Kendall v. State

886 N.E.2d 48, 2008 Ind. App. LEXIS 970, 2008 WL 1990820

• Court: Indiana Court of Appeals
• Decided: May 9, 2008
• Docket: 49A05-0707-PC-391
• Status: Published

Opinions

OPINION

KIRSCH, Judge.

Steven Kendall appeals the post-conviction court’s denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 16, 2001, the State charged Kendall with attempted murder, aggravated battery, and two counts of unlawful possession of a firearm by a serious violent felon. On February 25 through 27, 2002, a jury trial was held, and on February 27, the jury found Kendall guilty of attempted murder¹ as a Class A felony and aggravated battery² as a Class B felony. At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and sentenced Kendall to thirty years.

Kendall appealed his conviction, and on June 17, 2003, this court affirmed Kendall’s aggravated battery conviction, vacated the attempted murder conviction, and remanded this cause to the trial court for resentencing on Count II, aggravated battery, a Class B felony. Kendall v. State, 790 N.E.2d 122 (Ind.Ct.App.2008), trans. denied. On December 3, 2003, a sentencing hearing was held. The trial court noted the following aggravating factors: (1) Kendall was released on bond at the time he committed the instant offense; (2) the nature and circumstances of the crime were heinous; (3) Kendall was in need of correctional treatment best provided by commitment to a penal facility; and (4) a reduced sentence would depreciate the seriousness of the offense. The trial court did not identify any mitigating factors. The trial court then sentenced Kendall to twenty years in the Department of Correction, the maximum sentence for a Class B felony.

On December 29, 2003, Kendall appealed his sentence pursuant to Indiana Appellate Rule 7(B). Kendall filed his brief on April 28, 2004, and the State filed its brief on May 26, 2004. On June 24, 2004, the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Approximately six weeks later on August 3, 2004, we affirmed Kendall’s sentence. Kendall v. State, 813 N.E.2d 449 (Ind.Ct.App.2004). Kendall did not file a petition for rehearing with our court, nor did he file a petition for transfer to the Indiana Supreme Court. This failure, Kendall claims, is where his appellant counsel was ineffective.

On February 10, 2005, Kendall filed a Petition for PosNConviction Relief. On August 7, 2006, Kendall filed an Amended Petition for Post-Conviction Relief. On October 18, 2006, and March 14, 2007, the post-conviction court held hearings on Kendall’s Petition. On May 21, 2007, the post-conviction court issued its conclusions, which state in pertinent part:

Specifically, [Kendall] claims that his appellate counsel was ineffective in failing to present an argument that [Kendall’s] sentence violated the [United States] Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh’g denied 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004).

[Kendall] raises a fairly narrow issue of law, wherein it is very important to be aware of the exact sequence of events in the process of [Kendall’s] appeal, and in the development of Indiana case law surrounding Blakely. [Kendall] filed his Notice of Appeal with the Indiana Court of Appeals on December 29, 2003. [Kendall] filed his appellant’s brief on April 28, 2004, and the State filed its appellee’s brief on May 26, 2004. The Court of Appeals decided [Kendall’s] direct appeal on August 3, 2004. Less than six weeks prior to the Court of Appeals[’] decision, on June 24, 2004, the United States Supreme Court issued Blakely. Seven months after the Court of Appeals decision on his appeal, on March 9, 2005, the Indiana Supreme Court decided Smylie v. State, 823 N.E.2d 679 (Ind.2005), which applied Blakely and held that portions of Indiana’s sentencing scheme violated a defendant’s right to trial by jury.

The Smylie court concluded it would be “appropriate to be rather liberal in approaching whether an appellant and his lawyer have adequately preserved and raised a Blakely issue.” [Smylie,] 823 N.E.2d at 690. Subsequently, [our] Supreme Court explained it had:

[R]elaxed the rule that a particular sentencing claim must be raised in an appellant’s initial brief on direct appeal in order to receive review on the merits. For cases in which the appellant’s initial brief on direct appeal was filed prior to the date of the Smylie decision (March 9, 2005), an appellant who had contested his or her sentence in some respect in the appellant’s initial brief on direct appeal is entitled to review on the merits of a subsequently-raised Blakely [sic] claim. (The keys here are that (1) some sentencing claim must have been raised in the appellant’s initial brief on direct appeal and (2) the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.)

Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005) (internal citations and footnote omitted).

Under the liberal approach set forth by our Indiana Supreme Court, seven months after the appellate decision herein, it appears [Kendall] could have added a Blakely claim in an amendment to his [Appellant’s] brief, or in a petition for rehearing or petition to transfer. However, [Kendall] filed no amendments, and requested neither rehearing nor transfer, to add a Blakely claim. Accordingly, applying the inescapable logic of Smylie and its progeny, [Kendall] has forfeited his challenge under Blakely. (“The keys here are that ... the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.”).

Stemming from this waiver of a potential Blakely issue, [Kendall] argues he was denied effective assistance of counsel. When analyzing claims based on a failure to raise issues on appeal, courts must be especially deferential to counsel’s decision, because deciding which issues to raise “is one of the most important strategic decisions to be made by appellate counsel.” Bieghler v. State[,] 690 N.E.2d 188, 193 (Ind.[] 1997). [Kendall] must demonstrate “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.” Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind.2000), cert. denied[,] 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002) (internal citations omitted). In addition to being significant and obvious, the unraised issues must be “clearly stronger” than the issues counsel raised. Bieghler, 690 N.E.2d at 194.

Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Fisher v. State, 810 N.E.2d 674, 677 (Ind.2004); Bieghler, 690 N.E.2d at 193-95. The failure to amend, or seek rehearing or transfer in this case resulted in forfeiture of [Kendall’s] Blakely claim and, accordingly, the claim should be evaluated as a waiver of issues. Specifically, this [c]ourt must determine whether challenging [Kendall’s] sentence under Blakely was a significant and obvious issue at the time. Under the facts of this case, this court concludes that it was not.

In deciding what is sufficient to preserve a Blakely claim, our Indiana Supreme Court has stated:

Because Blakely represents a new rule that was sufficiently novel that it would not have been generally predicted, much less envisioned to invalidate part of Indiana’s sentencing structure, requiring a defendant or counsel to have prognosticated the outcome of Blakely or of today’s decision would be unjust ... [. A] trial lawyer or an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided.

Smylie, 823 N.E.2d at 689, 690.

An attorney is not required to anticipate changes in the law and object accordingly in order to be effective. Id. at 690. Issues raised for the first time on rehearing or transfer are usually considered waived. Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind.Ct.App.2004). Applying this to the case at bar, based on long standing appellate precedent, it was reasonable for counsel to presume a claim raised for the first time on rehearing or transfer would be waived. Particularly 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.” [Smylie, 823 N.E.2d at 687.] Consequently, appellate counsel was not ineffective for failing to anticipate our Indiana Supreme Court’s decision in Smylie and its course of liberal Blakely-claim preservation, and therefore [Kendall] has not met his burden on this issue.

Appellant’s Br. at 15-20.

Kendall now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Kendall claims he was denied effective assistance of appellate counsel in violation of his rights under the United States Constitution and the Indiana Constitution. In particular, he contends his appellate counsel was deficient for failing to file an amended brief, a petition for rehearing, or a petition for transfer in order to raise a Blakely claim.

Post-conviction hearings do not afford defendants the opportunity for a “super appeal.” Moffitt v. State, 817 N.E.2d 239, 248 (Ind.Ct.App.2004). The petitioner has the burden of establishing the grounds for post-conviction relief by a preponderance of the evidence. Ind. Posh-Conviction Rule 1(5); see also id. Because Kendall is appealing from a negative judgment, to the extent his appeal turns on factual issues, he must provide evidence that as a whole unerringly and unmistakably leads us to believe there is no way within the law that a post-conviction court could have denied his post-conviction relief petition. See Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56. 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 its decision will be disturbed as contrary to law. Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied.

The standard by which we review claims of ineffective assistance of appellate counsel is the same standard applicable to claims of ineffectiveness of trial counsel. Bieghler v. State, 690 N.E.2d 188, 193 (Ind.1997). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established that the defendant must prove (1) his or her counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) 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. Johnson v. State, 832 N.E.2d 985, 996 (Ind.Ct.App.2005), trans. denied (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Essentially, the defendant must show that appellate counsel was deficient in his or her performance and that deficiency resulted in prejudice. Johnson, 832 N.E.2d at 1006. 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.” Bieghler, 690 N.E.2d at 199; Davis v. State, 598 N.E.2d 1041, 1051 (Ind.1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind.1987). Further, “ ‘appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law.’ ” Walker v. State, 843 N.E.2d 50, 60 (Ind.Ct.App.2006) (quoting Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind.1999)). Thus, there is a strong presumption that counsel rendered adequate assistance and used professional judgment. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001).

Kendall contends his appellate counsel was ineffective because her performance fell below an objective standard of reasonableness when she failed to file an amended brief, petition for rehearing, or petition for transfer to add a claim that the trial court violated his Sixth Amendment rights as decided by the United States Supreme Court in Blakely while his appeal was pending.

When an ineffective assistance of appellant counsel claim involves failure to raise an issue, and that failure results in waiver, our Supreme Court has set forth a two-part test to determine whether counsel performance was ineffective. Bieghler, 690 N.E.2d at 193. First, the issue must be significant and obvious and a failure to raise it cannot be explained by any reasonable strategy. Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind.2000), cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002) (internal citations omitted). Second, it must be “clearly stronger” than all of the other issues that counsel raised. Bieghler, 690 N.E.2d at 193.³

In order for Kendall to establish a violation of his constitutional right to effective assistance of counsel, he must first demonstrate that filing an amended brief or other pleading to raise Blakely issues was within counsel’s objective standard of reasonable performance. See Johnson, 832 N.E.2d at 996 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Based on stare decisis and the confusion following Blakely and its progeny, we find the standard argued by Kendall to be outside counsel’s objective prevailing professional norms. Instead, at the time of Kendall’s appeal, raising Blakely issues was only a subjee-tive standard of reasonable performance. Since that time it has proven to be an objective standard that is of no avail to Kendall.

On the direct appeal of his sentence, Kendall argued that the trial court improperly applied aggravating factors to enhance his sentence, and that his sentence was inappropriate in light of the nature of his offense and his character. After Kendall’s appeal was fully briefed, on June 24, 2004, the United States Supreme Court issued its decision in Blakely. On August 3, 2004, we affirmed Kendall’s conviction and sentence in an unpublished memorandum decision. The earliest decision from this court holding that Blakely applied in Indiana’s sentencing scheme came over two months later on October 20, 2004, in Krebs v. State, 816 N.E.2d 469 (Ind.Ct.App.2004). In Krebs, we sua sponte raised the issue of whether the trial court’s finding of aggravating factors without the assistance of a jury violated Krebs’s Sixth Amendment rights. Id. at 474.

On March 9, 2005, our Supreme Court issued its decision in Smylie v. State, 823 N.E.2d 679 (Ind.2005), holding that Indiana’s sentencing scheme'violated “the Sixth Amendment right to trial by jury, and that the new rule of Blakely should apply to all cases pending on direct review at the time Blakely was announced in which the appellant has adequately preserved appellate review of the sentence.” Id. at 681-82. The Smylie court stated that to receive the benefit of a new rule of law, a claimant must preserve the issue for appeal. Id. at 688 (citing Pirnat v. State, 607 N.E.2d 973, 974 (Ind.1993)). In explaining how an issue is typically preserved, the Smylie court referred to Coleman v. State, 558 N.E.2d 1059 (Ind.1990), which considered the retroactive applicability of the constitutional rule announced in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989).⁴ Our Supreme Court concluded that Booth and Gathers applied retroactively to cases pending on direct appeal, “so long as the appellant has preserved [the issue for appeal] by objecting at trial.” Smylie, 823 N.E.2d at 688 (quoting Coleman, 558 N.E.2d at 1061) (emphasis in original).

Despite this typical requirement for preserving issues, the Smylie court concluded that “[bjecause Blakely represents a new rule that was sufficiently novel that it would not have been generally predicted, much less envisioned to invalidate part of Indiana’s sentencing structure, requiring a defendant or counsel to have prognosticated the outcome of Blakely or of today’s decision would be unjust.” Smylie, 823 N.E.2d at 689. Our Supreme Court summarized by stating,

First, as a new rule of constitutional procedure, we will apply Blakely retroactively to all cases on direct review at the time Blakely was announced. Second, a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyer-ing.

Id. at 690-691.

On November 9, 2005, in Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005), our Supreme Court clarified that any appellant who filed their initial brief prior to Smylie and failed to raise a Blakely claim, but nonetheless challenged their sentence in some form, could raise a Blakely claim by way of amendment, petition for rehearing, or petition for transfer. The Kincaid court made this pronouncement despite the fact that Kincaid had actually raised a Blakely claim in his initial appellate brief. Id.

When the Supreme Court decided Blakely on June 24, 2004, Kendall’s case was fully briefed in this court. Our opinion was handed down on August 3, 2004. Typical procedure for this court would have been to circulate the draft opinion for votes and comments on July 13, 2004 — at least three weeks prior to the hand down date. Thus, appellate counsel would have had a maximum of twelve working days to read and analyze Blakely and seek to file an amended brief or twenty-seven working days to seek rehearing.

Moreover, there is no indication that trial counsel had made any request for a jury at sentencing under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) or had objected to the sentencing procedure in any way. Thus, counsel would have had to seek to amend the brief or seek rehearing on a matter on which the legal issue had not been preserved. Indeed, competent appellate counsel could well have concluded that the issue was not properly preserved and was waived. It was not until our Supreme Court decided Smylie on March 9, 2005 that the question regarding the preservation of a Blakely issue was resolved. And, it was not until eight months later in Kin-caid, that our Supreme Court ruled that a defendant like Kendall, who had generally challenged his sentence on appeal, was entitled to an appellate amendment to preserve a Blakely claim. Kincaid, 837 N.E.2d at 1010.

In Smylie, issued one year and four months after Kendall was sentenced and more than ten months after his appellate brief was filed, our Supreme Court for the first time directly addressed Blakely’s application to Indiana’s sentencing scheme and held the scheme was invalid, at least to the extent that it permitted judges to enhance sentences above the presumptive based on facts neither admitted by the defendant nor proven to a jury. Smylie, 823 N.E.2d at 683-84. Smylie also addressed whether the defendant there had waived his argument regarding Blakely because he had failed to lodge a Sixth Amendment objection to his sentencing procedures. Our Supreme Court concluded there was no waiver or forfeiture of this argument and held, “a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyering.” Id. at 691. The Supreme Court also stated that “requiring a defendant or counsel to have prognosticated the outcome of Blakely or of today’s decision would be unjust.” Id. at 689 (emphasis added).⁵

Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer. We commend the post-conviction court for its clear and thoughtful entry.⁶

Affirmed.

MAY, J., concurs. RILEY, J., dissents with separate opinion.

1 . See IC 35-41-5-1; IC 35-42-1-1.

2 . See IC 35-42-2-1.5.

3 . Kendall did not cite this standard of review for reviewing the issue of whether his appellant counsel was effective. A strict reading of our appellate rules would render this standard waived and the more deferential standard cited by Kendall would apply. Ind. Appellate Rule 46(A)(8)(b). Given that a flood of post-conviction claims involving ineffective assistance of appellate counsel in a Blakely context is at the mercy of this and other decisions, we address Kendall’s argument under the most defendant friendly standard used by our Supreme Court.

4 . Both Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) were overruled by Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

5 . The dissent suggests that Kendall’s appellate counsel's failure to raise Kendall’s right to a Blakely issue evidenced her ineffectiveness, and that Indiana's generally liberal application of Blakely raises the effectiveness standard. See Tr. at 18-19, 20. As to the first contention, the issue is not whether Kendall could have raised a Blakely issue, but instead, the issue is whether raising a Blakely issue was within a reasonable standard of effective assistance, and, if so, whether Kendall's counsel provided that assistance. Borrowing our Supreme Court's language as used by the post-conviction court and as mentioned above, we too find the issue "sufficiently novel” so as not to hold our bar, at the time of Kendall's appeal, to an objective standard requiring it to amend appeals to raise such Blakely issues. Smylie, 823 N.E.2d at 689. As to the second argument, Indiana’s liberal interpretation of Blakely does not retroactively define counsel’s effectiveness standard. Specifically, while Smylie allowed defendants to raise Blakely issues on direct appeal, or on amended appeal, without a trial objection, contrary to federal courts (United States v. Booker, 543 U.S. 220, 268, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), Smylie did not retroactively apply a reasonableness standard to counsel's performance.

6 . Judge Richard Kopf, United States District Judge for the District of Nebraska, spoke for many of us recently when he wrote:

There are a lot of really good, hard-working people “in the field” plus tens of thousands of defendants who deserved far better than the seven years of “water boarding” that ensued between Apprendi and Gall.

Richard G. Kopf, The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough and Gall, OSJCL AMICI: Views From the Field (January 2008), at http://osjcl. blogspot.com. The above quotation is number one on Judge Kopf’s list. We commend all ten to those who have struggled to apply Apprendi and its progeny during the last few years.