Anthony McCullough v. State of Indiana
2013 Ind. App. LEXIS 228
| Ind. Ct. App. | 2013Background
- McCullough and co-defendant Kehoe provided false information on a loan application to obtain a car in 2008.
- In 2009, McCullough was charged with multiple counts including Class C fraud on a financial institution and Class D failure to register as a sex offender under two separate cause numbers.
- On September 29, 2009, McCullough entered a combined plea to Class C fraud on a financial institution and the Class D failure to register charge, with other charges dismissed and sentencing largely constrained by the agreement.
- At sentencing, McCullough received an eight-year sentence for fraud (six years suspended) and a concurrent two-year executed sentence for the sex-offender registration violation, to be served on home detention.
- After discovery of Wallace v. State (2009) holding that sex-offender registry requirements were not retroactive, McCullough sought post-conviction relief alleging ineffective assistance of trial counsel for not advising him about Wallace.
- Post-conviction relief was granted as to the Class D conviction but denied as to the Class C fraud conviction; the post-conviction court and appellate court separated the charges in considering relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to advise about Wallace affected validity of the Class D plea | McCullough argues trial counsel's failure to inform him of Wallace rendered the D plea involuntary. | State contends the D plea was voluntary and that prejudice prong not satisfied for reversing the C fraud plea. | Relief granted for the D charge; prejudice shown for D claim, not for C fraud. |
| Whether the Class C fraud plea was knowing, intelligent, and voluntary notwithstanding counsel’s conduct | McCullough contends ineffective assistance affected the C fraud plea due to undisclosed defenses. | State argues substantial evidence supported a voluntary plea and no undisclosed defense changes outcome. | Fraud plea found knowing, intelligent, and voluntary; no ineffective-assistance prejudice shown for the fraud charge. |
| Whether the post-conviction court properly separated the charges for relief analysis | McCullough asserts the charges should be considered together in relief analysis. | State supports separation consistent with case law and the separate cause numbers. | Court properly separated charges; relief granted only as to the D charge. |
Key Cases Cited
- Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (sex-offender registry retroactivity not applied)
- Segura v. State, 749 N.E.2d 496 (Ind. 2001) (reasonable probability of success required to show defense prejudice)
- Smith v. State, 770 N.E.2d 290 (Ind. 2002) (defense considerations in plea negotiations; separation of charges)
- Perez v. State, 748 N.E.2d 853 (Ind. 2001) (definition of reasonable probability and prejudice in ineffective-assistance claims)
- Fisher v. State, 810 N.E.2d 674 (Ind. 2004) (preponderance standard in post-conviction appeals)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (when to address prejudice before deficiency in IAC)
- Timberlake v. State, 753 N.E.2d 591 (Ind. 2001) (deference to counsel's strategic decisions; burden on petitioner)