Collier v. State, 49A02-9101-PC-27

• Decision Date: 11 June 1991
• Docket Number: No. 49A02-9101-PC-27,49A02-9101-PC-27
• Parties: Danny COLLIER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). 1
• Court: Indiana Appellate Court

Page 1299

572 N.E.2d 1299

Danny COLLIER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 49A02-9101-PC-27. ¹

Court of Appeals of Indiana,

Third District.

June 11, 1991.

John Pinnow, Sp. Asst. to the State Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Danny Collier appeals the denial of his petition for post-conviction relief, raising four issues for our review:

I. Whether Collier received ineffective assistance of trial counsel.

II. Whether Collier received ineffective assistance of appellate counsel.

III. Whether Collier was denied due process of law and his right to be free from cruel and unusual punishment with regard to his conviction as an habitual offender.

IV. Whether Collier was denied due process of law when the trial court resentenced him on remand after his direct appeal without him or his counsel being present.

We remand for a hearing on the correction of Collier's sentence and affirm in all other respects.

Danny Collier was convicted in 1983 of robbery, confinement, and habitual offender. Upon direct appeal to the Indiana Supreme Court, the court remanded for a statement of reasons for sentencing and a specification of which felony was being enhanced by the habitual offender penalty, but otherwise affirmed the judgment. Collier v. State (1986), Ind., 498 N.E.2d 1219, 1221. The facts of the underlying crime are concisely set out in that opinion and we will only refer to those facts which are necessary for the disposition of this subsequent appeal.

The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence, and the post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Ind.Rules of Procedure, Post Conviction Rule 1, Section 5; Grey v. State (1990), Ind., 553 N.E.2d 1196, 1197, reh'g denied. Thus, to succeed on appeal from the denial of his petition, the petitioner must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. Grey, supra.

The purpose of a petition for post-conviction relief is to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Id. Thus, post-conviction relief is not a "super-appeal" which allows the rehashing of prior proceedings regardless of the circumstances surrounding them. Id.

I. Ineffective Assistance of Trial Counsel

Because Collier's claims of ineffective assistance of trial counsel were available to him on direct appeal, he may not raise these issues in his petition for post-conviction relief. Grey, supra; Smith v. State (1990), Ind.App., 559 N.E.2d 338, 342, transfer denied.

However, waiver of an issue may be avoided in a post-conviction proceeding if the failure to present the issue resulted from ineffective assistance of counsel. Smith, supra. Thus, Collier challenges the effectiveness of his counsel on his direct appeal for his failure to challenge the effectiveness of trial counsel. ²

II. Ineffective Assistance of Appellate Counsel

Upon review, the assistance of counsel is measured against a "reasonably effective assistance" standard. Burr v. State (1986), Ind., 492 N.E.2d 306, 307-308. Thus, judicial scrutiny should be deferential and undistorted by hindsight, with "[i]solated poor strategy, inexperience, or bad tactics" not implying ineffectiveness; the appellant must show "strong and convincing evidence" to overturn a presumption of competence. Burr, supra, at 308, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. When determining whether a defendant has received ineffective assistance of counsel, we engage in a two-step analysis. First, we must determine whether the acts or omissions of counsel are outside the wide range of professionally competent assistance. If so, we must then determine whether such acts or omissions prejudiced the defendant. Clark v. State (1990), Ind., 561 N.E.2d 759, 762. The standard for reviewing claims of ineffective assistance of appellate counsel is the same as the standard for reviewing assistance of trial counsel. Mato v. State (1984), Ind., 478 N.E.2d 57, 62.

Here, Collier alleges that appellate counsel was ineffective for failing to raise the effectiveness of trial counsel for opening the door to the impeachment of two defense witnesses on prior crimes, failing to contact witnesses to bolster Collier's alibi defense, and filing a deficient motion to correct errors. ³

On direct examination, trial counsel questioned two of the witnesses about their prior convictions. When trial counsel objected to further questions on cross-examination about the numerous convictions, arrests, and charges filed against the witnesses, the trial court ruled that trial counsel had opened the door to this type of questioning. See Hickman v. State (1987), Ind., 515 N.E.2d 511, 513. The State points out that trial lawyers commonly bring out damaging testimony on direct to limit its impact. See Gann v. State (1988), Ind., 521 N.E.2d 330, 335. This appears to be the strategy employed by trial counsel here. We will not reverse due to choice of strategy where it appears that counsel exercised professional judgment. Ingram v. State (1987), Ind., 508 N.E.2d 805, 808.

Collier contends that he provided trial counsel with the general descriptions of a clerk at a sandwich shop and a vending machine attendant who may have been able to testify in support of his alibi defense. He never produced the names of these witnesses and the witnesses were not present at the post-conviction hearing. Collier's testimony that these witnesses were available is not sufficient to overcome his burden of persuasion that counsel was ineffective for failure to produce the witnesses. Smith v. State (1987), Ind., 511 N.E.2d 1042, 1045.

Collier's contention that trial counsel filed a deficient motion to correct errors because it "does no more than present a laundry list of complaints by raising the same claims of error over and over" has no merit. Although not a model of draftsmanship, it adequately presented the contested issues to the court.

As we have concluded that Collier's allegations of ineffectiveness of trial counsel were without merit, we hold that appellate counsel was not ineffective for failing to raise the issue of ineffective trial counsel on Collier's direct appeal.

Collier next contends that appellate counsel was ineffective because he failed to raise (and therefore waived) several issues raised in the motion to correct errors. However, the record indicates that appellate counsel investigated all of the issues identified by Collier and concluded that they had no merit.

Appellate counsel did not raise the issue, addressed in the motion to correct errors, that a juror was erroneously excused without cause. However, appellate counsel testified that he conferred with the court reporter and concluded that the alleged error was not objected to. Appellate counsel also did not raise the allegation that Collier was not represented by counsel at the lineup. He testified that he discovered that an attorney was present at the lineup, albeit a substitute counsel standing in for Collier's appointed public defender. He reasonably concluded that the issue had no merit. Finally, Collier alleges that appellate counsel should have raised on appeal the failure to grant a mistrial after the prosecutor erroneously stated that there were four eyewitness identifications of Collier. However, our reading of the record indicates that the trial judge corrected the prosecutor by stating that there were only three positive identifications of Collier and that one was uncertain, and the prosecutor agreed with that statement. Appellate counsel could reasonably have concluded that Collier suffered no prejudice from the prosecutor's corrected misstatement.

Accordingly, we hold that Collier did not receive ineffective assistance of appellate counsel.

III. Habitual Offender

Collier next contends that numerous errors occurred within the habitual offender phase of trial. He first argues that the information charging him as an habitual offender was insufficient as it failed to include all of the statutory elements. Notwithstanding the fact that this issue was available to Collier upon his...