Burr v. State
| Decision Date | 16 May 1986 |
| Docket Number | No. 1084S420,1084S420 |
| Parties | Otis BURR, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Frances Watson Hardy, Deputy Public Defender, Indianapolis, for appellant (petitioner below).
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee (respondent below).
Appellant Burr was convicted after trial by jury of rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1985 Repl.), and burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.). He was sentenced to concurrent terms of imprisonment of 30 years and ten years. This Court affirmed Burr's convictions on direct appeal. Burr v. State (1980), 273 Ind. 280, 403 N.E.2d 343.
Burr now appeals the denial of his petition for post-conviction relief, presenting the following issues:
3. Whether the court committed reversible error when it corrected Burr's sentence in his absence.
We affirm.
Claims of ineffective assistance of counsel are judged under a standard which If appellant shows that particular errors of counsel were unreasonable, he must further show that the errors resulted in prejudice to the defense. He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.
asks whether a defendant received "reasonably effective assistance." Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, experience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
Burr's claim is that he was denied effective assistance of counsel because his attorney allegedly failed to object to the State's failure to bring Burr before a magistrate during the twelve days after his arrest, failed to file a pre-trial discovery motion, failed to file a notice of alibi, failed to object at trial to the admission of a ring into evidence, failed to impeach fully the prosecutrix, failed to tender instructions allegedly favorable to Burr, failed to challenge the conviction for class A burglary after the jury returned a guilty verdict for class B burglary, failed to challenge evidence admitted at the sentencing hearing, and failed to perfect a timely appeal. Burr and his former counsel each testified at the hearing regarding these allegations.
Burr is appealing from a negative judgment, as he bore the burden of proving his allegations beyond a preponderance of the evidence. The trial court was the sole judge of the weight and credibility of the evidence. We will not reverse unless the evidence leads only to a conclusion contrary to the judgment. Young v. State (1984), Ind., 470 N.E.2d 70.
The evidence most favorable to the judgment was that counsel did not know at the time he was appointed that Burr had been in jail for twelve days without a court appearance. Burr stated he did not mention the delay to his attorney.
That counsel did not independently learn of the alleged delay and object or move for Burr's discharge cannot have prejudiced Burr so substantially to require a finding that he was denied his right to effective counsel. Even if discharge had been won, the State could have brought fresh proceedings against him. Hence, the outcome was not prejudiced by this alleged oversight. Furthermore, this issue is raised neither in the motion to correct error nor in the appellate brief and is considered waived.
Counsel testified that a formal discovery request was unnecessary because the State had opened its files to him. He stated he and Burr decided together not to file a notice of alibi because the witness recommended by Burr did not have the alibi information sought. Counsel cannot be faulted for not raising an alibi defense on which he could not offer proof.
At Burr's trial, a ring belonging to the victim, unique because her father had made it, was introduced into evidence. The ring had been seized from Burr when he was arrested on an unrelated charge. At the station house, the police had "advised" him to empty his pockets, where he was carrying the ring. Burr now claims his attorney erred in failing to challenge the admissibility of the ring on the grounds of illegal search and seizure and inadequate chain of custody. Counsel testified that he could not remember specifically, but that he presumed he looked into the details of the search and seizure and decided against moving to suppress the ring. It does not appear the defense was damaged by counsel's decision. The record does not reveal any obvious grounds for suppression of the ring, and the ring, due to its uniqueness, was not subject to a more stringent showing of chain of custody than was provided.
Burr would have had his attorney depose the victim before trial, but counsel Burr also claims his attorney did not fully impeach the victim, but he has not shown specifically how the impeachment was lacking. Counsel cross-examined the prosecutrix at length, challenging her identification, her memory, her motives, and, when some pictures of her apartment were introduced, even her housekeeping. Counsel's allegedly "tactless" approach is not a matter for our review.
testified he had read the police report and was reluctant to create an opportunity for the victim to rehearse answers to his questions. Reasonable strategy is not subject to judicial second guesses.
Burr's argument that counsel erred in seeking an "acquittal or nothing" and that he should have tendered instructions on a lesser included felony is another invitation to review strategy. We note that counsel did tender an instruction on theft, which was refused.
The jury returned a verdict supporting not a class A, but a class B burglary. However, the court erroneously entered judgment of conviction against Burr on a class A burglary and sentenced him to a 30-year term. Counsel did not notice the error. Later, the court corrected the judgment and sentence. Of course, counsel's oversight was potentially grave; nonetheless, prejudice cannot be established because the error has been rectified.
Neither at the hearing nor in his brief has Burr pursued his claim, unsupported by the record, that improper evidence was admitted at the sentencing hearing. Finally, his claim that counsel...
To continue reading
Request your trial
-
Bennett v. Duckworth
...level. Ineffective assistance of counsel claims are reviewed under a "reasonably effective assistance" standard. Burr v. State (1986), Ind., 492 N.E.2d 306, 307-08. "Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption." Id., citi......
-
Bellmore v. State
...show a reasonable probability that it altered the outcome of the case. Id.; Chupp v. State (1987), Ind., 509 N.E.2d 835; Burr v. State (1986), Ind., 492 N.E.2d 306; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Price v. State (1985), Ind., 482 N.E.2d 719; Seaton v. State (1985), Ind., 478......
-
Hockett v. Breunig
...476 N.E.2d 497, 501. This step has also been referred to as applying the standard of "reasonably effective assistance." Burr v. State (1986), Ind., 492 N.E.2d 306, 308. The second step is the prejudice component: "the defendant will be entitled to relief only if the reviewing court determin......
-
Curry v. State
...Id. Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Burr v. State (1986), Ind., 492 N.E.2d 306, 308 (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). The performance inquiry asks whether......