Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Oct 30 2014, 6:19 am court except for the purpose of establishing 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
JOANNA L. GREEN RYAN D. JOHANNINGSMEIER Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL W. ANDERSON, ) ) Appellant-Respondent, ) ) vs. ) No. 45A03-1402-PC-55 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Samuel Cappas, Judge The Honorable Natalie Bokota, Magistrate Cause No. 45G04-1203-PC-5
October 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge Michael W. Anderson appeals the denial of his petition for post-conviction relief.
We affirm.
The sole issue for our review is whether the trial court erred in denying Anderson’s
petition.
This Court set forth the facts as follows in Anderson’s direct appeal:
[At approximately 6:00 p.m. on June 6, 2004, twenty-year-old] Anderson was in a car with three friends going to a house where Herman Patterson sold alcohol on Sunday and to minors. One of the friends, Jerome Cousins, suggested it would be a good idea to rob Patterson. The other three initially agreed, but changed their minds when they arrived and saw people standing outside Patterson’s house. Cousins announced he intended to rob Patterson to honor his gang. Anderson exited the vehicle saying he was going to “check it out.” (Tr. at 214.) After Anderson exited the vehicle, he heard Cousins exit the vehicle and walk after him. Nevertheless, Anderson entered Patterson’s house. Anderson and Cousins both fired shots in Patterson’s house, and Patterson died of multiple gunshot wounds. Anderson left the house first, entered the car, and left the door open for Cousins. Cousins arrived at the car with a gunshot wound to the stomach, which had been inflicted by Anderson. Cousins asked Anderson why Anderson shot him, and Anderson replied, “I didn’t mean to.” (Id. at 181.) After they left the scene, Anderson threw two guns out the car window. In addition, Anderson told the friend who owned the car to remove the tint from the windows.
Anderson v. State, Cause Number 45A04-0701-CR-14 (Ind. Ct. App. Oct. 31, 2007), slip
op. at 1.
A jury convicted Anderson of attempted robbery as a Class A felony and acquitted
him of felony murder. The trial court sentenced him to thirty-one years, this Court affirmed
his conviction on direct appeal, and the post-conviction court denied his petition after a
hearing. Anderson appeals the denial. Our discussion of the issues includes additional
facts.
2 A defendant who has exhausted the direct appeal process may challenge the
correctness of his conviction and sentence by filing a post-conviction petition. Parish v.
State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005). Post-conviction procedures do not
provide an opportunity for a super-appeal. Id. Rather, they create a narrow remedy for
subsequent collateral challenges to convictions that must be based on grounds enumerated
in the post-conviction rules. Id. Post-conviction proceedings are civil proceedings, and a
defendant must establish his claims by a preponderance of the evidence. Id.
In reviewing the judgment of a post-conviction court, this court considers only the
evidence and reasonable inferences supporting its judgment. Hall v. State, 849 N.E.2d 466,
468 (Ind. 2006). The post-conviction court is the sole judge of the evidence and the
credibility of witnesses. Id. To prevail on appeal from the denial of post-conviction relief,
the petitioner must show that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction court. Id. Only where the
evidence is without conflict and leads to but one conclusion, and the post-conviction court
has reached the opposite conclusion, will the court’s findings or conclusions be disturbed
as being contrary to law. Id. at 469.
I. Ineffective Assistance of Trial Counsel
Anderson argues that the post-conviction court erred in denying his petition because
he received ineffective assistance of trial counsel. We review claims of ineffective
assistance of trial counsel under the two-prong test established in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that trial
counsel’s performance fell below an objective standard of reasonableness based on
3 prevailing professional norms and that there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Moody v. State,
749 N.E.2d 65, 67 (Ind. Ct. App. 2001), trans. denied.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we
will accord those decisions deference on appeal. Wrinkles v. State, 749 N.E.2d 1179, 1195
(Ind. 2001). Counsel’s performance is presumed effective, and a defendant must offer
strong and convincing evidence to overcome this presumption. Smith v. State, 822 N.E.2d
193, 202 (Ind. Ct. App. 2005), trans. denied. We will not speculate as to what may or may
not have been advantageous trial strategy as counsel should be given deference in choosing
a trial strategy which, at the time, and under the circumstances, seems best. Whitener v.
State, 696 N.E.2d 40, 42 (Ind. 1998). We need not approach the inquiry in the same order
or even address both components of the inquiry if the defendant makes an insufficient
showing on one. Strickland, 466 U.S. at 697.
Here, Anderson contends that his trial counsel was ineffective on the following
grounds: 1) counsel inadequately cross-examined and failed to impeach a witness; 2)
counsel failed to strike an attorney from the jury panel; 3) counsel failed to object to an
improper Allen charge; and 4) counsel failed to object to the State’s improper vouching for
a witness. Anderson also argues that the cumulative effect of the alleged errors amounted
to ineffective assistance of counsel. We address each of these contentions in turn.
Anderson first argues that trial counsel was ineffective because he failed to
adequately cross-examine State’s witness Steve Pullen, the driver of the car. The post-
4 conviction court concluded that counsel confronted Pullen with his police statements, and
that counsel’s performance did not fall below prevailing professional norms.
Our review of the trial transcript reveals that trial counsel vigorously and effectively
cross-examined Pullen. Specifically, counsel elicited testimony from Pullen that Anderson
did not initiate the robbery plan. Counsel also elicited testimony that when the men arrived
at the victim’s house, Anderson told the men: 1) they should not commit the crime; 2) he
was not going to participate in it; and 3) Cousins was “on [his] own.” Tr. p. 217. The
method of impeaching witnesses is a tactical decision and a matter of trial strategy that
does not amount to ineffective assistance of counsel. Kubsch v. State, 934 N.E.2d 1138,
1151 (Ind. 2010). Anderson’s argument fails to persuade us that the evidence leads
unerringly and unmistakably to a conclusion opposite that reached by the post-conviction
court.
Anderson also argues that trial counsel was ineffective because he failed to strike
an attorney from the jury panel. After using his peremptory strikes, trial counsel realized
that an attorney was still on the panel. Counsel asked the trial court to grant him an
additional strike to remove the attorney but conceded that he knew of no reason why the
attorney should not be allowed to serve on the jury. The State responded that it was aware
of no case law that would support Anderson’s motion and that there was nothing on the
record to indicate that this attorney could not be a fair and impartial juror. The trial court
explained that it knew of no reason why a lawyer could not serve on a jury and denied trial
counsel’s request.
5 The post-conviction court concluded that Anderson failed to present any evidence
to show how the seating of this attorney on the jury prejudiced him. Anderson argues that
this Court should evaluate the likely prejudice. He has failed to persuade us that the
evidence leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court.
Anderson further argues that trial counsel was ineffective because he failed to object
to the trial court’s response to a note from the jury. At 11:30 p.m., after six hours of
deliberating, the jury sent the following note to the trial court: “We have not reached a
unanimous decision yet. Can we reconvene Tuesday for final decision? We are not a hung
jury yet.” Tr. p. 833. The trial court responded and advised the jury to continue
deliberating. Approximately thirty minutes later, the jury reached its verdict.
Anderson believes that the trial court’s response to the jury was an Allen charge to
which trial counsel should have objected. An Allen charge is an instruction given to urge
an apparently deadlocked jury to reach a verdict. Fuentes v. State, 10 N.E.3d 68, 74 (Ind.
Ct. App. 2014), trans. denied. Such additional instructions are closely scrutinized to ensure
that the trial court did not coerce the jury into reaching a verdict that is not truly unanimous.
Id.
Here, however, there is no indication in the jury’s note that it was deadlocked.
Rather, the note specifically stated that it “w[as] not a hung jury yet.” Tr. p. 833. Further,
and more importantly, the trial court’s response did not coerce the jury into reaching a non-
unanimous verdict. It simply advised the jury to keep deliberating. The trial court’s reply
did not place any pressure on the jury to force it to reach a verdict. Based on these facts
6 and circumstances, the trial court’s response to the jury’s note was not an Allen charge and
trial counsel was not ineffective for failing to object to it. See Fuentes, 10 N.E.3d at 75
(explaining trial court’s response to jury’s question was not fundamental error and did not
make a fair trial impossible).
Anderson also argues that trial counsel was ineffective because he failed to object
to the State’s improper vouching for a witness. Michael Buress, a friend of the victim,
testified that he was standing outside talking to other guests at the victim’s home when
Anderson and a companion went through the door to the victim’s basement. While the
men were in the basement, Buress heard gunshots and saw the men exit the basement and
get into a car. When Buress went downstairs to the basement, he saw the victim had been
shot. During closing argument, the State argued that Buress “was pretty much as real as
they come. I mean, he basically told us exactly what he saw and nothing more and nothing
less.” Tr. pp. 791-92.
Anderson contends that the prosecutor improperly vouched for Buress. Generally,
a prosecutor may not state his or her personal opinion regarding the credibility of a witness
during trial as such statements amount to vouching for a witness. Thomas v. State, 965
N.E.2d 70, 77 (Ind. Ct. App. 2012), trans. denied. However, a prosecutor may comment
on the credibility of a witness as long as the assertions are based on reasons which arise
from the evidence. Neville v. State, 976 N.E.2d 1252, 1260 (Ind. Ct. App. 2012), trans.
denied. For example, in Hobson v. State, 675 N.E.2d 1090, 1095 (Ind. 1996), the Indiana
Supreme Court explained that the prosecutor’s statement, “I warned you that [defendants]
are liars[,]” was not misconduct because incongruities in the testimony supported the
7 inference that someone had not been testifying truthfully. And in Neville, 976 N.E.2d at
1261, this Court explained that the prosecutor’s comments that the crime scene technician
was “very good at what she does” and “if there were [shell] casings there she would have
found them” reasonably arose from evidence that the technician had worked at the crime
lab for four years and had collected evidence from approximately 200 cases.
Here, as in Hobson and Neville, the prosecutor’s comment that Buress was “as real
as they come . . . because he basically told us exactly what he saw and nothing more and
nothing less” arose from evidence that Buress succinctly testified to only what he saw. We
find no improper vouching, and trial counsel was not ineffective for failing to object to the
prosecutor’s comment.
Lastly, Anderson argues that he was “prejudiced by the cumulative effect of trial
counsel’s deficient performance.” Appellant’s Br. p. 13. However, the Indiana Supreme
Court has explained that [t]rial irregularities which standing alone do not amount to error
do not gain the stature of reversible error when taken together.” Kubsch, 934 N.E.2d at
1154 (citing Reaves v. State, 586 N.E.2d 847, 858 (Ind. 1992)).
II. Ineffective Assistance of Appellate Counsel
Anderson next argues that the post-conviction court erred in denying his petition
because he received ineffective assistance of appellate counsel. The standard of review for
ineffective assistance of 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. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008).
8 Anderson claims his appellate counsel was ineffective on the following grounds: 1)
counsel failed to raise the trial court’s improper Allen charge on appeal; 2) counsel did not
challenge Anderson’s thirty-one-year sentence as inappropriate under Indiana Appellate
Rule 7(B); and 3) counsel inadequately presented his challenge to the sufficiency of the
evidence on appeal. We address each of his contentions in turn.
Anderson first argues that appellate counsel was ineffective for failing to raise the
Allen charge issue on appeal. However, because we have already determined that trial
counsel was not ineffective for failing to raise this issue, we need not determine whether
appellate counsel was ineffective for failing to raise it. See Dawson v. State, 810 N.E.2d
1165, 1178 (Ind. Ct. App. 2004), trans. denied.
Second, Anderson argues that appellate counsel was ineffective for failing to
challenge his thirty-one year-sentence as inappropriate under Indiana Appellate Rule 7(B).
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. Reed v. State, 856 N.E.2d
1189, 1195 (Ind. 2006). Ineffective assistance is 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 issue to raise is one of the most important
strategic decisions to be made by appellate counsel. Id.
Indiana Appellate Rule 7(B) authorizes this Court to revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
9 offender. Under this rule, and as interpreted by case law, appellate courts may revise
sentences after due consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the offender.
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
At the outset we note that a court sentences a defendant under the sentencing statutes
in effect at the time the defendant committed the offense. Robertson v. State, 871 N.E.2d
280, 284 (Ind. 2007). Here, when Anderson committed this offense on June 6, 2004, there
were presumptive sentences for each crime, allowing the sentencing court limited
discretion to enhance a sentence to reflect aggravating circumstances or reduce it to reflect
mitigating circumstances. See Cotto v. State, 829 N.E.2d 520, 524 (Ind. 2005).
That part of Indiana Appellate Rule 7(B) that refers to the “nature of the offense”
speaks to the statutory presumptive sentence for the class of crimes to which the offense
belongs. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans. denied.
The classifications of crimes and their presumptive sentences, enhancements, and
reductions have been determined by the General Assembly as a matter of public policy. Id.
The presumptive sentence for a Class A felony was thirty years, with not more than 20
years added for aggravating circumstances and not more than ten years subtracted for
mitigating circumstances. Ind. Code § 35-50-2-4. The trial court sentenced Anderson to
thirty-one years, which was just a year more than the presumptive sentence. We further
note that the nature of the offense involved a home invasion and death.
Regarding the character of the offender, Anderson has an extensive criminal history
that includes three juvenile adjudications for offenses that would be felonies if committed
10 by an adult. Anderson also had three felonies pending at the time he was sentenced for the
felony in this case. Anderson’s character is that of a serial criminal whose frequent contacts
with the criminal justice system have not caused him to reform himself. See Vazquez v.
State, 839 N.E.2d 1229, 1235 (Ind. Ct. App. 2005), trans. denied.
Based upon the foregoing, Anderson’s thirty-one-year sentence is not inappropriate.
We therefore conclude that Anderson was not prejudiced by appellate counsel’s failure to
challenge his sentence pursuant to Appellate Rule 7(B).
Lastly, Anderson argues that “[a]ppellate counsel did such a poor job presenting
Anderson’s claim of sufficiency of the evidence that it constituted ineffective assistance of
counsel.” Appellant’s Br. p. 18. According to Anderson, appellate counsel should have
presented additional facts in support of his claim.
Claims of inadequate presentation of an issue are the most difficult for defendants
to advance and reviewing tribunals to support. Bieghler v. State, 690 N.E.2d 188, 195 (Ind.
1997). This is true for two reasons. Id. First, these issues require the reviewing court to
revisit issues it has already adjudicated, which implicates concerns of finality, judicial
economy, and repose. Id. Second, a reviewing court is not limited to the arguments
presented by appellate counsel and performs its own independent review of the record and
case law in reviewing the claim. Id.
Here, in support of his argument, Anderson directs us to Henley, 881 N.E.2d at 639,
where this Court declined to address Henley’s claim on waiver grounds because appellate
counsel so poorly presented the issue. Specifically, counsel failed to provide legal analysis
of the issue, to cite any legal authority, and to cite relevant portions of the record. On
11 transfer, the Indiana Supreme Court was persuaded that had appellate counsel presented
cogent argument with citation to relevant authority challenging the sufficiency of the
evidence to support the conviction, the conviction would have been reversed. Id. at 653.
However, the facts before us are distinguishable from those in Henley because
counsel in this case provided legal analysis as well as citations to legal authority and
relevant portions of the record. After reading appellate counsel’s legal analysis, cited
cases, and relevant portions of the record, this Court concluded there was sufficient
evidence to support Anderson’s Class A attempted robbery conviction. See Anderson, slip
op. at 3.
The standard of review for sufficiency of the evidence provides that when assessing
the sufficiency of the evidence, reviewing courts must consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146
(Ind. 2007). If there is substantial evidence of probative value from which a trier of fact
could find guilt beyond a reasonable doubt, we will affirm the conviction. Exum v. State,
812 N.E.2d 204, 207 (Ind. Ct. App. 2004), trans. denied. On direct appeal in this case, this
Court found such evidence to support Anderson’s conviction. See Anderson, Cause
Number 45A04-0701-CR-14. The presentation of additional facts in favor of Anderson
would not have changed this result. Appellate counsel was not ineffective.
III. Due Process Violation
In his final challenge to the denial of his petition for post-conviction relief,
Anderson argues that the post-conviction court erred because his “due process rights under
the 14th Amendment were violated because his conviction relied on the untruthful
12 testimony of . . . State’s witness [Steve Pullen].” Appellant’s Br. p. 22. However, our
review of the testimony at the post-conviction hearing reveals that Pullen testified that he
did not lie at trial, and that he did not tell Anderson’s mother that he had been threatened.
Further, Anderson did not introduce any admissible evidence in support of his argument
that Pullen had testified untruthfully. We find no due process violation, and the post-
conviction court did not err in denying his petition.
Affirmed.
MATHIAS, J., and BROWN, J., concur.