Steven Kamp v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 06 2012, 8:53 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, court of appeals and collateral estoppel, or the law of the case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

CAROLINE B. BRIGGS GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana

GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

STEVEN KAMP, ) ) Appellant-Petitioner, ) ) vs. ) No. 66A05-1109-PC-485 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE PULASKI SUPERIOR COURT The Honorable Patrick B. Blankenship, Judge Cause No. 66D01-0505-FC-2

December 6, 2012

OPINION ON REHEARING

BAKER, Judge This case comes before us on rehearing. In the original appeal, appellant-

petitioner Steven Kamp appealed the denial of his petition for post-conviction relief,

which claimed that his defense counsel’s illnesses and disabilities amounted to

ineffective assistance of counsel. Kamp v. State, No. 66A05-1109-PC-485 (Ind. Ct. App.

June 28, 2012). Kamp alleged, among other things, that his trial counsel, Charlie

Scruggs, who represented him during a jury trial for the offense of child molesting, a

class C felony, was suffering from tinnitus, headaches, and other illnesses that he

sustained as a result of a bombing of the Howard County Courthouse in the 1980s. Kamp

contended that those injuries prevented Scruggs from providing him with effective

representation.

Kamp was found guilty as charged, and in his initial appeal to this court, he

challenged the sufficiency of the evidence and the propriety of the eight-year sentence

that was imposed. We affirmed in all respects. Kamp v. State, No. 66A05-0604-CR-202

(Ind. Ct. App. Mar. 20, 2007). Thereafter, we affirmed the denial of Kamp’s request for

post-conviction relief concluding, among other things, that “Scruggs’ actions were

reasonable under prevailing professional norms.” Slip op. at 22.

Kamp now petitions for rehearing, again claiming that his petition for post-

conviction relief should have been granted because Scruggs’s “deterioration brought on

by his illnesses and handicaps” resulted in ineffective assistance of counsel. Appellant’s

Br. on Pet. for Reh. p. 2.

2 We grant rehearing for the limited purpose of clarifying certain factual assertions

that were made in our original opinion. More particularly, the record reflects that it was

attorney Stephanie Doran—rather than Scruggs’s paralegal, Stephanie Blackman—who

was familiar with Scruggs’s handwriting, reviewed the DCS’s report, testified that

Scruggs’s discovery measures were “uncharacteristic,” and testified about Scruggs’s

tinnitus, illness, and inability to concentrate at times. Appellant’s App. p. 158-60, 163.

However, even though it was Doran who offered the evidence and testimony set

forth above, we nonetheless reject Kamp’s contention that we improperly applied the

ineffective assistance of counsel standard in accordance with Strickland v. Washington,

466 U.S. 668 (1984). In other words, we reaffirm our original holding that Kamp has

failed to show that Scruggs’s alleged failings would have had a reasonable probability of

affecting the outcome of this case.

Finally, Kamp requests that we consider whether a violation occurred because the

State allegedly failed to disclose material evidence that was favorable to him and directs

us to State v. Hollin, 970 N.E.2d 147 (Ind. 2012). However, Kamp did not present the

issue of whether the State should have turned over certain “Brady1 material” to him in his

petition for post-conviction relief. As a result, the issue is waived. See Walker v. State,

843 N.E.2d 50, 57 (Ind. Ct. App. 2006) (observing that issues not raised in a petition for

post-conviction relief may not be raised for the first time on post-conviction appeal); see

also Hannoy v. State, 793 N.E.2d 1109, 1111 (Ind. Ct. App. 2003) (stating that an issue

1 Brady v. Maryland, 373 U.S. 83 (1963). 3 not raised in the original briefs on appeal cannot be raised for the first time in a petition

for rehearing).

In sum, subject to the corrections set forth above, we reaffirm our original opinion

in all respects.

BAILEY, J., and DARDEN, S.J., concur.