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Middleton v. State

Court of Appeals of Indiana

December 1, 2016

Corey Middleton, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Hendricks Superior Court The Honorable Rhett Stuard, Judge Trial Court Cause No. 32D02-1502-PC-3

          ATTORNEYS FOR APPELLANT Jeffrey A. Baldwin Tyler D. Helmond Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Corey Middleton appeals from the denial of his petition for post-conviction relief. He asserts that the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel.

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] On December 1, 4, and 5, 2000, undercover officers met Middleton in a van in a Kroger parking lot in Brownsburg and purchased cocaine and ecstasy from him. On the third day, Middleton showed the officers his "baby, " a silver .380 caliber handgun that he pulled from his waistband. Middleton v. State, No. 32A04-0308-CR-412, slip op. at 3 (Ind.Ct.App. June 29, 2004). Middleton told the officers that the handgun might be for sale later. The officers left the van and signaled to other officers to move in. After Middleton was arrested, officers found the handgun under the seat where Middleton had been sitting.

         [¶4] On December 6, 2000, Middleton was charged with Class A felony dealing in cocaine, two counts of Class B felony dealing in a controlled substance, four counts of drug possession, and possession of a firearm by a serious violent felon (SVF). Middleton initially requested that counsel be appointed, but a month later, he retained his own attorney, Robert Williams. During the last pre-trial conference on May 2, 2001, Middleton sought to have Williams replaced. Later, during the same pre-trial hearing, Williams requested to withdraw as Middleton's attorney, citing lack of payment by Middleton. Given that there were only three weeks until the scheduled trial date, the trial court denied both requests.

         [¶5] On May 23, 2001, Middleton failed to appear for his jury trial and was tried in absentia. At the start of the trial, Williams informed the court that he had paged and called Middleton the night before but did not talk to him. Williams also explained:

[Middleton] was aware this was the final trial date. . . . And he was advised this was a first choice jury trial and the Court denied my motion to withdraw so I talked to him later that day or the following day with the new plea offer from the State. He refused it and I said that was the last day. If he didn't accept that we'd be going to trial on the 23rd. I've had no further contact with him, Your Honor.

Petitioner's Exhibit 1, Transcript at 52-53.[1] The jury trial proceeded.

         [¶6] During voir dire, Williams posed the following question to prospective jurors:

I'd ask you, all of you the one question and that is Corey Middleton happens to be a Negro, an African American or Black whatever term is politically correct these days, so I need to ask all of you and remember you're under oath and please don't take that as an affront. I don't mean it as an affront. But I still think in this country there are some racial problems. So my job is to make sure first of all if Corey Middleton, the black man, was sitting there, would any of you have any problems forgetting he's black or forgetting he's white or Indian or Chinese or whatever[?] Does race make any difference to you in these proceedings because if it does we need to know that right now[?]

Id. at 92. After a jury was selected, the State presented its evidence. To prove Middleton was an SVF, the State offered into evidence a certified copy of Middleton's Michigan criminal history that showed he had a prior felony conviction for possession with intent to deliver cocaine (under thirty grams). Williams objected, arguing that Middleton was not there to confirm or dispute its accuracy. The trial court overruled the objection. At the conclusion of the evidence, the jury found Middleton guilty as charged. The trial court merged several of the drug offenses due to double jeopardy concerns.

         [¶7] In 2002, Middleton was located in Atlanta, Georgia. Middleton was arrested and returned to Indiana. On May 27, 2003, the trial court sentenced him to an aggregate forty-year term in the Department of Correction.[2] Middleton was appointed counsel to pursue a direct appeal. This court affirmed Middleton's SVF conviction, but ordered that the drug possession charges be vacated rather than simply merged. See Middleton, slip op. at 130.

         [¶8] On February 9, 2015, Middleton filed the instant petition for post-conviction relief (PCR), [3] in which he challenged his trial counsel's performance. Specifically, Middleton alleged that his trial counsel was ineffective for (1) failing to adequately investigate, [4] (2) failing to move to bifurcate the SVF offense from the drug offenses; (3) referring to him as a "Negro" during voir dire; (4) failing to object to the admission of evidence concerning a prior drug dealing conviction, and (5) failing to communicate to him a plea offer.[5] The post-conviction court held a hearing on November 20, 2015. Middleton did not call Williams to testify. On February 22, 2016, the ...

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