Connell v. State

• Citation: 37 N.E.3d 563 (Table)
• Decision Date: 30 June 2015
• Docket Number: No. 27A02–1412–PC–863.,27A02–1412–PC–863.
• Parties: Brian E. CONNELL, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Court of Appeals of Indiana

37 N.E.3d 563 (Table)

Brian E. CONNELL, Appellant–Petitioner
v.
STATE of Indiana, Appellee–Respondent.

No. 27A02–1412–PC–863.

Court of Appeals of Indiana.

June 30, 2015.

Brian E. Connell Pendleton, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

KIRSCH, Judge.

[1] Brian E. Connell appeals the denial of his petition for post-conviction relief, contending that the post-conviction court erred in denying his petition. On appeal, he raises several issues that we consolidate and restate as:

I. Whether Connell's freestanding allegations of error are procedurally defaulted and waived for appellate review; and

II. Whether Connell received ineffective assistance of trial counsel.

[2] We affirm.

Facts and Procedural History

[3] The facts supporting Connell's convictions as set forth by this court in an unpublished decision on his direct appeal are as follows:

On November 19, 2008, telephone repairman William Ferrell (“Ferrell”) went to the home of Lonnie and Ella Crites (“the Crites”) to perform a service call. When Ferrell arrived, he noticed a car running in the driveway and then knocked on the front door. Receiving no answer, Ferrell went around to the back and encountered a man later identified as Connell carrying something from the house. Ferrell noticed that a window and the door to the house had been broken and asked Connell whether his phone was working properly. Connell responded that it was, and told Ferrell that he had to break the window to get into his own house. Ferrell then left and drove to the end of the block, but, suspicious that something was wrong, called Ella Crites and wrote down Connell's license plate number and the make and color of Connell's car as he drove away.

Deputies Aaron Oyler (“Deputy Oyler”) and Michael Moore (“Deputy Moore”) of the Grant County Sherriff's Department were dispatched and given the license plate number and description of Connell's vehicle. At the Crites' home, the deputies noticed that the back door window was broken and the door was open. They determined that entry to the home was forced, and observed disarray inside.

As the deputies were waiting for support to arrive, Connell drove by the house. The deputies recognized Connell's car from the description they received, so Deputy Moore got into his vehicle to follow. A highspeed chase ensued. Connell ran a stop sign and continued driving at a high speed through two or three intersections until he veered off the road, hit a ditch, and went airborne thirty feet before hitting the ground.

Deputy Moore approached the vehicle with his weapon drawn and ordered Connell out of the vehicle. Connell attempted to reach between the seat and the console for what was later identified as an H & K .45 caliber handgun stolen from the Crites with a bullet loaded in the chamber (a bullet that was not loaded when the gun was taken). Deputy Moore repeatedly ordered Connell to show his hands, and eventually Connell exited the vehicle.

A search of Connell's pockets yielded a bag of marijuana, two watches, and two commemorative coins. Inside his car, police found a .357 Magnum gun, a .22 caliber pistol, gun equipment, and some rolls of change. These items were all missing from the Crites' house. Police also discovered that on November 19, 2008, the home of Allen and Sylvia Pinkerton (“the Pinkertons”) was burglarized. The police found the items missing from the Pinkertons' home (two wallets, jewelry boxes, and coins) in Connell's car. The two watches found in his pockets at the accident scene also belonged to the Pinkertons.

Connell v. State, No. 27A04–1010–CR–642 (Ind.Ct.App. May 9, 2011).

[4] The State charged Connell with two counts of Class B felony burglary (one relating to the Crites' home and the other to the Pinkertons'), two counts of Class D felony theft (one relating to the Crites' property and the other to the Pinkertons'), one count of Class C felony carrying a handgun without a license, one count of Class D felony resisting law enforcement, and one count of Class A misdemeanor possession of marijuana. The State also filed a petition alleging that Connell was a habitual offender. A trifurcated trial was held on August 12, 2010, at the conclusion of which the jury found Connell guilty of all charges and adjudicated him a habitual offender.

[5] The trial court sentenced him to twenty years for count I, Class B felony burglary, which was enhanced to forty years because Connell is a habitual offender, twenty years for count II, Class B felony burglary, eight years for count III, Class C felony carrying a handgun without a license, three years each for counts IV and V, Class D felony theft, three years for count VI, Class D felony resisting law enforcement, and one year for count VII, Class A misdemeanor possession of marijuana. The court then ordered Connell to serve the sentences for counts I, III, and IV, which all related to the Crites' burglary, concurrently for a total of forty years; the trial court ran the sentences for counts II and V, which related to the Pinkertons' burglary, concurrently with each other, but consecutively to the sentences for counts I, III, and IV. The sentences for counts VI and VII were ordered to run concurrently with each other, but consecutively to the other two groups of sentences. This resulted in an aggregate sentence of sixty-three years executed.

[6] Connell was represented by attorney David Payne at trial. Prior to the trial, Payne filed a motion in limine regarding, among other things, evidence of items found that had been stolen in other cases. The trial court granted the motion. During the trial, the State offered into evidence State's Exhibit 78, a DVD of Connell's first statement to the police. The State believed that the DVD had been redacted of any reference to any subject matter covered by the motion in limine. However, when the DVD was played, the contents showed the detective referencing the fact that the police had found property in Connell's car from the Crites' and Pinkertons' homes in Grant County and from a house in Wabash County and another house in Huntington; when Connell asked if the detective was saying that property from four different houses was found in his car, the detective answered in the affirmative. Payne immediately objected and asked to have the jury instructed to disregard the taped statement in its entirety. The parties agreed that the jury would be instructed to disregard the video, that the remainder of the video would not be played, and that, instead, the...