MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Feb 28 2017, 6:16 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Scroggins,                                       February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1605-PC-1026
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable John Webster,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         39D01-1312-PC-1125



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017    Page 1 of 11
                               Case Summary and Issues
[1]   Pursuant to a plea agreement, Michael Scroggins pleaded guilty to two counts

      of reckless homicide and one count of criminal recklessness, all Class C

      felonies, and the trial court sentenced him to the maximum term of twenty-four

      years in the Indiana Department of Correction. Thereafter, Scroggins filed a

      petition for post-conviction relief wherein he alleged his trial counsel was

      ineffective and his guilty plea was involuntary, which the post-conviction court

      denied. Scroggins appeals the denial of post-conviction relief, raising two issues

      for our review, which we consolidate and state as whether the post-conviction

      court erred in denying Scroggins’ petition for post-conviction relief.

      Concluding the post-conviction court did not err, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Scroggins’ direct appeal:

              On March 2, 2010, Abby Jackson (Jackson) was traveling in the
              southbound lane of State Road 7 in Dupont, Indiana, when she
              observed a green Chevrolet pickup truck swerving at a high rate
              of speed behind her. Scroggins and a female passenger[, Jessica
              Short,] were in the pickup truck. The vehicles had entered a no
              passing zone, but Jackson moved to the right side of the road to
              allow Scroggins to pass. Scroggins drove around her, then
              abruptly cut back to the right, causing Jackson to apply her
              brakes to avoid a collision. Around the same time, Bonnie
              Ramey-Low (Ramey-Low), Lois Robinson (Robinson), and
              Cindy Speer (Speer) were traveling northbound on S.R. 7 in
              Ramey-Low’s Jeep Liberty. As their vehicle crested a small hill,
              Scroggins’ pickup truck appeared in their lane. Ramey-Low

      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 2 of 11
                 swerved to the left to avoid Scroggins, but their vehicles collided
                 head-on.


                 Police arrived at the accident soon thereafter and found Ramey-
                 Low slumped over the steering wheel. Ramey-Low had died
                 from the accident, but Speer and Robinson survived and were
                 removed from the Jeep. Robinson later died from her injuries
                 and Speer suffered multiple fractures and inner ear damage.
                 Scroggins and [Short] were removed from their vehicle as well,
                 with Scroggins receiving significant injuries to his arms and the
                 lower half of his body.[1]


                 On August 11, 2010, the State filed an Information charging
                 Scroggins with Counts I and II, reckless homicide, Class C
                 felonies; Counts III-V, criminal recklessness, Class C felonies;
                 Counts VI and VII, criminal recklessness, Class C felonies; and
                 Count VIII, criminal recklessness, a Class [C] felony.


      Scroggins v. State, No. 39A01-1203-CR-91, slip op. at *1 (Ind. Ct. App. Sept. 28,

      2012) (citations omitted), trans. denied.


[3]   On August 18, 2010, the presiding judge of the Jefferson Superior Court

      recused herself and ordered the county clerk to appoint a special judge in

      accordance with local rules. At the time, the local rules provided two lists of

      eligible special judges, one list naming those judges eligible to preside over civil

      matters and the other naming those judges eligible to preside over criminal

      matters. The Clerk selected Special Judge McLaughlin (previously Judge




      1
          We note law enforcement also discovered a Suboxone pill and a marijuana butt in Short’s purse.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017         Page 3 of 11
      Blankenship) of Dearborn County from the civil list. Judge McLaughlin

      accepted her appointment in September 2010. Nearly a year later, Scroggins’

      family discovered Judge McLaughlin had been selected from the civil list rather

      than the criminal list and notified Scroggins’ trial counsel, James Pattison. On

      August 30, 2011, Pattison moved to disqualify Judge McLaughlin, which the

      trial court denied.


[4]   On October 13, 2011, the State deposed Short, Scroggins’ passenger, who stated

      she and Scroggins smoked marijuana several hours before the accident and

      Scroggins had, at some point, given her pills: two Clonazepams and two

      Suboxones. The following day, the State e-mailed Pattison with a plea offer. In

      the e-mail, the State noted its intention, based on Short’s deposition testimony,

      to amend the charging information to include several additional counts: Counts

      IX and X, dealing in a controlled substance as Class B felonies; Count XI,

      dealing in marijuana as a Class A misdemeanor; Counts XII and XIII,

      operating a vehicle while intoxicated causing death as Class B felonies; Count

      XIV, operating a vehicle while intoxicated causing serious bodily injury as a

      Class C felony; and Count XV alleged Scroggins was an habitual substance

      offender. In light of this, the State opined Scroggins faced a sentencing range of

      six to 102 years in prison. The State’s plea offer provided:

              [W]e are offering, subject to notification to the victims, a plea to
              2x OWI Death, class B felonies, and 1x Crim Reck, class C
              felony, with the Crim Reck to run concurrent for a range of 6-40
              years, open argument, sentence to be executed at DOC. We will
              agree to dismiss the remaining counts and forgo the dealing
              counts and an HSO sentence enhancement.
      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 4 of 11
      Petitioner’s Exhibit 8 at 1. Pattison then discussed this note with Scroggins and

      his family. Although not entirely clear from the record, it appears Scroggins did

      not accept this plea agreement. Instead,


              [o]n December 20, 2011, Scroggins entered into a plea agreement
              with the State in which he pled guilty to Counts I [reckless
              homicide], II [reckless homicide], and V [criminal recklessness]
              in exchange for the State’s dismissal of [the remaining counts].
              The State also agreed to forego the filing of five additional
              Counts as well as a habitual substance offender allegation. The
              plea agreement left Scroggins’ sentence to the trial court’s
              discretion. On January 10, 2012, the trial court accepted
              Scroggins’ plea agreement and scheduled a sentencing hearing.


              On January 20, 2012, the trial court conducted the sentencing
              hearing . . . [and] sentenced Scroggins to eight years of
              incarceration on each Count, with the sentences to be served
              consecutively, for an aggregate sentence of twenty-four years.


      Scroggins, No. 39A01-1203-CR-91, at *1. We affirmed Scroggins’ sentence on

      direct appeal. Id. at *2. In May 2013, Scroggins filed a petition for post-

      conviction relief, which the post-conviction court denied. This appeal ensued.

      Additional facts will be added as necessary.



                                 Discussion and Decision
                                       I. Standard of Review
[5]   A post-conviction proceeding affords the petitioner an “opportunity to raise

      issues that were unknown or unavailable at the time of the original trial or the

      direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007),
      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 5 of 11
      trans. denied. However, a post-conviction proceeding does not constitute “a

      super appeal,” and it “provide[s] only a narrow remedy for subsequent

      collateral challenges to convictions.” Id.


[6]   Post-conviction proceedings are civil in nature and the petitioner bears the

      burden of establishing his grounds for relief by a preponderance of the

      evidence. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S.

      830 (2003). On appeal from the denial of a petition for post-conviction relief,

      the petitioner stands in the position of one appealing from a negative

      judgment. Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans.

      denied.


                In order to prevail, the 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. It
                is only where the evidence is without conflict and leads to but
                one conclusion, and the post-conviction court has reached the
                opposite conclusion, that the decision will be disturbed as being
                contrary to law.


      Id. (internal citation and quotation marks omitted). We will not reweigh

      evidence or assess the credibility of witnesses. Id. 2




      2
        At points in his brief, Scroggins alleges the post-conviction court failed to address certain claims and
      therefore we should review those unaddressed claims under a de novo standard of review. Based upon our
      review of Scroggins’ petition for post-conviction relief, the post-conviction court’s order denying Scroggins
      relief, and the argument Scroggins raised in his brief, we disagree the post-conviction court failed to address
      certain claims.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017            Page 6 of 11
                    II. Ineffective Assistance of Trial Counsel
[7]   Scroggins contends the post-conviction court erred in denying his petition for

      post-conviction relief, wherein he alleged he received ineffective assistance of

      trial counsel causing his plea to be made involuntarily. The Sixth Amendment

      “right to counsel is the right to the effective assistance of counsel.” Strickland v.

      Washington, 466 U.S. 668, 686 (1984) (citation omitted). To establish a claim of

      ineffective assistance of counsel, a petitioner must demonstrate (1) counsel’s

      performance was deficient, and (2) the deficient performance prejudiced the

      defense. Id. at 687. Counsel’s performance was deficient if it fell below an

      objective standard of reasonableness based on prevailing professional

      norms. Id. at 688.


[8]   As for the prejudice prong, there are two types of ineffective assistance claims

      available to a defendant who pleaded guilty: “(1) failure to advise the defendant

      on an issue that impairs or overlooks a defense and (2) an incorrect advisement

      of penal consequences.” Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App.

      2014) (citation omitted), trans. denied, cert. denied, 135 S. Ct. 2376 (2015). For

      claims relating to an overlooked defense, a petitioner must show a reasonable

      probability he would have been acquitted had he gone to trial. Id. Where a

      petitioner claims counsel provided incorrect advice regarding penal

      consequences, the petitioner must show “the hypothetical reasonable defendant




      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 7 of 11
      would have elected to go to trial if properly advised.” Segura v. State, 749

      N.E.2d 500, 507 (Ind. 2001).3


[9]   From what we can gather, Scroggins argues trial counsel rendered ineffective

      assistance in failing to (1) advise him double jeopardy would have precluded or

      mitigated convictions on some charges, and (2) advise him the criminal

      recklessness statute defining one of the charges he ultimately pleaded guilty to

      violates Indiana’s Proportionality Clause.4 Before we turn to the merits,

      however, it is necessary to note Scroggins’ brief and arguments are somewhat

      disorganized and difficult to follow, which has hindered our review of this case.

      Notably, it is unclear under which of the two types of Segura claims Scroggins

      raises these arguments. The crux of his argument in his petition for post-

      conviction relief and now on appeal, however, is trial counsel misinformed him

      of his potential maximum sentence and had trial counsel rendered effective




      3
          Segura provides,

              Whether viewed as ineffective assistance of counsel or an involuntary plea, the postconviction
              court must resolve the factual issue of the materiality of the bad advice in the decision to plead,
              and postconviction relief may be granted if the plea can be shown to have been influenced by
              counsel’s error. However, if the postconviction court finds that the petitioner would have
              pleaded guilty even if competently advised as to the penal consequences, the error in advice is
              immaterial to the decision to plead and there is no prejudice.
      749 N.E.2d at 504-05. Thus, it is of no matter whether we examine Scroggins’ claims under an ineffective
      assistance of counsel analysis or an involuntary plea analysis.
      4
        Scroggins also contends trial counsel rendered ineffective assistance in failing to timely challenge Special
      Judge McLaughlin’s appointment. Specifically, he claims he suffered prejudice because a different trial court
      judge could have given him a more lenient sentence. We initially express some sense of hesitancy as to
      whether Scroggins may even bring such a claim. Segura clearly establishes only two types of ineffective
      assistance of counsel claims in a guilty plea setting and this claim does not fall under either type. In any
      event, Scroggins has not proven he suffered any prejudice. Scroggins presents no evidence showing (1)
      Special Judge McLaughlin was biased toward or prejudiced against him, or (2) a different judge would have
      given him a more lenient sentence. Therefore, his argument fails.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017              Page 8 of 11
       assistance by informing him of the actual potential maximum sentence had the

       matter gone to trial, he would not have pleaded guilty. We therefore interpret

       Scroggins’ contentions in this regard as the second type of Segura claim:

       erroneous advice as to penal consequences.


                                       B. Penal Consequences
[10]   Scroggins argues trial counsel rendered ineffective assistance in failing to advise

       him Indiana’s Proportionality Clause would have mitigated his conviction on

       Count V, criminal recklessness, and double jeopardy would have precluded or

       mitigated convictions on potential Count X, dealing in a controlled substance,

       and potential Counts XII and XIII, operating a vehicle a vehicle while

       intoxicated causing death. He further contends had trial counsel adequately

       advised him of these issues, he would have been informed the maximum

       sentence he faced was seventy-two years rather than 102 and therefore he

       would not have pleaded guilty.


[11]   A petitioner who claims prejudice as a result of trial counsel’s erroneous advice

       as to penal consequences must show counsel provided erroneous advice and the

       hypothetical reasonable defendant would have elected to go to trial if properly

       advised. See Segura, 749 N.E.2d at 507. Assuming without deciding the

       Proportionality Clause and prohibition against double jeopardy would have

       precluded or mitigated convictions on all four counts noted above and that trial

       counsel performed deficiently by failing to so advise Scroggins, Scroggins has

       not met his burden of showing the post-conviction court erred in concluding

       there was no prejudice. Scroggins cites to portions of the record showing (1) he
       Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 9 of 11
       was resistant to pleading guilty after the State threatened to amend the charging

       information to include several more counts; (2) Pattison aggressively urged him

       to accept the plea agreement; (3) Pattison discussed the issue with Scroggins’

       family in an attempt to urge him to accept the plea agreement; and (4) his

       biggest fear was getting out of prison before his death. However, as the post-

       conviction court noted in denying Scroggins relief, “This is a case involving the

       deaths of two (2) people and another with very serious injuries. There is simply

       a lack of credible evidence that Scroggins’ decision to plead guilty to these class

       C felonies were [sic] the result of trial counsel’s discussion with Scroggins

       regarding possible penalties.” Appealable Order at 8 (emphasis added).

       Therefore, Scroggins’ arguments regarding prejudice are merely a request for

       this court to reassess witness credibility and reweigh the evidence, which we

       will not do. See Willoughby, 792 N.E.2d at 562.


[12]   In any event, Pattison advised Scroggins of both the minimum and maximum

       sentence he faced if he went to trial and we note many factors cause a

       sentencing range to fluctuate, especially where, as here, the State already

       charged Scroggins with multiple felony counts, the State noted its intent to

       amend the charging information to include several more felony counts, and the

       parties were actively conducting plea negotiations. In addition, Scroggins

       agreed to plead open, which gave the trial court the discretion to sentence him

       to a much smaller sentencing range, with the maximum being twenty-four

       years. We further note even a maximum of seventy-two years executed is three

       times the maximum sentence of twenty-four years he faced by pleading guilty.


       Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017   Page 10 of 11
       Scroggins therefore received a substantial benefit in pleading guilty. In light of

       the foregoing, we cannot say the hypothetical reasonable defendant would have

       elected to go to trial in this case. We conclude the post-conviction court did not

       err in determining Scroggins did not prove he suffered prejudice as a result of

       counsel’s alleged erroneous advice as to penal consequences. 5



                                                   Conclusion
[13]   We conclude the post-conviction court did not err in denying Scroggins’

       petition for post-conviction relief. Accordingly, we affirm.


[14]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       5
         Scroggins also argues trial counsel rendered ineffective assistance in failing to advise him the State did not
       have sufficient evidence to convict him on Counts XII and XIII. He claims he suffered prejudice as a result
       because had he been informed of this issue, he would have (1) received a more favorable outcome had the
       matter gone to trial, and (2) not pleaded guilty. Thus, on this issue, it appears he brings both types of Segura
       claims. However, it is not clear Scroggins would have received a more favorable outcome had the matter
       gone to trial and the jury acquitted him of Counts XII and XIII because Scroggins was still facing several
       other felony charges carrying a more severe maximum sentence than the twenty-four-year sentence the trial
       court imposed. As to his claim he would not have pleaded guilty, we note Scroggins already challenges
       counsel’s advice regarding penal consequences on the basis Counts XII and XIII should not have been
       considered as a part of the sentencing range. Therefore, this is merely a duplicate argument, and having
       concluded Scroggins has not proven the hypothetical reasonable defendant would opt to go to trial under the
       current circumstances, this argument also fails.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1605-PC-1026 | February 28, 2017           Page 11 of 11
