FOR PUBLICATION                                          Dec 02 2014, 9:58 am




ATTORNEY FOR APPELLANT:                                ATTORNEYS FOR APPELLEE:

T. ANDREW PERKINS                                      GREGORY F. ZOELLER
Peterson Waggoner & Perkins, LLP                       Attorney General of Indiana
Rochester, Indiana
                                                       MARJORIE LAWYER-SMITH
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

KEVIN SOUCY,                                   )
                                               )
      Appellant-Petitioner,                    )
                                               )
         vs.                                   )       No. 25A05-1406-PC-276
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Respondent,                     )


                    APPEAL FROM THE FULTON CIRCUIT COURT
                        The Honorable A. Christopher Lee, Judge
                            Cause No. 25C01-1310-PC-686



                                    December 2, 2014


                              OPINION – FOR PUBLICATION


BAILEY, Judge
                                             Case Summary

          Appellant-Petitioner Kevin C. Soucy appeals the denial of his petition for post-

conviction relief, which challenged his convictions following his pleas of guilty to two

counts of Intimidation, as Class D felonies, for which he received an aggregate sentence

of six years.1 We address the sole dispositive issue: whether Soucy was denied the

effective assistance of counsel when Soucy pled guilty to offenses of which he was

apparently actually innocent. We reverse.

                                    Facts and Procedural History

          On April 3, 2012 and April 4, 2012, Soucy placed telephone calls to his mother,

Beverly Stevens (“Stevens”), from the Fulton County Jail in which he was incarcerated.

During those telephone calls, Soucy made threats against Lorna Craig (“Craig”), who had

provided information that assisted police in arresting Soucy for a probation violation.

Soucy repeatedly insisted that Stevens contact Craig to relay the threats; Stevens

repeatedly refused to do so.

           On April 23, 2012, the State charged Soucy with two counts of Intimidation,

alleging that he had communicated threats to Craig with the intent that Craig be placed in

fear of retaliation for a prior lawful act. On September 17, 2012, Soucy appeared for a

change of plea hearing. At that hearing, the trial court requested that the State present a

factual basis for the convictions and the State elicited Soucy’s admissions that he had

threatened to kill Craig and burn down her house and had, “over and over,” told Stevens




1
    Ind. Code § 35-45-2-1(a). This offense is now a Level 6 felony.
                                                      2
that he wanted her to communicate those threats to Craig. (Guilty Plea Tr. 30.) Soucy

pled guilty and received consecutive sentences of three years each.

       On October 29, 2013, Soucy filed a Petition for Post-Conviction Relief. Therein,

he alleged that he was denied fundamental due process and the effective assistance of

counsel because the record did not reveal an adequate factual basis for the Intimidation

convictions. Specifically, the record was devoid of evidence that a threat had been

communicated to Craig. The State conceded this but argued that direct communication

with the victim was not required.

       An evidentiary hearing was conducted on February 10, 2014. Soucy testified that

he had believed, at the time of the guilty plea hearing, that his calls to his mother

constituted the crimes of Intimidation. Soucy’s trial counsel testified and denied that she

had ever obtained information during the discovery process suggesting that the threats

had been communicated from Stevens to Craig. She further testified that she lacked

specific recollection as to whether she had advised Soucy on the statutory elements of

Intimidation.

       On May 22, 2014, the post-conviction court issued an order denying Soucy’s

petition for post-conviction relief. This appeal ensued.

                                Discussion and Decision

       Indiana Code Section 35-45-2-1(a) provides in relevant part:

       A person who communicates a threat to another person, with the intent: …
       that the other person be placed in fear of retaliation for a prior lawful act;
       … commits intimidation, a Class A misdemeanor.



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The offense is elevated from a Class A misdemeanor to a Level 6 felony (formerly Class

D felony) if the threat is to commit a forcible felony.

       Soucy admitted, both at the change of plea hearing and the post-conviction

hearing, that he made verbal threats against Craig and insisted that his mother convey

those threats.   However, the recording of the telephone calls reveals that Stevens

consistently refused to comply with Soucy’s demands; the record is devoid of evidence

that these threats were ever conveyed to Craig by any means. Nonetheless, despite

having the assistance of court-appointed counsel, Soucy pled guilty to offenses requiring

communication to the victim.

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

the evidence. Ind. Post-Conviction Rule 1(5). A petitioner appealing from the denial of

post-conviction relief stands in the position of one appealing from a negative judgment.

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). Thus, the decision will be disturbed as

being contrary to law only if the evidence is without conflict and leads to but one

conclusion, and the trial court has reached the opposite conclusion. Ben-Yisrayl v. State,

729 N.E.2d 102, 105 (Ind. 2000).

       Ineffectiveness of counsel claims are evaluated under the standard of Strickland v.

Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of

counsel, a petitioner must show both deficient performance and resulting prejudice.

Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007). A deficient performance is a

performance which falls below an objective standard of reasonableness and involves

errors so serious that counsel was not functioning as counsel guaranteed by the Sixth

                                              4
Amendment.     Id.   Prejudice exists when a claimant shows “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

      A post-conviction claim challenging a conviction pursuant to a guilty plea is

examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two

main types of 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). 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 there is a reasonable probability that he or she would not have

been convicted had he or she gone to trial and used the omitted defense. Segura, 749

N.E.2d at 499 (citing State v. Van Cleave, 674 N.E.2d 1293, 1306 (Ind. 1996)).

      In denying Soucy post-conviction relief, the post-conviction court stated that its

decision was based upon the holding in Ajabu v. State, 677 N.E.2d 1035 (Ind. Ct. App.

1997), the decision relied upon by the State at post-conviction proceedings to support its

argument that direct communication was unnecessary to support Intimidation

convictions. In Ajabu, the appellant had been charged with Intimidation after making

threats through media outlets against a prosecutor and the mother of two murder victims.

He moved to dismiss the indictment, contending that “a threat must be communicated

directly to the victim.” Id. at 1042. Dismissal was denied, Ajabu was convicted in a

bench trial, and he appealed, claiming that the evidence was insufficient as a matter of

law due to the lack of direct communication. See id. at 1041.

                                            5
       The Ajabu panel of this Court concluded that the word “communicate”

encompasses threats “made known or transmitted to another person” and made the

following observation: “Ajabu’s threats were spoken before microphones and televisions

[sic] cameras and communicated through the media to members of the public, including

Nation and Meyer.” Id. at 1042. Ultimately, the Court held:

       The evidence supports the conclusion that Ajabu used that media to
       communicate threats that he knew or had good reason to believe would
       reach Nation and Meyer, with intent to influence Nation’s conduct as a law
       enforcement officer against his will and to place Meyer in fear of retaliation
       for having supported Nation’s death penalty request. This was intimidation
       under our statute.

Id. at 1043. Mindful that the terms of a criminal statute are to be strictly construed

against the State and “only those cases which are clearly within its meaning and intention

can be brought within the statute,” id. at 1042, we conclude that the post-conviction

court’s construction of Ajabu is overly broad. Although direct communication to the

intended victim is not required under the Intimidation statute, communication such as to

influence conduct or place a person in fear of retaliation is required. Here, because

Stevens refused to repeat the threats, there was no further dissemination of the threats so

as to influence or impact Craig.

       On appeal, the State concedes that Ajabu is inapposite, but argues that testimony

presented at the change of plea hearing “indicates a clear intent on [Soucy’s] part for the

threats to be communicated to Craig, and he had good reason to believe that [t]he threats

would be conveyed to her.” (Appellee’s Brief at 12.) However, the statutory subsection

under which Soucy was charged requires communication of a threat to another person


                                             6
with “intent that the other person be placed in fear,” as opposed to “intent that the threat

be communicated.” See I.C. § 35-45-2-1(a).

       In short, Soucy has shown a reasonable probability that he would have prevailed at

trial. Counsel’s failure to advise him on an overlooked defense of actual innocence

constitutes ineffective assistance of counsel.

                                        Conclusion

       Soucy is entitled to post-conviction relief on grounds of ineffective assistance of

counsel.

       Reversed.

NAJAM, J., and PYLE, J., concur.




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