Michael Heffern v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 22, 2016
• Docket: 38A02-1509-PC-1325
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 22 2016, 9:52 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana Indianapolis, Indiana George P. Sherman Steven H. Schutte Deputy Attorney General Deputy Public Defender Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Heffern, July 22, 2016 Appellant-Petitioner, Court of Appeals Cause No. 38A02-1509-PC-1325 v. Appeal from the Jay Circuit Court The Honorable Brian D. State of Indiana, Hutchison, Judge Appellee-Respondent. Trial Court Cause No. 38C01-1109-PC-2

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 1 of 9 Case Summary [1] Michael Heffern appeals the post-conviction court’s denial of his petition for

post-conviction relief challenging convictions for murder and Class B felony

robbery. We affirm.

Issue [2] The issue before us is whether Heffern received effective assistance of appellate

counsel.

Facts [3] On September 7, 2008, Michael Heffern and Joseph Randall went to Tina

Whiting’s home in Portland, Indiana, to watch a football game with Whiting,

Addison Pijnappels, Addison’s husband, Tom Smith, and Rod Berry. Whiting

told Heffern there was a man, Shawn Buckner, with whom she was having

problems. Heffern asked Whiting if she wanted him to beat up Buckner.

Whiting told Heffern that if he assaulted Buckner, he might be able to take

some pills from Buckner. Heffern and those present at the party discussed

beating Buckner and taking his pills.

[4] After they all agreed to assault Buckner, Whiting and Pijnappels left to find

Buckner. The two women lured Buckner to Whiting’s residence by promising

to have a sexual encounter with him. Heffern, Berry, and Smith hid in

Whiting’s home until the women returned with Buckner. After Buckner

entered the house, Heffern began assaulting him. Buckner tried to resist, but

Berry grabbed him and began hitting him as well. Buckner also tried to escape Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 2 of 9 from the men’s grasp and tried to run, but Smith pushed Buckner, causing him

to fall to the floor in the kitchen. The men then started kicking Buckner to

prevent him from standing up. As Buckner moaned, the men continued to kick

and punch him numerous times while lying on the floor. The men then

removed Buckner’s clothing and found he had $20. Smith gave the money to

Pijnappels and told her to go get more beer. Smith indicated he was going to

cut off Buckner’s penis, but Heffern stated he should not.

[5] The men wrapped Buckner in a blanket and carried him out to Berry’s vehicle.

While driving around, Heffern punched Buckner numerous times to stop his

moaning. The men stopped at a cornfield, and Heffern and Smith took

Buckner into the field, where Buckner was stabbed to death. The men returned

to Whiting’s home and began cleaning up the house to eliminate evidence of

the assault. The clothing that the men wore during the attack were placed in a

trash bag and later burned in a corn field.

[6] Heffern was subsequently convicted of murder and Class B felony robbery. At

Heffern’s sentencing hearing, the trial court identified a number of aggravating

factors. Based on the aggravating factors, the trial court imposed an additional

five years above the advisory sentence on each count and ordered the terms to

run consecutively for an aggregate sentence of seventy-five years. Heffern

appealed his conviction. The issues Heffern’s attorney raised on direct appeal

were whether: (1) the trial court properly allowed the State to amend the

charging information, changing count 2 from robbery resulting in serious bodily

injury to robbery while armed with a deadly weapon; (2) the trial court abused

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 3 of 9 its discretion when it admonished the jury regarding police officers’ statements

on a videotape and corresponding transcript admitted into evidence but did not

give a similar preliminary or final instruction; (3) the evidence was sufficient to

support Heffern’s convictions; and (4) the entry of judgment of conviction for

murder and robbery with a deadly weapon violated Heffern’s constitutional

right to be free from double jeopardy. We affirmed in a memorandum decision,

and our supreme court denied transfer. Heffern v. State, No. 38A05-1007-CR-

462 (Ind. Ct. App. Apr. 26, 2011), trans. denied.

[7] Heffern filed a post-conviction relief petition, claiming he received ineffective

assistance of appellate counsel because at the hearing on Heffern’s petition,

Heffern’s appellate counsel testified that he did not argue that the trial court

found and weighed an improper aggravating circumstance in determining

Heffern’s sentence. Counsel believed he might have discussed with Heffern the

risk that this court might increase Heffern’s sentence. Heffern testified that he

and his counsel did not discuss that risk. The post-conviction court entered

findings of fact and conclusions thereon denying Heffern’s petition. Heffern

now appeals the post-conviction court’s denial of his petition for post-

conviction relief.

Analysis [8] Heffern argues that the post-conviction court’s denial of his petition is clearly

erroneous. “The petitioner in a post-conviction proceeding bears the burden of

establishing grounds for relief by a preponderance of the evidence.” Ind. Post–

Conviction Rule 1(5). “When appealing from the denial of post-conviction Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 4 of 9 relief, the petitioner stands in the position of one appealing from a negative

judgment.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We review a post-

conviction courts’ factual findings under a “clearly erroneous” standard and do

not defer to any legal conclusions. Huddleston v. State, 951 N.E.2d 277, 280

(Ind. Ct. App. 2011), trans. denied. We do not reweigh the evidence or judge the

witnesses’ credibility and will examine only the probative evidence and

reasonable inferences that support the post-conviction court’s decision. Id. We

must determine if the court’s findings are sufficient to support the judgment. Id.

[9] Heffern contends that his appellate counsel was ineffective because he failed to

raise a sentencing argument on direct appeal. “To establish a post-conviction

claim alleging the violation of the Sixth Amendment right to effective assistance

of counsel, a defendant must establish before the post-conviction court the two

components set forth in Strickland v. Washington, 466 U.S. 668 (1984).” Kubsch

v. State, 934 N.E.2d 1138, 1147 (Ind. 2010). A petitioner must demonstrate

both that his counsel’s performance was deficient and that the petitioner was

prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

106 (Ind. 2000).

[10] A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778

N.E.2d 816, 824 (Ind. 2002). “Further, counsel’s performance is presumed

effective, and a defendant must offer strong and convincing evidence to

overcome this presumption.” Kubsch, 934 N.E.2d at 1147. To meet the

appropriate test for prejudice, the petitioner must show that there is a

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 5 of 9 reasonable probability that, but for counsels 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.” Strickland, 466

U.S. at 694. Failure to satisfy either prong will cause the claim to fail. Grinstead

v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[11] “The standard of review for appellate counsel is the same as for trial counsel in

that the defendant must show appellate counsel was deficient in his

performance and that the deficiency resulted in prejudice.” Garrett v. State, 992

N.E.2d 710, 719 (Ind. 2013). 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. Reed v. State, 856 N.E.2d

1189, 1195 (Ind. 2006). Heffern argues that his appellate counsel failed to raise

an issue on appeal, resulting in waiver. 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. “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 issues are ‘clearly stronger’

than the raised issues.” Id. (quoting Timberlake v. State, 753 N.E.2d 591, 605-06

(Ind. 2001), cert. denied).

[12] “If the analysis under this test demonstrates deficient performance, then we

examine whether, ‘the issues which . . . appellate counsel failed to raise, would

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 6 of 9 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), cert. denied).

Further, we must consider the totality of an attorney’s performance to

determine whether the client received constitutionally adequate assistance. Id.

at 1195-96. Ineffective assistance is very rarely found in cases where a

defendant asserts that appellate counsel failed to raise an issue on direct appeal.

Id. at 1196. One reason for this is that the decision of what issues to raise is one

of the most important strategic decisions to be made by appellate counsel. Id.

[13] Here, the trial court identified seven aggravating factors at Heffern’s sentencing

hearing. These factors caused the trial court to impose an additional five years

above the advisory sentence on each count and to order the terms to run

consecutively for an aggregate sentence of seventy-five years. These

aggravating factors included: (1) Heffern had a significant and lengthy criminal

record; (2) the heinous nature of the offenses, including the beating, torture,

repeated stabbing, and mutilation of the victim’s body; (3) Heffern had a lead

role in committing the offenses; (4) Heffern assisted in planning the offenses; (5)

Heffern lay in wait to commit crimes; (6) Heffern’s continued brutality against

the victim after the robbery had been completed; and (7) the apparent effort to

paint the victim as a perpetrator against children while Heffern himself had

committed prior offenses against children.

[14] Heffern contends that appellate counsel was ineffective because he should have

argued that the trial court erred in identifying as an aggravator the apparent

effort to paint the victim as a perpetrator against children while Heffern himself

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 7 of 9 had committed prior offenses against children. We do not find that appellate

counsel was ineffective. In Garrett v. State, our supreme court concluded that

“although the trial court erred in finding one improper aggravating

circumstance, other valid aggravators remain including a history of delinquent

activity as evidenced by Garrett’s juvenile record and his admission at trial that

he regularly dealt crack cocaine.” 714 N.E.2d 618, 623 (Ind. 1999). “A single

aggravating circumstance may be sufficient to support an enhanced sentence.”

Id. Even if one of the aggravating factors in Heffern’s case was improper,

appellate counsel could have reasonably determined that challenging that

aggravating factor would not have provided Heffern with any relief because

Heffern’s sentence was supported by six other aggravating factors.

[15] On direct appeal, Heffern raised four issues which were whether: (1) the trial

court properly allowed the State to amend the charging information, changing

count 2 from robbery resulting in serious bodily injury to robbery while armed

with a deadly weapon; (2) the trial court abused its discretion when it

admonished the jury regarding police officers’ statements on a videotape and

corresponding transcript admitted into evidence but did not give a similar

preliminary or final instruction; (3) the evidence was sufficient to support

Heffern’s convictions; and (4) the entry of judgment of conviction for murder

and robbery with a deadly weapon violated Heffern’s constitutional right to be

free from double jeopardy. Heffern has failed to show that the unraised issue

was significant and obvious from the face of the record and that the unraised

issue is “clearly stronger” than the raised issues. Thus, his counsel’s

Court of Appeals of Indiana | Memorandum Decision 38A02-1509-PC-1325 | July 22, 2016 Page 8 of 9 performance was not deficient, and he was not prejudiced by the alleged

deficient performance.

[16] Given that Heffern has failed to demonstrate he received ineffective assistance

of appellate counsel, we conclude that the post-conviction court properly denied

Heffern’s petition for post-conviction relief.

Conclusion [17] The post-conviction court properly denied Heffern’s petition for post-conviction

relief. We affirm.

[18] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

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