Timberlake v. State
| Citation | 753 N.E.2d 591 |
| Decision Date | 20 August 2001 |
| Docket Number | No. 49S00-9804-PD-252.,49S00-9804-PD-252. |
| Parties | Norman TIMBERLAKE, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Supreme Court of Indiana |
Eric K. Koselke, Ann M. Sutton, Special Assistants to the Public Defender of Indiana, Indianapolis, IN, Attorneys for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Priscilla J. Fossum, James B. Martin, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION FOR POSTCONVICTION RELIEF
Norman Timberlake was convicted of the murder of Indiana State Trooper Michael Greene and of carrying a handgun without a license. He was sentenced to death. He appeals the denial of his petition for postconviction relief and raises four issues: (1) his competency during trial, direct appeal, and postconviction relief; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; and (4) bias of the postconviction court. We affirm the trial court's denial of postconviction relief.
The facts of this case are reported in Timberlake v. State, 690 N.E.2d 243 (Ind. 1997). In brief, on February 5, 1993, Timberlake and Tommy McElroy stopped on Interstate 65 to urinate. Master Trooper Michael Greene pulled up behind them to investigate the car stopped on the roadside. A radio check identified McElroy as a person wanted by the police, and as Greene was handcuffing McElroy, Timberlake shot Greene. Timberlake was caught shortly thereafter in a lounge and charged with murder, escape, and carrying a handgun without a license. He was convicted of murder and the handgun violation and was sentenced to death. This Court affirmed his conviction and sentence on direct appeal. Timberlake, 690 N.E.2d at 250. After this Court issued its opinion, but before an order on rehearing was issued, Judith Menadue, Timberlake's appellate attorney, questioned his competency and filed a motion to hold the appeal in abeyance. This Court denied the motion and then denied rehearing.
Timberlake filed a petition for postconviction relief on December 7, 1998. After two recusals, Judge Steven Nation was appointed to hear the case. At the time Judge Nation assumed the case, the postconviction court had sua sponte ordered two experts to evaluate Timberlake's competency, but that process was not complete. Pursuant to Judge Nation's direction, on August 2, 1999, Timberlake filed a motion to determine his competency. After doctors interviewed Timberlake, competency hearings were held on September 15, September 29, and October 5, 1999. Judge Nation ruled Timberlake competent. This Court denied a request to present that issue on interlocutory appeal. The postconviction hearing was held on November 8, 9, 10, 12, and 15 and, on December 27, the postconviction court issued Findings of Fact and Conclusions of Law denying relief. This appeal ensued.
Timberlake bore the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues, Timberlake must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Harrison v. State, 707 N.E.2d 767, 773 (Ind.1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995)). We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the postconviction court. Id. at 774.
Postconviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the postconviction rules. P C.R. 1(1); Rouster, 705 N.E.2d at 1003. If an issue was known and available, but not raised on direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal, but decided adversely, it is res judicata. Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.1994)). If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a postconviction proceeding. Woods v. State, 701 N.E.2d 1208, 1215 (Ind.1998). A claim of ineffective assistance of appellate counsel is also an appropriate issue for postconviction review. As a general rule, however, most free-standing claims of error are not available in a postconviction proceeding because of the doctrines of waiver and res judicata. Some of the same contentions, to varying degrees, may be properly presented in support of a claim of ineffective assistance of trial or appellate counsel. Because Timberlake's direct appeal raised a claim of ineffective assistance of trial counsel, we address the issues Timberlake raises in this appeal primarily as claims of ineffective assistance of his appellate counsel in presenting or omitting issues bearing on his claim of ineffective trial counsel. We also address those free-standing claims that are not barred by waiver or res judicata.
Timberlake claims that he was incompetent during his initial trial and, therefore, his convictions and sentence must be reversed. The postconviction court held that this issue was waived because it was not raised on direct appeal. The postconviction court also noted that, before Timberlake was tried, two experts examined him and determined him to be competent. The postconviction court found, "Petitioner has produced no credible evidence that the conclusions reached by trial counsel's experts were wrong."
We agree with the postconviction court that the issue of Timberlake's competency at trial was known and available on direct appeal and is therefore not available as a freestanding claim in postconviction relief. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). In any event, Timberlake has not established that he was incompetent at the time of trial. For that reason, to the extent failure to present the competency issue is presented here as appellate ineffectiveness, Timberlake does not establish the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the same reason, Timberlake does not fall into the unusual category recognized in Tinsley v. State, 260 Ind. 577, 298 N.E.2d 429 (1973). In Tinsley, this Court ordered an evidentiary hearing on the issue of defendant's competency. The defendant first challenged his competency in a post-trial motion to correct error. In support of that motion the defendant submitted a finding of incompetency in a guardianship proceeding. This Court found that "[i]n certain unique situations facts coming to light only after the trial may be so significant and compelling as to create `reasonable grounds' to question a defendant's competency at the time of his trial and therefore require a hearing on the question." Tinsley's "unique situation" is not presented here. Timberlake's competency was questioned by his trial counsel and Timberlake was examined by two doctors who concluded he was competent. Nor was there a contemporaneous finding of incompetency from another court.
To be competent at trial, a defendant must be able to understand the nature of the proceedings and be able to assist in the preparation of his defense. Ind.Code § 35-36-3-1 (1998); Brewer v. State, 646 N.E.2d 1382, 1384 (Ind.1995). In this appeal Timberlake points to incidents from more than ten years before his arrest, his conspiracy theories during his trial, and post-trial medical testimony as evidence that he was incompetent at the time of trial. The information about Timberlake's competency both before and after the trial is relevant but far from conclusive of his competency at trial. Competency is not a static condition. Cf. I.C. § 35-36-3-1. Given the contemporaneous findings of two doctors that he was competent at the time of trial,1 the postconviction court's finding that Timberlake has not established that he was incompetent at trial is more than amply supported by the record, and Timberlake fails to establish prejudice in counsel's failure to present the issue on direct appeal.
Timberlake also challenges his competency during the direct appeal. As a preliminary matter, we note that it is not at all clear that competency is required in a direct appeal. Cf. State v. White, 168 Ariz. 500, 815 P.2d 869, 878 (1991), abrogated on other grounds by State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992); People v. Kelly, 1 Cal.4th 495, 3 Cal.Rptr.2d 677, 822 P.2d 385, 414 (1992); People v. Newton, 152 Mich.App. 630, 394 N.W.2d 463, 466 (1986), vacated on other grounds by 428 Mich. 855, 399 N.W.2d 28 (1987). The postconviction court made findings on this issue as well. Specifically, the court found that evidence of Timberlake's questionable competence was discovered after his appeal was decided, and, therefore, he had already assisted, as much as possible, in his appeal. After the opinion on direct appeal was issued in this case and while rehearing was pending, his appellate attorney, Menadue, filed a motion to hold the appeal in abeyance based on her perception that Timberlake was incompetent. At the time that this motion was filed, the appeal had been decided after having been fully briefed for fifteen months. That motion was denied by this Court.
We agree with the postconviction court that, even if competency is required for a direct appeal, Timberlake has not shown that he was incompetent at the relevant time. Menadue's suspicions about Timberlake's competency were not raised until long after she had filed his appellate briefs. Thus, even if Timberlake was unable to assist with his defense at that time, the postconviction court was correct in concluding that...
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