Leif O'Connell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 17, 2018
• Docket: 18A-PC-372
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 17 2018, 5:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Leif O’Connell Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leif O’Connell, December 17, 2018 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-372 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Respondent. Miller, Judge Trial Court Cause No. 71D01-1701-PC-6

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 1 of 13 Case Summary and Issues [1] Following a jury trial in 1999, Leif O’Connell was convicted of one count of

murder and five counts of attempted murder and sentenced to 175 years.

O’Connell pursued a direct appeal, as a result of which his convictions were

affirmed. In 2014, O’Connell’s first petition for post-conviction relief was

denied. In that petition, O’Connell alleged his trial counsel and appellate

counsel were ineffective in several respects. O’Connell did not appeal the

denial of post-conviction relief.

[2] In 2016, O’Connell sought permission from this court to file a successive

petition for post-conviction relief, which this court granted. O’Connell then

filed his successive petition for post-conviction relief, which the post-conviction

court denied. O’Connell now appeals the denial, raising the following issues:

1) whether the post-conviction court erred in determining he did not receive

ineffective assistance of appellate counsel when appellate counsel raised issues

that had no merit and failed to raise significant and obvious issues; and 2)

whether the post-conviction court erred in determining he did not receive

ineffective assistance of trial counsel when trial counsel failed to object to

prosecutorial misconduct during closing arguments and misadvised him

regarding a plea agreement offer. The State asserts O’Connell’s claims are

barred because he raised issues concerning ineffective assistance of trial and

appellate counsel in previous proceedings. Concluding the State is correct and

that O’Connell’s claims are procedurally defaulted, we affirm the denial of post-

conviction relief.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 2 of 13 Facts and Procedural History [3] O’Connell purchased a gun on February 11, 1997. From February 12 to

February 26, O’Connell shot at six people, injuring four and killing one. The

State charged O’Connell with one count of murder and five counts of attempted

murder. At the conclusion of his jury trial, O’Connell was convicted of all

counts. The trial court imposed consecutive sentences totaling 175 years.

[4] On direct appeal, O’Connell raised four issues: 1) whether O’Connell waived

the right to a court-ordered pre-trial lineup and whether the trial court erred in

allowing in-court identifications by two victims; 2) whether O’Connell waived

any error in the trial court allowing a surprise witness by the State; 3) whether

the evidence was sufficient to support his convictions; and 4) whether the trial

court erred in sentencing O’Connell to consecutive sentences. Our supreme

court affirmed O’Connell’s convictions but found that the sentencing statement

was insufficient to afford meaningful review of the sentence and remanded to

the trial court on that issue. O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind.

2001). On remand, the trial court entered a new sentencing order but imposed

the same aggregate 175-year sentence. This court affirmed the sentence on

appeal. O’Connell v. State, No. 71A04-0105-CR-224 (Ind. Ct. App. Nov. 30,

2001), trans. denied.

[5] In 2002, O’Connell filed his first petition for post-conviction relief pro se, which

was amended in 2012 by privately-retained counsel after the State Public

Defender withdrew. At the post-conviction hearing in 2014, the following

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 3 of 13 issues were addressed: whether O’Connell’s trial counsel provided ineffective

assistance by failing to raise an insanity defense at trial, failing to follow

through with a court-ordered pre-trial line-up and failing to object to

identification evidence presented at trial, failing to request a continuance

because a State’s witness was belatedly disclosed, and failing to retain a

ballistics expert. In addition, O’Connell claimed that his appellate counsel was

ineffective by failing to raise these instances of ineffective assistance of trial

counsel on direct appeal. The post-conviction court denied O’Connell’s

petition for post-conviction relief. No appeal was taken from the denial.

[6] In 2016, O’Connell filed with this court a petition for permission to file a

successive petition for post-conviction relief. In that petition, O’Connell alleged

as grounds for relief that his post-conviction counsel “was clearly wrong” in

raising the issue of whether appellate counsel was ineffective for failing to raise

the issue of ineffective assistance of trial counsel on direct appeal because that

practice is not encouraged; rather, post-conviction counsel should have raised

the issues of whether appellate counsel raised issues on appeal that were

without merit or that were not presented well and whether appellate counsel

failed to raise significant issues clearly present in the record. Appellant’s

Appendix, Volume 2 at 12. He also alleged as grounds for relief that his post-

conviction counsel’s “misrepresentation and bad advice” resulted in no

meritorious claims against appellate counsel in his first post-conviction

proceeding and caused him to forfeit his right to appeal meritorious issues

related to ineffective assistance of his trial counsel. Id. at 14-15. This court

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 4 of 13 granted O’Connell’s petition, concluding he “has established a reasonable

possibility that he is entitled to post-conviction relief[.]” Id. at 17.

[7] On October 5, 2016, O’Connell filed his successive petition for post-conviction

relief with the post-conviction court. The petition was subsequently amended

by permission of the post-conviction court. The issues raised therein were:

(a) Whether [O’Connell] was denied effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution; Article One, sections Twelve and Thirteen of the Indiana Constitution when appellate counsel raised issues that had no merit failing to present them well on appeal, and failing to raise significant and obvious issues stronger than the issues raised.

Id. at 20.

(b) Whether [O’Connell] was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article One, sections Twelve and Thirteen of the Indiana Constitution when Trial counsel failed to object to prosecutorial misconduct during closing arguments and misadvised [O’Connell] concerning an insanity defense and in declining a plea agreement offer.

Id. at 65 (emphasis omitted).1 With respect to appellate counsel, O’Connell

specifically argued he should have raised the following issues: whether the trial

1 In his reply brief, O’Connell withdraws his claim regarding the insanity defense because it is res judicata, having already been litigated in his first post-conviction proceeding. See Appellant’s Reply Brief at 6; see also, e.g., Conner v. State, 829 N.E.2d 21, 25 (Ind. 2005) (noting that to the extent a claim is the same as has been raised before and decided adversely, it is barred by the doctrine of res judicata).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 5 of 13 court abused its discretion in admitting autopsy photographs; whether the trial

court erred in dismissing two jurors and not dismissing a third; and whether the

State committed prosecutorial misconduct during closing argument. See id. at

26-33. The State responded, pleading the affirmative defenses of waiver and res

judicata. The post-conviction court held a hearing over two days in 2017 at

which O’Connell stated, “I feel that none of my previous appeals have any of

my issues ever been litigated to the fullest extent.” Transcript, Volume 1 at 55.

O’Connell called his trial and appellate counsel as witnesses. The post-

conviction court issued its order denying O’Connell relief on January 26, 2018.2

O’Connell now appeals the denial.

Discussion and Decision I. Standard of Review [8] Post-conviction proceedings are civil in nature and the petitioner must therefore

establish his claims by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5). Post-conviction procedures create a narrow remedy for subsequent

collateral challenges to convictions, and those challenges must be based on the

grounds enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575,

581 (Ind. Ct. App. 2012), trans. denied. “Post-conviction proceedings do not

afford the petitioner an opportunity for a super appeal, but rather, provide the

2 The post-conviction court’s order addresses O’Connell’s petition solely on the merits and does not address the State’s waiver or res judicata arguments.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 6 of 13 opportunity to raise issues that were unknown or unavailable at the time of the

original trial or the direct appeal.” Id.

[9] A petitioner who has been denied post-conviction relief faces a “rigorous

standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind.

2001). We may not reweigh the evidence or reassess the credibility of the

witnesses and we consider only the evidence and reasonable inferences

supporting the judgment. Hall v. State, 849 N.E.2d 466, 468-69 (Ind.

2006). The petitioner must show the evidence is without conflict and leads

“unerringly and unmistakably to a conclusion opposite that reached by the post-

conviction court.” Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App.

2002).

II. Trial & Appellate Counsel Claims [10] O’Connell concedes in his brief that he filed a successive petition for post-

conviction relief “raising Ineffective assistance of appellate counsel and trial

counsel[.]” Brief of Appellant at 7. His arguments on appeal are that appellate

counsel failed to review the pre-trial record, raised issues that “had no merit and

were destined to fail on appeal[,]” id. at 8, and failed to raise several issues that

were significant and obvious on the face of the record; and that trial counsel

failed to object to the State’s closing argument and misadvised O’Connell

regarding a plea offer from the State. His conclusion is that he “has proven

beyond the preponderance of the evidence that his trial counsel and appellate

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 7 of 13 counsels were ineffective in representing him during trial and on direct

appeal[.]” Id. at 40.

[11] The State asserts O’Connell’s claims are barred by res judicata or otherwise

procedurally defaulted. “Proper successive petitions contain claims that by

their nature could not have been raised in earlier proceedings.” Matheney v.

State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that could have been raised in

earlier proceedings but were not are procedurally defaulted; claims that have

already been decided adversely to the petitioner are barred from re-litigation in

successive post-conviction proceedings by res judicata. Id. O’Connell

acknowledges the State asserted the affirmative defenses of waiver and res

judicata in its response to his successive petition but claims that it is actually the

State that has waived this issue by failing to argue it at the post-conviction

hearing or address it in its proposed findings of fact and conclusions. However,

“where an issue has not been properly preserved for review, an appellate court

may decline to address such an issue whether or not the State has properly

pleaded or proved the affirmative defense of waiver.” Taylor v. State, 780

N.E.2d 430, 433 (Ind. Ct. App. 2002), trans. denied; see also Bunch v. State, 778

N.E.2d 1285, 1287 (Ind. 2002) (noting aside from the Trial Rule 8(C)

affirmative defense of waiver, there is a “doctrine of judicial administration

whereby appellate courts may sua sponte find an issue foreclosed under a

variety of circumstances in which a party has failed to take the necessary steps

to preserve the issue” known as procedural default). Therefore, we may

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 8 of 13 consider the State’s argument that O’Connell has not properly presented his

claims in this successive post-conviction proceeding.

[12] O’Connell claims his attorney provided poor representation during trial and

lists several alleged deficiencies. However, deficiencies in trial counsel’s

performance were raised in O’Connell’s first post-conviction petition and

addressed therein. O’Connell has not made any showing that the additional

deficiencies he now alleges were unavailable or unknown to him or his post-

conviction counsel in that proceeding. O’Connell’s current grounds for arguing

ineffective assistance of trial counsel were previously available but unasserted

and are therefore procedurally defaulted at this stage.

[13] O’Connell also claims his appellate attorney provided inadequate

representation during his direct appeal. Again, however, the assistance of his

appellate counsel was raised in his first post-conviction petition and O’Connell

has not made any showing that the claims of inadequate assistance he makes

now were unavailable then. In short, because the ineffectiveness of the counsel

who handled O’Connell’s trial and his direct appeal was raised in the first post-

conviction petition and decided adversely to him, he is not entitled to be heard

on additional issues bearing on their effectiveness in this successive petition.

See Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003) (“[A] defendant

must present all claims of ineffective assistance of counsel . . . at the same time.

Those not presented when a claim of ineffective assistance of counsel is first

advanced . . . are waived.”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 9 of 13 [14] To the extent O’Connell claims that this court’s order granting him permission

to file a successive petition for post-conviction relief allows him to raise these

claims, we first note that Post-Conviction Rule 1(12)(c) specifically states that

“[a]uthorization to file a successive petition is not a determination on the merits

for any other purpose[.]” And we note again that all grounds for relief available

to a petitioner under the Post-Conviction Rules are required to be raised in the

original petition. P-C.R. 1(8). Only those grounds that were not known or

available may be advanced in a successive petition for post-conviction relief.

O’Connell’s petition for permission to file a successive petition for post-

conviction relief invoked errors by his post-conviction counsel that would have

been available for the first time in a successive petition. But O’Connell

abandoned that line of argument when he changed tactics and addressed only

trial and appellate counsel in the successive petition he filed with the post-

conviction court.

[15] O’Connell has had direct appeals of his convictions and sentence and has

availed himself of the rule that permits a person convicted of a crime in an

Indiana court one collateral review of the conviction and sentence in a post-

conviction proceeding. See P-C.R. 1(1). He has completed the review of his

convictions and sentence to which he is entitled as a matter of right. That

O’Connell was granted permission to file a successive petition does not obligate

this court to consider issues that are procedurally defaulted such as those he

raises here. O’Connell’s successive petition for relief was therefore properly

denied.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 10 of 13 III. Post-Conviction Counsel Claims [16] To the extent O’Connell can be said to have challenged the performance of his

post-conviction attorney, his claims are subject to Graves v. State, 823 N.E.2d

1193, 1195-97 (Ind. 2005). In Graves, it was noted that post-conviction

proceedings are not criminal actions and therefore need not be conducted under

the same standard articulated in Strickland v. Washington, 466 U.S. 668 (1984),

for trial and appellate counsel. Rather, the standard for post-conviction counsel

is whether “counsel in fact appeared and represented the petitioner in a

procedurally fair setting which resulted in a judgment of the court” and a claim

of defective performance of counsel in a post-conviction proceeding “poses no

cognizable grounds for post-conviction relief[.]” Graves, 823 N.E.2d at 1196.

[17] In his petition requesting permission to file a successive petition for post-

conviction relief, O’Connell alleged his post-conviction counsel’s actions

resulted in forfeiting his appeal from the denial of his first post-conviction

petition. In Graves, the petitioner’s first post-conviction petition was denied.

His post-conviction counsel failed to timely appeal the post-conviction court’s

denial. The petitioner then filed a successive petition for post-conviction relief

alleging he received ineffective assistance of his post-conviction counsel. In

announcing the standard for evaluating the performance of post-conviction

counsel, the supreme court never discussed the failure to timely appeal or

suggested it was a consideration in assessing whether the petitioner was denied

a procedurally fair setting in which to adjudicate his post-conviction claim.

Rather, the court noted that the petitioner’s counsel appeared at and

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 11 of 13 participated in the post-conviction hearing and therefore, “certainly did not

abandon” the petitioner. 823 N.E.2d at 1197. The court affirmed the denial of

the petitioner’s second petition for post-conviction relief. Id.

[18] The same result obtains here. O’Connell’s post-conviction counsel appeared at

the post-conviction hearing, offered testimony from one witness by affidavit and

elicited testimony from another witness, and submitted proposed findings of

fact and conclusions of law on O’Connell’s behalf. In addition, counsel

apparently reached an agreement with the State to modify O’Connell’s

sentence; however, the agreement was not approved by the trial court.

O’Connell was represented by counsel in a procedurally fair setting and has no

grounds for challenging the performance of his post-conviction counsel.3

Conclusion [19] The issues O’Connell raised in his successive petition for post-conviction

regarding his trial and appellate counsel’s performance were all known and

available to him at the time of his first post-conviction proceeding and the

performance of his post-conviction counsel does not present a cognizable claim.

Therefore, the denial of his second post-conviction petition is affirmed.

3 O’Connell alleges “newly discovered evidence” from the post-conviction hearing concerning the sentencing judge’s impartiality and the post-conviction judge’s previous service in the county prosecutor’s office. O’Connell raises these issues for the first time on appeal and they are therefore waived. See Pavan v. State, 64 N.E.3d 231, 233 (Ind. Ct. App. 2016) (“It is well settled that issues not raised in a PCR petition may not be raised for the first time on appeal.”).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 12 of 13 [20] Affirmed.

Baker, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-372 | December 17, 2018 Page 13 of 13