MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Nov 09 2018, 10:07 am

court except for the purpose of                                              CLERK
                                                                         Indiana Supreme Court
establishing the defense of res judicata,                                   Court of Appeals
                                                                              and Tax Court
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen T. Owens                                       Curtis T. Hill, Jr.
Public Defender of Indiana                             Attorney General of Indiana
Emilee A. Hammond                                      Jesse R. Drum
Deputy Public Defender                                 Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel Pierce,                                         November 9, 2018
Appellant-Petitioner,                                  Court of Appeals Case No.
                                                       18A-PC-679
        v.                                             Appeal from the Switzerland
                                                       Circuit Court
State of Indiana,                                      The Honorable W. Gregory Coy,
Appellee-Respondent.                                   Judge
                                                       Trial Court Cause No.
                                                       78C01-1511-PC-350



Tavitas, Judge.




Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018                   Page 1 of 12
                                             Statement of the Case

[1]   Daniel Pierce appeals the post-conviction court’s (“PC court”) denial of his

      petition for post-conviction relief (“PCR”) after Pierce’s resentencing for child

      molestation, a Class A felony. We reverse and remand with instructions.


                                                          Issue

[2]   Pierce raises two issues on appeal, which we restate as a single issue of whether

      the trial court violated Pierce’s Sixth Amendment right to counsel, entitling

      Pierce to PCR. 1


                                                          Facts

[3]   The underlying facts of this cause were set out in our supreme court’s opinion

      in Pierce v. State, 29 N.E.3d 1258, 1261-63 (Ind. 2015):


               In November 2011, a caregiver discovered seven-year-old K.P.
               naked in a closet with her three-year-old half-brother. She was



      1
        The second issue Pierce raises is that “Indiana Code Section 35-20-2-2(i) did not limit the trial court’s
      discretion to change Pierce’s aggregate sentence.” Appellant’s Br. p. 2. We decline to address this issue
      independently as it is a free standing claim and not one of two issues we will consider in a petition for PCR.
      See Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008). In Bailey v. State, our supreme court addressed
      free standing claims and held:

               any issue set forth in a post-conviction petition must be raised within the purview of the
               post-conviction rules, e.g., deprivation of the Sixth Amendment right to effective
               assistance of counsel, or be an issue demonstrably unavailable to the petitioner at the time
               of his trial and direct appeal. Therefore, in a post-conviction petition an allegation of the
               denial of the petitioner’s due process rights may not be raised in the “free-standing” form
               of an allegation of fundamental error.


      472 N.E.2d 1260, 1263 (Ind. 1985).



      Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018                      Page 2 of 12
        taken to the Child Advocacy Center, and during a forensic
        interview, K.P. indicated her grandfather, Daniel Pierce, had
        molested her. K.P. revealed Pierce would kiss her on her mouth
        and touch her “front private” with his hand. Tr. at 48-49. He
        also tried to use his mouth on her front private, but she “got
        away from him.” Tr. at 64. More than once, Pierce showed her
        “bad stuff” with naked people doing “nasty stuff” on his
        computer. Tr. at 53-54. K.P. saw him touch his penis with his
        hand. He tried to get her to touch his penis, getting “mad” and
        saying he would give her a dollar, but she “never listened to
        him.” Tr. at 64. Pierce also joined her in the bathtub or shower.


        Based on K.P.’s allegations, Detective Kip Main began a
        criminal investigation and interviewed Pierce’s two step-
        granddaughters, V.H. and B.H., as well as his great niece, A.R.
        Twelve-year-old V.H. regularly spent the night at Pierce’s house,
        usually by herself. One of those nights, she fell asleep and awoke
        to Pierce on top of her, “rubbing [her] breasts and [her] vagina
        area”; despite her attempts to push him off, “he just kept going
        on with it.” Tr. at 94. And on more than one occasion, he
        placed his mouth on her vagina over her underwear. She would
        sometimes wear a piece of red lingerie when Pierce would touch
        her. V.H. also saw Pierce “play” with his penis until “white
        stuff” came out, which he would put in a cup. Tr. at 97.
        Thirteen-year-old B.H. would stay over at Pierce’s house about
        twice a month. Once, while she was watching television on the
        bed, he laid down next to her and “rubbed [her] back and [her]
        stomach and [her] boobs,” first over B.H.’s shirt and then
        underneath it. Tr. at 73-74. Finally, fourteen-year-old A.R. said
        Pierce would hug her from behind and cup her breasts for five or
        ten seconds. He also had her sit between his legs so he could rub
        her stomach while they watched a movie. When Pierce drove
        her home after a visit, he told her a story about his penis coming
        out of his pants.




Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 3 of 12
        Pierce’s wife, Lori, is paralyzed and requires care in their home.
        Several of Lori’s caretakers observed Pierce interact with the girls
        in ways they did not think were appropriate. Taffy Scudder
        noticed Pierce would have the girls sit in his lap, hug them, and
        “pat them on the tush,” but he would push away the boys. Tr. at
        86-87. While cleaning, Barbara Stout found a box in Pierce’s
        closet that contained a printout of a pornography site called
        “Barely 18” showing very young girls performing oral sex, and
        she found nightgowns with the straps tied to fit the girls. Holly
        Taylor saw V.H. come out of Pierce’s bedroom wearing red, see-
        through lingerie. She also found pornography in Pierce’s
        nightstand. When Brittany McGowand once walked into
        Pierce’s bedroom, K.P. jumped up from laying in his lap with
        “this look on her face like she was in the wrong.” Tr. at 146.
        Brittany, too, found pornography in Pierce’s nightstand. On two
        occasions, Melody Reese found Pierce and K.P. in the bathroom
        while one or both of them were in the shower.


        A month after K.P.’s interview at the Child Advocacy Center,
        Pierce was admitted to a mental health facility, apparently due to
        stress over the allegations against him. From the facility, he
        contacted Lori and asked her to remove his computers from the
        home. Lori’s caretaker Melody overheard Pierce’s request and
        made arrangements for the computers to be delivered to law
        enforcement. The internet history on Pierce’s computer showed
        visits to several pornographic websites with “an overwhelming
        theme of young girls in compromising positions and videos
        related to that nature of girls.” Tr. at 242. Some of the domain
        names visited included “PappaF***Me.com,
        FirstTimeWithDaddy.com, F***MeDaddy.org, [and]
        TrickyOldTeacher.com.” Tr. at 245.


        The State charged Pierce with ten counts: three of child
        molesting as a Class A felony (Counts 1 and 9, naming V.H. as
        the victim, and Count 10, naming K.P. as the victim), five of
        child molesting as a Class C felony (Count 2, naming V.H. as the

Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 4 of 12
              victim, Count 3, naming K.P. as the victim, Count 6, naming
              A.R. as the victim, and Counts 7 and 8, naming B.H. as the
              victim), and two of child solicitation as a Class D felony (Count
              4, naming V.H. as the victim, and Count 5, naming K.P. as the
              victim). Pierce moved to sever the charges, but the trial court
              denied that motion.


      Pierce, 29 N.E.3d at 1261-63.


[4]   The State consented to dismissing Count X after the close of the State’s case.

      The jury convicted Pierce of all the other counts, except Count VI. Pierce was

      sentenced to an aggregate sentence of thirty-eight years with eight years

      suspended. Pierce was also determined to be a credit restricted felon.


[5]   This court and our supreme court reviewed several issues on direct appeal.

      Relevant to this proceeding, our supreme court considered the sentence for

      Count IX. The initial sentence for Count IX alone was thirty years, with six

      years suspended. Our supreme court remanded this portion of the sentence,

      finding:


              As we discussed above, the trial court found V.H. was less than
              twelve years of age when Pierce committed the offenses against
              her, including Count 9, Class A felony child molesting, and
              Pierce was at least twenty-one years of age at that time. There is
              substantial evidence of probative value to support those findings.
              Therefore, Indiana Code section 35-50-2-2(i) applies, the
              suspension is incompatible with the plain language of that
              statute, and we must reverse Pierce’s sentence for Count 9 and
              remand to the trial court for resentencing on that count.


      Pierce, 29 N.E.3d at 1271.

      Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 5 of 12
[6]   At resentencing on Count IX, the trial court sentenced Pierce to an executed

      term of thirty years. At the resentencing hearing, Pierce did not have counsel

      present. There is no indication that Pierce waived the right to counsel, and no

      indication that a discussion regarding counsel occurred at all. In resentencing

      Pierce, the trial court said:


              At the time of the original sentencing [on Count IX], I sentenced
              you to a period of thirty (30) years, with six (6) years suspended
              on that charge. And the Court of Appeals ruled that that [sic]
              was an error. That should not, that six (6) years should not have
              been suspended. So for purposes of sentencing, the original
              sentencing order will be amended and your sentence will be
              amended so that Count IX, child molesting, a Class A Felony,
              you will now be sentenced to an executed term of thirty (30)
              years.


      Petitioner’s Ex. 2.


[7]   Pierce filed a pro se petition for PCR on November 13, 2015. Pierce’s counsel

      filed an amendment to the petition for PCR on August 10, 2017. After a

      hearing, the PC court denied Pierce’s motion for PCR, stating in part:


              I would note for the record that when the order for the Sheriff’s
              Department to transport Mr. Pierce here for sentencing, he was
              ordered to appear on Monday, August 17, 2015 at 10:30. The
              Sheriff was ordered to transport Mr. Pierce from the Department
              of Corrections to this court for that hearing. On the service list of
              that order, his appellate counsel was notified, R. Patrick
              Magrath. Mr. Magrath is a trial lawyer who also does appellate
              work very extensively here in this part of the State. And this is
              not part of the record but I would say that my memory, I know
              that Mr. Magrath contacted the court and did indicate that he did

      Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 6 of 12
              not intend to appear for that. I don’t know if he viewed it as I
              did but the way I viewed it was, I’m looking at 29 NE 3rd, page
              1271, and that is section 4 of the Supreme Court opinion
              regarding the sentence that we’re discussing here. It says “the
              trial court erred by suspending part of the defendant’s sentence”
              and the last part of that is “we must reverse Pierce’s sentence for
              Count IX and remand to the trial court for re-sentencing on that
              count”. So I read that not to mean that any other counts were to
              be affected, that the total aggregate sentence was going to be
              affected by the re-sentence. And I did order that he need to be
              [sic] back here, only I believe I mentioned in what is now marked
              as Petitioner’s Exhibit 2 and that hearing we brought him back as
              a courtesy because I do believe he needed to be present. But I
              don’t believe he was denied the opportunity for counsel. There
              wasn’t an appellate lawyer available who could have been
              present.


      Tr. Vol. II p. 9. The PC court denied Pierce’s PCR petition in a written

      order that did not include findings of fact or conclusions of law.



                                                   Analysis

[8]   Pierce appeals the denial of his PCR petition. Our supreme court has stated:


              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. When appealing from the denial of post-conviction
              relief, the petitioner stands in the position of one appealing from
              a negative judgment. 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. . . . A post-
              conviction court’s findings and judgment will be reversed only



      Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 7 of 12
               upon a showing of clear error – that which leaves us with a
               definite and firm conviction that a mistake has been made.


       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

       citations omitted). As the clearly erroneous standard “is a review for

       sufficiency of evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

       “Rather, we ‘consider only the evidence that supports that judgment and the

       reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

       v. State, 738 N.E.2d 253, 258-59 (Ind. 2000)).


[9]    In ruling on a PCR petition, the PC court is required to enter findings of fact

       and conclusions of law on all issues presented. See Ind. Post-Conviction Rule

       1(6). The Indiana Supreme Court “has made clear that ‘it is the duty of the trial

       judge to relate the facts on which he makes his determination (conclusion) that

       the petitioner is not entitled to the relief he seeks.’” Stephenson v. State, 864

       N.E.2d 1022, 1050 (Ind. 2007) (quoting Davis v. State, 330 N.E.2d 738, 741

       (Ind. 1975)).


[10]   The PC court here failed to issue findings of fact and conclusions of law with

       regard to Pierce’s PCR hearing. While the PC court did state that it was aware

       Pierce did not have counsel present at resentencing, the PC court’s written

       order simply denied Pierce’s request for PCR with no written findings or

       conclusions. This was improper. We still, however, consider the merits of

       Pierce’s petition for PCR, as there does not appear to be any dispute

       surrounding the facts central to Pierce’s petition. See, e.g., Davis, 330 N.E.2d at
       Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 8 of 12
       743 (holding that deficient findings of fact do make the review process “more

       tedious than would otherwise be required,” but finding that there was no harm

       to the petitioner in this regard).


[11]   “In post-conviction proceedings, complaints that something went awry at trial

       are generally cognizable only when they show deprivation of the right to

       effective counsel or issues demonstrably unavailable at the time of trial or direct

       appeal.” State v. Hernandez, 910 N.E.2d 213, 216 (Ind. 2009) (citing Sanders v.

       State, 765 N.E.2d 591, 592 (Ind. 2002)); see also Lindsey v. State, 888 N.E.2d 319,

       325 (Ind. Ct. App. 2008) (“[a] defendant in a post-conviction proceeding may

       allege a claim of fundamental error only when asserting either (1) deprivation of

       the Sixth Amendment right to effective assistance of counsel, or (2) an issue

       demonstrably unavailable to the petitioner at the time of his or her trial and

       direct appeal.”), trans. denied. Other “free-standing” claims are not available for

       post-conviction review. See Lindsey, 888 N.E.2d at 325.


[12]   “The Sixth Amendment to the United States Constitution guarantees a

       defendant the right of assistance of counsel to protect his fundamental right to a

       fair trial.” Puckett v. State, 843 N.E.2d 959, 965 (Ind. Ct. App. 2006) (citing J.W.

       v. State, 763 N.E.2d 464, 467 (Ind. Ct. App. 2002)). “Accordingly, a defendant

       has a right to counsel at all critical stages of a criminal proceeding against him.”

       Id. (citing Adams v. State, 693 N.E.2d 107, 108 (Ind. Ct. App. 1998)). “[I]t is

       well settled that sentencing is a critical stage of the proceedings at which a

       defendant is entitled to representation by counsel.” Id.



       Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 9 of 12
[13]   As in Puckett, the sentencing hearing transcript indicates that Pierce attended

       resentencing without counsel, and the record lacks any indication that Pierce

       knowingly and voluntarily waived his right to be represented at resentencing.

       See id. (noting that “[c]orrelative to the right to counsel is the right of a criminal

       defendant to waive counsel and represent himself”). There is nothing in the

       transcript that indicates the PC court asked Pierce to waive his right to counsel

       or advised Pierce of the risks of proceeding without counsel. Although the PC

       court noted at the PCR hearing that Pierce’s counsel notified the PC court he

       would not be attending the resentencing, there is no evidence that Pierce was

       aware of this at the time of resentencing. Based on this record, we cannot say

       that Pierce made a knowing and voluntary waiver of the right to counsel.


[14]   Generally, “[t]he right to the assistance of counsel is so essential that prejudice

       is presumed when there is actual or [constructive] denial of the assistance of

       counsel; however, ‘denial of this constitutional right is subject to harmless error

       analysis unless the deprivation, by its very nature, cannot be harmless.’” Black

       v. State, 79 N.E.3d 965, 971 (Ind. Ct. App. 2017) (citing Hernandez v. State, 761

       N.E.2d 845, 849 (Ind. 2002)), trans. denied. Here, we do not find Pierce’s denial

       of counsel at resentencing to be harmless. Important to our decision is that our

       supreme court did not require the trial court to impose a specific sentence upon

       resentencing—just one that complied with the statute. Our supreme court held

       that “Indiana Code section 35-50-2-2(i) applies, the suspension is incompatible

       with the plain language of that statute, and we must reverse Pierce’s sentence

       for Count 9 and remand to the trial court for resentencing on that count.”


       Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 10 of 12
       Pierce, 29 N.E.3d at 1271. At the time of Pierce’s offense, Indiana Code Section

       35-50-2-2(i) stated:


                  (i)      If a person is:


                           (1) convicted of child molesting (IC 35-42-4-3) as a Class A
                               felony against a victim less than twelve (12) years of
                               age; and


                           (2) at least twenty-one (21) years of age;


                  The court may suspend only that part of the sentence that is in
                  excess of thirty (30) years.


       Ind. Code § 35-50-2-2(i). 2


[15]   Pierce was convicted of child molestation, a Class A felony. Indiana Code

       Section 35-50-2-4 addresses Class A felonies. At the time of Pierce’s offense,

       for a person who committed a Class A felony, the statute stated that the person

       “shall be imprisoned for a fixed term of between twenty (20) and fifty (50)

       years, with the advisory sentencing being thirty (30) years.” Ind. Code § 35-50-

       2-4. Therefore, the trial court had discretion so long as the sentence fell within

       the guidelines of the statute and other applicable laws. 3 The trial court




       2
           This statute was repealed pursuant to Pub. L. No. 158-2013, § 653 (eff. July 1, 2014).
       3
         We note that Pierce’s thirty-year sentence was not necessarily in error. The error in this case was that
       Pierce did not have counsel present at a critical stage of the proceeding, and that counsel could have argued
       that the sentence should have been less than thirty years.

       Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018                   Page 11 of 12
       evidently took our supreme court’s ruling to mean that the trial court was

       required to sentence Pierce to thirty years executed and that it had no other

       options. We do not believe this to be the case. Pierce is entitled to resentencing

       with the effective assistance of counsel as required by the Sixth Amendment.


                                                  Conclusion

[16]   Based on the foregoing, we conclude the PC court erred in denying Pierce’s

       petition for PCR. Accordingly, we grant the petition for PCR and remand for a

       resentencing hearing with counsel present for Pierce. The trial court is

       instructed to follow the resentencing instructions set out in the supreme court’s

       opinion in Pierce, 29 N.E.3d at 1271. We reverse and remand with instructions.


[17]   Reversed and remanded with instructions.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana |Memorandum Decision 18A-PC-679 | November 9, 2018   Page 12 of 12
