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Arnold v. State

Court of Appeals of Indiana

September 26, 2016

Jon A. Arnold, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent.

         Appeal from the Washington Circuit Court The Honorable Larry W. Medlock, Judge Trial Court Cause No. 88C01-1506-PC-329

          ATTORNEY FOR APPELLANT Bart M. Betteau Betteau Law Office, LLC New Albany, Indiana.

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana.

          Brown, Judge.

         [¶1] Jon A. Arnold appeals the denial of his petition for post-conviction relief. He raises several issues for our review, which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.

         Facts and Procedural History

         [¶2] In November 2008, the State charged Arnold with buying timber without a registration certificate as a class D felony under cause number 88C01-0811-FD-181 ("Cause No. 181"). The information referenced Ind. Code § 25-36.5-1-10 and alleged that Arnold did "engage in the business of timber buying without securing a registration, and while having a prior unrelated conviction for an offense under this section."[1] Petitioner's Exhibit 2. In September 2009, Arnold pled guilty to purchasing timber without securing a registration certificate as a class A misdemeanor, and the court sentenced him to one year, all of which was suspended.[2]

         [¶3] On June 24, 2015, Arnold filed a petition for post-conviction relief alleging that he was denied the effective assistance of counsel, that but for his counsel's errors he would not have pled guilty and insisted on going to trial, and that his counsel overlooked defenses that would have likely changed the outcome of the proceeding.

         [¶4] On March 3, 2016, the post-conviction court held a hearing at which Arnold testified and presented exhibits and the testimony of his trial counsel. Arnold requested the court to admit the affidavits of Chad Anderson and Connie Burton, and the court admitted the affidavits after striking several paragraphs on the State's objection that the paragraphs contained legal conclusions. In her affidavit, Burton stated in part that no written contract existed for the sale of any trees; that her agreement with Arnold was that he would "cut the trees and after all bills were paid, the profits [would be] split on a 50/50 basis"; that "[a]t the time the agreement was made for Jon Arnold to cut the trees, [she] did not know exactly how many trees were to be harvested" and "Arnold was simply to cut all harvestable trees in a predetermined area." Petitioner's Exhibit 4. Burton further stated that she did not know how much money she would receive; that "[a]t the time of the agreement, Jon Arnold expressed that he was unsure as to exactly how many trees would be cut or what the proceeds would be"; that no money changed hands between herself and Arnold "until after the trees were bought by the sawmill"; and that she was paid exactly as she should have been pursuant to their agreement. Id. Anderson's affidavit stated in part that Burton was his mother.

         [¶5] Arnold's trial counsel testified "we live in a small community and I have known Jon Arnold for some time and he has known me and I always knew him as a timber cutter/timber buyer, " that "it seemed obvious on the face that this gentleman whom I already knew, uh, did not have a license to purchase timber, " and "I assumed and today it appears to me wrongly, uh, that he was guilty of the crime charged." Transcript at 13. Trial counsel testified "my opinion has changed and I wished I had done it differently and advised Mr. Arnold differently at the time." Id. at 14. Trial counsel also testified that he did not think Arnold is a well-educated person.

         [¶6] On cross-examination, Arnold's trial counsel stated that he would have received and reviewed the probable cause affidavit and a copy of Arnold's recorded statement to a conservation officer. When asked whether Arnold "admitted to the conservation officer that what he did was illegal, " trial counsel replied: "I believe that Mr. Arnold, at that time, operated under the same illusion that I did that unless you had the piece of paper that said, uh, licensed timber buyer that you, uh, you were guilty of the crime, uh, on it's [sic] face." Id. at 16-17. When asked "you said he was under an illusion at the time, you believed, " trial counsel testified "because neither [Arnold] nor I did the analysis or even understood that, that analysis was available with respect to who was a timber buyer and who was not. Because his reputation is he, he buys and sells and cuts logs and I, I just assumed that's who he was." Id. at 17. He also testified "the analysis that's been done by [Arnold's post-conviction counsel] [ ] I did not do." Id. Trial counsel indicated that Arnold was initially charged with a felony, and when asked "[s]o, having a prior conviction and admitting to the officer that what he was doing was illegal you still got a misdemeanor agreement in that case, " trial counsel answered "[w]e negotiated an agreement and resolved the case, yes." Id. at 18. He further testified: "It appears to me from reading the documents that purchasing on shares so that no interest in property transfers between the, uh, logger and the landowner does not fit the statute." Id.

         [¶7] Arnold testified that Chad Anderson had asked him to cut some trees on his mother's property and sell them to the sawmills, that he said that he would "do it on a fifty/fifty deal, " and that it was probably fewer than fifty trees. Id. at 21. When asked "[w]hen the conservation officer came up to talk to you about it did you tell him immediately that, oh, as Ms. Campbell said, oh, I'm guilty, I committed a crime, " Arnold stated "[y]eah, I probably did, I, I mean, I don't know for shore [sic], " "I been in a bigger business in the past, " and "you know, I, so, I normally bought trees so, I guess I figured that, you know, I probably had to have a (Inaudible), you know." Id. at 21-22. Arnold indicated that he had previously been found guilty of tree buying without a license in Scott County and that, at that time, he had a sawmill, bought trees, and "wrote them a check for the trees or there was a certain amount . . . [u]p front." Id. at 22. He testified that, after that, he left the sawmill business, "went to doing small little jobs like this . . . for the neighbors basically to . . . cut just a few trees and sell them to other mills, " and did the work "[o]n percentage." Id. at 22-23. When asked "[d]id you think at the time the way you were doing it required you to have a license on shares, " Arnold answered "no, I didn't figure I needed the license on the shares." Id. at 23. When asked why he decided to plead guilty, Arnold testified "I just thought it would be a quick and easy deal, it would be done and over with, you know. And pay 'em a fine and, and such as that." Id. at 23-24. When asked "what did [trial counsel] tell you about, " Arnold answered "[p]retty much told me the same thing" and "[h]e knew how the system would worked [sic] and would just take care of it that way." Id. at 24. When asked if his trial counsel ever discussed the legal definitions of tree cutter or tree buyer, ever indicated that he might have defenses, or indicated that he was not guilty of the offense, Arnold answered "[n]o, sir." Id.

         [¶8] On cross-examination, Arnold indicated that he had been in the business for a long time. When asked if True Dimensions Hardware, Inc., was his business, Arnold answered he "was part owner, I was, yes." Id. at 25. When asked "And the Jon Arnold Lumber Company, " "And Jon Arnold Logging, " and "Jon Arnold Lumber, " Arnold replied "Yes, ma'am." Id. at 25-26. When asked "so, you've had those separate logging business over the years, " Arnold answered affirmatively. Id. at 26. He indicated that he had previously had a license to buy timber and that he "had it off and on over the years." Id. at 27. When asked if his license was expired when he entered the guilty plea, he answered that he believed so. On re-direct, Arnold indicated he had a high school education and no legal training. The State requested the court to take judicial notice of the probable cause affidavit and the plea hearing, and the court did so.

         [¶9] Arnold's post-conviction counsel argued that Arnold was a timber cutter and not a timber buyer, that he was not required to have a license, and that Arnold was not in a position to know whether or not he was, in fact, guilty of the offense. His counsel noted that it was his trial attorney's responsibility to advise him about the law, and that trial counsel "wasn't able to provide that legal analysis that was really . . . the crux of this." Id. at 32. In response, the State argued that Arnold told the conservation officer that he knew what he did was illegal, that he had a conviction for buying timber without a license in the past, and that he was well versed in what was required of him. The State contended that "when you look at the definition of a timber buyer and buying . . . he meets the definitions." Id. at 34-35. The State also asserted that, at the time, the judge, prosecutor, defense attorney, and defendant all believed Arnold committed a crime, that while trial counsel was gracious to talk about how he maybe did not examine those issues, the burden is on Arnold to show that he would have a likelihood of success at his argument and Arnold had not demonstrated a likelihood of success.

         [¶10] The court raised an issue regarding Burton's neighbor, Jackson Warren, and Arnold testified that there "was in question whether we'd got over the line or not right there, " that Warren believed that two trees were on his property, that Arnold did not believe they were on Warren's property but he paid Warren for those trees, and that he never separated the trees from the Burton timber. Id. at 39. Arnold indicated that he was not charged with a timber theft.

         [¶11] The court issued an order dated March 10, 2016, denying Arnold's petition for post-conviction relief. The order states: "The Court finds that Jon A. Arnold did not purchase timber without a license from Connie Burton. However, the Court does find that pursuant to Mr. Arnold's testimony at the PCR hearing he did purchase timber from Jackson Warren without a license. Justice was served." Appellant's Appendix at 9-10. On April 1, 2016, the State filed proposed findings of fact and conclusion of law.

         [¶12] The court issued findings of fact and conclusions of law dated April 11, 2016, which provided in part:

         FINDINGS OF FACT

1. The Court took judicial notice of the plea and sentencing hearing, as well as the probable cause affidavit from [Cause No. 181].
* * * * *
3. [Arnold] filed the petition for post conviction relief to challenge conviction in [Cause No. 181] only after having been charged in 88D01-1504-F6-213 with Buying Timber without a Registration Certificate, Level 6 felony, Theft, Level 6 felony, and Trespass, Class A misdemeanor, which is still pending.
4. [Arnold] admitted under oath at the plea hearing in [Cause No. 181] that on or about September 24, 2008, in Washington County, Indiana, he engaged in the business of timber buying without securing a registration.
5. [Arnold] admitted under oath at the plea hearing in [Cause No. 181] that he was not working under someone else's license when he purchased the timber in Washington County, Indiana.
* * * * *
8. [Arnold's] plea of guilty was made knowingly, intentionally and voluntarily.
9. [Arnold] was represented, prior to and at the time of his plea, by [Arnold's trial counsel], who was hired by [Arnold].
10. [Trial counsel] testified in this matter that his performance was deficient, however that is only accurate if [trial counsel] incorrectly interpreted the law stated in I.C. 25-36.5-1, et. seq., which the Court finds that he did not.
11. [Arnold's] attorney filed a discovery request and received the discovery response prior to entry of the plea in [Cause No. 181].
12. The probable cause affidavit made available to the petitioner's attorney in assessing the criminal charges in [Cause No. 181] indicated:
a. that [Arnold] engaged in buying timber from Jackson Warren while not having a buyer's license when he knew he was required to, additionally the petitioner admitted during the post-conviction hearing he had paid Jackson Warren for timber he had harvested from Jackson's real property.
b. that [Arnold] admitted to the investigating officer that he had engaged in logging the property of Connie Burton and sold three loads of logs to the Worley saw mill, while not having a buy's [sic] license when he knew he was required to;
c. that [Arnold] admitted to the investigating officer that he had a prior conviction for buying timber in Scott County;
d. that [Arnold] admitted to the investigating officer that he had previously held a registration certificate allowing him to be a timber buyer, but that it was no longer valid;
e. that [Arnold] admitted to the investigating officer that he knew it was illegal to purchase timber without a license, but did not know his prior conviction made the charge a felony;
f. that [Arnold] admitted to the investigating officer that he had written a check to Connie Burton for timber on September 9, 2008 for $1, 000.00, as well as cash;
g. that [Arnold] admitted to the investigating officer that he had sold the timber he had logged from the Connie Burton property to the Worley saw mill ...

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