Al-Azawi v. State

• Decision Date: 19 March 2021
• Docket Number: Court of Appeals Case No. 20A-PC-1114
• Citation: 167 N.E.3d 735 (Table)
• Parties: Karim Jabr AL-AZAWI, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

167 N.E.3d 735 (Table)

Karim Jabr AL-AZAWI, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 20A-PC-1114

Court of Appeals of Indiana.

FILED March 19, 2021

Attorney for Appellant: Nancy A. McCaslin, Elkhart, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Matthew B. MacKenzie, Deputy Attorneys General, Indianapolis, Indiana

MEMORANDUM DECISION

Mathias, Judge.

[1] Karim Jabr Al-Azawi¹ appeals the Elkhart Superior Court's order denying his petition for post-conviction relief. Al-Azawi argues that the post-conviction court erred when it concluded that he was not subjected to ineffective assistance of trial and appellate counsel. Concluding that Al-Azawi is not entitled to the relief sought, we affirm the court's order denying his request for post-conviction relief.

Facts and Procedural History

[2] We summarized the pertinent facts and procedural history of this case in Al-Azawi's direct appeal:

On Saturday, December 9, 2006, A.S., who was then almost four years old, and her six-year-old brother were staying with their father, Al Azawi. A.S. spent most of the evening at the home of Al Azawi's girlfriend, Tammy Pruitt, who lived in the apartment next door to Al Azawi. Al Azawi and his son went to his apartment, but returned to Pruitt's apartment at approximately 1:00 a.m. to spend the night. On Sunday, December 10, 2006, Al Azawi woke up at approximately 10:00 a.m. and returned to his apartment with his son. Between noon and 1:00 p.m., A.S. returned to her father's apartment. The mother of A.S. and S.S. returned to pick up the children at approximately 7:00 p.m. that evening.

Within a few hours of returning home with her mother, A.S. grabbed the area between her legs and complained that her vagina hurt. Her mother examined the area and noticed that it was red and irritated. A.S.’s mother then asked if anyone had touched A.S. in that area, and she replied, "Yeah. Daddy." Using a doll, A.S. indicated to her mother that Al Azawi had touched her vagina with his hand. A.S. also told her mother that Al Azawi had "pee-peed" in her mouth.

The next morning, A.S.’s mother took her to the emergency room where A.S. was seen by Dr. Jonathan Shenk. Dr. Shenk testified that the exam was normal "except there was redness. There was redness in the area of the perineum, in the area right around the sexual organ. It went down as far as the anus and there was no, no tears or bruising[,] but there was some redness." Dr. Shenk also agreed that the redness he observed could be "consistent with some sort of friction being applied by an object to the vulva area," and that this object could have been either a penis or a finger. Dr. Shenk diagnosed A.S. with "possible sexual abuse," and contacted Child Protective Services. This led A.S.’s mother to contact the police.

A.S. was then taken to speak with Gayla Konanz, a forensic interpreter, who conducted a video-recorded interview. A.S. told Ms. Konanz that Al Azawi had touched her vagina with his finger and penis. A.S. also told Ms. Konanz that Al Azawi had done something involving her mouth and his penis, such that Al Azawi "peed" in her mouth.

On December 27, 2006, the State charged Al Azawi with Class A felony child molesting, alleging that he had performed deviate sexual conduct on A.S., and Class C felony child molesting, alleging that Al Azawi fondled A.S. At trial, A.S. testified that Al Azawi had touched the area between her legs with his hand and that Al Azawi had "peed" on her face. The jury found Al Azawi guilty as charged.

At a sentencing hearing held on November 29, 2007, the trial court identified as aggravating the following circumstances: that Al Azawi had two prior felony convictions and four misdemeanor convictions; that Al Azawi was on probation at the time of the instant offenses; that Al Azawi violated a position of trust by molest[ing] a girl who, at the very least, considered Al Azawi to be her father; and that A.S. was of a tender age, which made it more difficult for her to avoid Al Azawi or report what had happened. The trial court found Al Azawi's sporadic employment history to be a low-level mitigating circumstance. Concluding that the aggravators outweighed the mitigator, the trial court sentenced Al Azawi to fifty years on the Class A felony conviction to be served concurrently with eight years on the Class C felony conviction.

Al-Azawi v. State , No. 20A03-0803-CR-95, 2008 WL 3842943, at *1–2 (Ind. Ct. App. Aug. 15, 2008) (record citations omitted), trans. denied.

[3] Al-Azawi appealed his convictions and sentence. In a memorandum decision, our court concluded that 1) the evidence was sufficient to support his Class A and Class C felony child molesting convictions; and 2) his aggregate fifty-year sentence was not inappropriate in light of the nature of the offense and the character of the offender. Id. at *2–5.

[4] On June 12, 2019, almost eleven years after his direct appeal was decided, Al-Azawi filed a petition for post-conviction relief. In his petition, Al-Azawi alleged he was denied due process because the Arabic interpreter did not provide translation in his Iraqi dialect, and therefore, he was unable to understand the trial proceedings. He also claimed his trial and appellate counsel were ineffective in several respects.

[5] The post-conviction court held an evidentiary hearing on November 26, 2019. Al-Azawi presented testimony from an Arabic language expert who opined that the trial interpreter did not speak Al-Azawi's Iraqi dialect; therefore, his interpretation did not aid Al-Azawi at trial. P-C.R. Tr. p. 100. The State presented evidence that Al-Azawi's proficiency in the English language was greater than he claimed and that Al-Azawi was able to understand the trial interpreter because he provided his interpretation in Standard Arabic. Both Al-Azawi's trial interpreter and the interpreter at the post-conviction hearing translated the proceedings from English to Standard Arabic. Id. at 80. Al-Azawi spoke Standard Arabic to communicate with the trial interpreter. Id.

[6] The post-conviction court also heard argument and evidence concerning trial counsel's failure to 1) raise a Batson challenge, 2) challenge the State's amendment to the charging information, 3) challenge the admission of the Child Family Advocate Center interviewer's testimony, and 4) argue that his Class C felony child molesting conviction should be vacated on double jeopardy grounds. Al-Azawi claimed his appellate counsel was ineffective for failing to raise these same issues on direct appeal. He also testified that he had limited communication with his appellate counsel during the direct appeal proceedings. Id. at 50–51.

[7] On May 4, 2020, the post-conviction court issued its order denying Al-Azawi's petition for post-conviction relief. He now appeals, arguing that the court erred when it concluded he was not subjected to ineffective assistance of trial and appellate counsel.

Standard of Review

[8] Post-conviction proceedings are not "super appeals" through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State , 761 N.E.2d 389, 391 (Ind. 2002). Instead, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State , 763 N.E.2d 441, 443 (Ind. 2002). The post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State , 881 N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for 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, 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. at 643–44.

[9] The post-conviction court made specific findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). On review, we must determine if the court's findings are sufficient to support its judgment. Graham v. State , 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011) Although we do not defer to the post-conviction court's legal conclusions, we review the court's factual findings for clear error. Id. Accordingly, we will not reweigh the evidence or judge the credibility of witnesses, and we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Id.

Ineffective Assistance of Trial Counsel

[10] Al-Azawi argues that the post-conviction court erred when it concluded he was not denied effective assistance of trial counsel. Our supreme court has summarized the law regarding claims of ineffective assistance of trial counsel as follows:

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington , 466 U.S. 668 (1984). First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate

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