Pursuant to Ind.Appellate Rule 65(D),
FILED this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Mar 29 2012, 9:26 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
C. BRENT MARTIN JODI KATHRYN STEIN Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GERALD C. VICKERS, ) ) Appellant-Petitioner, ) ) vs. ) No. 48A05-1109-PC-510 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Rudolph R. Pyle, III, Judge Cause No. 48C01-0803-PC-113
March 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
Gerald C. Vickers (“Vickers”) appeals the denial of his petition for post-conviction
relief asserting ineffective assistance of appellate counsel. We affirm.
Issues Vickers raises two issues for our review that we reframe and restate as:
I. Whether the post-conviction court abused its discretion by admitting into evidence certain testimony offered by the State; and
II. Whether the post-conviction court erred by denying Vickers‟s petition for post-conviction relief.
Facts and Procedural History
On February 24, 2004, the State charged Vickers with Aggravated Battery, as a Class
B felony,1 and alleged that he was a habitual offender.2 Bail was set at $20,000, but Vickers
filed a motion seeking to reduce that amount on March 3, 2004.
On May 3, 2004, the trial court held a hearing on Vickers‟s motion. After Vickers‟s
court-appointed public defender, Angela Sims (“Sims”), elicited testimony from Vickers and
his mother concerning the bond amount, the State called the court‟s attention to Vickers‟s
history of mental health problems. In response, the trial court stated that “I think we would
all be better served if we attempted to have some kind of mental health assessment” and
“maybe we can figure out a way to get this man released but I need to know what kind of
man I‟m dealing with.” Respondent‟s Exhibit 1, p. 14-15.
Also during this hearing, Sims notified the court of Vickers‟s desire to proceed pro se
1 Ind. Code § 35-42-2-1.5. 2 I.C. § 35-50-2-8(A). 2 at trial. The trial court determined that it would hold off on addressing that issue until more
information about Vickers‟s mental health was available. Over Vickers‟s protest, the court
ordered a “C.S.T exam,” adding that “if he‟s not [c]ompetent to stand trial he‟s clearly not
competent to, to represent himself.” Respondent‟s Exhibit 1, p. 16. The court also warned
Vickers that any possible bond reduction was dependent upon cooperation with the
psychologist.
Dr. Susan Anderson (“Dr. Anderson”) examined Vickers on June 9, 2004 to determine
whether Vickers knew right from wrong at the time of the offense. She observed that
Vickers had longstanding psychiatric illness with episodic exacerbations and times of partial
remission, but concluded that “alcohol intoxication is the primary factor at the time of the
assault.” App. 10. Dr. Anderson submitted her report to the court on June 25, 2004.
The trial court held another hearing on July 23, 2004 to revisit Vickers‟s request for a
bond reduction. Citing Dr. Anderson‟s report, the trial court stated that “I don‟t believe that
based on the evaluation I‟m in a position to reduce the bond” and denied Vickers‟s request.
Petitioner‟s Exhibit 1, p 7. The issue of Vickers‟s self-representation was again discussed,
but no formal record of Vickers‟s waiver of counsel was made.
On September 1, 2004, Sims filed a motion seeking to withdraw as Vickers‟s counsel,
citing several reasons, including Vickers‟s continued desire to represent himself. The trial
court held a hearing on Sims‟s motion on September 3, 2004. At the hearing, Vickers again
expressed his desire to represent himself, and the trial court conducted an extensive inquiry
of Vickers‟s understanding of the responsibilities and risks involved in such an undertaking.
3 At one point in the hearing, the discussion again turned to Vickers‟s mental health.
Concerning Vickers‟s medication, the court stated:
Since you‟re not taking your medicine and you have a history of some medical difficulties, with your permission I believe I should be obligated in addition to asking you all these questions to make you get an examination to see if you need to be taking your medication.
Petitioner‟s Exhibit 1, p. 47.
Later, the court asked Sims if she would be “offended if on my own motion [sic]
ordered an examination of [Vickers] to make sure that he‟s competent to stand trial so that
issue doesn‟t come up,” and lamented the fact that Dr. Anderson had evaluated whether
Vickers knew right from wrong at the time of the offense, but did not evaluate his
competency to stand trial at her first exam. Petitioner‟s Exhibit 1, p. 48-49. Vickers again
protested the court‟s ordering of a psychological exam and argued that various aspects of Dr.
Anderson‟s first report demonstrated his competence. The trial court nevertheless ordered
the psychological exam and denied Sims‟s motion to withdraw.
Dr. Anderson again evaluated Vickers on September 13, 2004, and assessed his
competency to stand trial. During the examination, Vickers told Dr. Anderson that he did not
think that he needed to be evaluated, but he was nevertheless cooperative. Dr. Anderson
concluded that Vickers was competent to stand trial.
That same day, the court held another hearing at which Vickers reiterated his desire
to self-represent with the assistance of Sims as standby counsel. After the trial court
explained the risks involved with self-representation and ensured that Vickers understood
4 these risks, Vickers waived his right to counsel.
Vickers‟s trial commenced the following day on September 14, 2004, and concluded
on September 17, 2007, whereupon the jury found Vickers guilty as charged. Following the
habitual offender stage of the proceedings, he was adjudicated to be a habitual offender.
Vickers was sentenced on October 1, 2004 to twenty years imprisonment for Aggravated
Battery, enhanced by thirty years for his adjudication as a habitual offender, for an aggregate
sentence of fifty years imprisonment.
Attorney David Stone (“Stone”) was appointed to represent Vickers in his direct
appeal. In his appellate brief, Stone raised and argued the following three issues: whether the
trial court erred by refusing to give Vickers‟s requested self-defense instruction, whether the
trial court properly found and balanced aggravating and mitigating factors, and whether
Vickers‟s sentence was appropriate in light of his character and the nature of his offense. We
affirmed Vickers‟s conviction and sentence on October 28, 2005, Vickers v. State, 48A05-
0504-CR-222 (Ind. Ct. App. October 28, 2005), and the Indiana Supreme Court denied
transfer on January 11, 2006.
Vickers filed a pro se petition for post-conviction relief on March 10, 2008. On
August 27, 2010, Vickers, now represented by the Public Defender of Indiana, amended his
petition to assert ineffectiveness of appellate counsel because Stone did not challenge the
procedures whereby the trial court determined Vickers‟s competency to stand trial.
The post-conviction court held a hearing on Vickers‟s petition on December 16, 2010.
At that hearing, Stone testified that he did not argue the competency procedure issue because
5 he thought that it was harmless error, that Vickers represented himself at trial, and that there
was nothing in Vickers‟s representation to suggest he was not competent to stand trial. Stone
was the only person to testify at the hearing.
Vickers submitted proposed findings of fact and conclusions on January 14, 2011.
The State filed its proposed findings and conclusions on February 27, 2011, but also attached
three affidavits that had not been offered into evidence at the hearing—one from Sims, one
from Judge Spencer, the judge who presided over Vickers‟s trial, and one from the
prosecutor who prosecuted Vickers. In response, Vickers filed a motion to strike the state‟s
proposed findings on March 2, 2011.
On March 17, 2011, the post-conviction court held a hearing on the motion to strike.
During that hearing, Vickers orally amended his motion to strike the affidavits attached to the
State‟s proposed findings and the paragraphs referencing the affidavits. In response, the
State orally moved to reopen the post-conviction proceedings so it could submit new
evidence. After taking the matter under advisement, the post-conviction court granted
Vickers‟s motion to strike but also granted the State‟s motion to reopen the evidence.
On May 6, 2011, the post-conviction court held another hearing to receive additional
evidence. At that hearing, over Vickers‟s objection, the post-conviction court heard
testimony from Sims and Judge Spencer about whether or not they ever had concerns about
Vickers‟s competency to stand trial, and why the psychological exams had been ordered.
Both Sims and Judge Spencer testified that they never had concerns about Vickers‟s
competency to stand trial, and Judge Spencer testified that he did not order the exams to
6 determine Vickers‟s competency to stand trial, and that he misspoke when using that phrase.
The post-conviction court denied Vickers‟s petition on August 17, 2011, concluding
that the parties were merely confused by the trial court‟s terminology, that the exams were
ordered for purposes of evaluating Vickers‟s bond reduction request and desire to represent
himself, that the competency statute was never triggered, and that Stone was not ineffective
for not arguing error on this basis on appeal.
Vickers now appeals.
Discussion and Decision
Standard of Review
Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction petition. Sweeney
v. State, 886 N.E.2d 1, 6 (Ind. Ct. App. 2008), trans. denied. Post-conviction relief is not a
substitute for a direct appeal, Martin v. State, 760 N.E.2d 597, 600 (Ind. 2002) (citing Ind.
Post-Conviction Rule 1, § 1(b)), and does not afford the opportunity for a “super-appeal.”
Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001), trans. denied. Instead, post-
conviction procedures create a narrow remedy for subsequent collateral challenges to
convictions. Martin, 760 N.E.2d at 600. Freestanding claims that the original trial court
committed error are available only on direct appeal. Id.
The petitioner for post-conviction relief has the burden of establishing his grounds for
relief by a preponderance of the evidence. Hollins v. State, 790 N.E.2d 100, 105 (Ind. Ct.
App. 2003), trans. denied. When a petitioner appeals from the denial of post-conviction
7 relief, he appeals from a negative judgment, and must convince the appellate court that “„the
evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by
the post-conviction court.‟” Id. (quoting McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002)).
We accept the post-conviction court‟s findings of fact unless they are “clearly erroneous,”
but do not grant deference to its conclusions of law. Bivins v. State, 735 N.E.2d 1116, 1126
(Ind. 2000). We neither reweigh the evidence nor judge the credibility of witnesses, and
consider only the evidence most favorable to the judgment, together with all reasonable
inferences to be drawn therefrom. Mahone v. State, 742 N.E.2d 982, 984 (Ind. Ct. App.
2001), trans. denied. It is only where the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion, that the
decision will be disturbed as being contrary to law. Id.
Ineffective Assistance of Appellate Counsel
Vickers argues that Stone was ineffective for failing to raise and argue the issue of
whether or not the trial court followed proper procedure to determine Vickers‟s competency
to stand trial. The State argues that Stone was not ineffective for not challenging this
procedure because the trial court never had concerns about Vickers‟s competency to stand
trial, and thus the statutory protections were never triggered.
Indiana Code Section 35-36-3-1 states that:
(a) If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of a defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two (2) or three (3) competent, disinterested: 8 (1) psychiatrists;
(2) psychologists endorsed by the Indiana state board or examiners in psychology as health service providers in psychology; or
(3) physicians;
who have expertise in determining competency.
To establish a violation of the Sixth Amendment right to effective assistance of
appellate counsel, Vickers must establish the two elements set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Martin, 760 N.E.2d at
600. First, Vickers must show that his appellate counsel‟s performance was deficient,
meaning that counsel‟s representation fell below the objective standard of reasonableness.
Id. Second, Vickers must demonstrate that the deficient performance actually prejudiced his
defense. Id. In other words, the prejudice-prong of Strickland requires Vickers to
demonstrate a reasonable probability that, but for his counsel‟s errors, the result of his direct
appeal would have been different. Id.
The issue here is not whether the trial court failed to follow the proper procedure to
determine Vickers‟s competency to stand trial, if that was in question. Instead, the
appropriate question is whether Stone‟s performance, viewed in its entirety, denied Vickers
his Sixth Amendment right to counsel. Id. In other words, Vickers must demonstrate that,
taken as a whole, “his appellate counsel‟s performance fell „outside the wide range of
professionally competent assistance.‟” Id. (quoting Lowery v. State, 640 N.E.2d 1031, 1041
(Ind. 1994)).
9 Admission of Evidence
We first address Vickers‟s argument that the post-conviction court erred by allowing
the State to “rehabilitate” the appellate record (Appellant‟s Br. p. 10), an issue that we
reframe as whether the post-conviction court erred by allowing Sims and Judge Spencer to
testify about the trial record. Vickers argues that the admission of Sims‟s and Judge
Spencer‟s testimony was an error because Stone did not have the benefit of their testimony
when preparing his appeal. Accordingly, the testimony was irrelevant to evaluating his
effectiveness, and should have therefore been refused.
Indiana Post-Conviction Rule 1(5) provides that the post-conviction court “may
receive affidavits, depositions, oral testimony, or other evidence and may at its discretion
order the applicant brought before it for the hearing.” The admission or exclusion of
evidence is within the post-conviction court‟s sound discretion, and a reviewing court will
not disturb its ruling on review unless it has abused its discretion. Badelle, 754 N.E.2d at
521. A court abuses its discretion when its decision is clearly against the logic and effect of
the facts and circumstances before the court. Davis v. Garrett, 887 N.E.2d 942, 946 (Ind. Ct.
App. 2008), trans. denied.
To succeed on his petition, Vickers had to show “„from the information available in
the trial record or otherwise known to appellate counsel that appellate counsel failed to
present a significant and obvious issue and that this failure cannot be explained by any
reasonable strategy,‟” Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (quoting Ben-
Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000)) (emphasis added). “„When a claim of
10 ineffective assistance of counsel is based on failure to raise issues on appeal, we note it is the
exceptional case that could not be resolved on an examination of the record alone.‟” Woods
v. State, 701 N.E.2d 1208, 1221 (Ind. 1998) (quoting Gray v. Greer, 800 F.2d 644, 647 (7th
Cir. 1986)). Because Stone did not have the benefit of Sims‟s and Judge Spencer‟s
commentary on the record when preparing Vickers‟s appeal, the testimony was irrelevant and
its admission was an abuse of discretion.
Nevertheless, reversal is not warranted on this point. We first observe that Vickers
elicited the testimony from Judge Spencer on cross-examination that he now claims is error.
“An appellant cannot maintain grounds for reversible error when the defendant invited the
error.” Thacker v. State, 578 N.E.2d 784, 786 (Ind. Ct. App. 1991) (concluding that it was
invited error for the appellant to elicit testimony from a witness on cross-examination at trial
but then claim error in the admission of the testimony on appeal). For example, Vickers
asked Judge Spencer whether he ordered an evaluation of Mr. Vickers to determine his
competency to stand trial, and Judge Spencer replied, “No, sir, I didn‟t.” Tr. 56. Judge
Spencer opined that he did not think that the trial record reflected otherwise, and, in response
to Vickers‟s reading of a certain portion of the record where he stated that he was ordering an
exam “to make sure that [Vickers] is competent to stand trial,” Judge Spencer stated that he
misspoke. Tr. 58-59.
The admission of Sims‟s testimony was harmless error. “The court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.” Ind. Tr. R. 61. “Error may not be predicated upon a ruling
11 which admits or excludes evidence unless a substantial right of the party is affected.” Ind.
Evid. R. 103. In determining whether an evidentiary error requires reversal, we assess the
probable impact on the trier of fact. Wohlwend v. Edwards, 796 N.E.2d 781, 789 (Ind. Ct.
App. 2003).
The trial court‟s order indicates that it largely relied upon the record and not the post-
conviction hearing testimony to conclude that the parties were confused about the court‟s
terminology. App. 65. Additionally, if Sims had ever questioned Vickers‟s competency to
stand trial, she would have presumably raised it at some point in the pre-trial proceedings and
it would have been apparent from the record. It was therefore harmless for her to testify at
the post-conviction hearing that she had no concerns about Vickers‟s competency.
Failure to Raise and Make the Competency Procedural Argument on Appeal
We next turn to the heart of Vickers‟s ineffectiveness argument, namely that Stone
was ineffective for failing to raise and argue the issue of the trial court‟s competency
procedure. Counsel is afforded considerable discretion in choosing strategy and tactics, and
we strongly presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Martin, 760 N.E.2d at 600. In
cases such as this one, where the ineffective assistance claim is based upon not raising a
particular issue, “reviewing courts should be particularly deferential to counsel‟s strategic
decision to exclude certain issues in favor of others, unless such a decision was
unquestionably unreasonable.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). Even
when the failure to argue a potential claim is not a matter of conscious strategy, isolated
12 mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Martin, 760 N.E.2d at 600.
We are “particularly sensitive to the need for separating the wheat from the chaff in
appellate advocacy, and should not find deficient performance when counsel‟s choice of
some issues over others was reasonable in light of the facts of the case and the precedent
available to counsel when that choice was made.” Bieghler, 690 N.E.2d at 194. In cases
where appellate counsel does not raise particular issues, we employ a two-part test and
evaluate: (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. Fisher
v. State, 810 N.E.2d 674, 677 (Ind. 2004). “Stated somewhat differently, „[a] defendant may
establish his appellate counsel‟s performance was deficient where counsel failed to present a
significant and obvious issue for reasons that cannot be explained by any strategic decision.‟”
Id. (quoting Ben-Yisrayl, 738 N.E.2d at 261).
Here, we do not think that it is obvious from the face of the record that Vickers‟s
competency to stand trial was ever in question. Although the trial court used the phrase
“competency to stand trial” at various points throughout the proceedings, the overall context
in which this phrase was used indicates that the trial court ordered the exams of Vickers to
inform its decisions on Vickers‟s requests for a bond reduction and permission to proceed pro
se at trial. For example, on the bond issue, the court stated that “maybe we can figure out a
way to get this man released, but I need to know what I‟m dealing with,” Respondent‟s
Exhibit 1, p. 14-15, and told Vickers that if he did not cooperate with the doctor, he would
13 not have his bond reduced. Even Vickers understood that the exam was ordered in relation to
his bond reduction request: “Now exactly what you were looking for in this mental status
evaluation, I do not know. But I do know you said this entire hearing or the bond reduction
was dependent on it.” Respondent‟s Exhibit. 2, p. 10.
The record also suggests that the trial court ordered the second psychological exam so
that it could be sufficiently informed when determining whether Vickers could competently
represent himself at trial. The exam was ordered during the September 3, 2004 hearing on
Sims‟s motion to withdraw as counsel. Before ordering the exam, the trial court engaged
Vickers in extensive questioning about his understanding of the dangers and disadvantages
involved with self-representation. When the trial court decided to order another exam,
Vickers again protested, and the trial court continued to discuss the topic of self-
representation with Vickers. At no point did any party, including Vickers, question Vickers‟s
competency to stand trial, and Vickers went on to represent himself at trial. If there are no
concerns about a defendant‟s competency to stand trial, then the statutory protections of
Indiana Code Section 35-36-3-1 are not triggered. At the very least, the record is unclear
regarding whether the trial court or anyone else had concerns about Vickers‟s competency to
stand trial, and the issue was therefore far from obvious.
Conclusion
The admission of Judge Spencer‟s and Sims‟s testimony at the post-conviction hearing
was invited and harmless error. The argument that the trial court failed to follow the correct
procedure to determine Vickers‟s competency to stand trial was, at best, not obvious from the
14 record, and, at worst, unavailable to Stone. He was therefore not ineffective on this basis. In
short, Vickers has not convinced us that the evidence is without conflict and leads to but one
conclusion, and the post-conviction court has reached the opposite conclusion. Mahone, 742
N.E.2d at 984. We therefore affirm the post-conviction court‟s denial of his petition for post-
conviction relief.
Affirmed.
BAKER, J., and DARDEN, J., concur.