Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A man who was convicted of Level 6 felony intimidation for making threats against police did not receive ineffective counsel, a split Court of Appeals of Indiana has ruled in affirming a post-conviction relief court’s opinion.
In April 2018, the Madison County Drug Task Force was investigating Robert Plato for a robbery he planned that involved forcing the owner of a car lot to sign over titles to some cars in exchange for an unpaid drug debt.
The task force obtained a search warrant for an address in Anderson associated with Plato. The warrant authorized the group to search for and seize “[w]eapons, ammunitions, and paperwork relating to title work for vehicles.”
During the search, a detective seized Plato’s computer.
Plato then sent a letter to the sheriff of Madison County, in which he called the detective a “thief” and said that when he sees her, he “will not treat her as a deputy of Madison County but as a thief.” He went on to say he would “beat the breaks” off of the detective.
The state charged Plato with Level 6 felony intimidation and later added a habitual-offender charge.
Plato represented himself at trial.
A jury found Plato guilty of intimidation, and he admitted to being a habitual offender. He was sentenced to two years for intimidation, enhanced by six years for the habitual-offender finding, for a total of eight years.
Plato, represented by counsel, appealed to the Court of Appeals, which found the trial court didn’t abuse its discretion in sentencing and that the sentence was not inappropriate.
In April 2022, Plato, representing himself, filed a petition for post-conviction relief. He alleged his appellate counsel was ineffective for not arguing on direct appeal that the seizure of his computer was unlawful.
The Madison Circuit Court denied relief.
Plato appealed, again representing himself.
A majority of the Court of Appeals panel disagreed with Plato’s argument.
Plato argued his appellate counsel was ineffective by failing to raise an issue, one of three types of ineffective assistance recognized by the Indiana Supreme Court in Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001).
Plato argued his appellate counsel was ineffective for not arguing on direct appeal that his computer was unlawfully seized because the warrant didn’t specify that his computer could be searched or seized.
The state countered that Plato’s computer “was plainly covered by the search warrant” because it was reasonable for the detective to “believe that paperwork related to title work could have been recorded or stored digitally on Plato’s computer.”
The Court of Appeals pointed to a 9th Circuit Court of Appeals case — United States v. Giberson, 527 F.3d 882, 887 (9th Cir. 2008) — that also involved a search warrant that didn’t explicitly authorize the search or seizure of any computers.
The federal district court denied a motion to suppress in that case, and the 9th Circuit affirmed.
Plato did not allege his computer was searched, the opinion says, so the only issue is the seizure.
The Court of Appeals opinion said it agrees with the 9th Circuit’s assessment that a seizure is “far less intrusive than a search.”
“Given that the Madison County Drug Task Force’s investigation of Plato involved paperwork, it was reasonable for the police to believe that paperwork (titles) may have been stored in Plato’s computer,” the opinion says. “Hence, the police had reason to seize the computer but not to search the contents without a second, more specific warrant.”
Judge Nancy Vaidik wrote the majority opinion, with Judge Paul Mathias concurring.
The case is Robert J. Plato v. State of Indiana, 23A-PC-452.
In a dissenting opinion, Judge Rudolph Pyle said he believes the warrant violated the particularity requirement.
“In addition, the deficiency in the search warrant was obvious from the face of the record and it represented a stronger issue than those raised by appellate counsel,” he wrote, citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006).
Plato’s appellate counsel’s performance “fell below prevailing professional norms,” Pyle wrote, because the state’s reliance on a lawful search warrant “was an essential element of the charged crime.”
“There is no mention of a computer,” Pyle wrote of the search warrant. “Today, it is difficult to make the argument that the term ‘paperwork’ is sufficiently specific so as to lead a reasonable person to believe that it also means ‘computers.’ It is insufficient to posit that, because computers might contain scanned copies of paperwork relating to vehicle titles, the term ‘paperwork’ adequately describes computers.”
Please enable JavaScript to view this content.