Stewart v. State

567 N.E.2d 171, 1991 Ind. App. LEXIS 346, 1991 WL 29826

• Court: Indiana Court of Appeals
• Decided: March 7, 1991
• Docket: 49A02-8904-PC-154
• Status: Published

Opinions

GARRARD, Judge.

Raymond Stewart (Stewart) appeals the denial of his petition for post conviction relief.

We affirm.

Stewart was convicted in 1988 of robbery, a class A felony, attempted murder, a class A felony, and criminal confinement, a class B felony. A belated motion to correct errors was filed and denied. Stewart's convictions were affirmed by our supreme court in Stewart v. State (1985), Ind., 474 N.E.2d 1010.

In 1986 Stewart filed a petition for post conviction relief pursuant to Indiana Rules of Procedure, Post Conviction Remedy Rule 1. An evidentiary hearing was held, and the trial court subsequently denied Stewart's petition. Stewart instituted this appeal. He presents the following issues, which we restate:

1. Whether Stewart was denied effective assistance of trial counsel;

Whether Stewart was denied effective assistance of appellate counsel;

Whether the court committed fundamental error when instructing the jury regarding the essential elements of attempted murder;

Whether the court committed fundamental error in sentencing Stewart to enhanced terms and ordering the sentences to be served consecutively without sufficiently stating the aggravating factors supporting such a sentence.

1.

Stewart argues that he was denied effective assistance of trial counsel. Ineffective assistance of trial counsel was an issue known and available at the time of the direct appeal. Propes v. State (1990), Ind., 550 N.E.2d 755. If trial counsel and appellate counsel are different, appellate counsel has the first opportunity to present the issue, and failure to do so will generally be held a waiver of the issue. Smith v. State (1990), Ind.App., 559 N.E.2d 338. In the present case, Stewart was represented by different counsel on appeal and appellate counsel did not directly present the issue of ineffective trial counsel. Therefore, the issue of ineffective trial counsel has been waived.

IL.

Stewart argues that appellate counsel was ineffective for, among other things, failing to present the issue of effectiveness of trial counsel.¹ In fact, our supreme court has held that failure to properly preserve error on appeal constitutes ineffective assistance of counsel. Propes, supra, 550 N.E.2d at 758. However, in addressing the issue of prosecutorial misconduct on Stewart's first appeal, our supreme court indicated that it had reviewed the record and found that "a generally competent defense was presented" on Stewart's behalf. Stewart, supra, 474 N.E.2d at 1013. Therefore, because our supreme court reviewed the adequacy of trial counsel, Stewart was not prejudiced by appellate counsel's failure to specifically raise the issue.

Stewart also asserts that appellate counsel was ineffective for failing to consult with him concerning his first appeal. However, insufficient consultation does not constitute ineffective assistance of counsel absent a showing of prejudice to appellant. Parrish v. State (1987), Ind., 515 N.E.2d 516, 522. Stewart testified at the post conviction hearing that he had no legal training. He failed to demonstrate how consultation with appellate counsel would have aided his first appeal. We find no basis for reversal in this regard.

IIL.

Stewart argues that the trial court failed to properly instruct the jury concerning the state's burden to prove intent to murder as an element of attempted murder. No objection was made at trial to the instructions given concerning the elements of the offense.

One of the cornerstones of our litigation process has been the contemporaneous objection rule. It simply provides that where no timely and proper objection was raised 'in the trial court, the matter will not be considered on appeal. The rule operates upon all parties. Its purpose is to promote fair trial by precluding a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to ery foul when the outcome goes against him. It promotes just determinations by requiring parties to voice objections in time that harmful error may be avoided or corrected so that a fair and proper verdiet will be secured.

The doctrine of fundamental error exists as the exception to that rule since it permits consideration on appeal of errors to which no objection was made at trial. Fre-« quently, it is said to occur when failure to consider the error would deny a defendant "fundamental due process." That is de-seriptive but not really definitionally very helpful. Decisions which have attempted to explore further into the meaning of "fundamental" have often characterized such error as "error so prejudicial that the defendant could not have had a fair trial," Kremer v. State (1987), Ind., 514 N.E.2d 1068, 1072, rehearing denied, or as "a blatant violation of basic and elementary principles ... [where] the harm or potential for harm could not be denied." Lewis v. State (1987), Ind., 511 N.E.2d 1054, 1057. The mere fact that error occurred and that it was prejudicial will not suffice. That, after all, is the ordinary rule for reversal on appeal when the contemporaneous objection has been made. Rather, the error must be one such that the defendant could not possibly have had a fair trial or such that this court is left with the conviction that the verdict or sentence is clearly wrong or of such dubious validity that justice cannot permit it to stand.

In the area of instructions to the jury in criminal cases it appears that the supreme court has found the error to be fundamental in instances where the trial court has failed to advise the jury of one of the elements of the offense under cireum-stances such that the jury might well have convicted although a reasonable doubt might exist concerning the omitted element. (If the existence of the omitted element is so well established in the record as to be incapable of rational dispute, the error might be characterized as harmless, but it would perhaps be more accurate to then deem it not fundamental.)

At Stewart's trial the following instruction was given to the jury concerning the elements of attempted murder:

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.

To convict the defendant the State must have proved each of the following elements:

The defendant

1. did knowingly

2. engage in conduct to wit: attempt to commit the crime of Murder by attempting to kill

3. another human being

4. that the conduct was a substantial step toward the commission of the crime of murder.

Record at 108.

Stewart argues that the instruction given did not sufficiently advise the jury of the intent necessary to attempted murder and that the instruction constituted fundamental error under the decisions in Jackson v. State (1989), Ind., 544 N.E.2d 858; Abdul-Wadood v. State (1988), Ind., 521 N.E.2d 1299 and Smith v. State (1984), Ind., 459 N.E.2d 355. We disagree.

Smith and Abdul-Wadood both recognized intent to kill as a necessary element in attempted murder and struck down verdicts based upon instructions that did not require the jury to find the existence of such intent. Jackson was reversed because the instructions failed to require the jury to determine that the accused took a substantial step toward accomplishing the intended result. 544 N.E.2d at 854.

In the present case the jury was instructed that to be guilty of attempted murder Stewart must have knowingly engaged in conduct that constituted a substantial step toward commission of the crime of murder. Additionally, they were told that they must find that Stewart was attempting to kill another human being when he engaged in that conduct. -

Certainly this is not a model presentation of the intent element. Indeed, the instruction might have been refused or modified over the objection that it was confusing or misleading had such an objection been voiced at trial.

Nevertheless, we believe reasonable jurors would, without question, interpret the requirement for conviction that the defendant intended to kill as supplying the necessary intent element found lacking in Smith and Abdul-Wadood. See Jackson, supra, 544 N.E.2d at 854, impliedly acknowledging this.

Accordingly, we find that the instruction given in this case does not constitute fundamental error and any error was waived by lack of objection at trial. We reach that conclusion because submission of the case under the instruction does not amount to denial of a fair trial or undermine our confidence in the verdict.

IV,

Stewart contends the court erred in sentencing him. He received enhanced sentences on all three convictions and the court required the sentences to be served consecutively. Again he made no objection when the court announced its reasons for the sentence. Neither did he assert sentencing error in his direct appeal.

In support of Stewart's sentences, the court found two aggravating factors: a reduced sentence would depreciate the seriousness of the crime, and Stewart was in need of rehabilitative treatment. At the time of Stewart's sentencing, both of these factors were enumerated in the statute setting forth factors which the court, in its discretion, might consider as aggravating circumstances.² IC 85-50-1A-7 (Burns Code Ed.

We are, of course, familiar with the rule that a mere recitation of the statutory language is insufficient to support an enhanced sentence. See Erby v. State (1987), Ind., 511 N.E.2d 302. The question before us is whether that deficiency constitutes fundamental error.

We conclude it does not. Where the court fails to state any reasons for enhancement, we have found the error fundamental because then we can only speculate whether the court was relying upon a proper reason. Pearson v. State (1989), Ind.App., 548 NE.2d 1141, transfer denied. On the other hand, where the court states permissible reasons but not with sufficient particularity, our supreme court has determined that the consequent error is not fundamental. Beasley v. State (1988), Ind., 445 N.E.2d 1872. Stewart's case is in this latter category. Had a timely objection been entered, the court would no doubt have specified with particularity the factual predicate for its conclusions. No such objection having been made, the error was waived.

Affirmed.

BUCHANAN, J., concurs. SULLIVAN, J., concurs in part and dissents in part and files separate opinion.

1 . Generally, the effectiveness of appellate counsel is judged using the same standard of review as applied to trial counsel. Smith v. State (1987), Ind., 516 N.E.2d 1055, 1059. To prevail upon a claim of ineffective assistance of counsel, Stewart must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's inadequacies the result would have been different. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 LEd.2d 674.

This appeal presents an interesting question regarding the appropriate standard of review. In Baum v. State (1989), Ind., 533 N.E.2d 1200, our supreme court enunciated a different standard of reviewing post conviction counsel's effectiveness. If counsel appeared and represented the petitioner in a procedurally fair setting, then counsel is judged to be effective. Id. at 1291. In the present case, the first appeal was perfected by means of a belated motion to correct errors which is a post conviction remedy available under Post Conviction Remedy Rule 2. Therefore, it is unclear whether we are to be guided by the Strickland standard or the Baum standard in reviewing appellate counsel's performance. Without deciding the issue, we determine that appellate counsel's performance was effective even under the more stringent Strickland standard.

2 . We note that in Evans v. State (1986), Ind., 497 N.E.2d 919, 923-24 the court acknowledged that the statutory factor concerning the depreciating effect of imposing a reduced sentence has apparent application only when the court is considering imposing a reduced sentence. It held, however, the court could aggravate a sentence upon finding that failure to impose an enhanced sentence would depreciate the seriousness of the offense.