MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 30 2016, 8:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
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
Jonathan O. Chenoweth Jesse R. Drum Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry Smith, December 30, 2016 Appellant-Petitioner, Court of Appeals Case No. 49A04-1608-PC-1953 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Respondent. Judge The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01-1003-PC-17803
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 1 of 13 Case Summary [1] In March of 2010, Appellee-Respondent the State of Indiana (“the State”)
charged Appellant-Petitioner Terry Smith with Class A felony attempted
murder, Class B felony armed robbery, Class B felony criminal confinement,
Class B felony unlawful possession of a firearm by a serious violent felon
(“SVF”), Class D felony auto theft, and Class D felony resisting law
enforcement. The State subsequently amended the charges to add an allegation
that Smith was a habitual offender. Following trial, the jury found Smith guilty
of Class B felony robbery, Class D felony auto theft, and Class D felony
resisting law enforcement. The trial court subsequently found Smith guilty of
Class B felony unlawful possession of a firearm by a SVF. The trial court also
determined that Smith was a habitual offender. The trial court then sentenced
Smith to an aggregate term of forty-five years. Smith appealed, challenging,
among other things, the sufficiency of the evidence to sustain the determination
that he was a habitual offender.
[2] Smith subsequently filed a petition seeking post-conviction relief (“PCR”),
arguing that he suffered ineffective assistance of appellate counsel. Following
an evidentiary hearing on Smith’s petition, the post-conviction court
determined that Smith had failed to establish that he suffered ineffective
assistance of appellate counsel. On appeal, Smith challenges the post-
conviction court’s determination. Concluding that Smith has failed to prove
that he suffered ineffective assistance of appellate counsel, we affirm.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 2 of 13 Facts and Procedural History [3] Our opinion in Smith’s prior direct appeal, which was handed down on
February 7, 2013, instructs us to the underlying facts and procedural history
leading to this post-conviction appeal.
On March 8, 2010, the State charged Smith with Class A felony attempted murder, Class B felony armed robbery, Class B felony criminal confinement, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony auto theft, and Class D felony resisting law enforcement. The State subsequently amended the charges to add an allegation that Smith was an habitual offender. A jury trial was held on May 31 through June 3, 2011. At the conclusion of this trial, the jury found Smith not guilty of attempted murder and criminal confinement, but was unable to reach a verdict on the remaining counts. The trial court declared a mistrial as to the counts on which the jury was unable to reach verdict, and a second jury trial on those counts was set for August 22, 2011.
****
Smith’s second jury trial began on December 19, 2011. On December 21, 2011, the jury found Smith guilty of Class B felony robbery, Class D felony auto theft, and Class D felony resisting law enforcement. Smith waived his right to a jury trial on the charge of possession of a firearm by a serious violent felon and the allegation that he was an habitual offender. The trial court later found Smith guilty of possession of a firearm by a serious violent felon and found Smith to be an habitual offender.
At a hearing held on January 27, 2012, the trial court sentenced Smith to fifteen years on the robbery conviction, to which a thirty-year habitual offender enhancement was added. The trial court sentenced Smith to twenty years for possession of a firearm by a serious violent felon, three years for auto theft, and three Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 3 of 13 years for resisting law enforcement. All of these sentences were to run concurrently with the forty-five-year enhanced sentence imposed on the robbery conviction.
Smith v. State, 982 N.E.2d 393, 398-400 (Ind. Ct. App. 2013).
[4] On December 24, 2013, Smith filed a pro-se PCR petition. Smith, by counsel,
filed an amended PCR petition on July 8, 2015. In this amended petition,
Smith claimed that he received ineffective assistance from his appellate counsel.
The trial court conducted an evidentiary hearing on November 17, 2015, after
which it took the matter under advisement. On August 1, 2016, the post-
conviction court issued an order denying Smith’s petition. This appeal follows.
Discussion and Decision [5] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[6] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 4 of 13 Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion, that its decision will be disturbed as contrary
to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.
The post-conviction court is the sole judge of the weight of the evidence and the
credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
We therefore accept the post-conviction court’s findings of fact unless they are
clearly erroneous but give no deference to its conclusions of law. Id.
I. Ineffective Assistance of Counsel [7] The right to effective counsel is rooted in the Sixth Amendment to the United
States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial
system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.
668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper function of the
adversarial process that the trial court cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 5 of 13 [8] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). The standard of
review for a claim of ineffective assistance of appellate counsel is the same as
for trial counsel in that the petitioner must show appellate counsel was deficient
in his performance and that the deficiency resulted in prejudice. Overstreet v.
State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v. State, 690 N.E.2d 188,
193 (Ind. 1997)).
[9] Under the first prong, the petitioner must establish that counsel’s performance
was deficient by demonstrating that counsel’s representation “fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
Reed, 866 N.E.2d at 769. We recognize that even the finest, most experienced
criminal defense attorneys may not agree on the ideal strategy or most effective
way to represent a client, and therefore, under this prong, we will assume that
counsel performed adequately and defer to counsel’s strategic and tactical
decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated mistakes,
poor strategy, inexperience, and instances of bad judgment do not necessarily
render representation ineffective. Id.
[10] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner
may show prejudice by demonstrating that there is “a reasonable probability
(i.e. a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been different.” Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 6 of 13 A petitioner’s failure to satisfy either prong will cause the ineffective assistance
of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,
“[a]lthough the two parts of the Strickland test are separate inquires, a claim
may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031
(Ind. 2006) (citing Williams, 706 N.E.2d at 154).
[11] In alleging ineffective assistance of appellate counsel, Smith claims that his
counsel rendered ineffective assistance by (1) failing to cite to certain authority
which he claims would have strengthened his sufficiency argument on direct
appeal and (2) failing to challenge the sufficiency of the evidence to sustain his
conviction for unlawful possession of a firearm by a SVF. Both of Smith’s
arguments are predicated on his claim that the State failed to present sufficient
evidence to prove that he had been convicted in Marion County of felony
robbery, unlawful possession of a firearm by a SVF, and auto theft in 2003.
A. Failure to Cite to Authority [12] Smith contends that his appellate counsel was ineffective for failing to cite to
our opinions in Bochner v. State, 715 N.E.2d 416 (Ind. Ct. App. 1999) and
Abdullah v. State, 847 N.E.2d 1031 (Ind. Ct. App. 2006), on direct appeal.
Specifically, Smith claims that citation to each of these cases would have
bolstered his argument that the State presented insufficient evidence to prove
that Smith was a habitual offender.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 7 of 13 1. Bochner
[13] In Bochner, one of the convictions used to prove Bochner’s status as a habitual
offender was an offense that occurred in Missouri. 715 N.E.2d at 419. In the
Missouri case, Bochner entered into a plea agreement whereby the court
suspended imposition of his sentence and placed Bochner on probation. Id. In
reviewing Bochner’s challenge to the sufficiency of the State’s evidence to prove
he was a habitual offender on appeal, we noted the following:
Missouri law provides that, “If the person is arrested but ... imposition of sentence is suspended in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed records when such case is finally terminated except as provided in section 610.120.” MO. Ann. Stat. § 610.105 (West 1988). Further, the Missouri Supreme Court has held that the suspended imposition of a sentence and the placement of a person on probation does not constitute a “conviction.” Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. 1993). The Yale court held that the suspended imposition of a sentence is not a final judgment, and thus, cannot be considered a conviction. Id. at 194–95.
Id. (footnote omitted). Given Missouri’s relevant statutory authority and the
Missouri Supreme Court’s opinion in Yale, we concluded that the Missouri
offense did not qualify as a prior conviction because, under Missouri law,
Bochner was never convicted of the offense that he was alleged to have
committed in that state. Id. at 420.
[14] We are unpersuaded by Smith’s assertion that citation to Bochner would have
somehow clarified his appellate counsel’s argument with regard to whether the
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 8 of 13 abstract of judgment at issue, which dealt with an Indiana conviction and was
signed by an Indiana judicial officer, was sufficient to prove he had, in fact,
been convicted of the underlying crime. In fact, we have trouble ascertaining
how citation to our opinion in Bochner, which considered a question relating to
whether an individual was deemed to have been convicted of a crime under
Missouri law, could have possibly aided Smith’s sufficiency argument below. 1
Smith, therefore, has failed to prove that his appellate counsel’s failure to cite to
Bochner constituted either deficient performance or resulted in prejudice. As
such, we conclude that Smith has failed to prove that his appellate counsel was
ineffective for failing to cite to Bochner on direct appeal.
2. Abdullah
[15] We also conclude that counsel cannot be found ineffective for failing to cite to
Abdullah in counsel’s brief on direct appeal because citation to Abdullah would
be unavailing as it is easily distinguishable from the instant matter. In Abdullah,
the question was whether an abstract of judgment which bore no judicial
signature was sufficient to prove a prior conviction. 847 N.E.2d at 1033-35.
Upon review, we noted that Trial Rule 58(B) requires that an abstract of
judgment shall include the signature of the judge. Id. at 1034. As such, we
concluded that “an unsigned abstract fails to represent the trial court’s final
1 It seems that at most, Bochner could apply insofar as it reiterates the uncontested legal principal that one must have two prior unrelated felony convictions before one can be determined to be a habitual offender.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 9 of 13 judgment and, therefore, is insufficient to prove a prior conviction for purposes
of proving … statuses as a serious violent felon and a habitual offender.” Id. at
1035.
[16] Unlike the abstract of judgment at issue in Abdullah, the abstract of judgment at
issue in the instant matter was not unsigned. It was signed by Master
Commissioner Nancy L. Broyles. As we noted in our opinion in Smith’s direct
appeal, the record is devoid of any evidence of or suggestion that Smith “ever
challenged the validity of his guilty plea and subsequent conviction for robbery
on the basis that the master commissioner was without authority to enter a final
order.” Smith, 982 N.E.2d at 409. Because we found that a judicial officer had
signed the judgment, and that judgment was never challenged at trial or on
appeal as being improper, under these facts and circumstances presented to the
court, we concluded “that the State presented evidence sufficient for the trial
court to conclude that Smith had in fact been convicted of robbery in 2003, and
there was therefore sufficient evidence to support Smith’s adjudication as an
habitual offender.” Id. (footnote omitted). Smith has failed to establish that his
appellate counsel’s failure to cite to Abdullah, which again would have been
unavailing as it was distinguishable from the facts and circumstances of Smith’s
case, constituted either deficient performance or resulted in prejudice.
B. Failure to Raise Sufficiency Claim on Direct Appeal [17] The Indiana Supreme Court has noted that the failure to raise an issue on direct
appeal can be a formidable error because of the well-established rule that issues
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 10 of 13 that were or could have been raised on direct appeal are not available for post-
conviction review. See Bieghler, 690 N.E.2d at 193. Nevertheless,
“‘[i]neffectiveness is very rarely found in these cases.’” Id. (quoting Lissa
Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1,
25 (1994)) (brackets in original). One explanation for why ineffectiveness is
rarely found in these types of cases is that the decision of what issues to raise on
appeal is one of the most important strategic decisions to be made by appellate
counsel. Id.
“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). As Justice Jackson noted, “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one.... [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Id. at 752, 103 S.Ct. at 33133 (quoting Justice Robert H. Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951)). Accordingly, when assessing these types of ineffectiveness claims, reviewing courts should be particularly deferential to counsel’s strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. See Smith v. Murray, 477 U.S. 527, 535-36, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986).
Id. at 193-94.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 11 of 13 [18] The Indiana Supreme Court noted that “[i]n analyzing this sort of case, the
Seventh Circuit, under its performance analysis, first looks to see whether the
unraised issues were significant and obvious upon the face of the record.” Id. at
194. “If so, that court then compares these unraised obvious issues to those
raised by appellate counsel, finding deficient performance ‘only when ignored
issues are clearly stronger than those presented.’” Id. (quoting Gray v. Greer, 800
F.2d 644, 646 (7th Cir.1986) (additional citations omitted). The Indiana
Supreme Court also noted that when completing this analysis, “the reviewing
court should be particularly sensitive to the need for separating the wheat from
the chaff in appellate advocacy, and 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.” Id.
[19] Smith essentially bases his contention that his appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence to prove his conviction for
unlawful possession of a firearm by a SVF on the same arguments presented
with regard to his citation to authority argument. The record reveals that the
State relied on Smith’s 2003 robbery conviction as evidence that he was guilty
of possession of a firearm by a SVF. Smith asserts in the instant appeal that had
appellate counsel raised a sufficiency claim on direct appeal, it “may well have
prevailed, as demonstrated by Abdullah.” Appellant’s Br. p. 16.
[20] As we stated above, the abstract of judgment relating to Smith’s 2003
convictions in Marion County was valid. As such, given our conclusion above
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 12 of 13 that citation to Abdullah would have been unavailing as it is easily
distinguishable from the facts presented in the instant matter, we conclude that
Smith has failed to prove that his appellate counsel’s failure to raise a
sufficiency claim based on the precedent set by our opinion in Abdullah
constituted either deficient performance or resulted in prejudice. An attorney
does not provide ineffective assistance by failing to raise a losing argument on
direct appeal. See McChristion v. State, 511 N.E.2d 297, 302 (Ind. 1987)
(providing that because the arguments at issue were meritless, appellate counsel
was not ineffective for failing to raise them on direct appeal). We therefore
further conclude that Smith has failed to prove that his appellate counsel was
ineffective for failing to challenge the sufficiency of the evidence to sustain his
conviction for possession of a firearm by a SVF on direct appeal.
Conclusion [21] We conclude that Smith has failed to prove that he suffered ineffective
assistance of appellate counsel. We therefore affirm the judgment of the post-
conviction court.
[22] The judgment of the post-conviction court is affirmed.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1608-PC-1953 | December 30, 2016 Page 13 of 13