant’s request to
bifurcate a trial where there is an SVF charge and another unrelated felony”—was not
applicable because Pace had not filed a motion for bifurcation. Pace v. State, No.
20A03-0504-CR-158, slip op. at 5; see also (App. 204). Finally, we concluded that even
if the trial court had erred, any error was harmless error given the evidence presented that
supported his convictions. In a concurring opinion, Judge Barnes wrote the following “to
express [his] unease with the serious violent felon protocol[:]”
I note here my concern with the ability of a person, much less a juror
asked to determine the guilt of a suspected drug dealer, to divorce him or
herself from the fact that this defendant, presumably clothed with a
presumption of innocence, previously has been convicted of being just what
he is now alleged to be – a drug dealer.
5
I agree with the majority that the onus is on the defendant to make
the request of a trial court to bifurcate, or in this case, trifurcate the
proceedings. Pace did not do so and he has waived the issue. I do take
slight issue with the majority’s assertion that “no error” occurred here. Slip
op. at 2. Strictly speaking, it was erroneous not to separate trial of the
dealing charge from the serious violent felon charge. See Hines v. State,
794 N.E.2d 469, 473 (Ind. Ct. App. 2003), adopted on transfer, 801 N.E.2d
634 (Ind. 2004). Under the facts and circumstances present here, however,
it was not fundamental error that requires reversal of Pace’s convictions.
Pace v. State, No. 20A03-0504-CR-158, slip op. at 8-9; see also (App. 207-08).
In December 2010, Pace filed a petition for post-conviction relief, arguing that he
had received ineffective assistance of trial and appellate counsel. In relevant part, Pace
alleged that his trial counsel, Juan Garcia, Jr. (“Attorney Garcia”), was ineffective for (1)
failing to file a motion to sever or bifurcate his dealing amphetamine charge from his
SVF charge; and (2) failing to object to the preliminary instruction that set out his SVF
charge and informed the jury that he had a prior dealing conviction. Pace alleged that his
appellate counsel, Michael Greene (“Attorney Greene”), was ineffective for, among other
things, failing to file a petition for rehearing or a petition to transfer in his direct appeal
proceeding to argue that the Court of Appeals had failed to follow the precedent in Hines.
The post-conviction court held a post-conviction hearing on September 19, 2011
and December 28, 2011. During the post-conviction hearing, Pace introduced into
evidence the record from his trial and direct appeal, and he called Attorney Garcia and
Attorney Greene as witnesses. Attorney Garcia testified that Pace had no affirmative
defenses and that his trial strategy was “to make the [S]tate meet its burden of proof[.]”
(Tr. 16). When asked why he did not move to separate the dealing amphetamine charge
6
from his SVF charge, Attorney Garcia testified that he “[did not] think it would be
beneficial to [Pace]” and that he did not think that Pace was prejudiced by having the two
charges heard at the same time. (Tr. 17). Attorney Garcia testified that he had
“assess[ed] the evidence[,]” spoke with Pace, and reasoned that he had a “better shot” of
winning one trial instead of two. (Tr. 23). Attorney Garcia testified that he was aware
that Pace’s prior dealing cocaine conviction would be presented to the jury as part of the
trial on the two charges but testified that he did not “believe it was in Mr. Pace’s best
interest to request a severance.” (Tr. 23). Attorney Garcia did, however, acknowledge
that there was “no benefit” to the jury hearing that Pace had been previously convicted as
a drug dealer. (Tr. 22). When asked if he was aware of the Hines case at the time he
represented Pace at trial, Attorney Garcia testified that he “[did not] recall if [he] was
aware of that case of not[.]” (Tr. 33).
Pace’s appellate counsel, Attorney Greene, testified that he thought that trial
counsel should have filed a motion to bifurcate the two charges and should have objected
to the preliminary instruction because it “would [have] taint[ed] [the jury] if they knew
[Pace] had prior [sic] been convicted of the Dealing charge [when] he [was] being tried
for a new Dealing charge.” (Tr. 70). Attorney Greene explained that he did not raise an
ineffective assistance of trial counsel issue in Pace’s direct appeal because he knew that
an ineffective assistance of counsel claim was an issue that should be raised in a petition
for post-conviction relief.
On April 25, 2012, the post-conviction court issued an order denying post-
conviction relief to Pace. In relevant part, the post-conviction court determined that trial
7
counsel’s decision not to file a motion to bifurcate Pace’s two charges was a strategic
decision and that Pace had failed to meet his burden of proving that he had received
ineffective assistance of trial counsel. Pace then filed a motion to correct error, which the
trial court denied. Pace now appeals.
DECISION
Pace appeals from the post-conviction court’s order denying post-conviction relief
on his claims of ineffective assistance of trial and appellate counsel. Our standard of
review in post-conviction proceedings is well settled.
We observe that post-conviction proceedings do not grant a petitioner a
“super-appeal” but are limited to those issues available under the Indiana
Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
petitioners bear the burden of proving their grounds for relief by a
preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
petitioner who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence and the
reasonable inferences supporting the judgment of the post-conviction court.
The appellate court must accept the post-conviction court’s findings of fact
and may reverse only if the findings are clearly erroneous. If a PCR
petitioner was denied relief, he or she must show that the evidence as a
whole leads unerringly and unmistakably to an opposite conclusion than
that reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations
omitted), trans. denied.
Pace argues that he received ineffective assistance of trial and appellate counsel.5
We apply the same standard of review to claims of ineffective assistance of appellate
counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State,
5
Contrary to Pace’s suggestion, the post-conviction court did not determine that the ineffective assistance
of counsel claims were unavailable for review in the post-conviction proceeding. The post-conviction
court concluded that any freestanding claim on the bifurcation issue was unavailable.
8
724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied. A claim of ineffective
assistance of trial counsel requires a showing that: (1) counsel’s performance was
deficient by falling below an objective standard of reasonableness based on prevailing
professional norms; and (2) counsel’s performance prejudiced the defendant such that
“‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g denied),
reh’g denied, cert. denied. “A reasonable probability arises when there is a ‘probability
sufficient to undermine confidence in the outcome.’” Grinstead v. State, 845 N.E.2d
1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of
the two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)).
Pace argues his trial counsel was ineffective for failing to file a motion to bifurcate
his SVF charge from his dealing in amphetamine charge on the basis of the Indiana
Supreme Court’s decision in Hines. Specifically, Pace asserts that “[c]ounsel should
have bifurcated the Serious Violent Felon count because Pace’s jury was being asked to
determine whether Pace possessed with intent to deal amphetamines and would not be
able to judge the evidence without bumping into Pace’s Drug Dealing conviction and
charges that counsel could have easily excluded.” Pace’s Br. at 16.
The decision regarding whether to file a particular motion is a matter of trial
strategy. Moore v. State, 872 N.E.2d 617, 620 (Ind. Ct. App. 2007), reh’g denied, trans.
denied. “‘[A]bsent an express showing to the contrary, the failure to file a motion does
9
not indicate ineffective assistance of counsel.’” Id. at 620-21 (quoting Glotzbach v. State,
783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003)). “‘To prevail on an ineffective assistance of
counsel claim based upon counsel’s failure to file motions on a defendant’s behalf, the
defendant must demonstrate that such motions would have been successful.’” Moore, 872
N.E.2d at 621 (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002),
clarified on reh’g, 774 N.E.2d 116 (Ind. Ct. App. 2002), trans. denied).
Here, the post-conviction court concluded that Pace’s trial counsel had not
rendered ineffective assistance of counsel because trial counsel had made a strategic
decision not to file a motion to bifurcate Pace’s trial on his dealing amphetamine and
SVF charges. “It is well established that ‘trial strategy is not subject to attack through an
ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable
as to fall outside of the objective standard of reasonableness.’” Davidson, 763 N.E.2d at
446 (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998)).
Pace argues that trial “[c]ounsel’s decision to have a single trial, where evidence
of Pace’s Drug Dealing conviction was admitted and argued throughout, was not the
result of sound strategy designed to be protected under a Strickland analysis.” Pace’s Br.
at 13. Pace points out that Hines had been decided almost one year before Attorney
Garcia represented Pace at trial and that the bifurcation issue concerning an SVF charge
was “not a novel procedure.” Pace’s Br. at 12. Pace suggests that his trial counsel’s
decision not to bifurcate was not a reasonable strategic decision because counsel did not
follow the case law of Hines, which would have required the trial court to grant the
motion to bifurcate. We agree.
10
The issue of bifurcation in relation to a trial involving a SVF charge has been
considered by our Court on various occasions. For example, in 2001, we explained that,
in a trial where a defendant is charged only with being a SVF in possession of a firearm,
bifurcation was “not practical, or even possible” because the defendant’s status as an SVF
is an essential element of that SVF offense. Spearman v. State, 744 N.E.2d 545, 548
(Ind. Ct. App. 2001), reh’g denied, trans. denied. We recognized, however, that
prejudice may arise when a jury is informed that a defendant has a prior conviction as
part of the evidence establishing the status element of a SVF charge, but we noted that
“the focus cannot be placed solely on the question of the prejudicial effect of such
evidence.” Id. at 549. We explained that, instead, “the focus should be on whether the
prejudice arising from evidence of prior crimes outweighs the probative value of such
evidence.” Id. Finally, we stated that a trial court could “mitigate the prejudicial effect
of evidence of a prior conviction by excluding evidence regarding the underlying facts of
the prior felony and limiting prosecutorial references thereto.” Id. at 550.6
In August 2003 and January 2004, respectively, our Court and the Indiana
Supreme Court addressed the bifurcation issue in the situation where a defendant faces a
SVF charge and an additional felony charge. In our Court’s opinion in Hines, which was
6
We note that members of our Court have expressed their concern with the potential for prejudice in a
trial involving a sole SVF charge due to the jury hearing about a defendant’s prior conviction and label as
a serious violent felon. See Spearman, 744 N.E.2d at 550-55 (Darden, J., concurring in part and
dissenting in part) (stating that “[b]ecause the accused is clothed with a presumption of innocence, it is
antithetical to our system of jurisprudence to label one accused of a crime as a ‘serious violent felon’
during proceedings to determine guilt”); Imel v. State, 830 N.E.2d 913, 920 (Ind. Ct. App. 2005) (Barnes,
J., concurring in result) (stating that, where a jury hears repeated references to the defendant being a
serious violent felon, there is a “strong possibility that as we now charge and try these [SVF] cases, the
fundamental tenant of our American system of criminal law—innocent until proven guilty—is, in my
view, seriously challenged”), trans. denied.
11
adopted by our Indiana Supreme Court, we held that the trial court had abused its
discretion by denying the defendant’s motion to bifurcate his trial where the defendant
was charged with a SVF charge and a felony robbery charge because “in the absence of a
bifurcated proceeding, [the defendant] did not receive a fair and impartial trial.” Hines,
794 N.E.2d at 474. We explained that the defendant’s status as a serious violent felon
was not an essential element of his robbery charge and was not probative of whether the
defendant had committed robbery. Id. at 472. The Indiana Supreme Court agreed and
held that the trial court had abused its discretion by denying the defendant’s motion to
bifurcate his SVF charge from his robbery charge because “the prejudice arising from
evidence necessary to sustain the defendant’s [SVF] conviction—evidence of a prior
felony conviction—substantially outweighed its probative value for the robbery charge.”
Hines, 801 N.E.2d at 635. The Supreme Court reversed Hines’s convictions and
remanded for a new trial.
Pace’s jury trial was held in November 2004, which occurred almost one year after
our Supreme Court had issued its opinion in Hines. Pace’s trial involved the charge of
dealing in amphetamine and the charge of being a SVF in possession of a firearm, in
which his status as a SVF was based on his 1992 conviction for dealing in cocaine.
Despite being charged with a felony in addition to the SVF charge and the Supreme
Court’s holding in Hines, Pace’s trial counsel, Attorney Garcia, did not file a motion to
bifurcate the trial on the two charges. Attorney Garcia testified that he did not recall if he
was aware of the Hines case at the time he represented Pace at trial but acknowledged
that Pace’s prior dealing conviction was irrelevant and had no probative value to his
12
charge of dealing in amphetamine. Attorney Garcia acknowledged that he could have
filed a motion to separate the two charges and that there was “no benefit” to the jury
hearing that Pace had been previously convicted as a drug dealer. (Tr. 22). Nevertheless,
he testified that he did not file a motion because he did not think it would be beneficial to
Pace and thought he had a better chance with proceeding with both charges in the same
proceeding.
Based on Hines, and under the facts of this case, we conclude that a motion to
bifurcate the SVF charge from the dealing charge would have been granted. See Hines,
801 N.E.2d at 635. Here, as in Hines, the prejudice arising from evidence of Pace’s prior
dealing conviction substantially outweighed its probative value for the dealing in
amphetamine charge. Accordingly, under the specific circumstances here, we conclude
that trial counsel’s failure to file a motion to bifurcate constituted deficient performance.
See Moore, 872 N.E.2d at 621 (explaining that to prevail on an ineffective assistance of
counsel claim based upon counsel’s failure to file a motion on a defendant’s behalf, the
defendant must demonstrate that such motions would have been successful). See also
Clayton v. State, 673 N.E.2d 783, 786 (Ind. Ct. App. 1996) (citing Gann v. State, 550
N.E.2d 803, 805 (Ind. Ct. App. 1990)) (explaining that where counsel’s failure to act is
based on ignorance of the law, the nonfeasance will not be deemed strategy and may
constitute ineffective assistance of counsel).
Pace, however, must also demonstrate that he was prejudiced by trial counsel’s
performance. In other words, Pace must show that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. See
13
Davidson, 763 N.E.2d at 444. A “reasonable probability” has been defined as
“‘probability sufficient to undermine confidence in the outcome.’” Grinstead, 845
N.E.2d at 1031 (quoting Strickland, 466 U.S. at 694).
Pace argues that he was prejudiced by counsel’s failure to file a bifurcation motion
because the jury was allowed to hear evidence of his prior dealing cocaine conviction
when determining whether he was guilty of the charge of dealing in amphetamine. Pace
also contends that prejudice resulted because his counsel’s stipulation to his prior dealing
conviction included evidence that would not have otherwise been presented to the jury.
Specifically, the stipulation included the charging information for his prior dealing in
cocaine conviction, which included charges for two other dealing in cocaine charges for
which he was not convicted. Pace argues that “[t]he jury would be hard-pressed to adopt
[Attorney] Garcia’s argument and exonerate Pace after they learned that Pace had been
charged three times with Dealing [in cocaine] and was convicted of one Dealing count in
1992. The 1992 Dealing Cocaine count was not relevant to the instant Dealing count, yet
the jury was in no way limited in their consideration of the prior felony.” Pace’s Br. at
15.
The State contends that Pace was not prejudiced by counsel’s failure to file a
bifurcation motion and cites to various parts of the evidence, suggesting that the evidence
was sufficient to support Pace’s convictions for dealing in amphetamine and SVF despite
the references to his prior dealing in cocaine conviction.
While there is evidence sufficient to support the convictions, we cannot ignore the
fact that there is a “‘probability sufficient to undermine confidence in the outcome” due
14
to trial counsel’s failure to file a motion to bifurcate the proceeding on the two felony
charges. Here, Pace’s convictions for dealing in amphetamine (possession with intent to
deliver) and possession of a handgun by a SVF were based on constructive possession of
the drugs and gun. Due to counsel’s failure to file a bifurcation motion, the jury heard
multiple references to Pace being a serious violent felon and specific reference to his
prior conviction as part of the trial on both charges. For example, in the preliminary
instructions and during the prosecutor’s opening argument, the jury was told that Pace
was a serious violent felon because he had a prior conviction for dealing in cocaine.
Furthermore, in addition to the jury hearing that Pace had a prior dealing conviction, it
also heard evidence that he had two prior dealing charges for which he was never
convicted. As Judge Barnes’ so aptly stated in his concurring opinion from Pace’s direct
appeal:
I note here my concern with the ability of a person, much less a juror asked
to determine the guilt of a suspected drug dealer, to divorce him or herself
from the fact that this defendant, presumably clothed with a presumption of
innocence, previously has been convicted of being just what he is now
alleged to be – a drug dealer.
Pace v. State, No. 20A03-0504-CR-158, slip op. at 8; see also (App. 207).
Given the prejudicial nature of the evidence regarding his prior dealing in cocaine
conviction and dealing charges for which he was not convicted, especially in light of his
dealing in amphetamine conviction, we conclude that Pace has met his burden of showing
that he was prejudiced by counsel’s failure to file a motion to bifurcate. See, e.g., Gray v.
State, 841 N.E.2d 1210, 1214-20 (Ind. Ct. App. 2006) (reversing the denial of post-
conviction relief and the defendant’s convictions for SVF, murder, attempted murder, and
15
robbery based on our holding that appellate counsel was ineffective for failing to raise a
direct appeal issue challenging the denial of the defendant’s motion to bifurcate his SVF
charge from his other charges), trans. denied. See also Hines, 801 N.E.2d at 634
(discussing the prejudice that arises when an SVF charge and another felony charge are
heard in the same proceeding).
Because trial counsel’s performance was deficient and Pace was prejudiced by that
deficient performance, the post-conviction court erred by denying post-conviction relief
to Pace on his claim of ineffective assistance of trial counsel. We, therefore, reverse the
denial of Pace’s petition for post-conviction relief and remand this case for a new trial.7
Reversed and remanded.
ROBB, C.J., and MAY, J., concur.
7
Because we conclude that trial counsel rendered ineffective assistance of counsel, we need not reach the
ineffective assistance of appellate counsel issue.
16