FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any May 03 2012, 9:11 am court except for the purpose of 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
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOSEPH M. CLEARY GREGORY F. ZOELLER Collignon & Dietrick Attorney General of Indiana Indianapolis, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
GREGORY FOSTER, ) ) Appellant-Petitioner, ) ) vs. ) No. 02A04-1107-PC-398 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0604-PC-51
May 3, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Petitioner, Gregory Foster (Foster), appeals the post-conviction court’s
denial of his petition for post-conviction relief.
We affirm.
ISSUES
Foster raises three issues on appeal, which we consolidate and restate as the
following two issues:
(1) Whether the post-conviction court erred in finding that he received the
effective assistance of counsel; and
(2) Whether the post-conviction court erred in denying his petition for post-
conviction relief despite Foster’s claim of newly discovered evidence.
FACTS AND PROCEDURAL HISTORY
In Foster v. State, 795 N.E.2d 1078, 1082-84 (Ind. Ct. App. 2003), trans. denied.,
we outlined the facts of this case as follows:
On November 18, 2000, at approximately 3:00 a.m., S.J. was walking from her apartment to visit a friend. S.J. lived in the Eden Green Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster drove by in a white Toyota Camry, and called out the name “Diane,” thinking that S.J. was her aunt. S.J. informed Foster that she was not Diane and told him her first name. Foster offered S.J. a ride because it was late at night and she was walking alone. S.J. accepted the ride and entered the car. Once S.J. entered the car, Foster drove in the opposite direction of S.J.’s intended destination. As a result, S.J. informed Foster that he was going in the wrong direction. Foster told S.J. that he had to take care of some business first and encouraged her to calm down. At this point, S.J. became worried, but she was not scared. However, S.J. asked Foster several times to stop in order to 2 let her out of the car. Foster ignored her requests and continued to drive to the Canterbury Green Apartments, on the other side of town. Foster parked in a carport and left the car for about five minutes. S.J. testified that she remained in the car for the following reasons: (1) it was late, (2) she did not know the area, (3) it was dark, and (4) mostly white people, who she did not think would help her, inhabited the Canterbury Green Apartments. When Foster reentered the car, he placed a black handgun on the dashboard and drove to Shoaff Park located in Fort Wayne, Allen County, Indiana. After seeing the handgun, S.J. was scared, and she began to cry. Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to shut up. Then, Foster parked the car in a dark area of Shoaff Park surrounded by trees. He ordered that S.J. perform oral sex on him. When Foster threatened to use the handgun, S.J. performed oral sex on him as he requested. Afterwards, Foster instructed S.J. to pull her pants off and sit back in her seat. When S.J. complied, Foster lay on top of her, and engaged in sexual intercourse with her. S.J. testified that she cried and asked Foster to stop, but that he just told her to shut up and stop crying. Foster ejaculated on S.J.’s thigh and ordered her out of the car. S.J. testified that she refused to exit the car because she thought Foster would kill her if she exited the car. When S.J. refused to exit the car, Foster drove her back to her apartment. As Foster drove away, S.J. remembered the license plate number of the car Foster was driving. As S.J. stood outside, she saw Fort Wayne Police Officer James King (Officer King) in a store parking lot. S.J. approached Officer King and told him that she had been raped. S.J. was hysterical and Officer King calmed her down before taking her statement. S.J. provided Officer King with a description of her attacker, and a description of the car he was driving with the license plate number. Officer King contacted the medics for S.J. S.J. was taken to the Sexual Assault Treatment Center and examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed a rape kit for S.J. S.J. reported that her upper arms were tender. There were also fresh bruises on her lower extremities. In the meantime, Officer King ran the license plate number provided by S.J. and discovered that the car was registered to Shirley Foster, Foster’s mother. S.J. later identified Foster from a photo array. Indiana State Police DNA Analyst, Mary Reed [(DNA Analyst Reed)], performed a DNA analysis on several of the samples from S.J.’s rape kit. The swab taken from S.J.’s left thigh was consistent with Foster’s DNA. [DNA Analyst Reed] testified that one African–American in fifty- eight billion would match the DNA found on S.J.’s left thigh and external genitalia. The vaginal and cervical swabs were consistent with S.J., Foster,
3 and an unknown third contributor. The swab taken from S.J.’s right groin area was also consistent with both S.J. and Foster. On November 21, 2000, Fort Wayne Detective Hilda Williams (Detective Williams) interviewed Foster. Detective Williams testified that, at first, Foster denied that he picked up a girl during the early hours of November 18, 2000. However, Detective Williams testified that Foster later claimed that he picked up a girl, on November 18, 2000, and drove her one block up the street, but that no sexual contact occurred. On February 16, 2001, the State of Indiana filed [an Information], charging Foster with Count I, rape, a Class A felony; Count II, criminal deviate conduct, a Class A felony; and Count III, criminal confinement, a Class B felony. On March 5, 2001, a warrant was issued for Foster’s arrest. Foster was arrested pursuant to the warrant on March 7, 2001. On March 9, 2001, the trial court held Foster’s initial hearing. On April 25, 2001, the State filed an additional [I]nformation alleging that Foster was a habitual offender, I.C. § 35-50-2-8.
* * *
A jury trial was held on April 23–24, 2002. On April 24, 2002, during a hearing held outside of the presence of the jury regarding final instructions, Foster objected to the State’s tendered final instruction providing that a conviction can rest on the uncorroborated testimony of the victim, if believed beyond a reasonable doubt. The trial court gave the instruction over Foster’s objection. On the same date, the jury found Foster guilty of rape, criminal deviate conduct, and criminal confinement. The jury also determined that Foster was a habitual offender. On May 20, 2002, a sentencing hearing was held. The trial court sentenced Foster to the Indiana Department of Correction for a period of fifty (50) years on Count I, enhanced by a term of thirty (30) years due to his habitual offender status; fifty (50) years on Count II; and twenty (20) years on Count III, for an aggregate sentence of 150 years; each sentence to run consecutively to the others.
On appeal, Foster raised three issues with respect to his conviction and sentence:
(1) whether the trial court committed reversible error when it instructed the jury that the
sole and uncorroborated testimony of the alleged victim, if believed beyond a reasonable
doubt, was sufficient to support a conviction; (2) whether the trial court properly denied
4 Foster’s motions for discharge pursuant to Indiana Criminal Rule 4; and (3) whether
Foster’s 150-year sentence was proper. Id. at 1082. On September 17, 2003, we
affirmed his conviction and sentence. Id.
On April 27, 2006, Foster filed a petition for post-conviction relief, which he
subsequently amended on January 19, 2010. In his amended petition, Foster alleged that
(1) his trial and appellate counselors had provided him with ineffective assistance; (2) the
State had failed to disclose material exculpatory evidence; and (3) there existed newly
discovered material and exculpatory evidence that warranted a new trial for Foster.1 On
August 27, 2010, the post-conviction court held an evidentiary hearing on Foster’s
petition, and on June 15, 2011, the post-conviction court denied the petition.
Foster now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
On appeal from the denial of post-conviction relief, a petitioner stands in the
position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497,
498 (Ind. 2011). In such cases, a petitioner must show that the evidence, taken as a
whole, leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. We do not defer to the post-conviction court’s legal
conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this
court will only consider the probative evidence and all reasonable inferences therefrom
1 We will not address the issue of whether the State failed to disclose material exculpatory evidence as Foster has not raised the issue on appeal.
5 that support the post-conviction court’s determination. Bigler v. State, 732 N.E.2d 191,
194 (Ind. Ct. App. 2000), trans. denied. We will not reweigh the evidence. Id.
I. Ineffective Assistance of Counsel
Foster first contends that he received ineffective assistance from both his trial and
appellate counsel. The effective assistance of counsel is a right that is guaranteed to all
criminal defendants by the Sixth Amendment to the United States Constitution and
Article I, section 13 of the Indiana Constitution. In order to establish ineffective
assistance of counsel, a defendant must fulfill both prongs of the test set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g
denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans. denied. First,
the defendant must prove that his or her counsel’s performance fell below an objective
standard of reasonableness based on prevailing professional norms, and, second, that
there is a reasonable probability that, but for counsel’s failure to meet prevailing
professional norms, the result of the proceeding would have been different. Armstrong v.
State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). “Because all criminal defense
attorneys will not agree on the most effective way to represent a client, ‘isolated
mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective.’ Thus, there is a strong presumption that counsel
rendered adequate assistance and used reasonable professional judgment.” Id. The
presumption that an attorney has discharged his duty fully is overcome for purposes of
post-conviction relief only by showing that the attorney’s action or inaction made the
6 proceedings a mockery of justice and shocking to the conscience of the court. Whitlock
v. State, 456 N.E.2d 717, 718 (Ind. 1983).
A. Trial Counsel
According to Foster, his trial counsel provided ineffective assistance in four
respects: counsel failed to (1) investigate the DNA of the unknown person found during
S.J.’s examination; (2) object to S.J.’s testimony that she was not sure whether Foster was
the father of her child; (3) move for a judgment on the evidence at the end of the State’s
case; and (4) object when the trial court submitted ex parte responses to jury questions.
We will address each of these arguments individually.
1. Failure to Investigate
As stated above, DNA Analyst Reed performed a DNA analysis on several of the
samples from S.J.’s rape kit. The vaginal and cervical swabs were consistent with S.J.,
Foster, and an unknown third contributor. In a deposition taken before trial by a prior
counsel, S.J. indicated that she thought the father of her child might be a man named Ben
Spencer, Jr. (Spencer). Then, at trial she indicated that she had engaged in sexual
intercourse with her boyfriend, whom she identified as Robert, shortly prior to meeting
Foster. She also indicated at trial that she was on her way to visit another man, Darrell
Masterson (Masterson), at a pool hall when she met Foster on the street. Later in the
trial, S.J. testified that she had realized that she had engaged in sexual intercourse with
Spencer prior to meeting Foster, as Spencer was her boyfriend at the time rather than
7 Robert. Post-trial DNA testing indicated that a man with the last name of Pippin was the
father of S.J.’s child.
On appeal, Foster argues that his trial counsel provided ineffective assistance
because counsel failed to investigate the identity of this unknown contributor of DNA
found during S.J.’s exam. According to Foster, knowledge of the unknown person could
have allowed him to impeach S.J.’s testimony. Also, one of his trial counsel’s theories of
defense was that S.J. was a prostitute or promiscuous, and Foster asserts that knowledge
of the identity of the unknown third person could have bolstered this defense.
We acknowledge that the failure to conduct an investigation can constitute
ineffective assistance of counsel. See McCarty v. State, 802 N.E.2d 959 (Ind. Ct. App.
2004), trans. denied. However, when deciding a claim of ineffective assistance of
counsel for failure to investigate, we apply a great deal of deference to counsel’s
judgments. Parish v. State, 838 N.E.2d 495, 500 (Ind. Ct. App. 2005), reh’g denied. We
recognize that even the finest, most experienced criminal defense attorneys may not agree
on the ideal strategy or most effective way to represent a client; therefore, we will assume
that counsel performed adequately and we will defer to counsel’s strategic and tactical
decisions. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App. 2011). Moreover, many
failures to investigate require going beyond the trial record to show what the
investigation, if undertaken, would have produced. Slusher v. State, 823 N.E.2d 1219,
1223 (Ind. Ct. App. 2005). This is necessary because the success on the prejudice prong
8 of an ineffectiveness claim requires a showing of a reasonable probability of affecting the
result. Id.
At the post-conviction hearing, Foster’s trial counsel admitted that he did not
recall making any efforts to identify the unknown third contributor of the DNA found on
S.J. However, the following exhange occurred at the post-conviction hearing:
[STATE]: Apparently [there] was an unknown individual and the question I have is, like either it could’ve been some information that would have benefitted [Foster’s] case like well it was my boyfriend and she admitted she had sex with her boyfriend, or it would’ve been someone else which according to your theory would’ve been beneficial to your case cause it would’ve shown she was having sex with more and more people. Did you have any reason to find out which of those it was to the best of your recollection?
[TRIAL COUNSEL]: Well it was either the boyfriend or an unknown individual so how would you find out anything different[?] . . . .
[STATE]: So it sounds like there was nothing that would’ve been beneficial to your case as far as you can recall in either event, find out that it was the boyfriend or that it was someone else.
[TRIAL COUNSEL]: Well here’s the situation. You’ve got the identity of an unknown individual and perhaps it was the boyfriend so what do you have with that[?] Well the jury recognizes that we have a number of men having sex with this lady. The issue is whether it’s consensual or whether it was with a gun that was never found and that type of thing. So for example, well and hypothetically even assuming we could find the unknown individual[,] what would, what relevance or benefit, he could say something he could help us or hurt us, we don’t know. Or, so I, in trying to answer your question I believe at the time all, that this was coming into play it is a matter of trial strategy with the jury, it was beneficial for the jury to understand that she was sexually active and that she had sperm and she didn’t know who[se] it was.
9 (Post-Conviction Transcript pp. 34-36).2 We agree with Foster’s trial counsel that his
failure to investigate was a reasonable trial strategy. As trial counsel stated at the post-
conviction court hearing, his defense was that S.J. was promiscuous and that, as a result,
her intercourse with Foster was consensual. It is speculative to argue that proving the
identity of the unknown person would have bolstered Foster’s defense because it is
possible that the unknown person was S.J.’s boyfriend, as she testified, which to the
contrary would have bolstered her story. Instead, maintaining the anonymity of the
unknown third contributor allowed the jury to infer that, as trial counsel stated, S.J. was
so sexually active that she did not know the identity of the third contributor.
Accordingly, we conclude that Foster’s trial counsel did not deny him effective assistance
by failing to investigate the identity of the unknown contributor.
2. Failure to Object to Testimony
In a similar vein, Foster argues that his trial counsel provided ineffective
assistance when he failed to object to S.J.’s testimony that “I don’t even know if this man
is the father of my son.” (Trial Tr. p. 294). We conclude that, as above, this was a
reasonable trial strategy. At the post-conviction hearing, Foster’s trial counsel explained
that “first of all, if I would’ve objected to it that would’ve highlighted the jury’s attention
to that response. Secondly it, I don’t even know if this is the father of my child, well, that
2 Throughout the remainder of this Opinion, we will refer to the trial transcript as “Trial Tr.” and the post- conviction hearing transcript as “P-C Tr.”
10 certainly told the jury she’s out having sex with . . . many other men. . . . I mean, that sort
of told me, hey I’m a loose woman[, which] went to our defense.” (P-C Tr. pp. 26-27).
We have previously held that a decision not to draw the jury’s attention to
undesirable testimony may be a reasonable trial strategy. See Stevens v. State, 770
N.E.2d 739, 752 (Ind. 2002), cert. denied., 128 S.Ct. 2423 (2008). In addition, we find
that S.J.’s testimony reasonably supported the defense’s strategy of demonstrating to the
jury that S.J. had multiple sexual partners. Accordingly, we conclude that Foster’s
counsel’s failure to object did not deny Foster the effective assistance of counsel.
3. Failure to Timely Move for a Judgment on the Evidence
Next, Foster claims that his trial counsel provided him with ineffective assistance
because his counsel failed to make a timely motion for judgment on the evidence. Under
Ind. Trial Rule 56, “[W]here all or some of the issues in a case tried before a jury or an
advisory jury are not supported by sufficient evidence or a verdict thereon is clearly
erroneous as contrary to the evidence because the evidence is insufficient to support it,
the court shall withdraw such issues from the jury and enter judgment thereon or shall
enter judgment thereon nothwithstanding a verdict.” Among other times, a party may
move for such a judgment on the evidence “after another party carrying the burden of
proof or of going forward with the evidence upon any one or more issues has completed
presentation of his evidence thereon.” T.R.56(1),-(3). Foster’s counsel made such a
motion at the sentencing hearing, but Foster claims that he should have made the motion
at the close of the State’s case instead. Specifically, Foster argues that because evidence
11 of a gun was never recovered and there was no DNA evidence of oral sex, the trial court
would have granted a motion after the State presented its evidence.
In support of his argument, Foster cites Williams v. State, 748 N.E.2d 887 (Ind. Ct.
App. 2001), reh’g denied. In Williams, Williams’ trial counsel failed to move for a
judgment on the evidence as to Williams’ charges and failed to challenge the sufficiency
of the evidence to support Williams’ convictions on appeal. Id. at 891. Ultimately, we
noted that the performance of Williams’ counsel fell below an objective standard of
reasonableness as determined by prevailing professional norms because there was
insufficient evidence to support the charges, and counsel was unable to provide a reason
for his failure to raise the issue. Id. at 895.
However, we note several distinguishing factors between Williams and the case at
hand. First, Williams’ counsel did not move for a judgment on the evidence at any point
during Williams’ trial. Id. In the instant case, Foster’s counsel did move for a judgment
on the evidence, although it was at sentencing rather than at the close of the State’s case.
Also, contrary to Foster’s assertions, evidence of a gun and DNA evidence that Foster
forced S.J. to perform oral sex were not necessary to support his charges. We have
recognized that the uncorroborated testimony of a rape victim is sufficient evidence to
sustain a rape conviction on appeal, and S.J. testified that Foster placed a gun on the dash
board of her car and forced her to perform oral sex. Ellyson v. State, 603 N.E.2d 1369,
1374 (Ind. Ct. App. 1992). Thus, it was not dispositive that the investigators never
recovered a gun or DNA evidence that Foster forced S.J. to perform oral sex. As Foster
12 does not otherwise dispute the sufficiency of the State’s evidence, we conclude that a
motion for a judgment on the evidence would not have been successful at the end of the
State’s case. Thus, Foster’s counsel did not provide ineffective assistance in refraining
from moving for a judgment on the evidence at that point in time.
4. Failure to Object to Ex Parte Communication with the Jury
Finally, Foster argues that his trial counsel should have objected when the trial
court engaged in ex parte communication with the jury without notifying counsel or
Foster. After retiring to deliberate, the jury sent the trial court a question regarding S.J.’s
testimony. The trial court responded: “please rely on your memories or your notes of the
testimony . . . .” (Trial Tr. p. 499). The trial court later informed Foster’s counsel of the
question and counsel indicated that he agreed with the response the trial court had given
the jury. Now, however, Foster argues that the trial court’s failure to notify his counsel
prior to communicating with the jury constituted a denial of counsel at a critical stage of
the criminal proceedings and requires an automatic reversal.
The circumstances in the instant case are analogous to those in Stephenson v.
State, 742 N.E.2d 463 (Ind. 2001), cert. denied, 128 S.Ct. 1871 (2008). In Stephenson,
the jury sent a note to the trial court after the jury had retired for deliberations. In the
note, the jury stated: “We would like to listen to [defendant’s] tape 4810. Can we see the
depositions of Brian M. & Dale Funk?” Id. at 492. In response, the trial court “advised
the [b]ailiff to tell the jury that the court could not provide the items requested [by]
them.” Id. The trial court later told both parties of the ex parte communication. Id.
13 On appeal, the supreme court noted that Indiana case law recognizes state
constitutional protection for a defendant’s right to be present when a jury makes a request
for any additional guidance during deliberations. Id. The supreme court also noted the
procedural guidelines for such a situation, specifying that the trial court should:
notify the parties so they may be present in court and informed of the court’s proposed response to the jury before the judge ever communicates with the jury. When this procedure is not followed, it is an ex parte communication and such communications between the judge and the jury without informing the defendant are forbidden. However, although an ex parte communication creates a presumption of error, such presumption is rebuttable and does not constitute per se grounds for reversal. When a trial judge responds to the jury’s request by denying it, any inference of prejudice is rebutted and any error deemed harmless.
Id. The supreme court ultimately held that even though the trial court had failed to notify
the parties or counsel before responding to the jury, the error was harmless because the
trial court merely denied the jury’s request. Id.
Here, almost exactly the same course of events occurred. The jury sent the trial
court a question regarding the testimony, and the trial court refused to answer the
question, merely telling the jury members to rely on their memories and notes. Foster’s
trial counsel agreed that he would have recommended the same response if the trial court
had notified him before it sent its note to the jury. In light of these factors and
Stephenson, we conclude that the trial court’s communication was a harmless error, and
14 Foster’s counsel therefore did not provide ineffective assistance in declining to object to
the ex parte communication.3
B. Appellate Counsel
Next, Foster claims that he received ineffective assistance from his appellate
counsel because his counsel did not raise the issue of his rights under the Supreme Court
of the United States’ decision in Blakely v. Washington, 594 U.S. 296 (2004), reh’g
denied. In 1977, the Indiana Legislature adopted a sentencing scheme that included fixed
term presumptive sentences, as well as upper and lower limits, for each Class of felonies.
Anglemyer v. State, 868 N.E.2d 482, 485-86 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). When a trial court deviated from the fixed presumptive sentence, it was
required to “(1) identify all significant mitigating and aggravating circumstances; (2)
state the specific reason why each circumstance ha[d] been determined to be mitigating
or aggravating; and (3) articulate the court’s evaluation and balancing of circumstances.”
Id. at 486 (quoting Prickett v. State, 856 N.E.2d 1203, 1207 (Ind. 2006)).
In 2004, however, the Supreme Court decided Blakely, in which it held that “other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the statutory maximum sentence must be submitted to a jury and proven beyond a
reasonable doubt.” Id. at 301. The Supreme Court further explained that the relevant
“statutory maximum” for Blakely purposes is “not the maximum sentence [the trial court]
3 Foster also alleges that even if the above actions did not amount to ineffective assistance of counsel individually, Foster was prejudiced by their cumulative effect. As we have not held that any of Foster’s counsel’s actions were prejudicial, we do not need to address this argument.
15 may impose after finding additional facts, but the maximum [it] may impose without any
additional findings.” Id. at 303-04.
In 2005, our supreme court clarified Blakely’s application to Indiana’s
presumptive sentencing scheme in Smylie and held that Indiana’s scheme violated the
Sixth Amendment of the United States Constitution because it mandated both a fixed
term and permitted judicial discretion in finding aggravating or mitigating circumstances.
Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005), cert. denied, 546 U.S. 976, 126 S.Ct.
545, 163 L.E.2d 459 (2005). The Smiley court interpreted the “statutory maximum” for
Blakely purposes as the statutory presumptive sentence. Id. at 684. Thus, any
aggravating circumstances used to enhance a circumstance beyond the presumptive
sentence had to be found by a jury beyond a reasonable doubt. Id. at 686.
In response to Blakely and Smylie, the legislature revised Indiana’s sentencing
statutes in 2005 to provide for advisory sentences rather than presumptive sentences.
Anglemyer, 868 N.E.2d at 487-88. However, the prior presumptive scheme applies in
this case, as Foster committed his offenses in 2000, prior to the legislative revisions. See
Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind. 2007) (declaring that the sentencing
statute in effect at the time a crime is committed governs the sentence for that crime). At
the time of Foster’s offenses, the presumptive sentence for a Class A felony was thirty
years, with not more than twenty years added for aggravating circumstances and not more
than ten years subtracted for mitigating circumstances. I.C. § 35-50-2-4 (1998). The
presumptive sentence for a Class B felony was ten years, with not more than ten years
16 added for aggravating circumstances and not more than four years subtracted for
mitigating circumstances. I.C. § 35-50-2-5 (1998). The maximum Foster could receive
as an habitual offender was thirty years. I.C. § 35-50-2-8(e) (1998). As Foster was
sentenced to 50 years for each of his Class A felonies, as well as twenty years for his
Class B felony, he received the maximum sentence on each offense—well above the
presumptive prescribed by statute.
Here, Foster’s appellate counsel filed an appellant’s brief in March of 2003, and
this court issued its decision affirming Foster’s conviction and sentence on September 17,
2003. On April 12, 2004, our supreme court denied transfer. Subsequently, on April 24,
2004, the Supreme Court decided Blakely. See Blakely, 594 U.S. 296. Foster now
argues that his case was not final on direct review when the Supreme Court decided
Blakely and, as a result, his appellate counsel was ineffective for failing to raise a Blakely
claim.
We analyze an ineffective assistance of appellate counsel claim similarly to an
ineffective assistance of trial counsel claim. Bieghler v. State, 690 N.E.2d 188, 192 (Ind.
1997), cert. denied, 119 S.Ct. 550 (1998). First, we require the defendant or petitioner to
show that, in light of all of the circumstances, the identified acts or omissions of counsel
were outside the wide range of professionally competent assistance. Id. at 193. Then, we
require the defendant or petitioner to show adverse prejudice as a result of the deficient
performance. Id. Our supreme court has recognized three basic categories of alleged
17 ineffectiveness of appellate counsel: (1) denying access to an appeal; (2) failing to raise
issues; and (3) failing to present issues competently. Id. at 193-94.
In a claim that appellate counsel provided ineffective assistance regarding the
selection and presentation of issues, the defendant must overcome the strongest
presumption of adequate assistance, and judicial scrutiny is highly deferential. Ben-
Yisrayl v. State, 738 N.E.2d 253, 2060-61 (Ind. 2000), cert. denied, 122 S.Ct. 1178
(2002). A defendant may establish that 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. In making this determination, the reviewing
court considers the information available in the trial record or otherwise known to
appellate counsel. Id. at 261. Only the precedent available to appellate counsel at the
time of the direct appeal is relevant to our determination of whether counsel was
ineffective. Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008), trans. denied.
This is because “[a]ppellate counsel cannot be held ineffective for failing to anticipate or
effectuate a change in the existing law.” Id.
We agree with Foster that his case was not final on direct review when the
Supreme Court decided Blakely and that Blakely therefore applied to him retroactively. It
has been firmly established that “a new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule constitutes a “clear break” with
the past.” Smylie, 823 N.E.2d at 687. In Smylie, our supreme court agreed that Blakely
18 constituted a new rule for the purposes of retroactivity. Id. Further, the United States
Supreme Court has held that a case is “final” when “a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a petition for certiorari
elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314,
321 n.6 (1987). A petition for a writ of certiorari must be filed within 90 days after entry
of judgment in a state court of last resort. United States Supreme Court Rule 13. As
Foster’s time to petition for a writ of certiorari had not elapsed when the Supreme Court
decided Blakely, his case was not final, and thus the Blakely holding applied to him
retroactively.
Nevertheless, we have previously declined to find ineffective assistance of counsel
for a counsel’s failure to raise a Blakely claim under such circumstances. In Donnegan,
we issued our opinion on June 14, 2004, and the supreme court denied Donnegan’s
petition to transfer on August 26, 2004, almost two months after the Blakely decision.
Donnegan, 889 N.E.2d at 892. In his petition for post-conviction relief, Donnegan
argued that his appellate counsel had been ineffective for failing to file an amended
petition for transfer to our supreme court. Id. at 892. The post-conviction court denied
his petition, and on appeal we affirmed the post-conviction court’s decision. Id. Our
reasoning was that, “When Donnegan filed his petition to transfer, [] the general rule was
that an issue could not be raised for the first time in a petition to transfer. Furthermore, in
Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004), decided August 20,
2004, this court determined that Carson waived review of any argument under Blakely
19 where Carson raised the issue for the first time in his petition for rehearing.” Id. at 893.
We also noted that it was not until the Smylie decision on March 9, 2005, that the
supreme court clarified that it would apply a liberal approach in determining whether a
defendant had preserved a Blakely claim for appeal. See id. As a result, we concluded
that, because only the precedent available to counsel at the time of the direct appeal is
relevant to our determination of whether counsel is ineffective, Donnegan’s counsel was
not ineffective for failing to anticipate a change in the rules governing issues raised for
the first time in a petition to transfer. Id.
Likewise, we also note that it was not until November 9, 2005, that our supreme
court specifically clarified in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005), that
any appellant who filed his or her initial brief prior to Smylie and failed to raise a Blakely
claim, but nonetheless challenged his or her sentence in some form, could raise a Blakely
claim by way of amendment, petition for rehearing, or petition for transfer. Kendall v.
State, 886 N.E.2d 48, 54-55 (Ind. Ct. App. 2008), trans. denied. In Kendall, we cited this
Kincaid decision as a reason for declining to find ineffective assistance of counsel when
Kincaid’s counsel failed to raise a Blakely claim in a petition for transfer. Id. at 51. We
also noted that “[p]articularly in the case of Blakely, great confusion reigned for some
time following the opinion. The Smylie court recognized the confusion that ensued in
Footnote 12, stating, in part: ‘That so many states are wrestling with the meaning of
Blakely is further evidence of its unpredictability and a further indication that reasonable
lawyers would not have known of the outcome.’” Id. at 52.
20 We find that the same reasoning applies in the instant case. Although Foster’s
counsel had the opportunity to raise Blakely in a petition for writ of certiorari because
Foster’s case was not yet final, he could not have been able to predict that it was possible
to raise the issue for the first time in such a petition. Accordingly, we conclude that
Foster’s appellate counsel did not provide him with ineffective assistance.
III. Newly Discovered Evidence
Finally, Foster argues that the post-conviction court erred in denying his petition
for post-conviction relief in light of his newly discovered evidence that he is not the
father of S.J.’s baby. At the post-conviction hearing, Foster offered documents from an
Illinois CHINS proceeding that contained a handwritten note stating that Foster was not
the father of S.J.’s child. Foster attempted to admit the documents to impeach S.J.’s
testimony that she was not sure whether Foster was the father of her baby, but the post-
conviction court denied his request.
Our supreme court has enunciated nine criteria for admission of newly-discovered
evidence.
[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.
Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006). To prevail upon appeal, the
petitioner must demonstrate that the newly discovered evidence met all nine of these
21 criteria and that the trial court abused its discretion by failing to find so. Powell v. State,
714 N.E.2d 624, 627 (Ind. 1999).
Foster does not present evidence with respect to any of these criteria. His only
argument is that “S.J.’s testimony was so prejudicial as to deny Foster a fair trial. [These
documents] should have been admitted at the post-conviction hearing as they demonstrate
that her testimony was demonstrably false.” (Appellant’s Br. p. 13). This argument
supports the post-conviction court’s conclusion that the evidence was “merely
impeaching” and was therefore inappropriate under criteria number four. In addition, as
the post-conviction court also concluded, this is a case where there was significant DNA
evidence and eyewitness testimony supporting Foster’s convictions. The paternity of
S.J.’s child does not mitigate that evidence and is not an element of Foster’s crimes, so it
is not probable that the newly discovered evidence would produce a different result at
trial. Accordingly, we conclude that the post-conviction court did not err in refusing to
admit the CHINS documents as newly discovered evidence and did not err in denying
Foster’s petition despite this evidence.
CONCLUSION
Based on the foregoing, we conclude that: (1) the post-conviction court did not err
in finding that Foster received the effective assistance of counsel; and (2) the post-
conviction court did not err in denying Foster’s petition for post-conviction relief in light
of newly discovered evidence.
Affirmed.
22 NAJAM, J. and DARDEN, J. concur