                                                                    Apr 07 2015, 6:01 am




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Mark M. Jervis                                             Gregory F. Zoeller
Carlisle, Indiana                                          Attorney General of Indiana
                                                           Ryan D. Johanningsmeier
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Mark M. Jervis,                                            April 7, 2015

Appellant-Petitioner,                                      Court of Appeals Cause No.
                                                           87A05-1404-PC-171
        v.                                                 Appeal from the Warrick Superior
                                                           Court.

State of Indiana,                                          The Honorable Robert R. Aylsworth,
                                                           Judge.
Appellee-Respondent.
                                                           Cause No. 87D02-9707-PC-59




Riley, Judge.




Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015                  Page 1 of 14
                                     STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Mark Jervis (Jervis), appeals the post-conviction court’s

      denial of his petition for post-conviction relief.


[2]   We affirm.


                                                       ISSUE

[3]   Jervis raises two issues on appeal which we consolidate and restate as the

      following single issue: Whether Jervis was denied effective assistance of trial

      and appellate counsel.


                            FACTS AND PROCEDURAL HISTORY

[4]   We adopt the recitation of facts as set forth in Jervis’s direct appeal as follows:

              On August 14, 1993, Terri Boyer went on a drinking spree with her
              husband, her brother and the brother’s girlfriend. The four began in
              the early afternoon in Hatfield, their home town, and took the
              brother’s truck to visit several bars, the last in Newburgh. In
              Newburgh, Boyer and her husband got into an argument that resulted
              in Boyer leaving the truck. The other three drove back to Hatfield,
              leaving an intoxicated Boyer to fend for herself. Just before 10 p.m.
              Boyer found her way to Frenchie’s, a tavern in Newburgh, where she
              asked several patrons to give her a ride back to Hatfield. All refused.
              At some point, defendant Jervis entered the bar, met Boyer, and
              offered to take her to Hatfield. The two had no prior acquaintance.


              Jervis and Boyer were seen leaving the bar together some time around
              midnight, but no one actually saw them drive away in Jervis’s car.
              Witness Terry Timberlake testified that he saw a car resembling
              Jervis’s station wagon pull into the Newburgh Cinema parking lot
              around 11:30 p.m. Timberlake stated that two people, one male and
              one female, appeared to be in the car, but he could not positively
              identify them as Jervis and Boyer. Approximately thirty minutes later,

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              Timberlake saw the station wagon leave the Cinema parking lot and
              park in an adjacent lot of a daycare center where it remained for about
              ten minutes. It then returned to the Cinema parking lot, and finally
              drove away. Jervis returned to Frenchie’s alone around 12:30 to 1:30
              a.m. the same night, telling those present that he was unable to take
              Boyer to Hatfield because his car had broken down. Jervis went home
              a half hour later. At approximately 12:30 p.m. the next day, the owner
              of Newburgh Cinema found Boyer’s body on a grass strip next to the
              Cinema parking lot. Boyer was nude below her waist and her bra and
              shirt were pushed up to her shoulders. An autopsy concluded that
              Boyer had been strangled and had died around midnight.


              On September 5, 1993, Jervis was charged [] with Boyer’s murder.
              The State’s case against Jervis was largely circumstantial and included
              the following evidence: (1) an envelope, pencil and pen Boyer had
              been carrying in her purse were found in Jervis’s trash can outside his
              apartment; (2) Boyer’s driver’s license and her daughter’s library card
              were found in Jervis’s car; and (3) DNA evidence established a strong
              likelihood that a blood stain on Jervis’s shirt and a pubic hair found on
              his pants were Boyer’s. Several witnesses also testified as to Jervis’s
              whereabouts on the night in question. The jury was unable to reach a
              verdict in Jervis’s first trial in 1994. The State retried Jervis in 1995
              and a second jury convicted him.


[5]   Jervis v. State, 679 N.E.2d 875, 876-77 (Ind. 1997). Jervis filed a direct appeal

      challenging his conviction. In that appeal, Jervis raised several issues relating

      to the admission of several pieces of evidence and jury misconduct. On May

      12, 1997, our supreme court affirmed Jervis’s conviction. Id. On March 18,

      2003, Jervis filed his pro se petition for post-conviction relief and subsequently

      amended it on September 14, 2012. On October 1, 2013, the post-conviction

      court conducted Jervis’s post-conviction hearing. Subsequently, both parties

      filed their proposed findings and conclusion of law, and on March 24, 2014, the

      post-conviction court denied Jervis’s petition.

      Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015       Page 3 of 14
[6]   Jervis now appeals. Additional information will be provided as necessary.


                                   DISCUSSION AND DECISION

                                             I. Standard of Review

[7]   Under the rules of post-conviction relief, the petitioner must establish the

      grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1, § 5; Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To

      succeed on appeal from the denial of relief, the post-conviction petitioner must

      show that the evidence is without conflict and leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court. Id. at 975. The purpose of post-conviction relief is not to provide a

      substitute for direct appeal, but to provide a means for raising issues not known

      or available to the defendant at the time of the original appeal. Id. If an issue

      was available on direct appeal but not litigated, it is waived. Id.


                                     II. Ineffective Assistance of Counsel

[8]   Jervis contends that he was denied the effective assistance of both trial and

      appellate counsel. The standard by which we review claims of ineffective

      assistance of counsel is well established. In order to prevail on a claim of this

      nature, a defendant must satisfy a two-pronged test, showing that: (1) his

      counsel’s performance fell below an objective standard of reasonableness based

      on prevailing professional norms; and (2) there is a reasonable probability that,

      but for counsel’s errors, the result of the proceeding would have been different.

      Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005) (citing Strickland v.


      Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015   Page 4 of 14
       Washington, 466 U.S. 668, 690, 694 (1984) reh’g denied) trans. denied. The two

       prongs of the Strickland test are separate and independent inquiries. Id. Thus,

       “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

       sufficient prejudice . . . that course should be followed.” Timberlake, v. State,

       753 N.E.2d 591, 603 (Ind. 2001) (quoting Strickland, 466 U.S. at 697) reh’g

       denied; cert. denied, 537 U.S. 839 (2002).


[9]    Counsel is afforded considerable discretion in choosing strategy and tactics and

       we will accord those decisions deference. Id. A strong presumption arises that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. The Strickland Court

       recognized that even the finest, most experienced criminal defense attorneys

       may not agree on the ideal strategy or the most effective way to represent a

       client. Id. Isolated mistakes, poor strategy, inexperience, and instances of bad

       judgment do not necessarily render representation ineffective. Id. Furthermore,

       we will not speculate as to what may or may not have been advantageous trial

       strategy as counsel should be given deference in choosing a trial strategy which,

       at the time and under the circumstances, seems best. Johnson, 832 N.E.2d at

       997.


                                                A. Trial Counsel

[10]   According to Jervis, his trial counsel was ineffective in three respects: (1)

       counsel failed to recommend that he accept the State’s plea deal, (2) counsel




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       failed to object to the State’s destruction of evidence, and (3) counsel failed to

       move for mistrial due to jury bias. 1 We will address each issue in turn.


                                                  1. Plea Negotiations

[11]   Jervis first argues that he would have accepted the State’s plea offer limiting his

       sentence to forty years had he been offered meaningful consultation. During

       Jervis’s post-conviction hearing, counsel stated that when he took the plea offer

       to Jervis, he explained the deal and left the decision to Jervis. Jervis argues that

       because the decision was left to him; counsel was ineffective and he was

       prejudiced within the meaning of the Sixth Amendment.


[12]   We first note that the Sixth Amendment is an instrumental right designed to

       ensure a fair trial. Thus, “[t]he right to effective assistance of counsel extends to

       the consideration of plea offers that lapse or are rejected. That right applies to




       1
         Jervis makes a fourth claim alleging that trial counsel was ineffective for failing to file a motion to dismiss
       after his first trial. Specifically, Jervis argues that because the State presented evidence that sperm cells were
       present in Boyer’s mouth at his first trial, the State’s objection to the admission of Jervis’s evidence that he
       had a vasectomy should have supported a successful motion to dismiss the charges against him. Because
       Jervis fails to provide us with a cogent argument on this issue, it is waived. Ind. Appellate Rule 46(A)(8)(a).
       Moreover, we note that during Jervis’s second trial, counsel asked the court to take judicial notice of the fact
       that Jervis underwent a vasectomy in 1990, which it did. Even with the admission of this evidence, the jury
       still convicted Jervis of murder.

       Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015                             Page 6 of 14
       all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 129 U.S.

       2079, 2086 (2009).


[13]   In advancing his claim, Jervis states that the applicable standard for judging

       prejudice in the plea context is explained in Hill v. Lockhart, 474 U.S. 52, 61

       (1985). In Hill, the United States Supreme Court held that the two-part test

       adopted in Strickland for evaluating claims of ineffective assistance of counsel

       applies to guilty-plea challenges based on ineffective assistance of counsel. Id.

       at 57. The language from Hill, standing alone, suggests that prejudice is a

       function of the outcome of the plea proceedings, i.e., if the defendant would not

       have pleaded guilty but for the attorney’s shortcomings, the prejudice prong of

       Strickland is satisfied. Notably, Hill stands for the proposition that a petitioner’s

       guilty plea may be invalid if counsel provided incorrect advice pertinent to the

       plea. However, we do not find Hill controlling for the simple reason that the

       case at bar is not a challenge to a guilty plea. Rather in this instance, we rely on

       Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012), and Lafler v. Cooper, 132 S.Ct.

       1376, 1380 (2012), which both addressed issues of ineffective assistance of

       counsel based on improper or insufficient advice leading to the acceptance or

       rejection of a plea deal.


[14]   In Frye, the Supreme Court held that trial counsel performed deficiently by

       failing to inform Frye of a written plea offer before it expired. Id. However, the

       Supreme Court reversed the appeals court’s holding that Frye had established

       prejudice and remanded because, even though Frye could show he would have

       accepted the plea offer, the appeals court failed to require Frye to show “a
       Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015   Page 7 of 14
       reasonable probability [that] neither the prosecution nor the trial court would

       have prevented the offer from being accepted or implemented.” Id. at 1410.

       The Frye Court observed that there was “strong reason to doubt the prosecution

       and the trial court would have permitted the plea bargain to become final”

       because of an intervening event: Frye was arrested for a new offense. Id. at

       1411.


[15]   In Lafler, the Supreme Court determined that Lafler had demonstrated that but

       for counsel’s deficient performance that led to the plea offer’s rejection, there

       was a reasonable probability that he and the trial court would have accepted the

       guilty plea. Id. at 1380. As a result of not accepting the plea and being

       convicted at trial, the defendant received a sentence that was three and one -half

       times greater than he would have received under the plea. Id.


[16]   Both Frye and Lafler involve a counsel’s failure to convey a plea offer or

       affirmative advice to reject an offer. Nevertheless, Lafler and Frye seemingly

       require, as a general proposition, that the defendant show that he would have

       accepted the plea and that neither the State nor the trial court would have

       thwarted implementation of the defendant’s plea agreement. Based on our

       examination of the record, we first note that Jervis fails to establish that he

       would have accepted the State’s plea deal. The record shows that Jervis clearly

       and expressly, on many occasions, professed his innocence and had no

       intention of pleading guilty. From his second trial leading up to his direct

       appeal, Jervis advanced an innocence claim. During his post-conviction



       Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015    Page 8 of 14
       hearing, Jervis maintained his theory of innocence and the following exchange

       occurred:

                        [Court]: . . . Jervis, I believe in your post-conviction relief
                        pleading that you filed with the court you are asking the
                        court to grant you a new trial? Or, in the alternative,
                        you’re asking the court to let you accept the State’s plea
                        offer that they made apparently in 1995 of 40 years?

                        [Jervis]: . . . [c]orrect.

                        [Court]: Okay. And as you sit here today you still
                        maintain your innocence . . .?

                        [Jervis]: That’s correct.

                        [Court]: [] Indiana Law provides that the court cannot
                        accept a guilty plea from someone unless that person
                        admits his or her guilt . . .

                        ****
                        [Court]: So if [] you maintain your position of innocence
                        it wouldn’t matter if you were willing to plead guilty, I
                        couldn’t let you. You understand that?
                        ****
                        [Jervis]: I understand.

[17]   (P-C Transcript pp. 76-77). Based on the foregoing dialogue, Jervis fails to

       establish that he would have accepted the State’s plea deal. Moreover, it is also

       obvious from the transcript excerpt that the trial court would not have accepted

       Jervis’s guilty plea over his protestation of innocence. Because Jervis has failed

       to show that he would have accepted the plea deal, and the fact that there is

       sufficient showing that the trial court would not have accepted Jervis’s guilty

       plea, Jervis’s claim of prejudice fails. Having established that Jervis was not
       Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015          Page 9 of 14
       prejudiced by counsel, we need not inquire into whether counsel’s performance

       was adequate. See Thacker v. State, 715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999),

       trans. denied.


                                           2. Destruction of Evidence

[18]   Next, Jervis argues that his trial counsel was ineffective for failing to object to

       the State’s destruction of evidence that was potentially exculpatory. Without

       making any specific reference to the record, Jervis baldly asserts that he was

       denied access to the oral swabs taken from Boyer’s mouth during his second

       trial and that the State destroyed the samples before he could have them

       retested. It is Jervis’s ultimate contention that further testing of the oral swabs

       would have “uncovered the identity of another possible perpetrator, thereby

       exonerating” him. (Appellant’s Br. p. 13).


[19]   At the outset of his claim, we find that Jervis has waived this argument by

       failing to present a cogent argument on this issue. Ind. Appellate Rule

       46(A)(8)(a); Moore v. State, 869 N.E.2d 489, 491-92 (Ind. Ct. App. 2007).

       Waiver notwithstanding, we address his claim.


[20]   After reviewing the voluminous trial record, we discern that there were two oral

       swab taken from Boyer. Out of the two, only one oral swab was subjected to

       testing. The record shows that during Jervis’s first trial, the technician who

       conducted the forensic analysis of the oral swab testified that when she

       examined it, she saw three sperm cells. At Jervis’s second trial, her testimony

       changed after reexamining the sample under a powerful microscope and she


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       came to a conclusion that no sperm cells were present. The technician also

       explained that that the untested oral swab was set aside to allow for testing if

       “desired by the defense.” (Tr. p. 2137).


[21]   At Jervis’s post-conviction hearing, trial counsel testified that he did not believe

       the State destroyed any evidence without first providing access to it. In

       addition, the technician testified that the second swab was reserved for Jervis if

       he wanted to test it.


                       3. Failure to Move for Mistrial Due to Jury Misconduct


[22]   Jervis also argues that he received ineffective assistance of his trial counsel

       because he failed to move for a mistrial due to jury misconduct. On this claim,

       the State argues that Jervis’s challenge to jury misconduct is barred by res

       judicata because he raised this issue on his direct appeal. We agree.


[23]   As a general rule, when a reviewing court decides an issue on direct appeal, the

       doctrine of res judicata applies, thereby precluding its review in post-conviction

       proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The

       doctrine of res judicata prevents the repetitious litigation of that which is

       essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998).

       And, a petitioner for post-conviction relief cannot escape the effect of claim

       preclusion merely by using different language to phrase an issue and define an

       alleged error. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). “[W]here an

       issue, although differently designated, was previously considered and

       determined upon a criminal defendant’s direct appeal, the State may defend

       Court of Appeals of Indiana | Opinion | 87A05-1404-PC-171 | April 7, 2015   Page 11 of 14
       against defendant’s post-conviction relief petition on grounds of prior

       adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind.

       1984).


[24]   Here, we note that this issue of jury misconduct was litigated during Jervis’s

       direct appeal. Specifically, on direct appeal Jervis argued that the trial court

       erred in dismissing a juror from the case before deliberations. “Near the end of

       trial but before deliberations began, the bailiff informed the judge that a juror

       had told the bailiff during a lunch break that if the verdict did not turn out a

       ‘certain way’ the juror ‘heard’ there might be ‘problems’ for the jury.” Jervis,

       679 N.E.2d at 881. The trial court questioned the tainted juror who then

       expressed concern for his wife’s safety. Id. Over Jervis’s objection, the trial

       court replaced the juror with an alternate. Id.


[25]   Our supreme court affirmed the trial court’s finding that it acted correctly in

       replacing a possibly tainted juror with an alternate. Id. Because Jervis’s claim

       of jury misconduct was fully litigated on appeal, his efforts to redesignate and

       repackage it as an ineffective of assistance of trial counsel claim is barred by res

       judicata.


                                                 B. Appellate Counsel

[26]   Jervis also contends that his appellate counsel was ineffective for failing to raise

       his own incompetence as a trial counsel on direct appeal. Jervis was

       represented by the same attorney at trial and on appeal. We first note that it is

       unreasonable to believe that appellate counsel would raise the question of his

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       own competency on appeal. Askew v. State, 500 N.E.2d 1219, 1220 (Ind.1986),

       reh’g denied; Johnson v. State, 674 N.E.2d 180, 184 (Ind. Ct. App. 1996), reh’g

       denied, trans. denied. We have previously noted the danger in being represented

       by the same counsel both at trial and on appeal. Benson v. State, 780 N.E.2d

       413, 418 n.3 (Ind. Ct. App. 2002), reh’g denied, trans. denied.


[27]   Our standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel’s ineffective assistance. Fisher v. State, 810

       N.E.2d 674, 676 (Ind. 2004). Indiana law recognizes three basic categories for

       claims of appellate counsel’s ineffectiveness: “(1) denial of access to an appeal;

       (2) waiver of issues; and (3) failure to present issues well.” Id. at 677 (citing

       Biehgler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997), cert. denied, 525 U.S. 1021

       (1998)). Here, the second category is the only category applicable and will lead

       to a finding of deficient performance only when the reviewing court determines

       that the omitted issues were significant, obvious, and “clearly stronger than

       those presented.” Id. at 194. (internal quotation marks omitted). “[T]he

       decision of what issues to raise is one of the most important strategic decisions

       to be made by appellate counsel.” Id. at 193. (internal quotation marks

       omitted).


[28]   We note that Jervis’s appellate counsel unsuccessfully contested the

       admissibility of several pieces of evidence as well as jury misconduct.

       Nevertheless, Jervis argues that his appellate counsel should have raised his

       own incompetence—specifically his own failure to challenge the State’s

       destruction of the evidence, and failure to raise jury misconduct—as grounds

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       for ineffective assistance of trial counsel. As discussed above, we determined

       that Jervis’s unfounded assertion that the State destroyed the oral swab is

       without merit. As for the jury misconduct claim, we have already concluded

       that it is barred by res judicata. Here, Jervis has not demonstrated that appellate

       counsel’s own failure to challenge the State’s destruction of the evidence and

       failure to raise jury misconduct were “clearly stronger” than the issues raised by

       his appellate counsel. See Bieghler, 690 N.E.2d at 194.


[29]   In light of the foregoing, we find that Jervis has not demonstrated that but for

       his appellate counsel’s alleged error, there is a reasonable probability that the

       result of the proceeding would have been different. See McCary v. State, 761

       N.E.2d 389, 392 (Ind. 2002). Therefore, we find that Jervis has failed to show

       that his appellate counsel’s performance was deficient or that he was prejudiced

       as a result of counsel’s performance.


                                                 CONCLUSION

[30]   Based on the above, we conclude that the post-conviction court properly denied

       Jervis’s petition for post-conviction relief.


[31]   Affirmed.


[32]   Vaidik, C. J. and Baker, J. concur




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