Ben-Yisrayl v. State, 49S00-9307-PD-826.

Citation738 N.E.2d 253
Decision Date08 November 2000
Docket NumberNo. 49S00-9307-PD-826.,49S00-9307-PD-826.
PartiesChijioke Bomani BEN-YISRAYL, f/k/a Greagree Davis, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Joanna Green, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James D. Dimitri, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. On Appeal from Denial of Post-Conviction Relief

DICKSON, Justice

The defendant, Chijioke Bomane Ben Yisrayl, formerly known as Greagree Davis, was convicted of the murder,1 rape,2 burglary,3 and criminal confinement4 of Debra Weaver, and the trial court ordered the death penalty. We affirmed the conviction and sentence on direct appeal. Davis v. State, 598 N.E.2d 1041 (Ind.1992), cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 340 (1993). In the subsequent post-conviction proceeding, the post-conviction court partially granted the defendant's petition for post-conviction relief, vacating the death sentence and ordering a remand to the trial court for a new penalty phase trial and sentencing proceeding, but otherwise denied his petition. The defendant appeals from the post-conviction court's partial denial of post-conviction relief, raising issues regarding the effectiveness of counsel, the State's alleged failure to disclose exculpatory evidence, alleged extraneous influence on the jury, and alleged defects in the charging information. The State cross-appeals from the post-conviction court's partial grant of post-conviction relief, raising issues regarding the sufficiency of the sentencing order and the effectiveness of the defendant's counsel. We affirm the judgment of the post-conviction court.

I. Preliminary Considerations

Post-conviction proceedings do not afford an opportunity for a "super-appeal." Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985); Langley v. State, 256 Ind. 199, 210, 267 N.E.2d 538, 544 (1971). Rather, post-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available on direct appeal. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) ("Post-conviction actions are special, quasi-civil remedies whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal."), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). These proceedings do not substitute for direct appeals but provide a narrow remedy for subsequent collateral challenges to convictions. Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind.1993). The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

As a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Lowery, 640 N.E.2d at 1037. The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind.1998); Wagle v. Henry, 679 N.E.2d 1002, 1005 (Ind.Ct.App. 1997); Scott v. Scott, 668 N.E.2d 691, 699 (Ind.Ct.App.1996). A petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. Maxey v. State, 596 N.E.2d 908, 911 (Ind.Ct.App.1992). Issues that were available, but not presented, on direct appeal are forfeited on post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d 1208 (Ind.1998)

(regarding claims of ineffective assistance of trial counsel).

Because the defendant is appealing from a denial of relief in a claim on which he had the burden of proof, he is appealing from a negative judgment. The standard of review in appeals from post-conviction negative judgments is well settled: the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The reviewing court accepts the trial court's findings of fact unless "clearly erroneous." Ind. Trial Rule 52(A).

The State, on the other hand, appeals from that portion of the post-conviction court's judgment that grants relief to the defendant. Because the State claims that the court erred in concluding that the defendant established one of his claims sufficiently to be entitled to relief, the judgment from which the State appeals is not a negative judgment. When an appeal after a non-jury trial does not challenge a negative judgment, the applicable standard is simply that prescribed by T.R. 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

In reviewing a judgment granting post-conviction relief, " `[w]e reverse only upon a showing of `clear error'—that which leaves us with a definite and firm conviction that mistake has been made.'" State v. Van Cleave, 674 N.E.2d 1293, 1295 (Ind. 1996) (quoting Spranger, 650 N.E.2d at 1119), reh'g granted in part, 681 N.E.2d 181 (Ind.1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). Because this "clearly erroneous" standard is a review for sufficiency of evidence, we neither reweigh the evidence nor determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.1994); Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind.1994); Indianapolis Convention & Visitors Ass'n., Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 211 (Ind.1991)

. When a "clearly erroneous" judgment results from an application of the wrong legal standard to properly found facts, we do not defer to the trial court. Van Cleave, 674 N.E.2d at 1296. We are not bound by the trial court's characterization of its results as "findings of fact" or "conclusions of law," but look to the substance of the judgment and review a legal conclusion as such even if the judgment wrongly classifies it as a finding of fact. Id. (citing Indiana State Bd. of Public Welfare v. Tioga Pines Living Ctr., Inc., 575 N.E.2d 303, 306 & n. 1 (Ind.Ct.App.1991)).

II. Effective Assistance of Counsel

Indiana Post-Conviction Rule 1(7) authorizes either the defendant-petitioner or the State to take an appeal. Both the defendant and the State contend that the post-conviction court erred in its determinations regarding the denial of the right to the effective assistance of counsel, but they each challenge a different aspect of the post-conviction court's conclusions. The defendant urges that the court erred in denying his claims that his trial counsel provided ineffective assistance at the guilt phase and that his appellate counsel was ineffective in asserting this claim. The State contends on cross-appeal that the post-conviction court erred in finding that the defendant's trial counsel provided ineffective assistance at the penalty/sentencing phase because this claim was subject to res judicata and forfeiture. The State also argues that the post-conviction court erred in finding that the defendant's appellate counsel provided ineffective assistance in challenging trial counsel's penalty phase performance.

A. Claim of Trial Counsel Ineffectiveness

In Woods, we held that a defendant may raise a claim of ineffective assistance of trial counsel for the first time in a post-conviction proceeding, but we emphasized that once the defendant chooses to raise his claim of ineffective assistance of trial counsel (either on direct appeal or post-conviction), he must raise all issues relating to that claim, whether record-based or otherwise. 701 N.E.2d at 1220. A defendant who chooses to raise on direct appeal a claim of ineffective assistance of trial counsel is foreclosed from relitigating that claim. Id. ("[I]neffective assistance of trial counsel is not available in post-conviction if the direct appeal raises any claim of deprivation of Sixth Amendment right to counsel."). See also Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind.1997)

("Some of the [defendant's arguments on post-conviction appeal] are new arguments about aspects of trial counsel's performance we considered on direct appeal; others focus on aspects not mentioned earlier. In either case, the earlier ruling that trial counsel was not ineffective is res judicata."); Sawyer v. State, 679 N.E.2d 1328, 1329 (Ind.1997) ("[The defendant], having once litigated his Sixth Amendment claim concerning ineffective assistance of counsel, is not entitled to litigate it again, by alleging different grounds."); Morris v. State, 466 N.E.2d 13, 14 (Ind.1984) ("Notwithstanding the fact that petitioner gave several additional examples of his counsel's alleged ineffectiveness during the post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal.").

In his direct appeal, the defendant raised, and this Court considered and rejected, a claim of ineffective assistance of trial counsel. Davis, 598 N.E.2d at 1051-52. Res judicata thus barred him from relitigating this issue in post-conviction proceedings. The post-conviction court erred as a matter of law in considering the merits of the defendant's claim directly challenging trial counsel's effectiveness.

B. Claim of Appellate Counsel Ineffectiveness

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