Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jul 15 2014, 10:21 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
CHRISTOPHER ANDERSON GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER ANDERSON, ) ) Appellant-Petitioner, ) ) vs. ) No. 49A04-1307-PC-340 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge The Honorable Stanley E. Kroh, Master Commissioner Cause No. 49G03-0005-PC-86704
July 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Christopher Anderson appeals the denial of his petition for post-conviction relief,
contending that the post-conviction court erred when it found appellate counsel was not
ineffective for failing to raise the issue that trial counsel was ineffective for: (1) failing to
tender lesser-included offense instructions; and (2) failing to object to the serious violent
felon (“SVF”) in possession of a firearm count being tried together with the habitual
offender enhancement.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts supporting Anderson’s convictions as set forth by this court on direct
appeal are as follows:
[I]n the early morning hours of May 19, 2000, Anderson’s girlfriend, Doria White, and Andre Clarke arrived at White’s apartment and found Anderson and Andre’s cousin, Robert Clarke, in the kitchen. Anderson began arguing with Andre, accusing him of having “somethin’ goin’ on” with White. Anderson pulled out a gun and threatened to rob Andre. White ran out of the apartment and went to a neighbor’s house. When she called her apartment later to see what was happening, Anderson answered the phone and assured her that everything was okay.
As White was returning to her apartment, however, Andre and Anderson began arguing again. Anderson then shot Andre three times, killing him. He next pointed the gun at Robert’s head and threatened to kill him if he said anything. Anderson ran out the front door. Robert and White, who heard the gunshots, called the police. Officer Brandon Mills arrived at the scene approximately thirty seconds after receiving the dispatch and found Robert kneeling next to Andre. No weapon was found on Robert or in the residence.
On May 26, 2000, the State charged Anderson with murder, possession of a firearm by a serious violent felon, carrying a handgun without a license, and intimidation. He was also alleged to be an habitual offender. . . .
2 Anderson’s whereabouts were unknown until June 28, 2000, when he was arrested in Birmingham, Alabama. He was returned to Indiana, where a jury trial was conducted on May 21 and 22, 2001.
Anderson v. State, 774 N.E.2d 906, 908-09 (Ind. Ct. App. 2002).
The trial was conducted in two phases. During the first phase, the jury heard
evidence regarding the charges of murder, carrying a handgun without a license, and
intimidation. Conflicting testimony was given regarding Anderson’s demeanor that night.
Anderson’s girlfriend, White, testified that Anderson and Andre were playing around and,
while there was a gun, it was not pointed at anyone. Tr. at 38. In contrast, Andre’s cousin,
Robert, testified that while he, Andre, and Anderson were in White’s kitchen, Anderson
and Andre began arguing after Anderson started to rob Andre, who responded, “I ain’t
givin’ you nothing.” Id. at 68.
The defense theory at trial was that Robert, not Anderson, was the shooter. In
closing, the State argued that the only witness to the shooting was Robert, a man who had
lied before and could have been lying when he testified against Anderson at trial. In closing
the State emphasized that Robert was a man who initially said he was not present when the
shooting occurred, but later implicated Anderson as the shooter; a man who said he saw
Anderson kick Andre in the stomach two or three times, yet the autopsy did not support
that testimony; and, finally, a man who was at the scene, and, yet, police failed to pursue
him as a suspect. Id. at 170-71.
During deliberations, a juror informed the trial court that she had recognized one of the courtroom spectators who she believed was sitting with Anderson’s supporters in the courtroom. The trial court was prepared to remove this juror, but Anderson objected to this proposed measure and
3 moved for a mistrial instead. The trial court denied the motion. Anderson was found guilty of all charges and was found to be an habitual offender. The trial court imposed a sentence of sixty years for the murder conviction, enhanced by thirty years for the habitual offender finding, ten years for the serious violent felon firearm conviction, and four years for the intimidation conviction, all to be served consecutively for a total executed sentence of 104 years. No sentence was imposed for the handgun conviction.
Anderson, 774 N.E.2d at 909.
The jury returned the convictions at two different times. First, the jury found
Anderson guilty of the murder, intimidation, and possession of a handgun without a license
charges. Only then did the jury hear evidence, in phase two of the trial, on the SVF in
possession of a firearm count and the habitual offender allegation. The SVF firearm charge
alleged a 1987 robbery conviction as the relevant predicate violent felony; the habitual
offender charge alleged as its predicate offenses the same 1987 robbery conviction and a
1994 conviction for Class D felony carrying a handgun without a license. Id.
Anderson’s appellate counsel raised the following five issues on direct appeal: (1)
whether the trial court erred in permitting a witness who sat through part of voir dire to
testify when there was a separation of witnesses order; (2) whether the trial court erred in
allowing the State to introduce evidence that Anderson was found by law enforcement
officials in Alabama after the murder; (3) whether the trial court should have ordered a
mistrial when one juror indicated during deliberations that she recognized one of the
courtroom spectators; (4) whether there was sufficient evidence to support the murder and
intimidation convictions; and (5) whether the enhancement of his murder sentence because
of his habitual offender status was improper because one of the prior convictions used to
4 establish that status also established that Anderson was a serious violent felon. Anderson,
774 N.E.2d at 908. We affirmed Anderson’s conviction in a nine-page published opinion,
dated July 10, 2002.
On October 4, 2011, Anderson, acting pro se, filed his Verified Petition for Post-
Conviction Relief (“PCR”) raising one issue—whether his appellate counsel was
ineffective for failing to raise ineffectiveness of trial counsel on direct appeal.1 Appellant’s
PCR App. at 17-27.2 Jeffrey Neel was Anderson’s attorney at trial, and attorney Kenneth
Roberts represented him on appeal. In his PCR Petition, Anderson claimed that Neel was
ineffective at trial for not requesting jury instructions for the lesser-included offenses of
voluntary manslaughter and reckless homicide and for not objecting to the SVF count being
tried together with the habitual offender allegation. PCR App. at 20-21. Anderson alleged
that Roberts was ineffective for failing to raise these claims of ineffectiveness of trial
counsel on direct appeal. Id. at 21-22.
At the March 2012 PCR hearing, Neel testified that he did not request jury
instructions for any lesser included offenses because Anderson insisted he was innocent
and directed Neel not to request lesser included instructions. PCR Tr. at 6. Neel did not
have any recollection of whether the habitual offender allegation and the SVF count were
tried together and, therefore, could offer no explanation for why he did not object to that
1 Anderson, by counsel, filed two other petitions for post-conviction relief prior to the instant filing, one in 2002 and the other in 2003. It is not clear what became of the first petition, but the latter one was dismissed on Anderson’s motion in 2004. Neither petition is pertinent to the appeal before us. 2 Hereinafter, we will refer to Appellant’s PCR App. as PCR App.
5 procedure. Id. at 9. Roberts, testified that he had no recollection of Anderson’s case and
that he no longer had a file for Anderson. Id. at 15.
The State and Anderson, acting pro se, filed their respective proposed findings of
fact and conclusions thereon. On June 6, 2013, the trial court denied Anderson’s PCR
Petition. Id. at 3-16. Anderson now appeals.
DISCUSSION AND DECISION
Post-conviction relief does not afford a petitioner with a super-appeal. Garrett v.
State, 992 N.E.2d 710, 718 (Ind. 2013). Rather, subsequent collateral challenges to
convictions must be based on grounds enumerated in the post-conviction rules. Timberlake
v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). If an issue
was known and available, but not raised on direct appeal, it is waived. Garrett, 992 N.E.2d
at 718. Further, in a PCR proceeding, the petitioner bears the burden of establishing his
claim by a preponderance of the evidence. Id. When appealing the denial of a PCR
petition, the petitioner stands in the position of one appealing from a negative judgment.
Id. Therefore, in order to prevail upon his appeal from the denial of post-conviction relief,
the petitioner must show that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction court. Id.
The standard of review for ineffective assistance of appellate counsel is the same as
that for trial counsel. Bieghler v. State, 690 N.E.2d 188, 192 (Ind. 1997), cert. denied, 525
U.S. 1021 (1998). To establish a post-conviction claim alleging violation of the Sixth
Amendment right to effective assistance of counsel, a defendant must establish the two
6 components set forth in Strickland v. Washington, 466 U.S. 668 (1984). Garrett, 992
N.E.2d at 718. First, the defendant must show appellate counsel was deficient in his or her
performance and, second, that the deficiency resulted in prejudice. Id. at 719. “To satisfy
the first prong, the defendant must show deficient performance: representation that fell
below an objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. “To satisfy
the second prong, the defendant must show prejudice: a reasonable probability (i.e., a
probability sufficient to undermine confidence in the outcome) that, but for counsel’s
errors, the result of the proceeding would have been different.” Id.
Ineffective assistance claims regarding appellate counsel, “generally fall into three
basic categories: (1) denial of access to an appeal, (2) failure to raise issues that should
have been raised, i.e., waiver of issues; and (3) failure to present issues well.” Id. at 724
(internal quotation marks omitted). Here, Anderson’s claim is based upon the waiver of
issues category.
Recently, our Supreme Court noted:
When evaluating a claimed deficiency in appellate representation due to an omission of an issue, a post-conviction court is properly deferential to appellate counsel’s choice of issues for appeal unless such a decision was unquestionably unreasonable. Such deference is appropriate because the selection of issues for direct appeal is one of the most important strategic decisions of appellate counsel. Appellate counsel’s performance, as to the selection and presentation of issues, will thus be presumed adequate unless found unquestionably unreasonable considering the information available in the trial record or otherwise known to the appellate counsel. In crafting an appeal, counsel must choose those issues which appear from the face of the record to be most availing. Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker
7 arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Thus, to prevail in such claim in post-conviction proceedings, it is not enough to show that appellate counsel did not raise some potential issue; instead, the defendant must show that the issue was one which a reasonable attorney would have thought availing.
Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations omitted) (internal
quotation marks omitted). As the post-conviction court correctly said, “Allegations of
ineffective assistance of appellate counsel regarding the selection and presentation of issues
must overcome the strongest presumption of adequate assistance.” PCR App. at 9 (citing
Law v. State, 797 N.E.2d 1157, 1162 (Ind. Ct. App. 2003)).
When appellate counsel waives issues on appeal, we apply the following test to
evaluate the performance prong: (1) whether the unraised issues are significant and
obvious from the face of the record and (2) whether the unraised issues are “clearly
stronger” than the raised issues. Id. (citing Timberlake, 753 N.E.2d at 606). If the analysis
under this test demonstrates deficient performance, then we evaluate the prejudice prong
which requires an examination of whether “the issues which . . . appellate counsel failed to
raise would have been clearly more likely to result in reversal or an order for a new trial.”
Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Ineffective assistance is very rarely
found in cases where a defendant asserts that appellate counsel failed to raise an issue on
direct appeal because the decision of what issues to raise is one of the most important
strategic decisions to be made by appellate counsel. Id. at 1196.
When faced with the question of whether appellate counsel was ineffective for
failing to raise the issue of ineffective assistance of trial counsel, the post-conviction court
8 held that appellate counsel was not ineffective. We agree. At the time of the post-
conviction hearing, Roberts had been a practicing attorney for thirty-eight years, had tried
about 130 cases and had “[d]one over 300 appeals in the federal and state courts.” PCR
Tr. at 20. To pursue Anderson’s appeal, Roberts had to make a strategic decision regarding
what issues to raise. Accordingly, he winnowed out weaker arguments and focused on five
key issues on appeal. Our court’s consideration of those issues resulted in a nine-page,
published opinion affirming Anderson’s convictions.
As the post-conviction court noted, Roberts’s decision not to raise the ineffective
assistance claims on direct appeal “is consistent with the directive of the Indiana Supreme
Court that ‘a post-conviction hearing is normally the preferred forum to adjudicate an
ineffectiveness claim.’” PCR App. at 10 (quoting Woods v. State, 701 N.E.2d 1208, 1219
(Ind. 1998), cert. denied, 528 U.S. 861 (1999)). In Conner v. State, 711 N.E.2d 1238, 1252
(Ind. 1999), cert. denied, 531 U.S. 829 (2000), a case decided prior to Anderson’s direct
appeal, our Supreme Court said:
This Court has recently clarified the law regarding claims of ineffective assistance of counsel. In Woods, we held that a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in post-conviction proceedings. However, if ineffective assistance of trial counsel is raised on direct appeal . . ., the issue will be foreclosed from collateral review. Thus, because appellate counsel is not required to raise this claim on direct appeal, appellate counsel’s failure to do so was not deficient representation.
Conner, 711 N.E.2d at 1252 (citations omitted) (internal quotation marks omitted) (citing
Woods, 701 N.E.2d at 1211-20). Roberts can no longer remember having represented
Anderson on appeal. PCR Tr. at 15, 19. Even so, at the PCR hearing, Roberts testified
9 that he was aware of the holding in Woods and that he would have taken that case into
account in deciding whether or not to raise an ineffectiveness claim on direct appeal. PCR
Tr. at 22-23. Failure to raise the issue that trial counsel was ineffective would not have
waived that issue for a PCR proceeding. Conner, 711 N.E.2d at 1252. We agree with the
post-conviction court’s conclusion that Roberts’s performance was not deficient for
following the guidance set forth by our Supreme Court in Woods. PCR App. at 10 (citing
Conner, 711 N.E.2d at 1252).
Although Anderson raises only a claim of ineffectiveness of appellate counsel, his
challenge involves a claim that appellate counsel should have raised ineffectiveness of his
trial counsel on direct appeal. Like the post-conviction court, for the sake of thoroughness,
we also address Anderson’s claim that trial counsel was ineffective for failing to tender
lesser included instructions and failing to object to the SVF in possession of a weapon
charge being tried together with the habitual offender allegation.
Our Supreme Court has said:
A reviewing court will not second-guess the propriety of trial counsel’s tactics. . . . [T]rial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall outside of the objective standard of reasonableness. This is so even when such choices may be subject to criticism or the choice ultimately prove detrimental to the defendant.
Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002) (citations omitted) (internal quotation
marks omitted), cert. denied, 537 U.S. 1122 (2003). Neel’s theory in defending Anderson
against the murder charge was that the State had charged the wrong man—Anderson did
not shoot Andre, instead, Robert was the one who committed the murder. This was
10 consistent with Neel’s post-conviction testimony that Anderson maintained that he was
innocent and thus did not want to include instructions for lesser included offenses. PCR
Tr. at 11-12. Neel testified that it was his standard procedure to discuss issues with his
clients and for them to make decisions together. Id. at 12.
Regarding giving the lesser-included instructions, Neel testified that he discussed
that option with Anderson and, thereafter, decided not to give the lesser-included
instructions. Id. Neel acknowledged that, where a client maintains his innocence, there is
a risk of losing credibility with the jury in arguing that the State charged the wrong man
but then also having a theory that allows the jury to consider that Anderson committed a
lesser-included offense. Id. As the post-conviction court recognized, regardless of whether
Anderson would even have been entitled to lesser included instructions, “it is well
established that counsel may opt to pursue an ‘all or nothing strategy.’” PCR App. at 11
(quoting Hogan v. State, 966 N.E.2d 738, 749 (Ind. Ct. App. 2012), trans. denied); see
Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998) (trial counsel not deficient for pursuing
all or nothing strategy); Metcalf v. State, 451 N.E.2d 321, 325 (Ind. 1983) (though tactic
did not work, trial counsel not ineffective for deciding, as matter of trial strategy, to take
all-or-nothing approach “so as not to give the jury any alternative to conviction as charged
or acquittal”). The post-conviction court maintained, and we agree, that the strategy of not
tendering jury instructions regarding lesser-included offenses did not constitute ineffective
assistance of trial counsel where, as here, it fell within a reasonable trial strategy.
Anderson also contends that Neel was deficient for failing to request that his SVF
11 in possession of a firearm charge be separately tried from the hearing on his habitual
offender allegation. At trial, and in response to Anderson’s objections, the proceedings
were bifurcated so that the murder, intimidation, and carrying a handgun without a license
charges were tried separately from the SVF and habitual offender charges, the latter two of
which could only be proven by the introduction of prior felonies.
“One of the purposes of bifurcation is to keep prior convictions away from the jury
in their initial determination of guilt for the substantive crime charged.” Russell v. State,
997 N.E.2d 351, 354 (Ind. 2013) (citing Hines v. State, 794 N.E.2d 469, 472 (Ind. Ct. App.
2003), adopted and incorporated by Hines v. State, 801 N.E.2d 634 (Ind. 2004)). “[T]he
primary concern with SVF trials is the labeling of a defendant as a “serious violent felon”
and the introduction of evidence of a defendant’s criminal history in order to prove SVF
status.” Id. (internal quotation marks omitted).
“A serious violent felon who knowingly or intentionally possesses a firearm
commits unlawful possession of a firearm by a serious violent felon, a Class B felony.”
Ind. Code § 35-47-4-5. A person is deemed a “serious violent felon” if he or she has
previously been convicted of one of a list of crimes set forth in Indiana Code section 35-
47-4-5(b). Robbery is included in that list. Ind. Code § 35-47-4-5(b)(12). “A person
convicted of murder . . . is a habitual offender if the state proves beyond a reasonable doubt
that: (1) the person has been convicted of two (2) prior unrelated felonies; and (2) at least
one (1) of the prior unrelated felonies is not . . . a Class D felony.” Ind. Code § 35-50-2-
8(b). For each of these offenses, “the rationale for inadmissibility of prior convictions
12 breaks down when the evidence of the prior conviction not only has the ‘tendency’ to
establish guilt or innocence but also is essential to such determination.” Spearman v. State,
744 N.E.2d 545, 547 (Ind. Ct. App. 2001), trans. denied.
Here, the jury heard evidence in phase one of the trial regarding the substantive
offenses of murder, intimidation, and carrying a handgun without a license, and the jury
returned a verdict of guilty on all three counts. Tr. at 198. It was not until after those
verdicts had been returned that the trial court had the jury address the possession of a
firearm by a SVF charge and the habitual offender allegation. Having found that Anderson
was guilty of carrying a handgun without a license in phase one of the trial, the only element
the State had to prove for the SVF conviction was that Anderson was a “serious violent
felon.” The State proved that element by introducing Anderson’s 1987 conviction for
robbery. Id. at 220. That predicate offense was one of the two predicate offenses used to
prove Anderson was a habitual offender.
Inasmuch as the jury should be shielded from the defendant’s prior criminal history,
that is not possible when a defendant is both charged with SVF and alleged to be an habitual
offender. As soon as evidence is presented on either of those charges, the jury knows of
defendant’s criminal history. In other words, here, it would have been impractical to
bifurcate the evidence on the SVF count from the habitual offender allegation because
regardless of which charge was heard first, by the time the second charge was before the
jury, the jury would already know Anderson’s criminal history. Anderson suffered no
prejudice by the SVF and habitual offender counts being heard together. Appellate counsel
13 was not ineffective for failing to raise meritless claims.
“[W]e evaluate the competence of counsel by examining whether counsel’s
performance, as a whole, fell below ‘an objective standard of reasonableness’ based on
‘prevailing professional norms.’” Azania v. State, 738 N.E.2d 248, 251 (Ind. 2000)
(quoting Woods, 701 N.E.2d at 1211). That is, effective assistance of counsel is
“determined according to the whole of the lawyer’s performance and not just on ‘the
strategy and performance at issue.’” Id. (quoting Butler v. State, 658 N.E.2d 72, 79 (Ind.
1995)). Even isolated poor strategy, bad tactics, a mistake, carelessness or inexperience
would not necessarily amount to ineffective counsel. Id. Here, appellate counsel and trial
counsel’s performances, taken as a whole, were more than adequate. Id. (quoting Davis v.
State, 675 N.E.2d 1097, 1100 (Ind. 1996)).
Based on the foregoing, we conclude that Anderson was not denied the effective
assistance of appellate counsel. Therefore, we affirm the post-conviction court’s denial of
Anderson’s petition for relief.
Affirmed.
BAILEY, J., and MAY, J., concur.