Terry Smith v. State of Indiana (mem. dec.)

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.

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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.

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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

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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);

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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.

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[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.

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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.

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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

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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.

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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

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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.

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[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

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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.

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