Wilcoxen v. State

• Decision Date: 26 January 1999
• Docket Number: No. 10A01-9804-PC-160,10A01-9804-PC-160
• Citation: 705 N.E.2d 198
• Parties: William WILCOXEN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 198

705 N.E.2d 198

William WILCOXEN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 10A01-9804-PC-160.

Court of Appeals of Indiana.

Jan. 26, 1999.

Transfer Denied March 16, 1999.

Susan K. Carpenter, Public Defender of Indiana, Richard Denning, Deputy Public Defender, Indianapolis, Indiana, for appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, for appellee.

OPINION

ROBB, Judge.

William Wilcoxen appeals the denial of his petition for post-conviction relief challenging his conviction of Murder and the resulting sentence of sixty years. We affirm.

Issues

Wilcoxen presents for our review the following restated issues:

1. Whether it was fundamental error to instruct the jury that "sudden heat" is an element of the offense of voluntary manslaughter; and

2. Whether he was denied the effective assistance of counsel when trial counsel tendered the erroneous instruction to the trial court and appellate counsel failed to raise the issue of the erroneous instruction or trial counsel's ineffectiveness on direct appeal.

Facts and Procedural History

The facts, as set forth by our supreme court in Wilcoxen's direct appeal, are as follows:

On the evening of January 12, 1991, and the early morning hours of January 13, appellant and some of his friends toured several bars in Clark County. In Bill's Lounge, also known as River Falls Lounge, appellant came in contact with Kathy Chism Shetler, the victim in this case, David Shetler, the husband of the victim, David's aunt, Doris Hall, and her two daughters. The victim's companions, with the exception of the aunt, all left, including her husband.

After the husband left, appellant approached the victim and the aunt and asked them to dance, which both women did. When the bartender gave the "last call" prior to closing, the victim's aunt went to warm up her car, and the victim told her to wait for her. However, after the aunt waited for quite some time and the victim had not appeared, the aunt left. The victim's friend, Regina Thompson, testified that she saw the victim and appellant walking down the street from the bar toward the Ohio River. A few minutes later she saw them together on an overlook by the river.

In his statement to police, appellant told them he walked to the river with the victim. When they decided to go under the overlook he preceded the victim, and when he turned around under the overlook, he observed her approaching him with a knife. He said he managed to wrest the knife from her and throw it away. He then beat the victim and ran from the scene.

Prior to giving the statement to the police, appellant had told his friend, Kenneth Thompson, and his roommate that he and the victim had gone under the overlook to have sex. When each of them had partially removed their clothing, she pulled a knife and demanded his wallet. He said he grabbed the knife, threw it toward the river, then grabbed "sticks and stuff" and started hitting her. He said he "just went nuts."

After hearing appellant's story, his roommate and Thompson drove to the scene to find the victim; however, they were unsuccessful. They returned to the house and told appellant they had not found the victim. Appellant then returned to the scene with the two men and the victim's body was found. The men went to a telephone booth, called the police, and waited at the scene for the police to arrive. Appellant was taken to the police station and after being questioned, a breathalyzer test which was administered at approximately 8:30 a.m. showed an .08% blood alcohol content.

Wilcoxen v. State, 619 N.E.2d 574, 575 (Ind.1993). Additional facts relevant to this appeal will be supplied as necessary.

Wilcoxen was tried by a jury and convicted of Murder. He received an enhanced sentence of sixty years. On direct appeal, our supreme court affirmed his conviction and sentence. Id. at 577.

In 1994, Wilcoxen filed a pro se petition for post-conviction relief, which was amended by counsel in 1997. Wilcoxen asserted that the trial court committed fundamental error in instructing the jury that sudden heat is an element of the lesser-included offense of voluntary manslaughter. Wilcoxen also asserted that his trial counsel was ineffective for tendering the erroneous instruction, and that his appellate counsel was ineffective for failing to raise these issues on direct appeal. The post-conviction court denied the petition, making the following relevant conclusions of law:

1. [Wilcoxen] contends that Instruction No. 12 tendered by his trial counsel resulted in the jury being improperly instructed on the lesser included offense of voluntary manslaughter. He argues that the instruction was erroneous because it stated that sudden heat is an element of the offense.

...

3. This court concurs with the post conviction counsel that Instruction No. 12 is incorrect. Sudden heat is not an element of the offense of voluntary manslaughter. Palmer v. State (Palmer II), 573 N.E.2d 880 (Ind.1991), Bane [v. State, 587 N.E.2d 97, 100 (Ind.1992) ]. Rather, sudden heat is a mitigating factor which reduces what would otherwise be murder to voluntary manslaughter. I.C. 35-42-1-3(b).

4. Our supreme court did hold in Palmer II that failure to object to an instruction stating that sudden heat was an element of voluntary manslaughter constituted ineffective assistance of counsel sufficient to grant post conviction relief. Id. at 880. However, that instruction also incorrectly included lack of malice as an element. Such is not the case in this proceeding.

5. The jury instruction in the Bane case "at one point suggested to the jury that sudden heat was an element of the crime on [sic] voluntary manslaughter. At another point, it cited the voluntary manslaughter statute and informed the jury that sudden heat was a mitigating factor. ["] Id. at 100-01. The Supreme Court held that the instruction did not constitute fundamental error as it did not deprive Bane of his due process rights. Id. at 101. The Court also stated that an error in the wording of a voluntary manslaughter instruction may be cured by other instructions given simultaneously to the jury. Id. at 101.

...

9. While the jury was not expressly instructed using the words "mitigator" or "mitigating factor", it was not misled. Instruction No. 5 specified that voluntary manslaughter was a lesser included offense. Instruction No. 10 discusses what is necessary "in order for a killing to be reduced to voluntary manslaughter". Instruction No. 11 discussing provocation and sudden heat states, "[A]ll that is required to reduce a homicide from murder to voluntary manslaughter is sufficient provocation to excite in the mind of the Defendant such emotions as anger, rage, sudden resentment, or terror as may be sufficient to obscure the reason of an ordinary person, and to prevent deliberation and premeditation, to exclude malice, and to render the Defendant incapable of cool reflection." Nor was the jury confused as to the burden of proof. By Instruction No. 1, the jury was advised as to the presumption of innocence, and that he was "not required to present any evidence to prove his innocence or to explain anything." They were again so advised by the Court's Instruction No. 7. Any error in the wording of Instruction No. 12 was cured by the foregoing and other instructions given simultaneously to the jury. Thus, while Instruction No. 12 was technically erroneous, the instruction does not constitute fundamental error, and [Wilcoxen's] claims that his trial counsel provided ineffective assistance of counsel are without merit.

P-C.R.R. 74-77. Wilcoxen now appeals the denial of his petition for post-conviction relief.

Discussion and Decision

A. Standard of Review

The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind.Ct.App.1997), trans. denied . Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993). When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Montano v. State, 649 N.E.2d 1053, 1056 (Ind.Ct.App.1995), trans. denied. Thus, in general, if an issue was available on direct appeal but not advanced, it is deemed waived for post-conviction review. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995), trans. denied. But see Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998) (holding that "a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in postconviction proceedings.").

There is a "fundamental error" exception to the general rule of waiver which is available only when the record reveals clearly blatant violations of basic and elementary due process and when the harm or potential for harm cannot be denied. Minnick v. State, 698 N.E.2d 745, 759 (Ind.1998). Application of this exception in post-conviction proceedings is generally limited to instances of deprivation of Sixth Amendment right to counsel or to an issue demonstrably unavailable to the petitioner in the prior proceedings. Id. In the instant case, where the error in the voluntary manslaughter instruction was not brought as an issue on direct appeal, we will only reverse based upon the instruction if we find it to be fundamental error.

The petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano, 649 N.E.2d at 1056. To prevail on appeal from the denial of a ...