Richard A. Childress, Jr. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not

be regarded as precedent or cited

before any court except for the

FILED

Nov 29 2012, 8:49 am

purpose of establishing the defense of

res judicata, collateral estoppel, or the CLERK

of the supreme court,

law of the case. court of appeals and

tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS GREGORY F. ZOELLER

Public Defender of Indiana Attorney General of Indiana

VICTORIA CHRIST ANDREW FALK

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

RICHARD A. CHILDRESS, JR., )

)

Appellant-Petitioner, )

)

vs. ) No. 45A03-1206-PC-246

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Salvador Vasquez, Judge

The Honorable Natalie Bokota, Magistrate

Cause No. 45G01-1106-PC-7

November 29, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issue

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

post-conviction relief. Childress raises one consolidated issue on appeal: whether he was

denied the effective assistance of his trial and/or appellate counsel. Concluding that he

was not denied the effective assistance of either his trial or appellate counsel, we affirm.

Facts and Procedural History

In September 2008, Childress and others were charged with multiple crimes,

following the beating and robbing of James Angrove in two locations over the course of

one night that month. See Childress v. State, 938 N.E.2d 1265, 1266-67 (Ind. Ct. App.

2010), trans. denied. In brief, Childress and Natasha Jakima went to Randall

Nalborczyk’s home in Merrillville where Nalborczyk purchased drugs for his and

Jakima’s use from Childress. Nalborczyk realized he did not have money to make the

purchase, and Jakima then called a chat line and spoke to James Angrove and invited him

to meet her and another woman at Maurice Hardy’s home in Gary. Once he arrived,

Jakima led Angrove to a bedroom, and then a group of men brandishing guns barged in.

The men threatened and repeatedly struck Angove, and demanded money. After different

attempts to get money from Angrove through credit cards and wire transfers, the group

eventually drove Angrove to Nalborczyk’s home, where Angove transferred money over

the phone via Western Union. Nalborczyk and another man went to Western Union to

retrieve the money, and Nalborczyk told an employee to call the police to rescue

Angrove. Childress was arrested at Nalborczyk’s house.

A jury found Childress guilty of one count of robbery and one count of criminal

confinement. Childress was sentenced to consecutive terms of nine years for each count,

2

for a total of eighteen years. Childress filed a direct appeal based on admission of a piece

of evidence, and we affirmed his conviction. Id. Childress then filed a petition for post-

conviction relief, claiming he received ineffective assistance of counsel based on the

consecutive sentences and admission at trial of an out-of-court statement. The post-

conviction court issued findings of fact and conclusions of law and denied his request for

relief. This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied. A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id.

We review claims of ineffective assistance of counsel under the two prongs set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d

188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same standard applies to

claims of ineffective assistance of trial or appellate counsel. Id. To prevail on a claim of

ineffective assistance of counsel, Childress must show that his counsel’s performance fell

below an objective standard of reasonableness as determined by prevailing norms, and

3

that the lack of reasonable representation prejudiced him. Randolph v. State, 802 N.E.2d

1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first prong, the petitioner

must show that counsel’s performance was deficient in that counsel’s representation fell

below an objective standard of reasonableness and that counsel committed errors so

serious that petitioner did not have the “counsel” guaranteed by the Sixth Amendment.

Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show prejudice, the petitioner

must show a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Pruitt v. State, 903 N.E.2d 899, 906

(Ind. 2009).

Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Bieghler, 609 N.E.2d at 192 (citing

Strickland, 466 U.S. at 698). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at

1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id. Additionally, ineffective assistance

is very rarely found in cases where a defendant asserts that appellate counsel failed to

raise an issue on direct appeal. Reed, 856 N.E.2d 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.

Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

4

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate. Thacker v. State,

715 N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.

II. Ineffective Assistance of Counsel

A. Trial Counsel

1. Hearsay

Childress’s first contention is that he was denied the effective assistance of

counsel when his trial counsel failed to object to the admission of an out-of-court

statement that Childress claims was inadmissible hearsay. The statement in question was

part of Nalborczyk’s testimony. He testified that Jakima was talking to Childress as

everyone was waiting for Angrove to show up, and Jakima was worried that the second

girl, who was supposed to meet Angrove with her, was not there yet. Jakima told

Childress that if the other girl did not show up, they might have to go back to their

original plan and just rob Angrove when he arrived. Jakima did not testify herself at

Childress’s trial. Childress’s trial counsel did not object to this statement, and it was

never raised on appeal.

Childress claims that the statement was hearsay and was not admissible as the

statement of a co-conspirator under Indiana Evidence Rule 801(d)(2)(E), that his rights to

confrontation were violated by its admission, and that there is a reasonable probability

that the outcome of the trial would have been different had the statement been excluded.

We disagree.

We believe that the facts and circumstances show that Jakima was a co-

conspirator, and so the statement would be admissible under Indiana Evidence Rule

5

801(d)(2)(E). For the sake of argument however, let us assume that the statement in

question was hearsay and did not qualify as a statement of a co-conspirator. Even so,

there was enough other evidence presented against Childress from which the jury could

have determined that he was guilty even without Nalborczyk’s statement.

Nalborczyk testified that Childress was present with a gun in both the Merrillville

and Gary houses where the crimes took place that night, and that Childress was the

person who put Angrove in the trunk of the car to move him between the locations.

Angrove himself testified that Childress pushed him into a room and held a gun to his

head. Angrove also testified that someone was sitting on the steps to the basement while

he was held in the basement, and that he was told that person was armed; Hardy testified

that Childress was the person sitting on the basement steps. Hardy also testified that

Childress had a weapon for at least a couple of the hours spent in Merrillville, and that

Childress and Jakima were in charge. Hardy testified that he saw Childress with

Angrove’s credit cards. And, interestingly, Hardy also testified to apparently the same

conversation at issue here, in which he heard Jakima and Childress say that they would

just rob Angrove. Upon Childress’s objection to that testimony, the trial court allowed

the testimony because it fit the criteria for a statement by a co-conspirator.

Given all of the evidence against Childress, including the fact that essentially the

same statement that is at issue here was admitted over objection as part of Hardy’s

testimony, Childress has failed to convince us that there is any reasonable probability that

the result of the trial would have been any different had the statement in question been

6

excluded.1 Childress has failed to meet the second prong of the Strickland test for

ineffective assistance of counsel, and the evidence does not lead unmistakably to a

conclusion opposite that reached by the post-conviction court.

2. Sentencing

Childress also claims that he was denied the effective assistance of counsel when

his trial counsel failed to object to the imposition of consecutive sentences. The trial

judge has discretion in determining a sentence, guided by Indiana Code section 35-38-1-

7.1. Powell v. State, 751 N.E.2d 311, 314-15 (Ind. Ct. App. 2001). A single proper

aggravating factor is sufficient to support an enhanced sentence. Id. at 315. Even where

the trial court considers improper aggravators in imposing a sentence, the sentence will

be affirmed if it is otherwise supported by a legitimate aggravator. Id. A court considers

aggravating and mitigating factors when determining whether terms of imprisonment will

be served consecutively or concurrently. Ind. Code § 30-50-1-2.

In sentencing Childress to consecutive terms, the court relied on three aggravating

factors: 1) that Childress committed separate offenses within a short period of time; 2)

evidence presented at trial indicating that Childress was involved in the distribution of

1

The statement also does not implicate the confrontation clause of the Sixth Amendment to the U.S.

Constitution because the statement was not testimonial. See Pendergrass v. State, 913 N.E.2d 703, 706 (Ind. 2009)

(discussing what constitutes testimonial evidence, including in-court testimony, formalized materials such as

affidavits, and statements which would lead an objective witness to believe that the statement would be available for

use at a later trial) (citing Crawford v. Washington, 541 U.S. 36, 51 (2004)), cert. denied, 130 S. Ct. 3409 (2010).

Further, while Article 1, section 13 of the Indiana Constitution provides a right to confrontation that is not

necessarily identical to that of the federal constitution, our supreme court has declined to support claims based on

the Indiana Constitution’s right to confrontation where the claim failed under the federal standard and the appellant

did not provide an argument for why analysis under the Indiana Constitution would be any different. Turner v.

State, 953 N.E.2d 1039, 1055 n.8 (Ind. 2011) (“However, Turner has not explained and offers no argument as to

why an analysis of the Indiana constitution concerning the testimonial character of a statement is or should be any

different than the federal analysis. Our conclusion concerning Turner’s federal constitutional claim applies equally

to his state constitutional claim.”).

7

cocaine; and 3) that the entire event took place over the course of several hours and at

various locations.

Childress seems to attack both the first and the third factor, although only really

addresses the third factor. Childress claims that the third factor regarding various

locations was inappropriate because the jury acquitted Childress of some of the charges

and “[t]he jury probably followed counsel’s argument and based their verdicts on the acts

that Angrove testified were committed by Childress in Merrillville” and therefore

acquitted Childress of the acts committed in Gary. Brief of Petitioner at 12. However,

we do not speculate as to the wisdom, motive, or reasoning of the jury in reaching its

verdict. Wallace v. State, 492 N.E.2d 24, 25 (Ind. 1986). We cannot speculate here as to

which evidence the jury used to find Childress guilty and whether it involved both

locations. However, even if we exclude this aggravating factor, we are left with two

other factors.

If we disregard the acquitted charges, Childress was still guilty of two crimes—

robbery and confinement—in a short period of time, which supports the first factor. It

was also not inappropriate for the court to consider evidence indicating Childress was

involved in distribution of cocaine, as factor two. Singer v. State, 674 N.E.2d 11, 14

(Ind. Ct. App. 1996) (“Uncharged misconduct is a valid sentence aggravator.”).

Because the court more than met the requirement of having at least one valid

aggravating factor to support sentencing a defendant to consecutive terms, we cannot say

that there is any reasonable probability of a different outcome had counsel objected to the

sentencing. Childress has again failed to meet the second prong of Strickland, and we

conclude that his trial counsel did not provide ineffective assistance.

8

B. Appellate Counsel

Finally, Childress claims that he was denied the effective assistance of appellate

counsel when appellate counsel failed to raise the admission of Nalborczyk’s testimony

and the consecutive sentences on appeal. We reiterate our starting point of a presumption

of reasonable professional assistance, and that counsel is afforded considerable discretion

in choosing strategy, including the strategic choice of which issues to present on direct

appeal. See Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).

On appeal, we will review errors not preserved at trial only if they rise to the level

of fundamental error. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). To qualify

as fundamental error, an error must be a clear and substantial blatant violation of basic

and elementary principles which renders the trial unfair to the defendant. Id.

Fundamental error is error that if not corrected would deny the defendant due process.

Ward v. State, 519 N.E.2d 561, 562 (Ind. 1988).

Because trial counsel did not object to Nalborczyk’s testimony, appellate counsel

could only have raised the issue on appeal by arguing that it constituted fundamental

error. Here, for the reasons outlined above, it is clear that the testimony issue did not rise

to the level of fundamental error. As the post-conviction court noted, appellate counsel

cannot be held ineffective for failing to pursue an issue that was procedurally unavailable.

Further, while we may correct sentencing errors on appeal even if the issue was not raised

below, Barnett v. State, 834 N.E.2d 169, 173 (Ind. Ct. App. 2005), as we concluded

above, the trial court here provided sufficient valid aggravating factors to impose

consecutive sentences and so there was no error in sentencing.

9

Additionally, at the post-conviction relief hearing, appellate counsel said that even

in retrospect, she did not think that she should have raised the testimony or sentencing

issues on appeal. Even if counsel had made the strategic decision to appeal these two

issues, for the reasons outlined above we do not agree that there is a reasonable

probability that the outcome of appeal would have been any different. Childress was not

denied the effective assistance of appellate counsel.

Conclusion

Concluding that Childress was not denied the effective assistance of either trial or

appellate counsel, and that the evidence does not lead to a result unmistakably opposite to

that reached by the post-conviction court, we affirm.

Affirmed.

BAKER, J., and BRADFORD, J., concur.

10