MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Oct 20 2016, 9:13 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana

Deidre R. Eltzroth                                       Eric P. Babbs
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey S. Heironimus,                                   October 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A05-1602-PC-391
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Kelli E. Fink,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1303-PC-6



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016       Page 1 of 13
                                                Case Summary
[1]   Jeffrey Heironimus appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                        Issues
[2]   Heironimus raises two issues, which we restate as:


                        I.       whether he was denied the effective assistance
                                 of trial counsel or his guilty plea was
                                 involuntary because he was not properly
                                 advised regarding the habitual offender
                                 enhancement; and

                        II.      whether he was denied the effective assistance
                                 of trial counsel or his guilty plea was
                                 involuntary because he was not advised
                                 regarding an alleged defense to the charge.

                                                        Facts
[3]   In May 2011, Heironimus was charged with Class C felony robbery for robbing

      a bank in Evansville. The State also alleged that he was an habitual offender. 1

      In January 2012, the State also charged Heironimus with Class D felony

      attempted obstruction of justice and again alleged that he was an habitual

      offender. The State alleged that Heironimus “knowingly sen[t] a letter to

      Bradford Talley, who was a witness in [the robbery case], with the intent to




      1
        Heironimus was found guilty of Class C felony robbery and found to be an habitual offender. We affirmed
      his conviction on direct appeal. See Heironimus v. State, No. 82A01-1204-CR-152 (Ind. Ct. App. Nov. 1,
      2012). In a companion case to this appeal, we also affirmed the post-conviction court’s denial of his petition
      for post-conviction relief. See Heironimus v. State, No. 82A01-1602-PC-394 (Ind. Ct. App. _____, 2016).

      Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016             Page 2 of 13
induce Bradford Talley, by threat or coercion, to withhold testimony in that

proceeding, which conduct constituted a substantial step toward that

commission of the said crime of Obstruction of Justice . . . .” Petitioner’s Ex.

D. The letter in question was sent to Talley, who witnessed Heironimus fleeing

the bank after the robbery and who was a stranger to Heironimus. It stated:


        I hope to get your ear before the state does. The prosecutor &
        cops are going to try & have you appear @ my trial and point me
        out, to say you saw me in a red truck. Using this testimony they
        are trying to prove I was the guy who robbed a bank! They are
        trying to give me as much as 50 yrs! Crazy dude! Anyway, I
        didn’t do this – the guy driving the red truck, it was his bank; his
        house where the money was found the next day, they caught him
        and his wife spending the money while I was in jail (because he
        lied & said I did it). He set me up & they are going for it – he’s a
        thief, liar and rat! He is out of jail now. I don’t know how you
        see this, but I do hope you are not a rat working with the police
        on a lie in case like this is B.S.! If they find you they can force
        you to court – cause their the Nazi pigs, they can not force you to
        say you ever saw me nor can they make you point me out in
        court.


        Just remember things are always as it appears, right. Please don’t
        let them take my life – not by your helping cool? P.S. Watch
        your back out there. P.S.S. Probably lookin’ for ya - over


                                          The Accused!


        They’re trying to get you to point me out 1st in a line-up – you
        don’t remember right. They are looking to find you & force you
        to court on Nov. 14th 2011 just to point me out in court & say
        you saw me in a red truck. You’re not sure, right. Simply put,
        dude, you just can’t remember or be sure! Ok? This is my life –

Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 3 of 13
              in your hands. I’ve met a couple people in jail who say they
              know you & your kin, say it’s not your style to work with police.


              Good luck – if all works out as it should with right at my back –
              you may be able to talk me into some serious ink work. I am an
              artist with my own equipment. Keepin’ it real, I keep it right
              w/friends old and new.


      App. Vol. II pp. 13-14 (capitalization omitted); Petitioner’s Ex. C.


[4]   Heironimus’s trial counsel advised him that he faced a three-year sentence for

      the attempted obstruction of justice charge and a four-and-one-half year

      enhancement for his habitual offender status. Heironimus agreed to plead

      guilty to attempted obstruction of justice, and the State dismissed the habitual

      offender allegation. Heironimus agreed to an advisory sentence of eighteen

      months, which the trial court imposed consecutive to his sentence for the

      robbery and habitual offender action.


[5]   In March 2013, Heironimus filed a petition for post-conviction relief, which

      was later amended. Heirominus alleged that he did not receive effective

      assistance of trial counsel and that his guilty plea was involuntary, unknowing,

      and unintelligent. After a hearing, the post-conviction court entered findings of

      fact and conclusions thereon denying Heironimus’s petition. Heironimus now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 4 of 13
                                                  Analysis
[6]   Heironimus argues that the post-conviction court’s denial of his petition is

      clearly erroneous. A court that hears a post-conviction claim must make

      findings of fact and conclusions of law on all issues presented in the

      petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-

      conviction Rule 1(6)). “The findings must be supported by facts and the

      conclusions must be supported by the law.” Id. Our review on appeal is limited

      to these findings and conclusions. Id. Because the petitioner bears the burden

      of proof in the post-conviction court, an unsuccessful petitioner appeals from a

      negative judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a

      negative judgment must show that the evidence as a whole ‘leads unerringly

      and unmistakably to a conclusion opposite to that reached by the trial

      court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert.

      denied). Under this standard of review, “[we] will disturb a post-conviction

      court’s decision as being contrary to law only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion.” Id.


[7]   Heironimus argues that his trial counsel was ineffective and his guilty plea was

      involuntary because he was incorrectly advised regarding the habitual offender

      enhancement and an alleged defense to the charge. Because Heironimus was

      convicted pursuant to a guilty plea, we must analyze his claims under Segura v.

      State, 749 N.E.2d 496 (Ind. 2001). In Segura, the Indiana Supreme Court held:



      Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 5 of 13
        Whether viewed as ineffective assistance of counsel or an
        involuntary plea, the post[-]conviction court must resolve the
        factual issue of the materiality of the bad advice in the decision to
        plead, and post[-]conviction relief may be granted if the plea can
        be shown to have been influenced by counsel’s error. However,
        if the post[-]conviction 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.


Segura, 749 N.E.2d at 504-05. Thus, it is immaterial whether Heironimus’s

claim is characterized as an involuntary plea or ineffective assistance of counsel.

See Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura

and holding that it was immaterial whether the petitioner’s claim was

characterized as an involuntary plea or ineffective assistance of counsel

because, under either standard, the petitioner must demonstrate that the

intimidation resulting from his trial counsel’s failure to inform him of the single

larceny rule was material to his decision to plead guilty), trans. denied.


                        I. Habitual Offender Enhancement Claim

Heironimus argues that his guilty plea was involuntary and his trial counsel was

ineffective because his trial counsel incorrectly advised him that his sentence

could have been enhanced by his habitual offender status. Segura categorizes

two main types of guilty plea ineffective assistance of counsel cases: (1) failure

to advise the defendant on an issue that impairs or overlooks a defense, and (2)

an incorrect advisement of penal consequences. Smith v. State, 770 N.E.2d 290,

295 (Ind. 2002). Heironimus’s habitual offender claim falls under the second


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category—an incorrect advisement of penal consequences. In Segura, our

supreme court held:

        [I]n order to state a claim for post[-]conviction relief a petitioner
        may not simply allege that a plea would not have been entered.
        Nor is the petitioner’s conclusory testimony to that effect
        sufficient to prove prejudice. To state a claim of prejudice from
        counsel’s omission or misdescription of penal consequences that
        attaches to both a plea and a conviction at trial, the petitioner
        must allege . . . “special circumstances,” or, as others have put it,
        “objective facts” supporting the conclusion that the decision to
        plead was driven by the erroneous advice.


        We believe a showing of prejudice from incorrect advice as to the
        penal consequences is to be judged by an objective standard, i.e.,
        there must be a showing of facts that support a reasonable
        probability that the hypothetical reasonable defendant would
        have elected to go to trial if properly advised. . . .


        In sum, . . . to prove this in the case of claims related to a defense
        or failure to mitigate a penalty, it must be shown that there is a
        reasonable probability that a more favorable result would have
        obtained in a competently run trial. However, for claims relating
        to penal consequences, a petitioner must establish, by objective
        facts, circumstances that support the conclusion that counsel’s
        errors in advice as to penal consequences were material to the
        decision to plead. Merely alleging that the petitioner would not
        have pleaded is insufficient. Rather, specific facts, in addition to
        the petitioner’s conclusory allegation, must establish an objective
        reasonable probability that competent representation would have
        caused the petitioner not to enter a plea.


Segura, 749 N.E.2d at 507 (footnotes omitted).



Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 7 of 13
[8]   In analyzing this claim, the post-conviction court found that: “‘[U]nder Indiana

      law, a trial court cannot order consecutive habitual offender sentences.’

      Breaston v. State, 907 N.E.2d 992, 994-995 (Ind. 2009), and cases cited therein.

      ‘This holds true whether the concurrent enhanced sentence is imposed in a

      single proceeding or in separate proceedings.’ Id. at 995 . . . .” App. Vol. II p.

      113. The court noted that Heironimus alleged “that he was misinformed by

      trial counsel regarding the penal consequences he was facing because he falsely

      believed he was facing a sentence of seven and one-half (7 1/2) years because of

      the habitual offender count when he was really only facing three (3) years.” Id.


[9]   Thus, the post-conviction court found, and the State concedes, that any habitual

      offender enhancement in this case could not have been served consecutively to

      the habitual offender enhancement in the robbery case. See Breaston, 907

      N.E.2d at 994. However, Heironimus must also establish an objective

      reasonable probability that competent representation would have caused him

      not to enter a plea. The post-conviction court rejected Heironimus’s argument

      and concluded:

                       13.     In this case Petitioner was actually facing a possible
                               sentence on the Class D Attempted Obstruction of
                               Justice charge of three (3) years because his sentence
                               could not have legally been enhanced based on the
                               habitual offender count. Petitioner’s criminal
                               history is extensive, and it is unlikely that he would
                               have received an 18-month sentence if he had been
                               convicted of Attempted Obstruction of Justice at
                               trial. Therefore, Petitioner did receive a lesser
                               sentence by entering into the plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 8 of 13
                        14.     This Court finds, after attempting to conduct an
                                objective review of the facts, that Petitioner has
                                failed to establish by a preponderance of the
                                evidence that the accurate information regarding the
                                habitual offender count would have made any
                                difference in his decision to enter a plea.


                                                    *****


                        43.     As indicated above, Petitioner was facing a
                                maximum sentence of three years even without the
                                habitual enhancement. Petitioner’s extensive
                                criminal history would likely have resulted in an
                                aggravated sentence if he had been found guilty.
                                Therefore, this Court finds that any advisement by
                                trial counsel that Petitioner was facing the
                                possibility of the habitual offender enhancement did
                                not result in prejudice to the Petitioner.


       App. Vol. II p. 114, 120.


[10]   Although his trial counsel advised him that he was facing a possible seven and

       one-half year sentence, it is clear that Heironimus actually could have only been

       sentenced to three years. The plea agreement, however, provided for an

       advisory sentence of eighteen months. Heironimus had an extensive criminal

       history. The post-conviction court noted that his criminal history included:


               [T]he 2012 Robbery conviction in Cause 82C01-1105-FB-654; a
               2009 Possession of a Controlled Substance conviction as a
               misdemeanor; a 2007 federal Uttering Counterfeit Obligations or
               Securities Conviction as a felony; a 1985 Robbery conviction as a
               felony in which Petitioner served 42 years at the Indiana
               Department of Correction; a 1979 Armed Robbery; a 1979

       Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 9 of 13
               Burglary; a 1976 Delivery [of] a Controlled Substance conviction;
               and several other mostly alcohol-related offenses.


       Id. at 105. Given Heironimus’s extensive criminal history, the likelihood of

       him receiving a sentence more favorable than the advisory sentence is extremely

       slim. Moreover, Heironimus never testified at the post-conviction hearing that

       accurate advice regarding the habitual offender enhancement would have

       caused him not to enter a guilty plea. On appeal, Heironimus argues only that,

       given accurate advice, “it is reasonably probable to assume they would have

       negotiated a term of even less time.” Appellant’s Br. p. 11. To the contrary,

       there is no indication whatsoever that the State would have negotiated a

       sentence less than the advisory sentence, especially given Heironimus’s criminal

       history. The post-conviction court’s findings on this issue are not clearly

       erroneous.


                                           II. Sufficiency Defense

[11]   Next, Heironimus argues that his guilty plea was involuntary and his trial

       counsel was ineffective because his trial counsel failed to advise him of a

       defense to the charge. Heironimus contends that the attempted obstruction of

       justice charge would have been unsuccessful because the State lacked sufficient

       proof to convict him. This claim falls under the first Segura category—failure to

       advise the defendant on an issue that impairs or overlooks a defense. Smith,

       770 N.E.2d at 295. In order to set aside a conviction because of an attorney’s

       failure to raise a defense, a petitioner who has pled guilty must establish that a



       Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 10 of 13
       defense was overlooked or impaired and that the defense would likely have

       changed the outcome of the proceeding. Segura, 749 N.E.2d at 499.


[12]   On this issue, the post-conviction court found that Heironimus had admitted

       during the guilty plea hearing that he sent a letter to a witness to induce him,

       either by threat or coercion, not to testify in another proceeding against

       Heironimus. The post-conviction court also found that Heironimus waived his

       right to have the State prove the case beyond a reasonable doubt and of his right

       to a trial by court or jury. Consequently, the post-conviction court rejected

       Heironimus’s argument that his guilty plea was involuntary on this basis. As

       for the ineffective assistance of counsel claim, the post-conviction court noted

       that Heironimus was required to show that the defense would likely have

       changed the outcome of the proceeding. The post-conviction court concluded

       that a fact finder could have found Heironimus’s letter was sent to induce the

       witness by threat or coercion to withhold testimony. The post-conviction court

       determined that Heironimus failed to demonstrate that his counsel’s

       performance was deficient or “that even if there were errors on the part of his

       trial counsel, that any such errors prejudiced the defense.” App. Vol. II p. 147.


[13]   In order for Heironimus to be convicted of attempted obstruction of justice, the

       State had to prove beyond a reasonable doubt that he attempted to: (1)

       knowingly or intentionally; (2) induce by threat, coercion, or false statement;

       (3) a witness in an official proceeding; (4) to withhold or unreasonably delay in

       producing any testimony, information, document or thing; and (5) by engaging

       in conduct which constituted a substantial step toward the commission of the

       Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 11 of 13
       aforementioned crime. McElfresh v. State, 51 N.E.3d 103, 108 (Ind. 2016); Ind.

       Code § 35-44-3-4 (repealed by P.L. 126-2012, § 53 (eff. July 1, 2012); see now

       Ind. Code § 35-44.1-2-2); Ind. Code § 35-41-5-1. “Under the obstruction of

       justice statute, the term ‘coercion’ ‘carries with it, at a minimum, the sense of

       some form of pressure or influence being exerted on the will or choice of

       another.’” McElfresh, 51 N.E.3d at 108 (quoting Sheppard v. State, 484 N.E.2d

       984, 988 (Ind. Ct. App. 1985), trans. denied). “The form of pressure or influence

       ‘may vary widely—and certainly includes harassment, physical force,

       intimidation, and threats—as long as it is exerted knowingly or intentionally to

       induce conduct by a witness or informant that is proscribed’ by the obstruction

       of justice statute.” Id. (quoting Sheppard, 484 N.E.2d at 988). In addition, the

       failure to comply must be accompanied by a consequence. Id. If there is no

       consequence, the “statement is not coercive, but is merely a request.” Id.


[14]   According to Heironimus, the evidence would have been insufficient because

       the letter that he wrote to Talley did not contain “any actual threats” or “overt

       threats.” Appellant’s Br. p. 9. Heironimus wrote the letter at issue to a stranger

       who was a witness to his fleeing the bank after the robbery. Heironimus said,

       “If they find you they can force you to court – cause their [sic] the Nazi pigs,

       they can not force you to say you ever saw me nor can they make you point me

       out in court.” App. Vol. II p. 13. Heironimus then said, “Watch your back out

       there.” Id. Finally, he said:


               They’re trying to get you to point me out 1st in a line-up – you
               don’t remember right. They are looking to find you & force you

       Court of Appeals of Indiana | Memorandum Decision 82A05-1602-PC-391| October 20, 2016   Page 12 of 13
               to court on Nov. 14th 2011 just to point me out in court & say
               you saw me in a red truck. You’re not sure, right. Simply put,
               dude, you just can’t remember or be sure! Ok?


       Id. at 14. Heironimus then mentioned that he had met some people in jail that

       knew Talley and Talley’s family. A reasonable fact finder could have

       interpreted the letter as an attempt to induce Talley by coercion not to testify.

       See, e.g., McElfresh, 51 N.E.3d at 109 (holding that the evidence was sufficient to

       sustain the defendant’s conviction for attempted obstruction of justice where the

       defendant sent a coercive letter to the mother of a child molesting victim). It is

       extremely unlikely that this defense would have changed the outcome of the

       proceeding. The post-conviction court’s findings on this issue are not clearly

       erroneous.


                                                 Conclusion
[15]   The post-conviction court’s denial of Heironimus’s petition for post-conviction

       relief is not clearly erroneous. We affirm.


[16]   Affirmed.


[17]   Riley, J., and Bailey, J., concur.




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