Hervin S. Talley v. State of Indiana
2016 Ind. App. LEXIS 31
| Ind. Ct. App. | 2016Background
- On August 5, 2012, Officer Alejandro Campos chased and detained Hervin S. Talley after Talley matched a burglary suspect description and ran; during the struggle Talley dropped a loaded .40 caliber handgun.
- Talley was charged with unlawful possession of a firearm by a serious violent felon (SVF), two counts of resisting law enforcement, and the State relied on a 2001 Illinois armed-robbery conviction as the SVF predicate.
- At trial the court admitted evidence of the 2001 conviction (including a certified record and mugshot); the jury also heard Talley say during arrest, “Let me go. I’m a convicted felon.”
- Talley was convicted on all counts and sentenced to an aggregate ten-year term. He later terminated his direct appeal under the Davis‑Hatton procedure to pursue post-conviction relief alleging ineffective assistance of trial counsel.
- In post-conviction proceedings Talley argued trial counsel was ineffective for not moving to bifurcate the SVF issue from the resisting charges; the post-conviction court denied relief and this appeal followed.
Issues
| Issue | Talley’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to move to bifurcate the SVF allegation from the resisting charges | Counsel should have sought bifurcation because admission of the 2001 conviction prejudiced the resisting counts | A bifurcation motion would have failed because the prior conviction was relevant to motive for resisting; counsel made a reasonable strategic choice | Post-conviction court correctly rejected the claim — counsel’s choice was strategic and the prior conviction was admissible as motive |
Key Cases Cited
- White v. State, 25 N.E.3d 107 (Ind. Ct. App. 2014) (describing Davis‑Hatton procedure allowing appeal suspension to pursue post‑conviction relief)
- Peaver v. State, 937 N.E.2d 896 (Ind. Ct. App. 2010) (Davis‑Hatton used to develop record for ineffective‑assistance claims)
- Wilkes v. State, 984 N.E.2d 1236 (Ind. 2013) (standards for reviewing negative post‑conviction judgments)
- Timberlake v. State, 753 N.E.2d 591 (Ind. 2001) (deference to counsel’s strategic choices)
- Kubsch v. State, 934 N.E.2d 1138 (Ind. 2010) (presumption of effective assistance; burden to overcome)
- Hines v. State, 801 N.E.2d 634 (Ind. 2004) (bifurcation required where prior conviction not relevant to other charged offenses)
- Pace v. State, 981 N.E.2d 1253 (Ind. Ct. App. 2013) (bifurcation warranted where prior felony unrelated to other charged offense)
- Fuentes v. State, 10 N.E.3d 68 (Ind. Ct. App. 2014) (prior possession evidence admissible to show motive to flee/resist)
- Moore v. State, 872 N.E.2d 617 (Ind. Ct. App. 2007) (to prevail on failure‑to‑file motion claim, petitioner must show that the motion would have succeeded)
- Emerson v. State, 695 N.E.2d 912 (Ind. 1998) (both deficiency and prejudice elements required for ineffective‑assistance relief)