Anderson v. State
| Decision Date | 15 July 2014 |
| Docket Number | No. 49A04–1307–PC–340.,49A04–1307–PC–340. |
| Citation | 16 N.E.3d 488 (Table) |
| Parties | Christopher ANDERSON, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Christopher Anderson, Pendleton, IN, Appellant Pro Se.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Christopher Anderson appeals the denial of his petition for post-conviction relief, contending that the post-conviction court erred when it found appellate counsel was not ineffective for failing to raise the issue that trial counsel was ineffective for: (1) failing to tender lesser-included offense instructions; and (2) failing to object to the serious violent felon (“SVF”) in possession of a firearm count being tried together with the habitual offender enhancement.
We affirm.
The facts supporting Anderson's convictions as set forth by this court on direct appeal are as follows:
Anderson v. State, 774 N.E.2d 906, 908–09 (Ind.Ct.App.2002).
The trial was conducted in two phases. During the first phase, the jury heard evidence regarding the charges of murder, carrying a handgun without a license, and intimidation. Conflicting testimony was given regarding Anderson's demeanor that night. Anderson's girlfriend, White, testified that Anderson and Andre were playing around and, while there was a gun, it was not pointed at anyone. Tr. at 38. In contrast, Andre's cousin, Robert, testified that while he, Andre, and Anderson were in White's kitchen, Anderson and Andre began arguing after Anderson started to rob Andre, who responded, “I ain't givin' you nothing.” Id. at 68.
The defense theory at trial was that Robert, not Anderson, was the shooter. In closing, the State argued that the only witness to the shooting was Robert, a man who had lied before and could have been lying when he testified against Anderson at trial. In closing the State emphasized that Robert was a man who initially said he was not present when the shooting occurred, but later implicated Anderson as the shooter; a man who said he saw Anderson kick Andre in the stomach two or three times, yet the autopsy did not support that testimony; and, finally, a man who was at the scene, and, yet, police failed to pursue him as a suspect. Id. at 170–71.
During deliberations, a juror informed the trial court that she had recognized one of the courtroom spectators who she believed was sitting with Anderson's supporters in the courtroom. The trial court was prepared to remove this juror, but Anderson objected to this proposed measure and moved for a mistrial instead. The trial court denied the motion. Anderson was found guilty of all charges and was found to be an habitual offender. The trial court imposed a sentence of sixty years for the murder conviction, enhanced by thirty years for the habitual offender finding, ten years for the serious violent felon firearm conviction, and four years for the intimidation conviction, all to be served consecutively for a total executed sentence of 104 years. No sentence was imposed for the handgun conviction.
The jury returned the convictions at two different times. First, the jury found Anderson guilty of the murder, intimidation, and possession of a handgun without a license charges. Only then did the jury hear evidence, in phase two of the trial, on the SVF in possession of a firearm count and the habitual offender allegation. The SVF firearm charge alleged a 1987 robbery conviction as the relevant predicate violent felony; the habitual offender charge alleged as its predicate offenses the same 1987 robbery conviction and a 1994 conviction for Class D felony carrying a handgun without a license. Id.
Anderson's appellate counsel raised the following five issues on direct appeal: (1) whether the trial court erred in permitting a witness who sat through part of voir dire to testify when there was a separation of witnesses order; (2) whether the trial court erred in allowing the State to introduce evidence that Anderson was found by law enforcement officials in Alabama after the murder; (3) whether the trial court should have ordered a mistrial when one juror indicated during deliberations that she recognized one of the courtroom spectators; (4) whether there was sufficient evidence to support the murder and intimidation convictions; and (5) whether the enhancement of his murder sentence because of his habitual offender status was improper because one of the prior convictions used to establish that status also established that Anderson was a serious violent felon. Anderson, 774 N.E.2d at 908. We affirmed Anderson's conviction in a nine-page published opinion, dated July 10, 2002.
On October 4, 2011, Anderson, acting pro se, filed his Verified Petition for Post–Conviction Relief (“PCR”) raising one issue—whether his appellate counsel was ineffective for failing to raise ineffectiveness of trial counsel on direct appeal.1 Appellant's PCR App. at 17–27.2 Jeffrey Neel was Anderson's attorney at trial, and attorney Kenneth Roberts represented him on appeal. In his PCR Petition, Anderson claimed that Neel was ineffective at trial for not requesting jury instructions for the lesser-included offenses of voluntary manslaughter and reckless homicide and for not objecting to the SVF count being tried together with the habitual offender allegation. PCR App. at 20–21. Anderson alleged that Roberts was ineffective for failing to raise these claims of ineffectiveness of trial counsel on direct appeal. Id. at 21–22.
At the March 2012 PCR hearing, Neel testified that he did not request jury instructions for any lesser included offenses because Anderson insisted he was innocent and directed Neel not to request lesser included instructions. PCR Tr. at 6. Neel did not have any recollection of whether the habitual offender allegation and the SVF count were tried together and, therefore, could offer no explanation for why he did not object to that procedure. Id. at 9. Roberts, testified that he had no recollection of Anderson's case and that he no longer had a file for Anderson. Id. at 15.
The State and Anderson, acting pro se, filed their respective proposed findings of fact and conclusions thereon. On June 6, 2013, the trial court denied Anderson's PCR Petition. Id. at 3–16. Anderson now appeals.
Post-conviction relief does not afford a petitioner with a super-appeal. Garrett v. State, 992 N.E.2d 710, 718 (Ind.2013). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), cert. denied, 537 U.S. 839 (2002). If an issue was known and available, but not raised on direct appeal, it is waived. Garrett, 992 N.E .2d at 718. Further, in a PCR proceeding, the petitioner bears the burden of establishing his claim by a preponderance of the evidence. Id. When appealing the denial of a PCR petition, the petitioner stands in the position of one appealing from a negative judgment. Id. Therefore, in order to prevail upon his appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id .
The standard of review for ineffective assistance of appellate counsel is the same as that for trial counsel. Bieghler v. State, 690 N.E.2d 188, 192 (Ind.1997), cert. denied, 525 U.S. 1021 (1998). To establish a post-conviction claim alleging violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 (1984). Garrett, 992 N.E.2d at 718. First, the defendant must show appellate counsel was deficient in his or her performance and, second, that the deficiency resulted in prejudice. Id. at 719. “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.” Id. “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.
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