Taylor v. State Of Ind.

• Decision Date: 17 September 2010
• Docket Number: No. 71A04-1001-PC-6.,71A04-1001-PC-6.
• Citation: 929 N.E.2d 912
• Parties: Charles TAYLOR, Appellant-Petitioner,v.STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

929 N.E.2d 912

Charles TAYLOR, Appellant-Petitioner,v.STATE of Indiana, Appellee-Respondent.

No. 71A04-1001-PC-6.

Court of Appeals of Indiana.

July 9, 2010.

Transfer Denied, Sept. 17, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel M. Grove, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

After Charles Taylor initiated a direct appeal of his three convictions for Class B felony unlawful possession of a firearm by a serious violent felon, he filed a Davis/Hatton petition, which this Court granted. Taylor then filed a petition for post-conviction relief, which the post-conviction court denied. Taylor now appeals the denial of post-conviction relief and reinstates his direct appeal. Concluding that Taylor's trial counsel did not provide ineffective assistance by failing to object to the admission of the weapons and that Taylor's convictions do not violate Indiana's prohibition against double jeopardy, we affirm.

Facts and Procedural History

Virginia Bloss was hanging curtains in her window when she saw three boys exit the house at 1615 South Arnold Street in South Bend, which was on the opposite side of the vacant lot next to her house. One of the boys fired a gun. The boys then ran back into the house. Bloss dialed 911.

Several police officers from the South Bend Police Department were dispatched to the area “in reference to a shot being fired by some juveniles.” Tr. p. 7. As Officer Jeff Ransberger approached the house at 1615 South Arnold Street, he noted the silhouette of a person in an upstairs room “[p]eering out the window, looking out to see what was going on, [and] mov[ing] back and forth from one side of the window to the other.” Id. at 8. The officers established a perimeter around the house and called for anyone inside the house to come out. Three boys exited the house. The officers patted down the boys and found no weapons. Officer Ransberger asked if anyone remained in the house. The boys said no. One of the boys said, “[I]t wasn't us with the gun, it wasn't us with the gun.” Id. at 26. While some of the officers “stayed ... outside with the juveniles and secured them separately in their patrol vehicles,” id. at 18, other officers entered the house to look for armed or injured parties. In a bedroom on the first floor, Officer David Johnson found a shotgun, in plain view, leaned up against the doorjamb of the closet, and a large gun case next to it. He placed both the shotgun and the gun case on the bed. Officer Johnson opened the gun case and found an AK-47 inside. He then had Officer Stephen Berger monitor the weapons while he continued assisting in the warrantless search of the house. Finding no armed or injured parties, the officers left the house.

The officers contacted Lieutenant Scott Hanley and the boys' parents. Before Lieutenant Hanley arrived, Taylor and another individual arrived. Taylor said he lived at the house and one of the boys was his stepson. The officers briefly told Taylor what was going on. Taylor wanted to go into the house, so Officer Johnson accompanied him inside. Officer Johnson later testified that because he had received information from Officer Ransberger that the handgun fired by the juveniles was gray or silver, he asked Taylor if he owned such a gun:

While inside the house, I asked Mr. Taylor if he owned a gray or silver revolver. No response back to me. I then asked him, I said, do you own a gray or silver handgun? Again, no response. So then I asked him, I said, do you have any idea how these kids would have gotten their hands on a handgun? And Mr. Taylor said to me, something to the effect, my boys know better than to fuck with my guns because one of 'em got arrested or got in trouble for robbing the ice cream man with my gun last year.

Id. at 285-86. Lieutenant Hanley arrived and explained to Taylor that the officers had found a shotgun in the bedroom. Taylor admitted that the bedroom was his. To prove that he lived there, Taylor went into the house with Lieutenant Hanley and retrieved mail addressed to him at that house. Although Taylor was initially going to sign a permit to search the house, he then told the officers that they would have to get a search warrant. After further conversation, Taylor told Lieutenant Hanley that he had a conviction for attempted robbery. At that point, Taylor was arrested.

The police obtained and executed a search warrant for the house. In the same bedroom that the shotgun and AK-47 were found, officers found a black .45 caliber handgun, a chrome gray 9 millimeter handgun, as well as ammunition for both handguns. They also retrieved mail showing Taylor as a resident of 1615 South Arnold Street.

The State charged Taylor with four counts of Class B felony unlawful possession of a firearm by a serious violent felon. Ind.Code § 35-47-4-5. Each count corresponded to each weapon found: a 12-gauge Mossberg shotgun, an SAR 17.62 caliber rifle, a Taurus .45 caliber handgun, and a Smith & Wesson 9 millimeter semiautomatic handgun. Appellant's App. p. 5-6.

Before trial, Taylor moved to suppress all evidence seized from 1615 South Arnold Street on grounds that the officers had “neither valid consent nor exigent circumstances to justify the warrantless search.” Id. at 42. At the hearing on the motion to suppress, Officer Johnson justified the warrantless entry:

We know that there was a shot fired. We know that our witness is telling us, at this point, that the shot came from that home. We have our juveniles telling us that they weren't the ones shooting. So we can only assume, at this point, that they were the ones being shot at.

Tr. p. 39. The trial court granted the motion to suppress with regard to the AK-47 Officer Johnson found when he opened the gun case during the warrantless search and denied the motion with regard to all other evidence recovered from the house.

At trial, the shotgun and both handguns were admitted into evidence. Taylor did not object to the admission of the shotgun. His objection to the admission of the handguns was only with regard to a chain of custody issue, and the trial court overruled it. The jury found Taylor guilty of three counts of Class B felony unlawful possession of a firearm by a serious violent felon. The trial court sentenced Taylor to concurrent ten-year sentences for each conviction to be served at the Indiana Department of Correction.

Although Taylor initially filed a notice of appeal, this Court allowed him to dismiss the appeal without prejudice in order to develop an additional evidentiary record in post-conviction proceedings pursuant to the Davis/ Hatton procedure.¹

In his petition for post-conviction relief, Taylor contended that his trial counsel was ineffective for failing to object to the admission of the weapons. Taylor argued that the shotgun was inadmissible because it was discovered during a “warrantless protective sweep without probable cause to believe that [ ] exigent circumstance[s] existed.” Appellant's App. p. 115. He argued that the handguns were inadmissible because they were found during a search authorized by a warrant relying on information gleaned from the initial unlawful search. After evidence was submitted, the trial court, without a hearing, denied Taylor's petition for post-conviction relief. Taylor now appeals.

Discussion and Decision

As for his post-conviction issue, Taylor contends that his trial counsel was ineffective for failing to object to the admission of the weapons. As for his direct appeal issue, Taylor contends that his convictions violate Indiana's prohibition against double jeopardy.

I. Ineffective Assistance of Counsel

Taylor contends that his trial counsel was ineffective for failing to object to the admission of the shotgun and the two handguns. In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. 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). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Id. at 644. 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 accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

We review ineffective assistance of counsel claims under the two-part test provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) reh'g denied. To prevail, a petitioner must demonstrate both that counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Id. Failure to satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind.2002). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001) reh'g denied. A...