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Barber v. State

Court of Appeals of Indiana

January 15, 2020

Charles E. Barber, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent,

          Appeal from the St. Joseph Superior Court Trial Court Cause No. 71D03-1712-PC-48 The Honorable Jeffrey L. Sanford, Judge

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana Emilee A. Grubb Deputy Public Defender Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

          Robb, Judge.

         Case Summary and Issue

         [¶1] In 1993, Charles Barber pleaded guilty to child molesting, a Class C felony, and was sentenced to eight years. In 2017, Barber filed a petition for post-conviction relief alleging that his counsel was ineffective for failing to request a competency evaluation and that he was denied his right to substantive due process when he pleaded guilty while incompetent. Following a hearing, the post-conviction court denied Barber's petition. Barber now appeals, raising two issues for our review which we consolidate and restate as whether the post-conviction court erred in denying his petition. Concluding Barber did not meet his burden of establishing his claims by a preponderance of the evidence and therefore, the post-conviction court did not clearly err in denying the petition, we affirm.

         Facts and Procedural History

         [¶2] In February 1993, the State charged Barber with child molesting. The trial court appointed Anthony Luber to represent him. In June 1993, Barber pleaded guilty to the charge in exchange for the State agreeing to forego adding an habitual offender enhancement. Barber was thirty-six years old at the time of his guilty plea. He had completed eighth grade but was unable to read or write. At the plea hearing, Luber informed the trial court that Barber was unable to read so Luber had read the plea agreement to him before he signed it. Barber "did ask several questions during that process and some of the terms and phrases were explained to him." Trial Exhibits, Volume 3 at 24. Barber confirmed to the trial court that his attorney had read the plea agreement to him and they had a chance to talk about it before he signed it. The trial court asked Barber if he had any physical, emotional, or mental condition that would make it difficult for him to understand things or make decisions. Barber answered, "Just . . . reading and writing." Id. at 25. The trial court then asked, "But in terms of understanding what people are talking about and what . . . you're deciding . . ., no problem?" Id. Barber answered, "No." Id. The trial court advised Barber of the rights he would be waiving by pleading guilty and Barber confirmed he understood and indicated he wished to proceed with the guilty plea. Luber then questioned Barber about the precipitating incident in order to lay a factual basis. Barber responded appropriately to questions posed to him during the plea hearing.

         [¶3] Before sentencing, Barber was referred for a diagnostic report from the Indiana Department of Correction ("DOC") because a psychological evaluation was required for him to be considered for a community corrections placement. At the sentencing hearing, Luber acknowledged that Barber "doesn't function at a very high level although he does have some intelligence. . . . He functions very well in an institutional setting. He has been a trustee in the jail because he is reliable. And if he is given a task to do, he does it." Id. at 7-8. Luber also referenced the DOC report, which indicated that "while he is illiterate, he does possess enough mental attributes to be able to overcome that." Id. at 9. Barber received an eight-year sentence with four and one-half years suspended to probation, the first year of which was to be served in community corrections. He completed his sentence in October 1999.

         [¶4] On December 8, 2017, Barber filed a pro se Petition for Post-Conviction Relief alleging ineffective assistance of counsel and "knowing & voluntary plea" as grounds for relief. Appendix to Brief of Petitioner-Appellant, Volume Two at 16. The petition was later amended by counsel to elaborate upon those grounds for relief:

Petitioner Barber was denied his right to substantive due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana Constitution when he pled guilty while incompetent.
* * *
Petitioner Barber was denied his rights to due process of law and the effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana Constitution, when trial counsel failed to request a competency evaluation.

Id. at 31-32. The State's answer asserted the defenses of res judicata, laches, and waiver. At the beginning of the post-conviction hearing, however, the State informed the post-conviction court that it was not proceeding on res judicata or waiver, as Barber had not filed a direct appeal.

         [¶5] Barber called Attorney Luber to testify during the post-conviction hearing. Luber had no recollection of specific conversations with Barber but described his typical way of handling his cases - for instance, he would usually meet with his clients after he was appointed, read through the discovery, and convey plea offers. When he received a plea offer, he would go through the agreement with his client, and if the client could not read, he would read the agreement to the client.

         [¶6] With regard to his experience representing incompetent clients in his fifty-year career, Luber noted that there are "two issues dealing with the mental thing. One is whether or not the matter is a defense, and the other is a question about . . . what the person knows and understands and can comprehend [about] what is going on." Transcript of Evidence [from PCR Hearing], Volume 2 at 12. He described his general practice at an initial meeting:

I try to go through a background with the person [and] I usually get signals about where a person is in some of those things. I ask simple questions . . . [a]nd it gives me a hint about it. . . . And I think I'm sensitive to those things. . . . [I]f I don't think someone is understanding, I usually - it usually gets raised.

Id. at 12-13. Luber recalled that Barber was "clearly in the functioning level and had lived a life and had made adjustments[.] So I didn't think it was a thing that he was acting in a very low IQ ...


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