Bethel v. State, Court of Appeals Case No. 18A-PC-117

• Decision Date: 16 October 2018
• Docket Number: Court of Appeals Case No. 18A-PC-117
• Citation: 110 N.E.3d 444
• Parties: Steven BETHEL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

110 N.E.3d 444

Steven BETHEL, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 18A-PC-117

Court of Appeals of Indiana.

Filed October 16, 2018

Attorney for Appellant: Marielena Duerring, South Bend, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Supervising Deputy Attorney General, Indianapolis, Indiana

Barteau, Senior Judge.

Statement of the Case

[1] Steven Bethel appeals the denial of his successive petition for post-conviction relief. We affirm.

Issue

[2] Bethel raises one issue, which we restate as: whether the post-conviction court erred in denying his claim of ineffective assistance of trial counsel.

Facts and Procedural History

[3] The facts of Bethel's case, as stated by the Indiana Supreme Court, are as follows:

[O]n March 5, 1991, the defendant agreed to assist Curtis Crenshaw in obtaining money and [ ] they went to the J & S Dairy Mart in South Bend, Indiana, at approximately 11:20 p.m. Armed with handguns, they approached Robaska and Wrobel, two store employees, as they were closing the store. The defendant held a gun to Robaska's head, Crenshaw grabbed Wrobel, and together they forced the two clerks back into the store. The defendant and Crenshaw tried unsuccessfully to obtain cash from the safe. One of the robbers threatened to shoot Robaska. They also forced Wrobel to empty his pockets, but he had no cash. The defendant and Crenshaw then took the two clerks back outside, told them to lie on the ground behind an ice machine, and began walking away. Robaska and Wrobel got up and observed the defendant and Crenshaw. Describing the ensuing events, Wrobel testified:

They were about fifteen feet away, and [Crenshaw] turned around, and he pointed the gun at us, and I grabbed Patty [Robaska] and pulled her back down because I knew what comes out of a gun. And we laid there, and we heard a fire.

There was no testimony as to the length of time that elapsed between the time Wrobel and Robaska went back down to the ground and the time the shot was fired. No witnesses testified as to the position of Crenshaw's weapon or the direction it was pointed when fired. There was no injury to either Robaska or Wrobel, nor was there evidence of bullet damage to the ice machine or surrounding area. No bullet was recovered.

Approximately ten minutes later, the defendant and Crenshaw entered the Burger Dairy store in South Bend and found three men inside. They robbed the three at gunpoint, taking cash from the register and a wallet from one of the men. During the robbery, Charles Flora attempted to enter the store, and the defendant pointed a gun at him. Flora ran to his van in the parking lot and called the police from his van. The defendant and Crenshaw came out of the store while Flora was still in the lot. The direct examination of Flora includes the following:

[Prosecutor] Did—before you were shot at, did you see the people that came out of the store? You said you saw them, right?

[Flora] When they both ran out of the store, they both looked directly at my van.

[Prosecutor] Did you see whether they had anything in their hands?

[Flora] They had a gun in their hand.

[Prosecutor] Both of them?

[Flora] I'm not sure if both of them did. One I know did.

[Prosecutor] Was the gun pointed at you?

[Flora] When they ran out, no.

[Prosecutor] At some point in time, was it?

[Flora] Yes.

[Prosecutor] When was that?

[Flora] They was partly across the drive lot, and they pointed at my van, and I heard two or three shots. I know it was more than one shot.

[Prosecutor] What did you do?

[Flora] Well, I got down in my van and proceeded to go back up onto the lot because I didn't know what to do.

Neither Flora nor his van was hit, and no bullets were ever found. Although Flora stated at trial that he did not see and was "not sure" which of the two men shot at him, record at 681, he testified that he gave a statement to police within about an hour of the shooting in which he identified Crenshaw as the person who shot at him. As the defendant and Crenshaw attempted to flee, they successively encountered two police officers and fired shots at each officer.

Bethel v. State , 730 N.E.2d 1242, 1244-45 (Ind. 2000) (footnotes and record citations omitted).

[4] Officers captured Bethel and Crenshaw after a car chase, which ended when Crenshaw crashed the car. During the chase, an officer saw Bethel throw something out of the car. A police officer with a K-9 unit later searched the area and found a revolver. The same officer found a second revolver near the Burger Dairy store. Robert Lucas, who worked at the Burger Dairy store, recognized the revolvers as the guns that were used in the attempted robbery.

[5] The State charged Bethel with two counts of attempted robbery, two counts of robbery, and four counts of attempted murder. The State further alleged he was an habitual offender. Bethel was tried by jury and testified in his own defense, claiming Crenshaw forced him under threat of death to accompany him as he committed the offenses. The jury determined Bethel was guilty as charged and was also an habitual offender. The trial court sentenced Bethel to 120 years.

[6] Bethel belatedly appealed. The Indiana Supreme Court reversed two of the counts of attempted murder, determining that there was insufficient evidence to prove that he had attempted to kill Robaska and Flora. Id. at 1246. The Court affirmed his other convictions. The reversal of the two convictions resulted in Bethel's sentence being reduced to 102 years.

[7] Next, Bethel filed a petition for post-conviction relief in Cause Number 71D08-0502-PC-10. The post-conviction court denied Bethel's petition in 2012, and he appealed. Bethel claimed on appeal that the trial court had erred in admitting certain evidence and in determining that he was an habitual offender. A panel of this Court issued a memorandum decision affirming the post-conviction court's judgment, concluding both claims were waived for post-conviction review. Bethel v. State , No. 71A03-1203-PC-139, 2013 WL 684793 (Ind. Ct. App. Feb. 25, 2013).

[8] A panel of this Court later authorized Bethel to file a successive petition for post-conviction relief. Bethel v. State , No. 71A04-1602-SP-396 (Ind. Ct. App. March 29, 2016). Next, Bethel filed a successive petition alleging ineffective assistance of counsel. The post-conviction court held an evidentiary hearing and denied Bethel's successive petition. This appeal followed.

Discussion and Decision

[9] In his successive petition for post-conviction relief, Bethel claimed he received ineffective assistance of trial, appellate, and post-conviction counsel. In this appeal, Bethel presents only a claim of ineffective assistance of trial counsel.

[10] The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Dixon v. State , 760 N.E.2d 613, 614 (Ind. Ct. App. 2001). When a petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review.

Emerson v. State , 812 N.E.2d 1090, 1095 (Ind. Ct. App. 2004). Thus, post-conviction procedures do not provide petitioners with a "super appeal." Richardson v. State , 800 N.E.2d 639, 643 (Ind. Ct. App. 2003), trans. denied .

[11] Post-conviction proceedings are civil proceedings in which the petitioner must prove claims by a preponderance of the evidence. Hampton v. State , 961 N.E.2d 480, 491 (Ind. 2012). When appealing from the denial of a petition for post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Campbell v. State , 19 N.E.3d 271, 274 (Ind. 2014). To prevail on appeal, 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.

[12] The post-conviction court made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). On review, findings of fact are accepted unless they are clearly erroneous. Witt v. State , 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied . The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id. By contrast, we do not defer to the post-conviction court's legal conclusions. Campbell , 19 N.E.3d at 274.

[13] Bethel argues his trial counsel rendered ineffective assistance by presenting evidence and argument in support of a defense of duress even though that defense was legally unavailable in his case. He claims his attorney "chose to adhere to a defense that was clearly not legally available" and demonstrated he did not "know the applicable law" or "simply chose to ignore the settled law in this area." Appellant's Br. p. 10.

[14] Where a post-conviction petitioner brings a petition following a direct appeal or prior petition for post-conviction relief, allegations of error asserted therein may not be raised in the absence of a showing that the issue was unascertainable or unavailable at the time of trial, direct appeal or prior petition. Clay v. State , 533 N.E.2d 1270, 1273 (Ind. Ct. App. 1989), trans. denied . Bethel could have raised his claim of ineffective assistance of trial counsel during his first post-conviction proceeding in Case Number 71A03-1203-PC-139. We conclude the claim is waived.

[15] Waiver notwithstanding, with respect to claims of ineffective assistance of trial counsel, the Indiana Supreme Court has stated:

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that counsel's performance was deficient. This requires a showing that counsel's representation fell

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