MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               May 23 2019, 10:01 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Phillips                                        Curtis T. Hill, Jr.
PHILLIPS LAW, P.C.                                      Attorney General of Indiana
Boonville, Indiana
                                                        Jesse R. Drum
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David N. Templin,                                       May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2447
        v.                                              Appeal from the Perry Circuit
                                                        Court
State of Indiana,                                       The Honorable M. Lucy Goffinet,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause Nos.
                                                        62C01-1803-CM-187
                                                        62C01-1804-F6-305
                                                        62C01-1804-F6-310



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019                 Page 1 of 10
                                          Case Summary
[1]   David N. Templin (“Templin”) pleaded guilty to three charges: (1) Escape, a

      Level 6 felony;1 (2) Impersonation of a Public Servant, a Class A misdemeanor; 2

      and (3) Resisting Law Enforcement, a Class A misdemeanor. 3 He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Templin presents three issues, which we revise and restate as follows:


                 I.        Whether, on direct appeal, Templin may seek to set aside
                           his plea of guilty by, inter alia, alleging procedural error
                           regarding the inquiry into his competency to stand trial.


                 II.       Whether Templin received ineffective assistance of counsel
                           due to counsel’s purported failure to explore potential
                           mental health issues and adequately present those issues as
                           mitigating circumstances at sentencing.


                 III.      Whether the trial court abused its sentencing discretion.




      1
          Ind. Code § 35-44.1-3-4(b).
      2
          I.C. § 35-44.1-2-6(a).
      3
          I.C. § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019        Page 2 of 10
                                   Facts and Procedural History
[4]   In March 2018, the State charged Templin with (1) Impersonation of a Public

      Servant, a Class A misdemeanor; (2) Resisting Law Enforcement, a Class A

      misdemeanor; (3) Unlawful Use of a Police Radio, a Class B misdemeanor; 4

      and (4) Obstructing an Emergency Medical Person, a Class B misdemeanor. 5

      He was released on bond and placed on electronic home monitoring. The State

      later filed additional charges, alleging Templin committed two Level 6 felony

      offenses while released: Escape and Residential Entry.6 Thereafter, Templin

      moved for a competency examination. The court appointed a psychologist who

      examined Templin and determined Templin was competent to stand trial.


[5]   Templin and the State later reached a plea agreement whereby Templin would

      plead guilty to three counts—Escape, Impersonation of a Public Servant, and

      Resisting Law Enforcement—in exchange for dismissal of the other counts.

      Under the plea agreement, Templin would serve an aggregate sentence length

      of four years with placement left to the discretion of the trial court. Templin




      4
          I.C. § 35-44-.1-2-7(a)(1).
      5
          I.C. § 35-44.1-4-9(b).
      6
          I.C. § 35-43-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019   Page 3 of 10
      pleaded guilty in August 2018, and the court accepted the plea. 7 The court held

      a hearing, dismissed the agreed counts, and ordered a fully executed sentence.


[6]   Templin now appeals.



                                   Discussion and Decision
                                     Decision to Plead Guilty
[7]   Templin complains of procedural irregularity regarding the inquiry into his

      competency to stand trial. He asserts—inter alia—entitlement to a competency

      hearing. Yet, Templin elected to plead guilty and thereby waived his right to

      trial. See Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996). Templin suggests

      further inquiry into his competency and mental health—whether by the trial

      court or by counsel—might have led to (1) the court rejecting the plea or (2) a

      viable defense that would have affected Templin’s decision to forgo trial and

      plead guilty. At bottom, however, these lines of argument aim toward setting

      aside the plea of guilty—and “[a] person who pleads guilty is not permitted to

      challenge the propriety of that conviction on direct appeal.” Collins v. State, 817

      N.E.2d 230, 231 (Ind. 2004). Rather, a defendant may challenge the validity of

      his plea only through a petition for post-conviction relief. See Tumulty, 666

      N.E.2d at 395; see also Ind. Code § 35-35-1-4 (specifying that “[a] motion to




      7
       In the written plea agreement, Templin purportedly waived his right to appeal his sentence. Yet, the trial
      court told Templin that he had the right to appeal his sentence. Because “[t]he State is not contending that
      Templin waived his right to challenge his sentence,” we need not explore this issue. Br. of Appellee at 8 n.1.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019                      Page 4 of 10
      vacate judgment and withdraw [a] plea . . . shall be treated . . . as a petition for

      postconviction relief”); cf. Snyder v. State, 500 N.E.2d 154, 156 (Ind. 1986)

      (denying post-conviction relief where the petitioner had pleaded guilty and

      challenged his conviction on similar grounds, alleging lack of a competency

      hearing and ineffective assistance of counsel for failing to advise of a defense).


[8]   Templin argues the claims are proper on direct appeal, but we are unpersuaded

      by his attempts to distinguish Tumulty. We conclude the claims are presently

      barred. See Tumulty, 666 N.E.2d at 396 (identifying policy reasons for “[t]he

      long-standing judicial precedent limiting the avenue of direct appeal for guilty

      plea challenges,” noting that a plea “brings to a close the dispute between the

      parties, much as settling civil parties do by submitting an agreed judgment”).


                           Ineffective Assistance of Counsel
[9]   Templin alleges ineffective assistance of counsel under the Sixth Amendment to

      the United States Constitution, a claim we review under the two-part test

      articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail,

      Templin must demonstrate (1) deficient performance, “meaning counsel’s

      representation fell below an objective standard of reasonableness as gauged by

      prevailing professional norms,” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind.

      2019); and (2) resulting prejudice: “a reasonable probability (i.e. a probability

      sufficient to undermine confidence in the outcome) that, but for counsel’s

      errors, the result of the proceeding would have been different,” McCary v. State,

      761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at 694).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019   Page 5 of 10
[10]   Templin argues trial counsel “fail[ed] to introduce evidence of mental disease or

       defect at [the] sentencing hearing as a mitigating factor.” Br. of Appellant at 11.

       Templin essentially contends that because the court-appointed psychologist

       noted “a number of neurocognitive deficits” when evaluating Templin’s

       competency to stand trial, counsel was put on notice to explore Templin’s

       mental condition. Id. at 12. According to Templin, “[o]f significance here is

       trial counsel’s failure to investigate two incidents of head trauma that Templin

       sustained and what, if any, significance those injuries may have had on his

       cognitive abilities or mental acuity.” Id. Templin argues “there is nothing in

       the Record to indicate that Templin’s counsel made any attempt to use the

       psychiatric evaluation for any purpose other than to satisfy his own curiosity as

       to whether Templin was considered competent to stand trial.” Id. at 14.

       Templin further asserts that there “were significant issues to be explored.” Id.


[11]   Yet, Templin acknowledges that some claims of ineffective assistance “require

       an investigation of facts far beyond the record, and sometimes beyond the

       knowledge of either trial or appellate counsel.” Id. at 15. Templin suggests that

       his claim of ineffective assistance “relate[s] to issues that are not visible in the

       Record.” Id. at 14. It is puzzling, then, why Templin chose to pursue this

       claim on direct appeal—with a limited record—instead of seeking factual

       development through post-conviction proceedings. See Ind. Post-Conviction

       Rule 1(5) (providing that “[a]ll rules and statutes applicable in civil proceedings

       including pre-trial and discovery procedures are available” and that the court




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019   Page 6 of 10
       “may receive affidavits, depositions, oral testimony, or other evidence”). 8 We

       nevertheless address the claim—that is, the alleged failure of trial counsel to

       investigate and present evidence of mitigating circumstances at sentencing.


[12]   Where a claim of ineffective assistance is based on “failur[e] to investigate,

       establishing [the claim] . . . would require going beyond the trial record to show

       what the investigation, if undertaken, would have produced. This is necessary

       because success on the prejudice prong of an ineffectiveness claim requires a

       showing of a reasonable probability of affecting the result.” Woods v. State, 701

       N.E.2d 1208, 1214 (Ind. 1998), cert. denied. Here, Templin agreed to a fixed

       sentence, so the only open issue at sentencing was where Templin would serve

       his sentence. Thus, to obtain relief, Templin must demonstrate a reasonable

       probability the trial court would not have ordered a fully executed sentence.

       Indeed, “[t]he dispositive question . . . is what effect the totality of the omitted

       mitigation evidence would have had on [the] sentence.” Coleman v. State, 741

       N.E.2d 697, 702 (Ind. 2000), 741 N.E.2d at 702. Yet, Templin only speculates

       he was prejudiced by the purported failure to investigate. Because of the limited

       record, Templin is unable to identify what, if anything, a different investigation

       would have uncovered. Moreover, to the extent Templin suggests trial counsel

       failed to adequately apprise the court of mental-health considerations, counsel




       8
         To the extent Templin was concerned he would waive the claim by omitting it, “a Sixth Amendment claim
       of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in postconviction
       proceedings.” Woods, 701 N.E.2d at 1220. However, such a claim “is not available in postconviction
       [proceedings] if the direct appeal raises any claim of deprivation of Sixth Amendment right to counsel.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019                      Page 7 of 10
       nevertheless argued for less-restrictive placement by—inter alia—arguing

       Templin “want[ed] to obtain mental health counseling,” that he “does need

       some supervision from perhaps a mental health facility,” and that he was not

       taking a prescribed anti-depressant when he committed the offenses. Tr. Vol. 3

       at 35. Moreover, counsel elicited testimony that medication made a “big

       difference” in Templin, id. at 31, and he “was on medication and then . . . off of

       it,” which was “part of the problem,” id. at 30. Thus, in light of the lack of

       record development and the presentation of these mental-health matters at

       sentencing, Templin has not demonstrated ineffective assistance of counsel. 9


                                           Sentencing Challenge
[13]   “[S]entencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). We regularly review sentencing decisions for abuse of




       9
         Templin also alleges ineffective assistance of counsel for the purported failure to investigate and advise of
       potential defenses related to Templin’s mental health, apparently suggesting he might not have pleaded
       guilty. Yet, because Templin merely speculates about a changed outcome, he cannot meet his burden on this
       claim. See Woods, 701 N.E.2d at 1214. More basically, however, although some claims of ineffective
       assistance of counsel are properly raised on direct appeal, see id. at 1219-20, the object of the instant claim is
       to set aside a plea of guilty. Thus, for the reasons earlier discussed, this type of claim is available only in post-
       conviction proceedings. See Tumulty, 666 N.E.2d at 395-96. Nevertheless, this claim is no longer available to
       Templin because he raised a different claim of ineffective assistance of counsel on direct appeal. See Woods,
       701 N.E.2d at 1220. Because of the risk of waiver—and other considerations—“a postconviction hearing is
       normally the preferred forum to adjudicate an ineffectiveness claim.” Id. at 1219. Notably, though, there is a
       procedure available to expedite a post-conviction claim of ineffective assistance without first exhausting
       appellate remedies. See id. at 1219-20 (discussing the procedure articulated in Davis v. State, 368 N.E.2d 1149
       (Ind. 1977), and later endorsed in Hatton v. State, 626 N.E.2d 442 (Ind. 1993)). “Although not to be used as a
       routine matter in adjudicating the issue of trial counsel’s effectiveness,” id. at 1220, this alternative procedure
       “may be appropriate” where—as here—“the claim asserted arguably requires a certain level of fact finding
       not suitable for an appellate court,” id. (quoting Lee v. State, 694 N.E.2d 719, 721 n.6 (Ind. 1998), cert. denied).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019                           Page 8 of 10
       discretion, which “occurs if the decision is clearly against the logic and effect of

       the facts and circumstances before the court.” Bethea v. State, 983 N.E.2d 1134,

       1139 (Ind. 2013). Nevertheless, when an appellant has claimed an abuse of

       sentencing discretion, we need not directly address the claim, and may instead

       assume error—disposing of the claim under Indiana Appellate Rule 7(B). See

       Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (providing that where the

       trial court has abused its sentencing discretion an appellate court may either

       remand or conduct appellate review of the sentence); Mendoza v. State, 869

       N.E.2d 546, 556 (Ind. Ct. App. 2007) (“[E]ven if the trial court is found to have

       abused its discretion in the process it used to sentence the defendant, the error is

       harmless if the sentence imposed was not inappropriate.”), trans. denied.10


[14]   Appellate Rule 7(B) permits revision of a sentence “if, after due consideration

       of the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Moreover,

       “[t]he place . . . a sentence is to be served is an appropriate focus” for our

       review. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). In conducting

       review under Appellate Rule 7(B), our inquiry is not whether a placement




       10
          In articulating a claim of abuse of sentencing discretion, Templin uses the phrase “presumptive sentence”
       on three occasions, citing cases from 1986, 1996, and 1999. See Br. of Appellant at 11, 18, 19. We remind
       counsel that Indiana no longer has a presumptive sentencing scheme. See Anglemyer v. State, 868 N.E.2d 482,
       485-89 (Ind. 2007) (discussing the transition to advisory sentences), clarified on reh’g. We also direct counsel
       to the standard of review for sentencing decisions articulated in Anglemyer. See id. at 491.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019                        Page 9 of 10
       would be more appropriate, but instead whether “the given placement is itself

       inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[15]   Here, Templin—thirty-one years old with no prior convictions—pretended to

       be a first responder, which led to his arrest. The trial court granted pre-trial

       release, but Templin got angry when his case manager would not let him attend

       a social function. Later that day, Templin removed his monitoring device and

       left the county. When his case manager contacted him about the monitor,

       Templin said to “come and get it.” Tr. Vol. 3 at 18. Law enforcement later

       located Templin, who was driving a vehicle with three firearms inside of it.

       Moreover, when Templin absconded, he was already placed on the most-

       restrictive form of community corrections. Ultimately, although the record

       contains some indication Templin would benefit from a regimen of medication

       and that his rash of criminal activity was unusual, we cannot say incarceration

       is an inappropriate placement. Indeed, when placed one step down from

       incarceration, Templin was not compliant—boldly violating the conditions of

       his pre-trial release. We therefore decline to disturb the selected placement.


[16]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2447 | May 23, 2019   Page 10 of 10
