Mark M. Jervis v. State of Indiana
2015 Ind. App. LEXIS 281
| Ind. Ct. App. | 2015Background
- In 1993 Terri Boyer was found murdered; circumstantial evidence (items in Jervis’s trash/car, DNA links) led to Mark Jervis’s prosecution and conviction after a 1995 retrial.
- Jervis’s first trial in 1994 ended with a hung jury; he was convicted at retrial and the conviction was affirmed on direct appeal.
- Jervis filed a pro se post-conviction relief petition (2003, amended 2012), claiming ineffective assistance of trial and appellate counsel; an evidentiary hearing was held in 2013.
- Key factual disputes in the post-conviction petition involved: whether trial counsel failed to advise acceptance of a 40‑year plea offer, whether the State destroyed or withheld an untested oral swab, and whether counsel failed to move for mistrial over alleged juror misconduct.
- The post-conviction court denied relief; this appeal challenges that denial solely on ineffective-assistance grounds.
Issues
| Issue | Plaintiff's Argument (Jervis) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Plea-offer advice | Counsel failed to provide meaningful consultation about a 40‑year plea; Jervis says he would have accepted. | Record shows Jervis repeatedly asserted innocence; trial court would not accept a guilty plea while he protested innocence. | Denied – Jervis did not prove he would have accepted or that the court would have allowed a plea; no prejudice shown. |
| Destruction/withholding of evidence | State destroyed or withheld an oral swab that, if tested, could identify another perpetrator; counsel ineffective for not objecting. | Record shows one swab was tested and the second was preserved for defense; no showing of destruction or lost opportunity. | Denied – claim waived for inadequate briefing and unsupported by record; no prejudice proved. |
| Jury misconduct / failure to move mistrial | Counsel should have moved for mistrial based on alleged juror threats/bias. | Issue was raised and decided on direct appeal; claim is barred by res judicata. | Denied – res judicata prevents relitigation; trial court’s replacement of juror was upheld on direct appeal. |
| Appellate counsel ineffectiveness | Appellate counsel (same attorney) should have raised trial counsel’s incompetence on direct appeal. | Unreasonable to expect counsel to attack his own trial performance; omitted issues were not clearly stronger than those raised. | Denied – Jervis did not show omitted issues were clearly stronger or that prejudice resulted. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑pronged ineffective assistance test)
- Hill v. Lockhart, 474 U.S. 52 (applies Strickland to plea‑entry contexts)
- Missouri v. Frye, 566 U.S. 134 (counsel’s duty to communicate plea offers and prejudice standard)
- Lafler v. Cooper, 566 U.S. 156 (prejudice analysis when bad counsel leads to rejection of plea)
- Jervis v. State, 679 N.E.2d 875 (Ind. 1997) (direct appeal affirming Jervis’s conviction)