Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
RANDY A. ELLIOTT RICHARD C. WEBSTER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
May 31 2013, 9:29 am IN THE COURT OF APPEALS OF INDIANA
JIMMY DALE EDWARDS, ) ) Appellant-Petitioner, ) ) vs. ) No. 53A05-1209-PC-445 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Mary Ellen Diekhoff, Judge Cause No. 53C05-0809-PC-2325
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Jimmy Dale Edwards appeals the denial of his petition for post-conviction relief. He
argues his appellate counsel was ineffective because he did not raise the issue of the
circumstances surrounding Edwards’s habitual offender finding. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 17, 2005, a jury found Edwards guilty of Class B felony criminal
confinement1 and Class D felony resisting law enforcement.2 Following the pronouncement
of those verdicts, the following exchange occurred:
[Court]: Mr. Edwards, I might remind you that you are still under oath. Is it true that on April 13 through June 27, 1998 you were accused of the crime of stalking as a felony and you were convicted of that crime on March 4, 1999 here in Monroe County? [Edwards]: Yes. [Court]: Is it true that on August 7, 2003 you were prosecuted for operation with a 0.08% BAC as a class D felony and that you were convicted of that charged [sic] on February 18, 2004 here in Monroe County? [Edwards]: Yes. [Court]: And you concede that under the law of the state of Indiana pursuant to the allegation filed with the state of Indiana you are deemed a[n] habitual offender because of those convictions[?] [Edwards]: (inaudible) [Court]: I unfortunately cannot tell you when there will be a presentence or a sentencing date.
(Tr. at 541-42.) The trial court sentenced Edwards to eighteen years for Class B felony
criminal confinement, three years for Class D felony resisting law enforcement, and twenty-
five years for being an habitual offender, for an aggregate sentence of forty-six years.
1 Ind. Code § 35-42-3-3(b)(2). 2 Ind. Code § 35-44.1-3-1(b)(1).
2 On his first direct appeal, Edwards’ appellate counsel, Lorraine Rodts, argued the trial
court erred because: (1) it did not attach the habitual offender enhancement to a felony
sentence; (2) it did not inquire and determine the costs and fees the court can properly
impose; (3) it improperly sentenced Edwards to consecutive sentences; and (4) it provided an
insufficient sentencing statement. Edwards v. State, 53A05-0509-CR-537 (Ind. Ct. App.
August 28, 2006), trans. denied. We remanded for the trial court to address all issues
presented except the consecutive sentences.
On remand, the trial court sentenced Edwards to the same aggregate sentence. It
attached the habitual offender finding to the Class B felony criminal confinement conviction
and provided/entered a more specific sentencing statement.
Rodts represented Edwards in a second direct appeal. In that appeal, Edwards argued
the trial court’s resentencing statement did not comply with our court’s resentencing order,
the trial court abused its discretion when sentencing Edwards, and the trial court should have
awarded Edwards credit for both time served and good time. Edwards v. State, 53A01-
0702-CR-63 (Ind. Ct. App. August 23, 2007), trans. denied. We affirmed.
On September 18, 2008, Edwards filed a pro se petition for post-conviction relief. On
February 25, 2011, Edwards, by counsel, filed an amended petition for post-conviction relief.
The post-conviction court held a hearing on the matter on May 11, 2012, and on August 9, it
issued an order denying the amended petition.
DISCUSSION AND DECISION
Post-conviction proceedings afford petitioners a limited opportunity to raise issues
3 that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763
N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the
petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party
appealing a negative post-conviction judgment must establish that the evidence is without
conflict and, as a whole, unmistakenly and unerringly points to a conclusion contrary to that
reached by the post-conviction court. Id. Where, as here, the post-conviction court makes
findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule
1(6), we do not defer to the court’s legal conclusions, but “the 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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.
2000) (citation omitted). The post-conviction court is the sole judge of the evidence and the
credibility of the witnesses. Smith v. State, 792 N.E.2d 940, 943 (Ind. Ct. App. 2003).
Convictions should be reversed for ineffective assistance of counsel when a defendant
shows counsel’s performance fell below an objective standard of reasonableness and the
deficient performance so prejudiced the defendant as to deprive him of a fair trial. Pennycuff
v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 697
(1984), reh’g denied). We presume counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id. Isolated poor
strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel.
Id. If deficient performance of counsel can be proven, the defendant must further show a
reasonable probability that it altered the outcome of the case. Id.
4 Claims of ineffective assistance of appellate counsel are reviewed using the same
standard. Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). These claims generally fall into
three categories: (1) denying access to an appeal; (2) waiver of issues; and (3) failure to
present issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997), reh’g denied.
Edwards argues his appellate counsel was ineffective because she did not raise whether the
trial court properly obtained his admission he was an habitual offender. We disagree.
In denying Edwards’ petition for post-conviction relief, the post-conviction court
found:
Mr. Edwards argues the habitual offender sentence should be vacated, as he was not advised of his right to trial by jury.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER Public Defender of Indiana Attorney General of Indiana
RANDY A. ELLIOTT RICHARD C. WEBSTER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
May 31 2013, 9:29 am IN THE COURT OF APPEALS OF INDIANA
JIMMY DALE EDWARDS, ) ) Appellant-Petitioner, ) ) vs. ) No. 53A05-1209-PC-445 ) STATE OF INDIANA, ) ) Appellee-Respondent. )
APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Mary Ellen Diekhoff, Judge Cause No. 53C05-0809-PC-2325
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge Jimmy Dale Edwards appeals the denial of his petition for post-conviction relief. He
argues his appellate counsel was ineffective because he did not raise the issue of the
circumstances surrounding Edwards’s habitual offender finding. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 17, 2005, a jury found Edwards guilty of Class B felony criminal
confinement1 and Class D felony resisting law enforcement.2 Following the pronouncement
of those verdicts, the following exchange occurred:
[Court]: Mr. Edwards, I might remind you that you are still under oath. Is it true that on April 13 through June 27, 1998 you were accused of the crime of stalking as a felony and you were convicted of that crime on March 4, 1999 here in Monroe County? [Edwards]: Yes. [Court]: Is it true that on August 7, 2003 you were prosecuted for operation with a 0.08% BAC as a class D felony and that you were convicted of that charged [sic] on February 18, 2004 here in Monroe County? [Edwards]: Yes. [Court]: And you concede that under the law of the state of Indiana pursuant to the allegation filed with the state of Indiana you are deemed a[n] habitual offender because of those convictions[?] [Edwards]: (inaudible) [Court]: I unfortunately cannot tell you when there will be a presentence or a sentencing date.
(Tr. at 541-42.) The trial court sentenced Edwards to eighteen years for Class B felony
criminal confinement, three years for Class D felony resisting law enforcement, and twenty-
five years for being an habitual offender, for an aggregate sentence of forty-six years.
1 Ind. Code § 35-42-3-3(b)(2). 2 Ind. Code § 35-44.1-3-1(b)(1).
2 On his first direct appeal, Edwards’ appellate counsel, Lorraine Rodts, argued the trial
court erred because: (1) it did not attach the habitual offender enhancement to a felony
sentence; (2) it did not inquire and determine the costs and fees the court can properly
impose; (3) it improperly sentenced Edwards to consecutive sentences; and (4) it provided an
insufficient sentencing statement. Edwards v. State, 53A05-0509-CR-537 (Ind. Ct. App.
August 28, 2006), trans. denied. We remanded for the trial court to address all issues
presented except the consecutive sentences.
On remand, the trial court sentenced Edwards to the same aggregate sentence. It
attached the habitual offender finding to the Class B felony criminal confinement conviction
and provided/entered a more specific sentencing statement.
Rodts represented Edwards in a second direct appeal. In that appeal, Edwards argued
the trial court’s resentencing statement did not comply with our court’s resentencing order,
the trial court abused its discretion when sentencing Edwards, and the trial court should have
awarded Edwards credit for both time served and good time. Edwards v. State, 53A01-
0702-CR-63 (Ind. Ct. App. August 23, 2007), trans. denied. We affirmed.
On September 18, 2008, Edwards filed a pro se petition for post-conviction relief. On
February 25, 2011, Edwards, by counsel, filed an amended petition for post-conviction relief.
The post-conviction court held a hearing on the matter on May 11, 2012, and on August 9, it
issued an order denying the amended petition.
DISCUSSION AND DECISION
Post-conviction proceedings afford petitioners a limited opportunity to raise issues
3 that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763
N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the
petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party
appealing a negative post-conviction judgment must establish that the evidence is without
conflict and, as a whole, unmistakenly and unerringly points to a conclusion contrary to that
reached by the post-conviction court. Id. Where, as here, the post-conviction court makes
findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule
1(6), we do not defer to the court’s legal conclusions, but “the 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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.
2000) (citation omitted). The post-conviction court is the sole judge of the evidence and the
credibility of the witnesses. Smith v. State, 792 N.E.2d 940, 943 (Ind. Ct. App. 2003).
Convictions should be reversed for ineffective assistance of counsel when a defendant
shows counsel’s performance fell below an objective standard of reasonableness and the
deficient performance so prejudiced the defendant as to deprive him of a fair trial. Pennycuff
v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland v. Washington, 466 U.S. 668, 697
(1984), reh’g denied). We presume counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id. Isolated poor
strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel.
Id. If deficient performance of counsel can be proven, the defendant must further show a
reasonable probability that it altered the outcome of the case. Id.
4 Claims of ineffective assistance of appellate counsel are reviewed using the same
standard. Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). These claims generally fall into
three categories: (1) denying access to an appeal; (2) waiver of issues; and (3) failure to
present issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997), reh’g denied.
Edwards argues his appellate counsel was ineffective because she did not raise whether the
trial court properly obtained his admission he was an habitual offender. We disagree.
In denying Edwards’ petition for post-conviction relief, the post-conviction court
found:
Mr. Edwards argues the habitual offender sentence should be vacated, as he was not advised of his right to trial by jury. He has not shown how he was prejudiced by not being advised of his right to a jury trial. Mr. Edwards was represented by counsel throughout the proceedings. And, he and his counsel conferred before he admitted to the habitual offender status. At sentencing, Mr. Edwards could have been sentenced to a maximum term of 30 years for being an habitual offender. Mr. Edwards’ attorney, Phyllis Emerick, argued that since he admitted to the habitual offender status, some lesser sentence should be imposed as a benefit . . . . At sentencing, Judge Bridges imposed a sentence of 25 years for being an habitual offender, which reflected a 5-year reduction from the maximum potential sentence. Further, there was no evidence presented by Mr. Edwards challenging the felony convictions that establish his habitual offender status.
(App. at 65-6.)
The post-conviction court relied on Hogan v. State, 966 N.E.2d 738, 748 (Ind. Ct.
App. 2012), reh’g denied, in which a panel of our court held Hogan’s trial court was not
ineffective because Hogan failed to present evidence he lacked the felony convictions
required to classify him as an habitual offender. The same is true in the instant case.
Edwards has not presented evidence he did not have two felony convictions as required by
5 Ind. Code § 35-50-2-8.
Therefore, had his appellate counsel presented that issue before our court on appeal, it
would not have changed the outcome of his appeal. Edwards has not demonstrated prejudice
by the omission of the issue, which was moot, and thus has not demonstrated his appellate
counsel was ineffective. Accordingly, we affirm.
Affirmed.
BAKER, J., and MATHIAS, J., concur.