Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Oct 23 2013, 10:35 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
WILLIAM D. POLANSKY KATHERINE MODESITT COOPER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CURTIS L. JONES, ) ) Appellant-Petitioner, ) ) vs. ) No. 02A03-1303-PC-85 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr., Judge Cause No. 02D04-9507-CF-318
October 23, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge In this appeal from a denial of post-conviction relief, appellant-petitioner Curtis L.
Jones claims that his appellate counsel was ineffective for failing to argue that his sixty-
five-year sentence was manifestly unreasonable. Additionally, Jones argues that the
United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004),
(Blakely), should be applied retroactively, forcing this Court to conclude that it was
improper for the trial court to enhance Jones’s sentence based on his lack of remorse.
Finally, Jones asks this Court to reconsider our Supreme Court’s holding in Ryle v. State,
842 N.E.2d 320 (Ind. 2005), that juvenile adjudications fall within the prior convictions
exception and do not have to be submitted to the jury before they can be used to enhance
a sentence. Finding that these arguments have been directly addressed by the appellate
courts of this State against his position, we affirm the judgment of the post-conviction
court.
FACTS
The facts as found on direct appeal are that on June 16, 1995, Jones walked to a
home on Spatz Avenue in Fort Wayne and fired at least four shots into the home where
fifteen to twenty people were gathered. Jones v. State, 689 N.E.2d 722, 724 (Ind. 1997).
Three bullets struck Troy Williams, who died from his injuries. Id. Another bullet struck
Latrail Gamble in the arm, but he survived. Id. Jones, who was a gang member, told a
friend that he had fired the shots because he was tired of rival gang members killing his
friends. Id.
2 The jury found Jones guilty of murder but not guilty of attempted murder. Id. at
723. At the sentencing hearing, the trial court found Jones’s young age to be a mitigating
circumstance. Tr. p. 129. In aggravation, the trial court noted Jones’s “extensive
criminal history,” which included juvenile adjudications, “lack of remorse,” and what the
trial court believed to be “intentionally false testimony given during trial under oath.” Id.
After concluding that the aggravating circumstances substantially outweighed the
mitigating circumstances, the trial court ordered Jones to serve sixty-five years in the
Department of Correction, which was ten years above the presumptive term. Id. at 129-
130.
Jones appealed raising two issues: (1) whether there was sufficient evidence to
sustain the murder conviction, and (2) whether the guilty verdict on murder was
inconsistent and irreconcilable with the acquittal on attempted murder. Jones, 689
N.E.2d at 723. Our Supreme Court rejected both claims but sua sponte held that Jones
had been sentenced under the wrong statute and, consequently, the trial court had
imposed a sentence that was five years longer than what could have been imposed under
the correct statute. Id. at 725. The Jones Court remanded with instructions to reduce
Jones’s sentence to sixty years. Id.
In 1998, Jones filed a pro se petition for post-conviction relief, but counsel later
entered an appearance and amended the petition in 2001, 2005, 2006, and 2012.
Evidentiary hearings were held on December 1, 2008, and April 27, 2012. The post-
conviction court determined that all matters submitted at the 2008 hearing were, by
3 agreement of the parties, to be included in the court’s decision, and that the 2012
amendment was to supplement the previous amendments.
On February 19, 2013, Jones was denied post-conviction relief in an order which
contained written findings of fact and conclusions of law. Jones had alleged that
appellate counsel had been ineffective for not challenging his sentence and that Blakely
should be applied retroactively. As to the former argument, the post-conviction court
determined that it was unlikely to be successful in light of the “manifestly unreasonable”
standard that was in effect at the time Jones sought a direct appeal. Appellant’s App. p.
305. Regarding Jones’s second argument, the post-conviction court concluded that
Gutermuth v State, 868 N.E.2d 427, 434-35 (Ind. 2007), determined that a defendant’s
case is final for Blakely purposes when the time for filing a direct appeal has expired. Id.
at 309. Thus, Blakely could not apply retroactively to Jones’s post-conviction case. Id.
Jones now appeals the denial of his petition for post-conviction relief.
DISCUSSION AND DECISION
I. Standard of Review
Because post-conviction proceedings are civil proceedings, the petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence. Ben-
Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000); see also Ind. Post-Conviction Rule
1(5). Because the post-conviction court denied relief, Jones is appealing from a negative
judgment and faces the rigorous burden of showing “that the evidence as a whole leads
4 unerringly and unmistakably to a conclusion opposite to that reached by the [post-
conviction] court.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
II. Ineffective Assistance of Appellate Counsel
Jones contends that his appellate counsel was ineffective for failing to raise claims
that were clearly stronger than the claims his counsel raised on direct appeal. The
standard of review for a claim of ineffective assistance of appellate counsel is the same as
it is for trial counsel, namely, a petitioner must satisfy the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires that: (1) counsel’s
performance fell below an objective standard of reasonableness; (2) there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005).
A. Failure to Argue Sentence was Manifestly Unreasonable
Jones contends that his appellate counsel was ineffective for failing to argue that
his sixty-five-year sentence was manifestly unreasonable when it was clearly stronger
than the two claims presented.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Oct 23 2013, 10:35 am establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
WILLIAM D. POLANSKY KATHERINE MODESITT COOPER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CURTIS L. JONES, ) ) Appellant-Petitioner, ) ) vs. ) No. 02A03-1303-PC-85 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr., Judge Cause No. 02D04-9507-CF-318
October 23, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge In this appeal from a denial of post-conviction relief, appellant-petitioner Curtis L.
Jones claims that his appellate counsel was ineffective for failing to argue that his sixty-
five-year sentence was manifestly unreasonable. Additionally, Jones argues that the
United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004),
(Blakely), should be applied retroactively, forcing this Court to conclude that it was
improper for the trial court to enhance Jones’s sentence based on his lack of remorse.
Finally, Jones asks this Court to reconsider our Supreme Court’s holding in Ryle v. State,
842 N.E.2d 320 (Ind. 2005), that juvenile adjudications fall within the prior convictions
exception and do not have to be submitted to the jury before they can be used to enhance
a sentence. Finding that these arguments have been directly addressed by the appellate
courts of this State against his position, we affirm the judgment of the post-conviction
court.
FACTS
The facts as found on direct appeal are that on June 16, 1995, Jones walked to a
home on Spatz Avenue in Fort Wayne and fired at least four shots into the home where
fifteen to twenty people were gathered. Jones v. State, 689 N.E.2d 722, 724 (Ind. 1997).
Three bullets struck Troy Williams, who died from his injuries. Id. Another bullet struck
Latrail Gamble in the arm, but he survived. Id. Jones, who was a gang member, told a
friend that he had fired the shots because he was tired of rival gang members killing his
friends. Id.
2 The jury found Jones guilty of murder but not guilty of attempted murder. Id. at
723. At the sentencing hearing, the trial court found Jones’s young age to be a mitigating
circumstance. Tr. p. 129. In aggravation, the trial court noted Jones’s “extensive
criminal history,” which included juvenile adjudications, “lack of remorse,” and what the
trial court believed to be “intentionally false testimony given during trial under oath.” Id.
After concluding that the aggravating circumstances substantially outweighed the
mitigating circumstances, the trial court ordered Jones to serve sixty-five years in the
Department of Correction, which was ten years above the presumptive term. Id. at 129-
130.
Jones appealed raising two issues: (1) whether there was sufficient evidence to
sustain the murder conviction, and (2) whether the guilty verdict on murder was
inconsistent and irreconcilable with the acquittal on attempted murder. Jones, 689
N.E.2d at 723. Our Supreme Court rejected both claims but sua sponte held that Jones
had been sentenced under the wrong statute and, consequently, the trial court had
imposed a sentence that was five years longer than what could have been imposed under
the correct statute. Id. at 725. The Jones Court remanded with instructions to reduce
Jones’s sentence to sixty years. Id.
In 1998, Jones filed a pro se petition for post-conviction relief, but counsel later
entered an appearance and amended the petition in 2001, 2005, 2006, and 2012.
Evidentiary hearings were held on December 1, 2008, and April 27, 2012. The post-
conviction court determined that all matters submitted at the 2008 hearing were, by
3 agreement of the parties, to be included in the court’s decision, and that the 2012
amendment was to supplement the previous amendments.
On February 19, 2013, Jones was denied post-conviction relief in an order which
contained written findings of fact and conclusions of law. Jones had alleged that
appellate counsel had been ineffective for not challenging his sentence and that Blakely
should be applied retroactively. As to the former argument, the post-conviction court
determined that it was unlikely to be successful in light of the “manifestly unreasonable”
standard that was in effect at the time Jones sought a direct appeal. Appellant’s App. p.
305. Regarding Jones’s second argument, the post-conviction court concluded that
Gutermuth v State, 868 N.E.2d 427, 434-35 (Ind. 2007), determined that a defendant’s
case is final for Blakely purposes when the time for filing a direct appeal has expired. Id.
at 309. Thus, Blakely could not apply retroactively to Jones’s post-conviction case. Id.
Jones now appeals the denial of his petition for post-conviction relief.
DISCUSSION AND DECISION
I. Standard of Review
Because post-conviction proceedings are civil proceedings, the petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence. Ben-
Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000); see also Ind. Post-Conviction Rule
1(5). Because the post-conviction court denied relief, Jones is appealing from a negative
judgment and faces the rigorous burden of showing “that the evidence as a whole leads
4 unerringly and unmistakably to a conclusion opposite to that reached by the [post-
conviction] court.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
II. Ineffective Assistance of Appellate Counsel
Jones contends that his appellate counsel was ineffective for failing to raise claims
that were clearly stronger than the claims his counsel raised on direct appeal. The
standard of review for a claim of ineffective assistance of appellate counsel is the same as
it is for trial counsel, namely, a petitioner must satisfy the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which requires that: (1) counsel’s
performance fell below an objective standard of reasonableness; (2) there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005).
A. Failure to Argue Sentence was Manifestly Unreasonable
Jones contends that his appellate counsel was ineffective for failing to argue that
his sixty-five-year sentence was manifestly unreasonable when it was clearly stronger
than the two claims presented. At the outset, we note that when Jones directly appealed,
a sentence in a criminal case could not be revised under Indiana Appellate Rule 17(B)
unless it was “manifestly unreasonable in light of the nature of the offense and the
character of the offender.” Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997) (emphasis
added). This was a difficult standard to meet. Reed v. State, 856 N.E.2d 1189, 1198
(Ind. 2006).
5 Jones fiercely argues that Indiana has abolished inconsistent jury verdicts as a
claim of error. While Jones is correct, our Supreme Court did not abolish that claim of
error until it decided Beattie v. State, 924 N.E.2d 643 (Ind. 2010), which was thirteen
years after Jones’s direct appeal. We cannot say that an attorney is ineffective for not
predicting future changes in our Supreme Court’s jurisprudence. Moreover, if either one
of Jones’s claims on direct appeal had been successful, the result would have been a
reversal of his conviction. By contrast, a challenge that his sentence was manifestly
unreasonable would have, at most, resulted in a reduction of his sentence. Consequently
this argument fails.
B. Retroactive Application of Blakely
Jones argues that Blakely should have retroactive application and that,
accordingly, he is entitled to be resentenced because the trial court enhanced his sentence
based on his lack of remorse, which was not an aggravating circumstance provided in any
statute. However, our Supreme Court has already addressed this issue and determined
that Blakely does not apply retroactively to post-conviction appeals because such appeals
are neither “pending on direct review” nor “not yet final.” Gutermuth, 868 N.E.2d at
433, 435. The Gutermuth Court reasoned that this result “recognizes the importance of
finality without sacrificing fairness.” Id. at 434.
C. Juvenile Adjudications as Criminal History
Finally, Jones requests that this Court reconsider our Supreme Court’s decision in
Ryle v. State, 842 N.E.2d 320, 321 (Ind. 2005), which held that juvenile adjudications
6 fall within the prior conviction exception to the general requirement that any fact used to
enhance a sentence be submitted to a jury and proven beyond a reasonable doubt. This
Court is bound by the precedent of our Supreme Court. Howard v. State, 672 N.E.2d
944, 948 (Ind. Ct. App. 1996). Consequently, we decline Jones’s invitation to reconsider
that decision.
The judgment of the post-conviction court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.