Adcock v. State

• Decision Date: 08 December 2014
• Docket Number: No. 47A01–1407–PC–283.,47A01–1407–PC–283.
• Citation: 22 N.E.3d 720
• Parties: Brian S. ADCOCK, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

22 N.E.3d 720

Brian S. ADCOCK, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 47A01–1407–PC–283.

Court of Appeals of Indiana.

Dec. 8, 2014.

Stephen T. Owens, Public Defender of Indiana, C. Brent Martin, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES

, Judge.

Case Summary

Brian Adcock appeals the post-conviction court's denial of his petition for post-conviction relief (“PCR petition”), which challenged his convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor. We reverse and remand.

Issue

The combined and restated issue before us is whether Adcock's appellate counsel was ineffective for failing to challenge the sufficiency of the evidence against him on direct appeal.¹

Facts

L.P. was born on September 21, 1988. Adcock lived in Bedford with L.P. and her mother, and he married L.P.'s mother when L.P. was twelve. Beginning when L.P. was in third grade, Adcock would come into L.P.'s bedroom at night about once a week and fondle her breasts and try to touch her vagina. Most of these touchings occurred over L.P.'s clothes, although Adcock would sometimes try to reach underneath her clothes.

L.P. began junior high school in the fall of 2001. L.P.'s junior high school included seventh and eighth grades. L.P. turned fourteen in September 2002, at the beginning of her eighth grade year. Sometime during her seventh grade year, Adcock began frequently giving her back rubs, and these would escalate into Adcock fondling L.P.'s breasts and touching her vagina. L.P. would later testify that Adcock usually “rubbed around” her vagina with his fingers, but that “once or twice,” he put his finger into her vagina. Tr. p. 453. L.P. also said, “He didn't do that that much.” Id. L.P. was unsure what grade she was in when Adcock digitally penetrated her vagina.

Sometime during L.P.'s freshman year of high school, which would have been in 2003–04, Adcock began frequently rubbing his penis against L.P.'s vagina. L.P. specifically would later testify that Adcock “[j]ust rubbed against mine” and that he did not do anything else with his penis. Id. at 448.

L.P. told a friend about Adcock's conduct while she was in junior high school, but it was not reported to police at that time. In 2006, L.P. told a boyfriend about Adcock's conduct, and it was finally investigated by police in January 2008. On May 21, 2008, the State charged Adcock with a number of offenses related to L.P.² After several amendments and motions to dismiss, Adcock faced trial on three counts of Class A felony child molesting and three counts of Class B felony sexual misconduct with a minor, all of which alleged that Adcock engaged in “deviate sexual conduct” with L.P. App. pp. 65–66. The three child molesting counts were alleged to have occurred between August 2001 and August 2002, when L.P. was twelve or thirteen. The first count, Count 1 of the information, alleged that Adcock “plac[ed] his finger in her vagina”; Count 2 alleged that Adcock “plac[ed] his mouth on her vagina”; and Count 3 alleged that Adcock “plac[ed] his penis against her vagina.” Id. The three sexual misconduct counts—Counts 4 through 6—were alleged to have occurred between May 21, 2003 and September 20, 2004 when L.P. was between fourteen and less than sixteen years old. The language of these counts was identical to Counts 1–3 with respect to the sex acts Adcock was alleged to have committed.

During Adcock's jury trial in September 2009, he successfully moved for a directed verdict on Counts 2 and 5 of the information because there was no evidence that Adcock had ever performed oral sex on L.P. The jury returned guilty verdicts on Counts 1, 3, 4, and 6. Adcock also was found to be a repeat sexual offender (“RSO”) and sentenced accordingly.

On direct appeal, Adcock's attorney argued that the prosecutor committed misconduct during voir dire, that the trial court improperly allowed the State to make an amendment related to notice of the RSO, and that double jeopardy precluded his multiple convictions for both child molesting and sexual misconduct with a minor. We rejected all of Adcock's arguments and affirmed. Adcock v. State, 933 N.E.2d 21 (Ind.Ct.App.2010)

. In addressing Adcock's double jeopardy claim, we specifically noted, “Adcock does not challenge the sufficiency of the evidence.” Id. at 31 n. 8. Our supreme court denied transfer.

Adcock subsequently filed a pro se PCR petition, which later was amended by counsel. Adcock contended that he received ineffective assistance of trial counsel for not having moved for directed verdicts on all counts and that he received ineffective assistance of appellate counsel for not challenging the sufficiency of the evidence on all counts. Adcock submitted affidavits from his trial and appellate attorneys that they had not considered moving for directed verdicts or challenging the sufficiency of the evidence on appeal, but that they believed there was in fact insufficient evidence on all the convictions. Adcock moved for summary disposition of his PCR petition. The State afterward also moved for summary disposition. The PCR court granted the State's motion for summary disposition and rejected all of Adcock's claims, without entering any findings or conclusions. Adcock now appeals.

Analysis

The PCR court resolved this case by summary disposition on the State's motion, pursuant to Indiana Post–Conviction Rule 1(4)(g)

.³ That rule provides:

The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

Ind. Post–Conviction Rule 1(4)(g)

. We review a trial court's ruling on summary disposition as we would a ruling on summary judgment under Indiana Trial Rule 56. Allen v. State, 791 N.E.2d 748, 753 (Ind.Ct.App.2003), trans. denied. Summary disposition should not be granted unless there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. Any doubts about the facts and inferences to be drawn from them must be resolved in favor of the non-movant. Id. The granting of a motion for summary disposition is a matter for appellate de novo determination when there are no disputed facts and the determinative issue is a question of law. Norris v. State, 896 N.E.2d 1149, 1151 (Ind.2008). The PCR court also failed to enter any findings to accompany its order. Adcock contends the PCR court erroneously granted the State's motion for summary disposition and should have granted summary disposition in his favor instead pursuant to his own motion. Adcock does not request that we remand this case for an evidentiary hearing or for the PCR court to enter findings. The State, having moved for summary disposition, argues at the outset that the PCR court should have entered findings and asks us to remand for such findings to be entered, but alternatively argues on the merits that summary disposition was properly granted.

Regarding the State's remand request, it is true that Indiana Post–Conviction Rule 1(6)

requires a PCR court to “make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held.” This would seem to require PCR courts to enter findings and conclusions, even if it grants a motion for summary disposition. But see State v. Daniels, 680 N.E.2d 829, 831–32 (Ind.1997)

(comparing Indiana Post–Conviction Rule 1(4)(g) with Indiana Trial Rule 56 and stating, “[s]pecific findings and conclusions are neither required nor prohibited in the summary judgment context.”). However, a PCR court's failure to enter specific findings of fact and conclusions of law in ruling on a PCR petition is not reversible error when the issues are sufficiently presented for review and addressed by the parties. Jackson v. State, 676 N.E.2d 745, 750 (Ind.Ct.App.1997), trans. denied. If the facts underlying a claim are not in dispute, the issues are sufficiently clear, and both parties address the merits in their briefs, remand for specific findings by the PCR court is not necessary. Id. (citing Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983) ).

We also note that whether a defendant received effective assistance of counsel during trial and appeal often is characterized as a factual, not legal, question. See Evolga v. State, 722 N.E.2d 370, 373 (Ind.Ct.App.2000)

. A defendant claiming ineffective assistance of appellate counsel must show counsel was deficient in his or her performance and that the deficiency resulted in prejudice. Garrett v. State, 992 N.E.2d 710, 719 (Ind.2013). To satisfy the first prong, the defendant must show that counsel's representation fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the “counsel” guaranteed by the Sixth Amendment. Id. “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001), cert. denied. In other words, to demonstrate deficient performance by appellate counsel, “ ‘a defendant must show from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy.’ ” Id. at 606 (quoting Ben–Yisrayl v. State, 738 N.E.2d 253, 260–61 (Ind.2000), cert....