Matthew Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 31, 2018
• Docket: 79A05-1711-PC-2505
• Status: Published

Opinion

FILED May 31 2018, 9:00 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana J. Michael Sauer Ellen H. Meilaender Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew Johnson, May 31, 2018 Appellant-Defendant, Court of Appeals Case No. 79A05-1711-PC-2505 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1407-PC-5

May, Judge.

[1] Matthew Johnson appeals the denial of his petition for post-conviction relief.

He argues the post-conviction court erred when it rejected his allegation that his

appellate counsel was ineffective for failing to argue the application of the

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 1 of 9 Proportionality Clause to Johnson’s conviction of Class B felony aggravated

battery. We affirm.

Facts and Procedural History [2] On July 20, 2011, the trial court found Johnson guilty of Class B felony

aggravated battery, 1 Class C felony battery, 2 Class B felony possession of

methamphetamine, 3 Class C felony possession of methamphetamine, 4 and

Class C felony possession of chemical reagents or precursors with intent to

manufacture controlled substances. 5 The trial court also found Johnson was a

habitual substance offender. 6 On September 30, 2011, the trial court sentenced

Johnson to fifteen years for Class B felony aggravated battery to be served

consecutive to fifteen years for Class B felony possession of methamphetamine,

which was enhanced by five years by virtue of Johnson’s habitual substance

offender adjudication, for an aggregate sentence of thirty-five years

incarcerated. 7

1 Ind. Code § 35-42-2-1.5 (1997). 2 Ind. Code § 35-42-2-1(a)(3) (2009). 3 Ind. Code § 35-48-4-6.1 (b)(2) (2006). 4 Ind. Code § 35-48-4-6.1(b)(1) (2006). 5 Ind. Code § 35-48-4-14.5(e) (2006). 6 Ind. Code § 35-50-2-10(b) (2006). 7 The trial court did not enter sentences for the Class C felonies due to double jeopardy concerns.

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 2 of 9 [3] On appeal, Johnson’s appellate counsel raised four issues:

(1) whether the court abused its discretion by denying his motion to sever the drug-related charges; (2) whether the court abused its discretion by refusing to add language to the self-defense instruction; (3) whether the court abused its discretion by refusing to instruct the jury regarding defenses to the drug charges; and (4) whether the sentence was inappropriate.

(App. Vol. II at 127.) We affirmed Johnson’s convictions and sentence.

Johnson v. State, Cause No. 79A02-1110-CR-991 (Ind. Ct. App. Sept. 21, 2012).

[4] On July 16, 2014, Johnson filed a pro se petition for post-conviction relief. On

December 15, 2016, Johnson, with the aid of counsel, filed an amended petition

for post-conviction relief. Johnson argued his appellate counsel was ineffective

for failing to argue on appeal that Johnson’s conviction of Class B felony

aggravated battery violated the Proportionality Clause. The post-conviction

court held an evidentiary hearing on the petition on August 2, 2017. On

October 27, 2017, the post-conviction court denied Johnson’s petition.

Discussion and Decision [5] A post-conviction petition is not a substitute for an appeal, nor does it afford a

petitioner a “super appeal.” Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).

Post-conviction proceedings afford petitioners a limited opportunity to raise

issues that were unavailable or unknown at trial and on direct appeal. Davidson

v. State, 763 N.E.2d 441, 443 (Ind. 2002), reh’g denied, cert. denied, 537 U.S. 1122

(2003). As post-conviction proceedings are civil in nature, the petitioner must

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 3 of 9 prove his grounds for relief by a preponderance of the evidence. Id. A party

appealing a post-conviction judgment must establish that the evidence is

without conflict and, as a whole, unmistakably 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) (internal quotation and citation omitted), reh’g denied, cert.

denied, 534 U.S. 830 (2001).

[6] We review claims of ineffective assistance of appellate counsel using the same

standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810

N.E.2d 674, 676-7 (Ind. 2004). The defendant must show that appellate

counsel was deficient in his performance and that the deficiency resulted in

prejudice. Id. at 677. A claim of ineffective appellate assistance generally falls

into one of three categories: (1) denial of access to an appeal; (2) waiver of

issues; or (3) failure to present issues well. Id. We employ a two-part test to

evaluate “waiver of issue” claims: (1) whether the unraised issues are significant

and obvious from the face of the record, and (2) whether the unraised issues are

“clearly stronger” than the raised issues. Id.

[7] Because counsel has considerable discretion in choosing strategy and tactics, we

presume counsel’s assistance was adequate and all significant decisions were

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 4 of 9 made in the exercise of reasonable professional judgment. State v. Miller, 771

N.E.2d 1284, 1288 (Ind. Ct. App. 2002), reh’g denied, trans. denied. One of the

most important strategic decisions is deciding what issues to raise on appeal.

Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh’g denied, cert. denied, 525

U.S. 1021 (1998). Appellate counsel is not ineffective for declining to present a

claim that had no merit. Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App.

1995), trans. denied. We consider the reasonableness of appellate counsel’s

strategic decisions based upon precedent available at the time of the direct

appeal. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003), reh’g

denied, trans. denied.

[8] In his post-conviction relief petition, Johnson argued his appellate counsel was

ineffective because appellate counsel did not present on direct appeal the

argument that the Proportionality Clause of the Indiana Constitution prohibited

sentencing Johnson for Class B felony aggravated battery because Class B

felony aggravated battery and Class D felony criminal recklessness 8

encompassed the same elements. The Proportionality Clause of the Indiana

Constitution states: “All penalties shall be proportioned to the nature of the

offense.” Ind. Const. Article 1, Section 16. A sentence violates the

Proportionality Clause when “offenses with identical elements [are] given

8 Ind. Code § 35-42-2-2(d) (2006).

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 5 of 9 different sentences.” Poling v. State, 853 N.E.2d 1270, 1276-7 (Ind. Ct. App.

2006), reh’g denied.

[9] Before the post-conviction court, Johnson argued his appellate counsel should

have presented a Proportionality Clause argument based on Johnson’s

perception that there existed a “split of authority in the Court of Appeals on the

Proportionality Clause[.]” (Br. of Appellant at 11.) Johnson contended a split

was created our court’s holdings in Poling 9 and Matthews v. State, 944 N.E.2d 29

(Ind. Ct. App. 2011), reh’g denied, and this alleged split made the Proportionality

Clause argument stronger than the arguments appellate counsel presented on

appeal.

[10] During the post-conviction evidentiary hearing, appellate counsel argued he did

not present a Proportionality Clause argument as part of Johnson’s direct

appeal based on our holding in Matthews, which stated, in relevant part, that a

conviction of Class B felony aggravated battery does not violate the

Proportionality Clause because Class B felony aggravated battery and Class D

criminal recklessness do not have the same elements. 944 N.E.2d at 33. The

post-conviction court found:

The Matthews decision was issued 14 months before appellate counsel filed his brief. Matthews was grounded in the 2008 Mann

9 Poling held the elements of Class C felony child neglect and Class D felony child neglect were identical and, thus, Poling’s conviction and sentence for Class C felony child neglect violated the Proportionality Clause. Poling, 853 N.E.2d at 1277. By contrast, the elements of Class B felony aggravated battery and Class D felony criminal recklessness are not identical, as held in Matthews. Matthews, 944 N.E.2d at 33.

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 6 of 9 decision. These cases were existing precedent and failed to follow the Poling decision upon which Johnson relies. The Matthews case is directly on point in this case and was existing case law at the time of Johnson’s appeal. Thus, Johnson cannot demonstrate that the issue his appellate counsel failed to raise would have been clearly more likely to result in reversal or order for new sentencing.

(App. Vol. II at 133-4.)

[11] In Matthews, our court affirmed the post-conviction court’s denial of post-

conviction relief based on an argument similar to that raised here by Johnson.

Matthews asserted his counsel, who represented him at the trial and appellate

levels, was ineffective because he did not argue the Proportionality Clause as

related to Matthews’ conviction and sentence for Class B felony aggravated

battery and Class C felony battery. Matthews, 944 N.E.2d at 33. Like Johnson,

Matthews argued the elements for Class B felony aggravated battery were

identical to the elements for Class D felony criminal recklessness, and thus his

counsel was ineffective for failing to argue the Proportionality Clause because

his conviction of and sentence for Class B felony aggravated battery violated the

clause. Our court concluded

the mental state required for Class D felony criminal recklessness is different from the mental state required for the other two crimes [Class B felony aggravated battery and Class C felony battery]. . . . Because the three crimes do not have identical elements, the proportionality clause of our Constitution is not offended if our legislature assigns different sentences to them.

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 7 of 9 Id. Therefore, we held Matthews had not demonstrated he was prejudiced by

any alleged error his counsel made in not arguing the Proportionality Clause.

[12] The same is true here. When appellate counsel filed Johnson’s direct appeal,

Matthews had recently been handed down and was directly on point, as its

holding addressed the same issue Johnson now argues should have been

presented: whether the elements of Class B felony aggravated battery and Class

D felony criminal recklessness were identical, making their disparate sentences

violate the Proportionality Clause. As appellate counsel relied upon the

precedent available and directly on point at the time of the direct appeal,

Johnson has not demonstrated appellate counsel was ineffective for failing to

argue for the application of the Proportionality Clause. See Bieghler, 690 N.E.2d

at 194 (courts “should not find deficient performance when counsel’s choice of

some issues over others was reasonable in light of the facts of the case and the

precedent available to counsel when that choice was made”). Therefore, the

trial court did not err when it denied Johnson’s petition for post-conviction

relief. See Ben-Yisrayl, 729 N.E.2d at 106 (appellate court will reverse post-

conviction court’s decision only upon demonstration of clear error).

Conclusion [13] Johnson has not demonstrated his appellate counsel was ineffective for failing

to present a Proportionality Clause argument because the precedent existing at

the time undermined the validity of Johnson’s proposed argument.

Accordingly, we affirm.

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 8 of 9 [14] Affirmed.

Riley, J., and Mathias, J., concur.

Court of Appeals of Indiana | Opinion 79A05-1711-PC-2505 | May 31, 2018 Page 9 of 9