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Soucy v. State

Court of Appeals of Indiana

December 2, 2014

KEVIN SOUCY, Appellant-Petitioner,
v.
STATE OF INDIANA, Appellee-Respondent,

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

ATTORNEY FOR APPELLANT: T. ANDREW PERKINS, Peterson Waggoner & Perkins, LLP, Rochester, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana.

BAILEY, Judge. NAJAM, J., and PYLE, J., concur.

OPINION

Page 684

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 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

Page 685

conceded this but argued that direct communication with the victim ...


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