No advice from counsel leads to post-conviction relief

A mother’s refusal to convey her son’s threats of harm possibly saved the man from violating Indiana’s intimidation statute.  

While incarcerated in Fulton County Jail, Kevin Soucy was charged with two counts of intimidation as Class D felonies. He made several phone calls from the jail to his mother repeatedly asking her to relay the threats to a woman whom he blamed for having him arrested.

The state claimed that Soucy had violated the state’s intimidation statute, Indiana Code 35-45-2-1(a), by threatening to kill the woman and burn down her house.

Soucy eventually pleaded guilty and was sentenced to an aggregate sentence of six years. A little more than a year later, he filed a petition for post-conviction relief. He argued his court-appointed counsel was ineffective because she did not realize the threats were never communicated directly to the woman. Instead, Soucy told his mother to convey his harmful intentions, but his mother never did.

He asserted because his mother did not relay his threats to the woman, he did not violate the state law. But he pleaded guilty since his counsel failed to advise him of a potential defense against the charges.

The post-conviction court rejected his argument and denied his petition, but the Indiana Court of Appeals reversed, finding Soucy has established the probability he would have prevailed at trial.

The state countered that Soucy clearly intended for the threats to be conveyed to the woman and he had reason to believe the threats would be communicated.

Taking a plain reading of the statute, the Court of Appeals rejected that contention since the law requires the threat actually be communicated rather than the defendant intend for the threat to be relayed.

In Kevin Soucy v. State of Indiana, 25A05-1406-PC-276, the Court of Appeals ruled Soucy is entitled to post-conviction relief on the grounds of ineffective assistance of counsel.