Atchley v. State

• Decision Date: 20 June 2000
• Docket Number: No. 20A05-9907-PC-328.,20A05-9907-PC-328.
• Citation: 730 N.E.2d 758
• Parties: Clyde B. ATCHLEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

730 N.E.2d 758

Clyde B. ATCHLEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 20A05-9907-PC-328.

Court of Appeals of Indiana.

June 20, 2000.

Transfer Denied September 1, 2000.

John Pinnow, Special Assistant to the State Public Defender, Greenwood, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge

Clyde B. Atchley appeals the denial of his petition for post-conviction relief (PCR),¹ in which he challenges his conviction of five counts of Murder. Atchley presents the following restated issues for review:

1. Did Atchley's multiple murder convictions violate his right against double jeopardy under the Indiana Constitution?

2. Did appellate counsel render ineffective assistance in failing to challenge the sentence imposed for one of the murder counts?

We affirm.

The facts favorable to the convictions were set out by our supreme court, which affirmed Atchley's convictions upon direct appeal. Those facts are as follows:

On January 27, 1980, a fire was discovered at the Swiss Inn in Elkhart, Indiana. The record shows that turpentine was used as an accelerant to start a fire in a stairwell. As a result, five people died. Appellant eventually was arrested. Following his arrest, and after receiving his Miranda warnings, appellant gave a statement to the police which was introduced in evidence as State's Exhibit 1. However, for some reason, that exhibit does not appear in the record filed in this appeal. Nonetheless, the content of the statement is discussed in the testimony of Homer A. Schenk, a detective with the Elkhart Police Department, who took the statement from appellant. In the statement, appellant confessed to setting the fire in the hotel and to using turpentine as an accelerant. The officer testified that chemical tests verified that turpentine in fact was used as an accelerant.

In rendering the sentence, the trial judge quoted from some of the confession given by appellant in which appellant stated, "I felt that by starting the fire I would be able to get back at them." The trial judge further observed that upon reading appellant's statement it was evident he gave the police information which could have been known only by the perpetrator. In addition, at the time appellant appeared before the trial court to enter a plea of guilty, he tendered the written plea agreement which acknowledged that he in fact was guilty of setting the fire.

Atchley v. State, 622 N.E.2d 502, 503 (Ind. 1993).

When appealing the denial of a PCR petition, the appellant faces a rigorous standard of review. The appellant must demonstrate that the evidence, when taken as a whole, is without conflict and "leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court." Benefiel v. State, 716 N.E.2d 906, 912 (Ind.1999), petition for cert. filed, (U.S. April 24, 2000) (No. 99-9264) (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)). We accept the trial court's findings of fact unless they are clearly erroneous, see Ind. Trial Rule 52(A), but we do not defer to the trial court's conclusions of law. Atchley bears the burden of establishing his grounds by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

1.

Atchley contends that his conviction of five counts of murder violated the double jeopardy clause of the Indiana Constitution.

A post-conviction proceeding does not afford defendants the opportunity for a "super-appeal." Conner v. State, 711 N.E.2d 1238 (Ind.1999), petition for cert. filed (U.S. April 7, 2000) (No. 99-8989). Instead, such proceedings provide defendants with an opportunity to raise issues that were not known at the time of the original trial, or that were unavailable on direct appeal. Id. They do not substitute for direct appeals, but rather provide a narrow remedy for subsequent collateral challenges to convictions. Id. "Issues that were available, but not presented, on direct appeal are forfeited on post-conviction review." Id. at 1244.

Atchley seeks to avoid waiver by claiming fundamental error. Exceptions to the waiver doctrine will be made where the claimed error is fundamental. Id. To prevail on fundamental error grounds, Atchley must demonstrate by a preponderance of the evidence that a violation of the basic principles of law caused his conviction or sentence to be invalid. See id. Our supreme court has indicated that the scope of permissible, post-conviction claims of fundamental error is "extremely narrow." Taylor v. State, 717 N.E.2d 90, 94 (Ind.1999) (quoting Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997),cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998)). Specifically, such claims are limited to claims of ineffective assistance of counsel or issues demonstrably unavailable at the time of trial and direct appeal. Taylor v. State, 717 N.E.2d 90.

The issue of whether his multiple convictions violated Indiana double jeopardy principles was available, but not presented, upon direct appeal. Therefore, review of the issue is not available on that basis. Id. Atchley claims that appellate counsel rendered ineffective assistance in failing to challenge his multiple convictions of murder on double jeopardy grounds. In the context of his post-conviction relief claim of ineffective assistance of appellate counsel, we review the issue of whether Atchley's multiple murder convictions constituted fundamental error because they violated Indiana's double jeopardy clause.

The standard of review for a claim of ineffective assistance of appellate counsel is the same as for trial counsel. Trueblood v. State, 715 N.E.2d 1242 (Ind. 1999). That is, in order to establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Trueblood v. State, 715 N.E.2d 1242. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052; Trueblood v. State, 715 N.E.2d at 1248-49. The Supreme Court of the United States has held that prejudice resulting from ineffective assistance is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

Finally, our supreme court has indicated that an appellant who alleges ineffective assistance of appellate counsel faces a daunting task:

A defendant alleging the ineffective assistance of appellate counsel . . . bears a rigorous burden. Because the decision regarding what issues to raise and what arguments to make is "`one of the most important strategic decisions to be made by appellate counsel,'" ineffectiveness is very rarely found. [Bieghler v. State, 690 N.E.2d 188, 193 (Ind.1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998) ] (quoting Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. VA. L.REV. 1, 26 (1994)). "Accordingly, when assessing these types of ineffectiveness claims, reviewing courts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable." Bieghler, 690 N.E.2d at 194.

Conner v. State, 711 N.E.2d 1238.

Atchley claims that appellate counsel was ineffective for failing to challenge, on double jeopardy grounds, four of his five murder convictions. A recent decision of our supreme court established for the first time that the Indiana Constitutional double jeopardy prohibition is not coterminous with its counterpart in the Federal Constitution. See Richardson v. State, 717 N.E.2d 32 (Ind.1999)

. Atchley acknowledges that the Richardson analysis may not be applied retroactively in a post-conviction proceeding, and therefore that he "cannot rely on the actual evidence test announced in Richardson to argue that appellate counsel was ineffective for not raising a double jeopardy argument on appeal." Appellant's Brief at 17 (citing Taylor v. State, 717 N.E.2d 90). He contends, however, that appellate counsel's failure to present a double jeopardy challenge under the Indiana Constitution constituted ineffective assistance because there was then-existing Indiana Supreme Court precedent upon which to base such a challenge.

The case to which Atchley refers is Clem v. State, 42 Ind. 420 (1873). In that case, Clem and two others had previously been charged with first-degree murder in connection with the shooting death of Jacob Young, who died as a result of a single gunshot wound to the head. Clem was convicted of second-degree murder after a jury trial. Subsequently, the State charged Clem with first degree murder in connection with the shooting death of Nancy Jane Young, who also died as a result of a single gunshot wound to the head. The opinion does not articulate specific facts with respect to the two killings. It may be inferred, however, that the two shootings occurred as parts of a single incident.

Clem entered a demurrer to the indictment for the first-degree murder of Jane Young, arguing that she had, in effect, already been acquitted of that charge when the jury in the first trial found her not guilty of first-degree murder in relation to the killing of Jacob Young. This argument was based upon her contentions that:

(1) "the crime charged against the defendant in (the first) indictment, and of which she was tried and acquitted as hereinbefore set forth, by the verdict of said jury, was and

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