MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                           Aug 14 2015, 6:47 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Jeremy Schmitt                                            Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Schmitt,                                          August 14, 2015

Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         83A05-1409-PC-425
        v.                                               Appeal from the Vermillion Circuit
                                                         Court.
                                                         The Honorable John Rader, Special
State of Indiana,                                        Judge.
Appellee-Respondent                                      Cause No. 83C01-1211-PC-3




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015         Page 1 of 8
[1]   Jeremy Schmitt appeals the denial of his petition for post-conviction relief,

      arguing that the trial court erroneously accepted his guilty plea and that he

      received ineffective assistance of trial counsel. Finding no error, we affirm.


                                                     Facts
[2]   In 2003, Schmitt entered into a romantic relationship with Teresa Cox. Cox

      was having custody issues with Scott Williams, who was the father of her

      daughter. On April 19, 2004, Schmitt and Cox broke into Williams’s residence

      while Williams was inside. Cox murdered Williams; the cause of his death was

      blunt force trauma. On April 28, 2004, the State charged Schmitt and Cox with

      murder and class A felony conspiracy to commit murder.


[3]   At some point, the State filed a notice of immunity indicating that it had

      extended use and derivative use immunity to Schmitt such that any evidence he

      provided in the trial against Cox would not be used in any criminal proceeding

      against him. Schmitt testified at Cox’s trial on October 12, 2004.


[4]   On February 9, 2005, Schmitt and the State filed a plea agreement, pursuant to

      which Schmitt agreed to plead guilty to conspiracy to commit murder in

      exchange for the dismissal of the murder charge. Sentencing was left to the trial

      court’s discretion. At the guilty plea hearing, which was held the same day,

      Schmitt stated that he understood the allegations, that he understood he was

      pleading guilty to conspiracy to commit murder, and that he understood he was

      telling the court that he had done what was alleged in the charging information.

      To establish the factual basis for the plea, Schmitt’s attorney elicited

      Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 2 of 8
      information from Schmitt that he had testified during Cox’s trial and that the

      testimony he had given in that trial had been true and accurate. The trial court

      accepted the guilty plea and later sentenced Schmitt to fifty years incarceration.


[5]   On November 30, 2012, Schmitt filed a petition for post-conviction relief. The

      post-conviction court held a hearing on the petition on April 17, 2014, and on

      August 22, 2014, the post-conviction court denied the petition. Schmitt now

      appeals.


                                   Discussion and Decision
[6]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

              “The petitioner in a post-conviction proceeding bears the burden of
              establishing grounds for relief by a preponderance of the evidence.”
              Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “When appealing from
              the denial of post-conviction relief, the petitioner stands in the position
              of one appealing from a negative judgment.” Id. To prevail on appeal
              from the denial of post-conviction relief, a petitioner must show that
              the evidence as a whole leads unerringly and unmistakably to a
              conclusion opposite that reached by the post-conviction court.
              Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the
              post-conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction Rule
              1(6). Although we do not defer to the post-conviction court’s legal
              conclusions, “[a] post-conviction court’s findings and judgment will be
              reversed only upon a showing of clear error—that which leaves us with
              a definite and firm conviction that a mistake has been made.” Ben–
              Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quotation omitted).
      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).




      Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 3 of 8
                                             I. Guilty Plea
[7]   Schmitt makes two arguments with respect to his guilty plea. First, he contends

      that his testimony from Cox’s trial was improperly used to establish a factual

      basis for his plea. He complains that the State had provided him immunity for

      that testimony, and as such, it should not have formed the factual basis for his

      guilty plea. It was Schmitt, however, who offered the testimony as a basis for

      the plea. The State did not attempt to use that testimony against him.

      Consequently, the State abided by its immunity-related promises and there is no

      error on this basis.


[8]   Second, Schmitt argues that he maintained his innocence during the guilty plea

      hearing and that, as such, the trial court should not have accepted the plea.

      The so-called “Ross/Harshman rule” provides that a trial court “may not accept

      a plea of guilty when the defendant both pleads guilty and maintains his

      innocence at the same time. To accept such a plea constitutes reversible error.”

      Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983); see also Harshman v. State, 232

      Ind. 618, 621, 115 N.E.2d 501, 502 (Ind. 1953). This rule “is explicitly

      contingent, however, upon the protestation of innocence occurring at the same

      time the defendant attempts to enter the plea.” Carter v. State, 739 N.E.2d 126, 129

      (Ind. 2000) (emphasis added).


[9]   In this case, Schmitt admitted his guilt to the trial court multiple times during

      his guilty plea hearing. He also stated that he had testified truthfully during

      Cox’s trial. That testimony included the following admissions:


      Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 4 of 8
            Schmitt knew that there was animus between Williams and Cox.
            Schmitt agreed to break into Williams’s residence for Cox.
            Schmitt, dressed in dark clothes and wearing a ski mask and gloves, used
             a pry bar and a knife to enter Williams’s residence.
            Schmitt walked quietly through the residence and unlocked the back
             door so that Cox could enter.
            Schmitt gave the pry bar to Cox and walked away, leaving her to commit
             the murder.

       Appellant’s App. p. 130, 144, 152, 157, 167, 170, 172.


[10]   Schmitt makes much of the fact that he testified at Cox’s trial that he did not

       enter into an agreement with her to kill Williams. He argues that this testimony

       constitutes a protestation of innocence triggering the Ross/Harshman rule. We

       disagree. This testimony occurred at a different, earlier proceeding. At the

       guilty plea hearing itself, Schmitt did not make a single protestation of

       innocence. Instead, he plainly and repeatedly admitted his guilt. Under these

       circumstances, the Ross/Harshman rule was not triggered and the post-

       conviction court correctly determined that the trial court did not err by

       accepting the guilty plea.


                               II. Assistance of Trial Counsel
[11]   Schmitt also argues that he received the ineffective assistance of trial counsel.

       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


       Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 5 of 8
       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)). “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). However, “[i]f we can easily dismiss an ineffective assistance

       claim based upon the prejudice prong, we may do so without addressing

       whether counsel's performance was deficient.” Baer v. State, 942 N.E.2d 80, 91

       (Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be

       resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

       (Ind. 2002).


[12]   Schmitt argues that his attorney was ineffective for introducing his testimony at

       Cox’s trial as the factual basis for his guilty plea. Specifically, Schmitt alleges

       that he did not consent to the use of this testimony as the factual basis.

       Schmitt’s attorney, however, testified at the post-conviction hearing that he and

       Schmitt had discussed the use of the Cox trial testimony as the factual basis for

       the guilty plea. Trial counsel testified that Schmitt willingly agreed to waive

       any immunity-related issues regarding the use of that testimony when he

       pleaded guilty. It was for the post-conviction court to weigh these conflicting

       accounts and make a determination. We will not second-guess its conclusion

       that Schmitt’s attorney was being truthful.


       Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 6 of 8
[13]   Schmitt also makes vague allegations that his attorney “did nothing to protect

       Schmitt’s rights, to prevent the State from using Schmitt’s immunized

       testimony against him, or to ensure that Schmitt understood the implications of

       the plea agreement.” Appellant’s Br. p. 12. Trial counsel, however, testified

       that he and Schmitt had “lengthy discussions” about all of Schmitt’s options

       before pleading guilty. PCR Tr. p. 15. Again, we will not second-guess the

       post-conviction court’s determination that counsel was being truthful.


[14]   Early in the police investigation, Schmitt admitted to police that he had broken

       and entered Williams’s residence on the night of the murder. He also told

       police that he had admitted a person into Williams’s residence after breaking

       in.1 His own admissions to police constitute compelling evidence supporting a

       charge of felony murder. Despite this compelling evidence, Schmitt’s trial

       attorney negotiated a plea to the less serious crime of class A felony conspiracy

       to commit murder. It is evident that his counsel represented and protected him

       quite ably. Schmitt cannot establish that his attorney’s performance was

       deficient or that he suffered prejudice as a result of his attorney’s performance.

       Instead, the record reveals that his attorney aided him, quite significantly. The

       post-conviction court correctly determined that Schmitt did not receive

       ineffective assistance of appellate counsel.




       1
           Schmitt initially told police that he had let a man into the house.


       Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 7 of 8
[15]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 83A05-1409-PC-425 | August 14, 2015   Page 8 of 8
