MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 07 2017, 6:26 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE James Orlando Washington Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Orlando Washington, July 7, 2017 Appellant-Petitioner, Court of Appeals Case No. 45A04-1610-PC-2421 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Respondent. Boswell, Judge Trial Court Cause No. 45G03-1404-PC-4
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 1 of 22 [1] James Orlando Washington appeals the denial of his petition for post-
conviction relief. Washington raises four issues which we consolidate and
restate as whether he was denied the effective assistance of trial counsel and
appellate counsel. We affirm.
Facts and Procedural History
[2] On July 13, 2001, the State charged Washington with: Count I, attempted rape
as a class A felony; Count II, rape as a class A felony; Count III, rape as a class
A felony; Count IV, criminal confinement as a class B felony; Count V,
burglary as a class B felony; and Count VI, robbery as a class B felony. On July
25, 2001, Attorney Charles Graddick filed an appearance on behalf of
Washington. On September 21, 2001, Attorney Graddick appeared with
Washington and advised the court that he wished to engage in preliminary
discussions with the State as to a possible plea, and the court granted a
continuance. On February 27, 2004, Attorney Graddick filed a motion to
withdraw, and the court later granted the motion.
[3] On March 12, 2004, Attorney David Olson filed his appearance for
Washington. On March 19, 2004, Attorney Olson filed a motion for
substitution of counsel, the court granted the motion, and Attorney Patrick
Young entered his appearance for Washington.
[4] On January 12, 2005, Attorney Lemuel Stigler filed an appearance on behalf of
Washington. Following multiple continuances since the time the charges were
filed, the court scheduled a jury trial for February 14, 2005. Attorney Stigler
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 2 of 22 orally moved to continue the February 14, 2005 jury trial and the court
rescheduled it to March 14, 2005. On March 11, 2005, Attorney Stigler filed a
motion for Rule 4(C) Discharge.1
[5] On March 14, 2005, prior to the beginning of the jury trial and after some
discussion, the court denied Washington’s motion for discharge. The jury
found Washington guilty of attempted rape as a class A felony, two counts of
rape as class A felonies, criminal confinement as a class B felony, and burglary
as a class B felony. The court sentenced Washington to a total executed
sentence of 120 years. Washington appealed, and this Court affirmed.
[6] On March 10, 2014, Washington filed a pro se petition for post-conviction relief
alleging that he was denied the right to a fair trial and the effective assistance of
trial counsel and appellate counsel.
[7] On May 8, 2015, the court held a hearing. Attorney Stigler and Washington’s
appellate counsel, Thomas Vanes, testified. On September 26, 2016, the court
denied Washington’s petition.
Discussion
[8] Before discussing Washington’s allegations of error, we observe that he is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
1 The record does not contain a copy of this motion.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 3 of 22 We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id. Further,
the post-conviction court in this case entered findings of fact and conclusions
thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a showing
of clear error—that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless
clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[9] The issue is whether Washington was denied the effective assistance of trial
counsel and appellate counsel. He argues that his trial counsel was ineffective
for failing to: (A) request a change of venue; (B) conduct a thorough
investigation; and (C) communicate a plea offer. He also argues that his
appellate counsel was ineffective for failing to raise the issue of a violation of
Ind. Criminal Rule 4(C).
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 4 of 22 [10] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
norms. Id. To meet the appropriate test for prejudice, the petitioner must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[11] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 5 of 22 guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the
objection would have been sustained if made. Passwater v. State, 989 N.E.2d
766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),
cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).
[12] We apply the same standard of review to claims of ineffective assistance of
appellate counsel as we apply to claims of ineffective assistance of trial counsel.
Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,
531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel
claims fall into three categories: (1) denial of access to an appeal; (2) waiver of
issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710,
724 (Ind. 2013). “To show that counsel was ineffective for failing to raise an
issue on appeal thus resulting in waiver for collateral review, ‘the defendant
must overcome the strongest presumption of adequate assistance, and judicial
scrutiny is highly deferential.’” Id. (quoting Ben-Yisrayl v. State, 738 N.E.2d 253,
260-261 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178
(2002)). “To evaluate the performance prong when counsel waived issues upon
appeal, we apply the following test: (1) whether the unraised issues are
significant and obvious from the face of the record and (2) whether the unraised
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 6 of 22 issues are ‘clearly stronger’ than the raised issues.” Id. (quoting Timberlake v.
State, 753 N.E.2d 591, 605-606 (Ind. 2001), reh’g denied, cert. denied, 537 U.S.
839, 123 S. Ct. 162 (2002)). “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.’” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), reh’g
denied, cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998)).
A. Change of Venue
[13] Washington argues that his trial counsel was ineffective for failing to request a
change of venue due to pretrial publicity. He argues that sixteen of nineteen
jurors expressed a belief that he was guilty based on the information provided
by news articles. He asserts that the jury pool was tainted because Juror No.
573 was allowed to return to the auditorium where other prospective jurors
were waiting to be interviewed. He argues that several prospective jurors, who
admitted they had no prior knowledge, returned after a recess for lunch and
indicated they had knowledge about the case. He contends that during the
examination of Juror No. 624, the prosecutor expressed some concern
pertaining to information being spread during the lunch recess. The State
contends that Washington has not shown that his counsel was ineffective for
not seeking a change of venue because he presented no evidence that venue in
Lake County resulted in a biased jury.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 7 of 22 [14] The post-conviction court’s order states in part:
Findings of Fact:
*****
8. At the hearing on the petition, Attorney Lemuel Stigler testified that he did not feel that the pre-trial publicity regarding the case was an issue, or that a change of venue was necessary.
Conclusions of Law:
6. [Washington] has alleged that counsel was ineffective for failing to seek a change of venue due to pre-trial publicity, and has included in his arguments that the panel was tainted because a juror was permitted to return to the auditorium to remain with the other members of the venire.
7. This issue is comparable to alleging counsel ineffective for failure to object. In order to prove ineffective assistance based upon counsel’s failure to object, a petitioner must establish that an objection, if made, would have been sustained. Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013), citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001).
8. To establish court error in the denial of a motion for change of venue based on undue pretrial publicity, a [defendant must demonstrate] (1) prejudicial pretrial publicity and (2) the inability of the jurors to render an impartial verdict. Wentz v. State, 766
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 8 of 22 N.E.2d 351, 358, (Ind. 2002), citing Specht v. State, 734 N.E.2d 239, 241 (Ind. 2000). In this case, there was prejudicial pretrial publicity. However, the potential jurors were questioned about their exposure to that publicity, and their ability to reach an impartial verdict in spite of the publicity. Based upon the answers given by the jurors during voir dire, it is unlikely that a motion for change of venue would have been granted. Additionally, there has been no showing that the jury’s verdict was tainted by the publicity. Juror #573 was permitted to wait in the auditorium with other potential jurors after being admonished by the court not to discuss the publicity with anyone else. No evidence was presented that established that the court’s admonishment was disregarded by the juror, or that Juror 573 tainted any of the other jurors.
9. Of equal importance, regarding counsel’s effectiveness on this issue, Mr. Stigler testified that he did not at the time of either the trial or the post-conviction relief hearing consider the amount of pretrial publicity to be an issue. Therefore, it was a strategic decision, and one supported by the record.
Appellant’s Appendix Volume 2 at 160-163.
[15] Generally, a defendant is entitled to a change of venue upon a showing that
jurors are unable to disregard preconceived notions of guilt and render a verdict
based on the evidence. State v. Moore, 678 N.E.2d 1258, 1262 (Ind. 1997), reh’g
denied, cert. denied, 523 U.S. 1079, 118 S. Ct. 1528 (1998). Disposing of a
motion for a change is within the sound discretion of the trial court. Id. The
decision to seek a change of venue is generally a matter of trial strategy that we
will not second-guess on collateral attack. Id. In evaluating claims of
ineffective assistance for failure to seek a change of venue, decisions of the
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 9 of 22 Indiana Supreme Court have found counsel’s handling of a case competent
where there was insufficient evidence to conclude the defendant could not have
received a fair trial in the county in which the case was tried. Id. The
reasonableness of counsel’s decision not to seek a change of venue is assessed
based on whether there was such prejudice against the defendant that there is a
reasonable probability the motion would have been granted by a trial judge
acting according to law. Id. “Even where this showing is made, reasonable
trial strategy might have dictated keeping the case in the same venue for
different reasons, and there no ineffective assistance arises.” Id. at 1262-1263.
[16] When asked if he was aware that there was a pretrial publicity issue at that
particular time, Attorney Stigler answered: “I didn’t consider it to be a pretrial
publicity issue, so the answer is no.” Post-Conviction Transcript at 6. He
testified that he did not remember Washington ever asking for a change of
venue. He also testified: “With regard to him asking me for a change of venue,
if the discussion was had, I didn’t feel that there was a need for one.” Id. at 13.
After showing Attorney Stigler certain articles, Washington asked Attorney
Stigler if he felt that a change of venue should have been actually asked for at
that time, and he answered: “No.” Id.
[17] Washington cites certain portions of the record to indicate that several
prospective jurors admitted to reading about him or seeing news coverage on
television and that it would be difficult to separate the evidence from what they
had already heard, seen, or read. However, a review of the record reveals that
these jurors were excused. To the extent Washington mentions Juror No. 573
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 10 of 22 and Juror No. 624, we observe that during jury selection, the court told Juror
No. 573:
Now, number 573, ma’am, you are – we are going to send you back to the auditorium for now. I’m instructing you that under no circumstances should you discuss anything that we discussed with you at the bench or anything that you may know or think you know about this case with the jurors that you’re going to be seated with.
Trial Transcript at 50. Juror No. 573 replied: “Okay.” Id.
[18] Later, the court took a recess for lunch, and then stated:
The jurors thus far have been polled as to any knowledge they may have of this case by way of pre-trial publicity. Those who said this they did have some knowledge of it were brought up to the bench and questioned by the attorneys and by the Court. I believe there was only one who had indicated that she had some prior knowledge of the case that was returned to the jury pool. All the others were excused. That juror was number 573 . . . . All the other potential jurors who indicated that they had some prior knowledge of the case have been excused for cause. I intend to poll the jurors one more time when we bring them in just to make certain that we have a pool that has absolutely no knowledge of the case except for that one juror. She indicated that she felt that she could be fair and impartial in the case.
Id. at 124. The court then asked the potential jurors to raise their hands if they
thought they had any knowledge of the case by way of any pretrial publicity
and two jurors raised their hands. One of the jurors was Juror No. 624 who
stated that he reads a lot of newspaper articles, referred to two articles, and
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 11 of 22 stated that he did not know if they related to the case or not. Juror No. 624
indicated that no one approached him during the break. When asked by
Washington’s counsel if he could evaluate the evidence presented “as opposed
to the newspapers,” Juror No. 624 stated:
I don’t take everything for gospel from the newspaper, I believe in the principle, innocent until proven guilty, that’s basic fundamental law that I firmly believe in because I know many times the fact that the defendant is in this Court does not in any way indicate he is guilty. That’s what I felt all my life, so that’s an honest answer to that question.
Id. at 130. When asked by the court if the two newspaper articles turned out to
have something to do with Washington if that would prejudice him in any way
in terms of being able to be fair and impartial, he answered: “None
whatsoever.” Id. Juror No. 620 was the other juror who raised his hand, and
he appeared to be removed for cause.2 We cannot say that Washington has
demonstrated that his trial counsel was deficient or that he was prejudiced.3
B. Investigation
2 The trial court indicated that it was bothered by Juror No. 620’s response, Washington’s counsel stated in part that “we already know we have a for cause, Judge,” the court stated, “I think that’s clear,” and the prosecutor stated, “I agree.” Trial Transcript at 136-137. 3 At some point, the court reporter was excused and the jury selection process was completed. The post- conviction court concluded that Washington waived the issue of whether his trial counsel failed to record voir dire. Washington does not raise the failure to record voir dire as an issue on appeal.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 12 of 22 [19] Washington argues that his trial counsel failed to conduct a thorough
investigation regarding his mental illness, school, medical history, or military
service. He alleges that his trial counsel failed to interview any members of his
family. He also argues that his trial counsel failed to seek a second professional
opinion with respect to the reports generated by DNA Supervisor, Lisa Black.
The State argues that Washington’s claim fails under the prejudice prong
because he did not present any evidence suggesting additional investigation
would have supported a defense at trial or reduce his exposure at sentencing.
[20] The post-conviction court’s order found:
8. . . . . Mr. Stigler also testified that he did not believe that a DNA expert was necessary because the error made by the State’s DNA expert – first referencing the evidence as blood, then semen – did not require expertise to bring to the jury’s attention. When questioned about referencing “mental illness” during the sentencing, Mr. Stigler stated that while he did not raise insanity as a defense, that you can have a mitigator like mental illness that does not rise to the level of a defense.
Appellant’s Appendix Volume 2 at 161. The post-conviction court concluded:
10. [Washington] makes numerous conclusory statements about mental or medical health evidence that could have been presented had Mr. Stigler investigated further. However, even assuming there was evidence to substantiate those claims, nothing suggests that it would have risen to a defense at trial, nor that it would have reduced [Washington’s] exposure at sentencing. Also, Mr. Stigler testified that the State’s DNA expert’s error identified by [Washington] was not one that required a defense expert’s testimony to put that before the jury.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 13 of 22 As such, Mr. Stigler’s decision not to call a DNA expert was a strategic one.
Id. at 163-164.
[21] With respect to an expert witness, we observe that Washington asked Attorney
Stigler: “Did you at any time feel like an expert witness should have been called
on my behalf who could have actually gave us a second opinion about the
DNA results considering that a mistake was made the first time?” Post-
Conviction Transcript at 14-15. Attorney Stigler answered:
Mr. Washington, whenever our – I get findings from the Indiana State Lab, whether those findings are DNA or fingerprints or ballistics, I will look over those and I will see if it makes a difference. Now, with respect to your contention that Lisa Black in saying that as you stated earlier that there was blood on the dress that it wasn’t blood, that it was semen on the dress, that does not require any – any expert. So if I thought that there was a need for an expert, then I would have asked the chief public defender for the Lake County Public Defender’s Office to appoint one and to hire one, and I didn’t feel that such was needed.
Id. at 15. When asked if he thought it would have been a good idea to actually
request a second opinion, Attorney Stigler stated: “Given what you are saying
and what I can remember, no.” Id. at 16. Washington did not present evidence
regarding what a second professional opinion would have stated.
[22] With respect to any mental illness, Attorney Stigler testified:
Was there an – was there a request to have you evaluated for either competency or insanity? No. And I’m not – if the – if we
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 14 of 22 had the discussion, it would have been my belief that you would have negated it or that you did negate it; and as such, there was no – given that you were competent, it would not have been possible to proceed with an insanity defense.
Id. at 18.
[23] Washington did not present any evidence regarding his mental illness, school,
medical history, or military service. He did not present evidence with respect to
what interviews with members of his family would have revealed. We cannot
say that reversal is warranted on these bases.
C. Communication of Plea
[24] Washington argues that Attorney Stigler was ineffective because he failed to
communicate a plea offer that had been presented when Washington was
represented by another defense attorney. The State argues that Washington’s
statements at the post-conviction hearing appear to contradict his claim on
appeal, that he presented no evidence indicating that he was not apprised of
negotiations prior to Attorney Stigler filing his appearance, and that he
presented no evidence showing that a plea offer of twenty years was offered,
available, and would have been accepted by him.
[25] The post-conviction court’s order concluded:
11. The final issue of ineffective assistance of trial counsel involves an alleged failure to communicate a plea offer from the State. Although no evidence was presented in this regard, it would appear that an offer of a sentence of twenty (20) years in
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 15 of 22 exchange for a guilty plea may be been [sic] communicated to Attorney Graddick, who represented [Washington] well before Mr. Stigler was appointed. There was no evidence presented as to whether that offer was actually extended by the State, whether Mr. Graddick did or did not communicate that offer to [Washington], or [Washington’s] response. What was presented during questioning of Mr. Stigler was a memo dated the day before the final day of trial, wherein Mr. Stigler notes, “I think you should plead”. When questioned about this, Mr. Stigler stated that it was in the midst of trial; things were going badly, and that he was telling [Washington] that he should plead straight up to the charges. [Washington] has failed to sustain his burden of proving that Mr. Stigler failed to communicate a plea offer to him.
Appellant’s Appendix Volume 2 at 164.
[26] When asked if he recalled failing to make Washington aware of an offer of a
plea agreement, Attorney Stigler answered: “Mr. Washington, I know how to
do my job, and I know that the decision as to whether or not a plea agreement
is accepted is my client’s, and that is something that I would not do.” Post-
Conviction Transcript at 24. Attorney Stigler testified that he would have
examined the case for the procedural posture so he would have known about
the negotiations and that if there had been an offer made and that “it had been
rejected which is why the case was still going on and then eventually it gets to
me four years later.” Id. at 29. He also testified: “I would have asked the state
is this offer still open; and if the state had said yes, it’s open – still open, I would
have given Mr. Washington that information.” Id. On cross-examination,
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 16 of 22 when asked if he considered plea agreements offered four years prior to still be
valid four years later, Attorney Stigler answered:
If there’s nothing in the file that says that it was withdrawn or rejected, then, yes. What I do is to – is to then ask the prosecutor handling the case is this a viable plea; and if I’m told yes, then I’ll go to my client. If I’m told no, then it’s the next question is is there another offer.
Id. at 40-41.
[27] As pointed out by the State, Washington appeared to refer to a conversation he
had with Attorney Stigler during his questioning of Attorney Stigler.
Specifically, Washington stated: “Well, just based on a conversation that we
actually had before trial, I was informed that a 20-year plea was offered, 20 do
10, for a Class A felony of rape, and this information was actually relayed to me
by Mr. Stigler.” Id. at 29. When asked by the court what was his question,
Washington stated:
That was my question. Just to see if he could recollect that that plea was actually offered. Now, during the course of that, Mr. Stigler informed me that the judge wouldn’t accept the plea and that wasn’t his call to make. It was actually the judge’s call to see whether or not a plea would be accepted. So in that instance, I was misinformed.
Id. at 30. Attorney Stigler then indicated that he did not recall having a
conversation where he indicated that the judge would not accept a plea.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 17 of 22 [28] We also observe that other attorneys represented Washington prior to the date
Attorney Stigler filed his appearance in 2005 and that Washington did not
present testimony from these other attorneys. “Where trial counsel is not
presented in support, the post-conviction court may infer that trial counsel
would not have corroborated appellant’s allegations.” Dickson v. State, 533
N.E.2d 586, 589 (Ind. 1989). Because Washington did not call his other trial
counsel as witnesses at the post-conviction hearing, the court was entitled to
infer that they would not have corroborated his allegations. Under the
circumstances, we cannot say that reversal is warranted on this basis.
D. Criminal Rule 4(C)
[29] Washington argues that his appellate counsel was ineffective for failing to raise
the issue of a violation of Ind. Criminal Rule 4(C). He asserts that the 1,340
days between the date he was charged on July 13, 2001, and the date his trial
began on March 14, 2005, violated his right to a speedy trial and cites the Sixth
Amendment to the United States Constitution and Article 1, Section 12 of the
Indiana Constitution.
[30] The State argues Washington has not shown that an appellate claim for
discharge under Criminal Rule 4(C) either had a reasonable probability of
succeeding or would have been clearly stronger than double jeopardy,
sufficiency, and sentencing issues raised. The State argues that Washington is
attempting to improperly transform his Criminal Rule 4(C) claim, which was
preserved by his trial counsel and presented as a claim of ineffective appellate
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 18 of 22 counsel in his petition, into a constitutional speedy trial claim. The State also
contends that Washington presents no cogent argument or authority showing a
violation of Criminal Rule 4(C)’s one-year time limitation.
[31] The post-conviction court’s order states:
13. Under Ind. R. Crim. P. 4(C) a defendant may not be held to answer a criminal charge for greater than one year unless the delay is caused by the defendant, emergency, or court congestion. However, the Supreme Court has stated, “The defendant’s failure to object timely will be deemed acquiescence in the setting of that date.” Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999), reh’g denied. “Although a defendant is not obliged under this rule to push the matter to trial, a defendant whose trial is set outside the one-year period must object to the setting at the earliest opportunity or the right to discharge under the rule is waived.” Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000).
14. Prior to jury selection in this case, there was extensive argument about this issue, and the State pointed out instances where the delays were due to a congested docket, or were requested by [Washington]. The State also pointed out that when continuances were requested by the State, there was no objection lodged by the defense. Additionally, the court denied the defense’s motion, but granted leave for Mr. Stigler to file a motion to reconsider, which he never did. [Record of the Proceedings, pp. 8 – 13.]
15. During the hearing on the petition for post-conviction relief, Mr. Vanes testified that he did not recall coming across a Criminal Rule 4 issue, and did not recall [Washington] mentioning the issue in correspondence. However, the Record of the Proceedings must clearly establish that there was a Criminal
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 19 of 22 Rule 4 issue, and the record in this case does not do so. In fact, this record suggests that there was not an issue based upon the arguments of the State, and more importantly, based upon the fact that the defense was given an opportunity to further explore the issue and request reconsideration, but did not make that request.
16. Therefore, [Washington] has failed to prove that he received ineffective assistance of either trial or appellate counsel.
Appellant’s Appendix Volume 2 at 164-165.
[32] To the extent Washington attempts to argue that his appellate counsel failed to
raise the issue of his speedy trial rights under the Sixth Amendment of the
United States Constitution or Article 1, Section 12 of the Indiana Constitution,
we observe that the Indiana Supreme Court has stated that:
Although “Indiana Criminal Rule 4 generally implements the constitutional right of a criminal defendant to a speedy trial, thereby establishing time limits and providing for discharge in the event that limits are exceeded,” Bridwell v. State, 659 N.E.2d 552, 553 (Ind. 1995), our review of Rule 4 challenges is “separate and distinct” from our review of claimed violations of the speedy trial rights secured by the Sixth Amendment of the U.S. Constitution and Article 1, Section 12 of the Indiana Constitution.
Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (footnote omitted).
[33] In his petition, Washington alleged that his appellate counsel was ineffective for
failing to raise the issue of a Criminal Rule 4(C) violation, but he did not
mention his speedy trial rights under the Sixth Amendment of the United States
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 20 of 22 Constitution or Article 1, Section 12 of the Indiana Constitution. Accordingly,
Washington waived this issue. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind.
2001) (holding that three claims were unavailable where petitioner did not raise
them in his petition or in any of his three amended petitions),4 reh’g denied, cert.
denied, 535 U.S. 1061, 122 S. Ct. 1925 (2002); Ind. Post-Conviction Rule 1 (“All
grounds for relief available to a petitioner under this rule must be raised in his
original petition.”). Thus, we turn to Ind. Criminal Rule 4(C).
[34] Ind. Criminal Rule 4(C) provides:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial
4 The Court noted: “Allen very briefly mentions the first two of these issues in his petition. He makes a brief reference to the third of these issues – which was not mentioned at all in the petition – in his proposed findings of fact and conclusions of law. The first two issues are not mentioned in those proposed findings and conclusions.” Allen, 749 N.E.2d at 1171 n.17.
Court of Appeals of Indiana | Memorandum Decision 45A04-1610-PC-2421 | July 7, 2017 Page 21 of 22 within a reasonable time. Any defendant so held shall, on motion, be discharged.
[35] “The rule places an affirmative duty on the State to bring a defendant to trial
within one year of being charged or arrested, but allows for extensions of that
time for various reasons.” Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004).
The determination of whether a particular delay in bringing a defendant to trial
violates the speedy trial guarantee depends on the specific circumstances of the
case. Payton v. State, 905 N.E.2d 508, 511 (Ind. Ct. App. 2009), trans. denied.
[36] The only calculation in Washington’s brief is the time between the date he was
charged and the date on which his trial began. He does not address any impact
of the numerous continuances, his failure to object to the rescheduling of the
trial date on multiple occasions, or the withdrawal of his trial counsel on the
analysis under Rule 4(C). We cannot say that Washington developed a cogent
argument, and we conclude that he waived his argument regarding Rule 4(C).
Conclusion
[37] For the foregoing reasons, we affirm the post-conviction court’s denial of
Washington’s petition for post-conviction relief.
[38] Affirmed.
May, J., and Pyle, J., concur.
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