Henley v. State

Decision Date27 February 2008
Docket NumberNo. 82S05-0701-PC-31.,82S05-0701-PC-31.
Citation881 N.E.2d 639
PartiesAntwain HENLEY, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 82A05-0508-PC-480

RUCKER, Justice.

When a trial court summarily denies a pro se defendant's request that standby counsel deliver closing argument, the denial is not per se reversible error. Rather, the inquiry is whether the trial court abused its discretion in denying the request for counsel.

Facts and Procedural History

In August 1998 Antwain Henley was charged with attempted murder, a Class A felony, two counts of kidnapping as Class A felonies, two counts of robbery as Class B felonies, carjacking as a Class B felony, and criminal mischief as a Class D felony. The essential facts are these. Henley and his girlfriend were walking across a street in Evansville when two people unknown to them, Tiffany Moorman and Tosheika Douglas, drove up in a car and asked for directions. Henley and his girlfriend offered to show the young women the way. After entering the car, Henley produced a handgun and demanded money. He shot out the back window of the car to show that he was serious. Henley ordered Moorman to drive to a certain location, and once there, he told Moorman to park behind a building and turn off the engine. Henley and his girlfriend then ordered Douglas and Moorman to get out of the car and remove their clothing. Forcing the young women into the trunk, Henley drove away. Shortly thereafter Evansville police officers on routine patrol spotted the car with its missing window and also recognized Henley's girlfriend for whom there was an outstanding arrest warrant. When officers stopped the car Henley bolted and ran from the scene. The two unclothed young women were discovered in the trunk. Using a canine, Evansville police officers tracked Henley to a van. When the dog entered the van, Henley began shooting. A bullet struck the dog resulting in fatal injury.

Because Henley was indigent, the trial court appointed counsel to represent him. At a pre-trial hearing on December 22, 1998, Henley advised the judge that he was dissatisfied with his court appointed counsel and requested that another lawyer, be appointed. The trial court denied the request informing Henley that he could either, obtain private counsel or proceed pro se. Henley told the trial court that he wanted to represent himself. The trial court then advised Henley of the perils and pitfalls of self-representation. Among other things the trial court advised Henley that he would be held to the same rules of trial procedure and evidence as an attorney and he would be responsible for making arguments, questioning witnesses, and selecting jurors. Further, the trial court pointed out the disparity between Henley's and counsel's education and knowledge of the law. Several times the trial court advised Henley that it might not be in his best interest to represent himself. Henley responded that he understood these advisements but insisted that he wanted the court to appoint another lawyer. Informed that this was not an option, Henley responded, "Well, I don't have the money for it. If I can't get [a different] appointed counsel ... he can be on standby, he can work with me." Tr. at 54. The trial court granted Henley's request to proceed pro se and directed Henley's court appointed counsel to act in a standby capacity.

With standby counsel at his side, Henley represented himself in a two-day jury trial that began January 4, 1999. At the close of trial but before final summation, Henley requested that standby counsel deliver the closing argument. The State objected and without elaboration the trial court denied Henley's request. Henley proceeded with closing argument. Ultimately the jury returned a verdict of guilty as charged on all counts. After a hearing, the trial court sentenced Henley to forty years for Class A felony attempted murder,1 forty years for each count of Class A felony kidnapping, fifteen years for each count of Class B felony robbery,2 and fifteen years for Class B felony carjacking. The trial court imposed the maximum term of three years for Class D felony criminal mischief.3 The sentences for kidnapping, robbery, carjacking, and criminal mischief were ordered to be served concurrently with each other but consecutively to the forty-year sentence for attempted murder, for a total executed term of eighty years imprisonment.

Represented by counsel, Henley pursued a direct appeal raising ten issues for review. Finding four of the issues waived for lack of cogent argument and failure to cite relevant legal authority, the Court of Appeals addressed the remaining claims and in an unpublished Memorandum Decision affirmed the judgment of the trial court. See Henley v. State, 82A01-9904-CR-141, 727 N.E.2d 39 (Ind.Ct.App. Apr. 11, 2000).

On December 15, 2000 Henley filed his pro se petition for post-conviction relief, which was later amended by counsel. Following hearings held on July 15, 2004 and December 15, 2004, the post-conviction court denied relief. Henley appealed raising the following restated claims: (1) appellate counsel failed to raise on direct appeal the trial court's summary denial of Henley's request that standby counsel deliver closing argument, (2) appellate counsel failed to raise on direct appeal the trial court's failure to consider his mental retardation as a mitigating factor, (3) appellate counsel raised but failed to present a cogent argument to challenge the sufficiency of the evidence supporting the attempted murder conviction, (4) the court should reconsider its ruling on direct appeal that Henley's waiver of his right to counsel was knowing, intelligent, and voluntary, and (5) the court should reconsider its ruling on direct appeal whether the wearing of a stun belt violates due process of law. Finding the first issue dispositive, the Court of Appeals reversed the judgment of the post-conviction court and remanded this cause for a new trial. Henley v. State, 855 N.E.2d 1018 (Ind.Ct.App.2006). Having previously granted the State's petition to transfer, we now affirm in part and reverse in part the judgment of the post-conviction court. Additional facts are recited below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citation omitted).

Standard of Review for Ineffective Assistance of Counsel

Henley's reviewable claims fall under the heading of ineffective assistance of appellate counsel.4 The standard of review for such claims is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind.1997). To satisfy the first prong, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the "counsel" guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002). To satisfy the second prong, the defendant must show prejudice: 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.

When raised on collateral review ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.2006); Fisher, 810 N.E.2d at 677. Here, Henley makes three claims: (1) appellate counsel rendered ineffective assistance for failing to raise the trial court's summary denial of Henley's request that standby counsel deliver closing argument, (2) appellate counsel failed to challenge the trial court's failure to consider Henley's mental retardation as a mitigating factor in sentencing, and (3) appellate counsel raised but failed to present a cogent argument to challenge the evidence supporting the attempted murder conviction. Henley's first two claims are based upon the waiver of issues category, and his third claim falls under the category of failure to present issues well. We address each claim in turn.

Discussion
I. Summary Denial of Request for Standby Counsel

As recounted above, when Henley requested that his standby counsel deliver closing argument, the trial court denied the request without elaboration. Appellate ...

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