Craig v. State

804 N.E.2d 170, 2004 Ind. App. LEXIS 323, 2004 WL 376580
CourtIndiana Court of Appeals
DecidedMarch 2, 2004
DocketNo. 49A02-0301-PC-45
StatusPublished
Cited by7 cases

This text of 804 N.E.2d 170 (Craig v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Craig v. State, 804 N.E.2d 170, 2004 Ind. App. LEXIS 323, 2004 WL 376580 (Ind. Ct. App. 2004).

Opinion

OPINION

SULLIVAN, Judge.

Appellant, Larry Craig, challenges the post-conviction court's denial of his petition for post-conviction relief. Upon appeal, Craig presents one issue for our review, whether the post-conviction court erred in concluding that Craig's post-conviction claim of ineffective assistance of trial counsel was barred by res judicata.

We affirm.

On March 27, 1991, Craig was charged with Murder. Following a jury trial, Craig was convicted of the lesser-included offense of voluntary manslaughter, a Class A felony, and thereafter sentenced to thirty years imprisonment. Upon direct appeal of his conviction, Craig's sole argument was that his trial counsel was ineffective for failing to object to the jury instruction defining the crime of voluntary manslaughter. In an unpublished memorandum decision, a panel of this court agreed that the instruction was an incorrect statement of the law but nevertheless rejected Craig's claim, concluding that [172]*172Craig had failed to establish prejudice from his trial counsel's performance. Craig v. State, 49A02-9305-CR-207, slip op. at 4, 639 N.E.2d 1059 (Ind.Ct.App. Aug. 29, 1994). The court thus affirmed Craig's conviction and sentence.

On November 15, 1994, Craig filed a pro se petition for post-conviction relief, which was withdrawn without prejudice on September 21, 2001. On October 22, 2001, Craig filed another petition for post-conviction relief, asserting, among other things, four new grounds of ineffective assistance of trial counsel. The post-conviction court held a hearing on Craig's petition on September 18, 2002. On November 18, 2002, the post-conviction court entered its findings of fact and conclusions of law denying Craig's petition for post-conviction relief. Regarding Craig's claim of ineffective assistance of trial counsel, the post-conviction court conelud-ed Craig was not entitled to review of such claim because it was barred by res judicata.

Defendants who have exhausted the direct appeal process may challenge the correctness of their convictions and sentence by filing a post-conviction petition. Ind. Post-Conviection Rule 1(1). Post-conviction proceedings, however, do not afford a petitioner with a super-appeal. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). Rather, post-conviction proceedings provide defendants the opportunity to present issues which were not known at the time of the original trial or that were not available upon direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000), cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002). As a general rule, if an issue was known and available, but not presented upon direct appeal, it is waived. Timberlake, 753 N.E.2d at 597. If it was presented upon direct appeal, but decided adversely, it is res judicata. Id.

The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Timberlake, 753 N.E.2d at 597. Because he is now appealing from a negative judgment, to the extent the appeal turns on factual issues, the petitioner must convince this court that the evidence as a whole unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Id.

Upon appeal, Craig contends that he was denied due process in violation of the Fourteenth Amendment to the United States Constitution when the post-convietion court concluded that his claim of ineffective assistance of trial counsel was barred by the doctrine of res judicata. The law at the time of his direct appeal and in subsequent years was that, if a claim of ineffective assistance of trial counsel was known and available at the time of direct appeal, it was required to be presented upon direct appeal or would be waived.1 See Johnson v. State, 502 N.E.2d 90 (Ind.1986); Moore v. State, 649 N.E.2d 686 (Ind.Ct.App.1995) (noting that, as a general rule, ineffective assistance of counsel is an issue known and available at the time of direct appeal), trans. denied. When a defendant chose to present such claim upon direct appeal, he was required to present all issues relating to that claim. See Morris v. State, 466 N.E.2d 13, 14 (Ind.1984).

[173]*173Years after Craig's direct appeal, our Supreme Court, in Woods v. State, 701 N.E.2d 1208 (Ind.1998), cert. denied 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999), resolved the issue of waiver of ineffective assistance of trial counsel claims. In that case, the Court recognized three forms of ineffective assistance of counsel claims-those that can be evaluated on the face of the trial record (record-based), those that are not apparent from the ree-ord or require additional record development to assess the claimed error, and those which are based upon the record, but whose evaluation requires a showing to rebut the presumption of counsel competence. Id. at 1211-12. The Court recognized that with record-based claims, direct appeal may be more appropriate because it permits more expeditious. review of claims and fosters a considerable social interest in the finality of criminal proceedings. Id. at 1219. Regarding the second two forms of ineffectiveness claims, the Court noted that additional record development is often nécessary to evaluate such claims. The Court recognized that further development of the record is generally not appropriate upon direct appeal and may place an unfair burden upon appellate counsel. After considering various alternatives, the Court concluded that post-conviction proceedings provided the best opportunity to present certain ineffectiveness claims. Precisely because of the varying forms ineffective assistance claims can take, the court concluded that ineffective assistance may be presented upon direct appeal, but if it is not, it may be presented for the first time in post-conviction proceedings irrespective of the nature of the issues claimed. Id. at 1216.

The Court, however, also noted that a well-established general proposition of post-conviction review is that issues which were presented on direct appeal are not available in post-conviction proceedings. Id. at 1213. The Court further noted that relying upon this rule, reviewing courts have repeatedly held that if a defendant presents a claim of ineffectiveness upon direct appeal, he is foreclosed from subsequently relitigating that claim, even if based upon different grounds. Id. at 1215. See also Bieghler v. State, 690 N.E.2d 188 (Ind.1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998); Sawyer v. State, 679 N.E.2d 1328 (Ind.1997); Morris v. State, 466 N.E.2d 13 (Ind.1984).

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Bluebook (online)
804 N.E.2d 170, 2004 Ind. App. LEXIS 323, 2004 WL 376580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craig-v-state-indctapp-2004.