Grant of PCR petition upheld after lawyer withheld disciplinary actions

Despite being “caught at the scene of the crimes,” the Court of Appeals of Indiana has affirmed post-conviction relief for a man who pleaded guilty to burglary based on the advice of an attorney who was hiding the fact that he was planning to resign from the Indiana bar for disciplinary reasons.

The case of State of Indiana v. Justin David Pearson, 22A-PC-95, began in September 2013 when Justin Pearson was charged with felony counts of burglary resulting in bodily injury, robbery and criminal confinement, as well as using a firearm in the commission of an offense. His parents hired attorney Ronald Frazier, although Frazier did not file an appearance.

Instead, attorney Ian Thompson, an associate for Frazier, filed an appearance for Pearson. The Hendricks Superior Court held a pretrial conference the same day and accepted Pearson’s plea to Class A felony burglary in exchange for the dismissal of the remaining charges.

The parties agreed to a 25-year sentence under the agreement. Also, the agreement called for Pearson to waive his right to challenge the sentence as erroneous, to challenge the trial court’s finding and balancing of aggravators and mitigators, and to seek Court of Appeals review of his sentence under “Indiana Appellate rule.”

Exactly one month later, the Indiana Supreme Court accepted Frazier’s resignation from the Indiana bar. Frazier had never told Pearson that he was contemplating resignation or even that he was facing discipline.

More than seven years later in July 2021, Pearson filed a petition for post-conviction relief alleging he did not intelligently plead guilty and/or that he was denied effective assistance of counsel. He testified that he only met with Frazier twice and that Frazier had told him he would lose if he went to trial, so Pearson “needed to take this plea agreement or tomorrow they were going to file more charges and set it for trial and [he] was going to get one hundred years.”

Additionally, Frazier told Pearson he would not be at sentencing because he was “opening up a family branch of law,” so he would send Thompson. Pearson met Thompson for the first and only time on the day he pleaded guilty and was sentenced.

Pearson later learned that Frazier had lied about opening a family law practice and had withheld his disciplinary troubles. Pearson testified that he would not have proceeded with the plea agreement had he known about the disciplinary action.

The trial court granted Pearson’s post-conviction petition in January, vacating the judgment against him and his sentence.

The state appealed, arguing there was no evidence that Pearson involuntarily, unknowingly or unintelligently pleaded guilty. It also argued there was no evidence that he received ineffective assistance of trial counsel.

“The State argues ‘[i]t is difficult to imagine a more favorable outcome for a defendant with a substantial criminal history who was caught at the scene of the crimes and made a statement to the police,’” Judge Elaine Brown wrote Thursday. “It asserts that ‘[n]ew counsel could have, and likely would have, recommended that Pearson accept the State’s generous offer.’”

But the COA determined the plea was, in fact, entered unintelligently, and thus affirmed the grant of Pearson’s PCR petition.

“Pearson testified that Frazier did not tell him he was facing disciplinary actions or contemplating resignation or that disbarment was ‘on the table,’” Brown wrote. “He also testified that he would not have relied on Frazier’s advice and would have sought new counsel if he had known Frazier was facing disciplinary actions and was potentially going to resign from the practice of law or be disbarred.

“The post-conviction court noted that the terms of the plea agreement were fixed and did not provide for a modification of sentence and found that ‘Frazier lied to Pearson, telling him that he could later petition to modify his sentence,’” she continued. “The post-conviction court found Pearson’s testimony credible and found that ‘[h]ad Pearson been aware that Frazier was facing disciplinary issues, and in particular, that Frazier was anticipating resigning from the practice of law, Pearson would not have hired Frazier, and certainly would not have relied on his advice to plead guilty.’

“… Under these circumstances, we conclude that Pearson did not intelligently enter the plea agreement.”