Mato v. State

• Decision Date: 28 May 1985
• Docket Number: No. 683S195,683S195
• Citation: 478 N.E.2d 57
• Parties: Michael S. MATO, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 57

478 N.E.2d 57

Michael S. MATO, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 683S195.

Supreme Court of Indiana.

May 28, 1985.

Susan K. Carpenter, Public Defender of Ind., Carolyn J. Fitch, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Petitioner Michael Mato was convicted of Rape, Criminal Deviate Conduct, Theft, and Criminal Confinement, following a jury trial. He was sentenced to the Indiana Department of Corrections for a period of twenty (20) years for Rape and twenty (20) years for Criminal Deviate Conduct, said sentences to run consecutively. He was also sentenced to a two year term for Theft and a two year term for Criminal Confinement, said sentences to run concurrent with each other and with the two prior sentences. On August 18, 1982 Petitioner filed his pro se petition for post-conviction relief, which was denied on November 29, 1982, after having been amended by retained counsel. Petitioner now appeals and raises the following four issues:

1. Petitioner was denied effective assistance of counsel at trial, or in the alternative, newly discovered evidence merits a new trial;

2. Petitioner was denied effective assistance of counsel on appeal;

3. the trial court erred by imposing consecutive sentences for Rape and Criminal Deviate Conduct; and

4. Petitioner was denied fundamental due process and a fair trial due to certain alleged errors.

Prior to Petitioner's February 13, 1980 trial, his trial counsel met with him at least five times to discuss trial strategy. Petitioner and counsel decided to aver consent as the best defense because the victim and Petitioner had been having a sexual relationship prior to the incident in question.

At trial, Petitioner took the stand in his defense. The State effectively cross-examined him, impeaching him with inconsistencies in his testimony, until Petitioner became unresponsive and began to ramble about a song. After the jury found Petitioner guilty, but prior to sentencing, the trial judge ordered a psychiatric evaluation of Petitioner due to this incident of unresponsive behavior. Drs. Klassen and Price filed reports indicating Petitioner was not sane or competent to understand further proceedings. Dr. Price also opined Petitioner had not been sane at the time the offense was committed. On April 1, 1980, Petitioner's trial attorney filed a motion to vacate the conviction based on psychiatric evaluation. The trial court denied this motion, ruling the proper remedy, in light of the psychiatric reports, would be to commit Petitioner to the Department of Mental Health until he was deemed competent to stand further proceedings. Honorable William Bontrager, the trial judge, recused himself, anticipating he would be called as a witness in the competency hearing, and ordered defense counsel and the prosecutor to do the same, as they were likely to be called as witnesses. The office of the public defender was appointed to represent Petitioner in further proceedings and deputy prosecutor George Biddlecome became counsel for the State.

On May 27, 1980, Special Judge Donald Jones was notified Petitioner was competent to stand further proceedings. At the competency hearing held September 29, 1980, Drs. Price and Klassen testified, as did the Honorable William Bontrager. The court found Petitioner had been competent at trial and was competent for further proceedings, then set a sentencing date. On October 30, 1980, Petitioner was sentenced and informed the court of his desire to appeal. In November, 1980, Petitioner retained private counsel, Howard Grimm, and the public defender thereafter withdrew. Howard Grimm had James Kirke, an associate attorney, and a law clerk work on appellate proceedings under his direction. Trial counsel for Petitioner communicated with Grimm before the appeal was filed and advised him that the primary issue was whether the court erred by not setting aside the conviction due to newly discovered evidence, referring to the psychiatrists' reports. Grimm concluded this issue was the only meritorious issue for appeal. Accordingly, he preserved no other issues on appeal. This Court affirmed the trial court in Mato v. State, (1982) Ind., 429 N.E.2d 945.

I

Petitioner argues he was denied effective assistance of trial counsel because counsel failed to properly object to improper cross-examination by the State as to Petitioner's character, reminded the jury of Petitioner's motorcycle club membership in final argument, and failed to investigate all possible defenses, especially the insanity defense. In the alternative, Petitioner contends evidence of the availability of the insanity defense was newly discovered evidence, warranting a retrial.

Petitioner's trial counsel testified that his trial strategy was to claim the victim consented to sexual intercourse and as part of that strategy he sought to exclude reference to any matter portraying Petitioner as having violent tendencies. After objecting to references to Petitioner's motorcycle club membership, Petitioner's counsel brought the matter to the attention of the jury during final argument. Petitioner claims this rendered counsel's assistance ineffective.

We first note, as we have repeatedly, that a post-conviction action under Ind.R.P.C. 1 is a special quasi-civil remedy whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. Phillips v. State, (1982) Ind., 441 N.E.2d 201. As such, the petitioner in a post-conviction proceeding bears the burden to prove any grounds for relief by a preponderance of the evidence. The judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. The reviewing court will therefore not set aside the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court. McHugh v. State, (1984) Ind., 471 N.E.2d 293; Metcalf v. State, (1983) Ind., 451 N.E.2d 321.

In reviewing competency of counsel, there is a presumption that counsel is competent. Strong and convincing evidence is required to rebut the presumption. Smith v. State, (1984) Ind., 465 N.E.2d 1105, reh. denied; Howell v. State, (1983) Ind., 453 N.E.2d 241; Lindley v. State, (1981) 268 Ind. 83, 426 N.E.2d 398. Incompetency of counsel revolves around the particular facts of each case; the standard for review for attorney performance is that of reasonable effective assistance. Strickland v. Washington, (1984) --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674. This Court will not speculate as to what may have been the most advantageous strategy in a particular case. Isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective counsel. Henson v. State, (1982) Ind., 436 N.E.2d 79; Hollon v. State, (1980) 272 Ind. 439, 398 N.E.2d 1273, 1277. A review of the record shows Petitioner's claim of ineffective assistance of counsel is unsubstantiated. Prior to trial a motion in limine had been filed requesting that the victim be instructed not to refer to Petitioner by his motorcycle group nickname, which was denied. So too were trial counsel's objections to references of Petitioner's membership in a motorcycle group, consistently overruled. Trial counsel, in final argument, referred to Petitioner's motorcycle group membership in an attempt to minimize the importance the jury may have otherwise placed upon Petitioner's membership. Petitioner has not even cited us to an example of poor or bad strategy, and has failed to demonstrate how counsel's assistance was ineffective.

Next Petitioner alleges trial counsel made an improper objection, which led to the State's admission of Petitioner's prior assault and battery convictions, highly prejudicial evidence. Although Petitioner's trial counsel might have made an objection on one basis whereas another counsel might have chosen a different basis, this was an instance of isolated poor trial strategy which does not amount to ineffective assistance of counsel. Henson, supra; Hollon, supra.

Finally, Petitioner argues trial counsel was ineffective for not investigating the alternative defense of insanity. Once again, this matter is unsupported by the record. In DeVillez v. State, (1981) 275 Ind. 263, 416 N.E.2d 846, this Court held that the hearing judge was not required, in light of the totality of surrounding circumstances, to conclude counsel was ineffective since there was evidence that the plea of insanity was rejected as a matter of trial strategy. In the case before us, trial counsel testified at the post-conviction hearing that he had thought about an insanity plea but dismissed the idea because of his numerous dealings and contacts with Petitioner in which he found Petitioner to be fine. Petitioner was always able to clearly describe in detail his version that the victim had consented. The best possible defense in trial counsel's opinion was consent, and Petitioner concurred in that planned trial strategy. The record shows Petitioner's counsel did investigate the alternative defense of insanity and dismissed it for a more strategic defense, which the Petitioner agreed to be the best defense. Accordingly, Petitioner has failed to demonstrate trial counsel failed to render ineffective assistance due to the fact he did not investigate the defense of insanity.

In the alternative, Petitioner seeks a retrial based on the contention that evidence of the availability of the insanity defense was newly discovered evidence. To justify the granting of a new trial on the basis of newly discovered evidence, Defendant must establish, inter alia, that the...