Crittenden v. State
| Decision Date | 30 June 2015 |
| Docket Number | No. 49A05–1405–PC–227.,49A05–1405–PC–227. |
| Citation | 37 N.E.3d 565 (Table) |
| Parties | Lamarr T. CRITTENDEN, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Lamarr T. Crittenden, Miami Correctional Facility, Bunker Hill, IN, Appellant, Pro Se.
Gregory E. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] Lamarr T. Crittenden (“Crittenden”) filed a pro se petition for post-conviction relief, alleging multiple claims of ineffective assistance of both trial and appellate counsel. Prior to the post-conviction hearing, the post-conviction court granted Crittenden's request for the issuance of subpoenas to his trial and appellate counsel, but it denied his request to issue subpoenas to four other proposed witnesses, finding that the testimony of these proposed witnesses was neither relevant nor probative. The post-conviction court also denied various discovery motions filed by Crittenden. During the post-conviction hearing, when Crittenden moved to admit into evidence two Department of Child Services (“DCS”) reports, the State objected based on a lack of foundation, and the post-conviction court sustained the objection and ruled that the reports would not be admitted at that time.
[2] Following the hearing, the post-conviction court issued its findings and conclusions in which it denied post-conviction relief in part and granted it in part. Specifically, the post-conviction court concluded that Crittenden's trial counsel had rendered deficient performance at sentencing by failing to realize that the statutory minimum sentence for Class A felony child molesting was twenty years and by failing to bring the correct sentencing range to the trial court's attention, and the post-conviction court concluded that this “misimpression” was sufficient to show prejudice. As a result, the postconviction court ordered that a new sentencing hearing be held. The postconviction court also concluded that Crittenden's appellate counsel had rendered ineffective assistance by failing to raise that sentencing issue on appeal. In regard to Crittenden's other allegations of ineffective assistance of trial and appellate counsel, the post-conviction court concluded that he had failed to meet his burden of proving these claims, and it denied post-conviction relief on these remaining claims.
[3] On appeal, Crittenden argues that the post-conviction court erred by: (1) denying his requests for subpoenas; (2) denying his motions for discovery; (3) excluding the DCS reports from evidence; and (4) denying post-conviction relief on his remaining ineffective assistance of trial and appellate counsel claims. Concluding that the post-conviction court committed no error as alleged by Crittenden, we affirm the post-conviction court's judgment.
[4] We affirm.
[5] The facts of Crittenden's crimes were set forth in the memorandum decision from his direct appeal as follows:
Crittenden v. State, No. 49A05–0906–CR–355, *1 (Ind.Ct.App. Jan. 21, 2010) (footnote omitted), trans. denied.
[6] During Crittenden's May 26, 2009 sentencing hearing, the trial court stated that the “minimum amount of time” that Crittenden could receive for his Class A felony conviction was “thirty years executed.” (Tr. 148).1 Crittenden's trial counsel agreed, asked the court to sentence Crittenden to “the absolutely minimum executed sentence that the Court c[ould,]” and requested that the trial court sentence him to “thirty years, thirty-five years, suspend five, two of that [to] probation ... and the minimum sentence executed in the Department of Correction [ ].” (Tr. 152). The trial court sentenced Crittenden to thirty-five (35) years, with thirty (30) years executed and five (5) years suspended, for his Class A felony conviction and six (6) years for his Class C felony conviction, and the trial court ordered that these sentences be served concurrently.
[7] Thereafter, Crittenden appealed his convictions and argued that the State “failed to present sufficient evidence to establish territorial jurisdiction over his case.” Crittenden v. State, No. 49A05–0906–CR–355 at *1. Our Court held that there was sufficient evidence and affirmed his convictions.
[8] On July 29, 2010, Crittenden filed a pro se petition for post-conviction relief. Thereafter, the State Public Defender entered an appearance, investigated Crittenden's claims, and then, in February 2012, withdrew its appearance pursuant to Post–Conviction Rule 1(9)(c). Crittenden later filed amended pro se post-conviction petitions.
[9] Crittenden raised post-conviction claims of ineffective assistance of trial and appellate counsel, as well as, freestanding claims of error relating his sentence. Specifically, Crittenden alleged that his trial counsel had rendered ineffective assistance by: (1) failing to file a motion to dismiss, which he alleged should have been based on: (a) the probable cause affidavit and charging information lacking a file stamp; (b) a challenge to the constitutionality of the child molesting statute; and (c) a challenge to the lack of criminal intent element; (2) failing to sufficiently investigate his case and to present witnesses (including character witnesses in favor of Crittenden and witnesses to discredit D.M.'s testimony); (3) failing to advise him regarding his chances at trial and the benefits of accepting a plea offer; (4) failing to cross-examine the child victim and the forensic child interviewer at the pretrial child-hearsay hearing; (5) failing to admit evidence of two DCS reports;2 (6) failing to object to the admissibility of the victim's medical exam and entering into a stipulation regarding the examining nurse's testimony; (7) being unaware that the statutory minimum sentence for Class A child molesting was twenty years; and (8) failing to object—based on Blakely3 —to the trial court's aggravation of his sentence.
[10] In regard to Crittenden's ineffective assistance of appellate counsel claim, he alleged that his counsel rendered ineffective assistance by: (1) failing to sufficiently argue the territorial jurisdictional sufficiency issue raised on direct appeal; (2) failing to present a separate sufficiency issue on appeal; and (3) failing to raise sentencing issues, including a challenge that the trial court and his trial counsel misapplied the law regarding the statutory minimum sentence for his Class A felony child molesting conviction and a challenge to the enhancement of his sentence based on Blakely.
[11] During the course of this post-conviction proceeding, Crittenden filed various discovery motions, which were ultimately denied by the post-conviction court. These motions included: (1) Requests for Access to Relevant Portions of the Record (filed August 22, 2012 and March 8, 2013); (2) a Motion to Compel Release of Documents (filed on November 13, 2012); (3) Request for Access to Relevant Portions of the Record (filed March 8, 2013); (4) a Request for Documents, Calculated to Lead to Discovery of Admissible Evidence, Pursuant to Trial Rule 34(B) (filed on March 11, 2013); and (5) a Motion for Offer to Prove (filed on March 21, 2013). When denying some of these motions, the post-conviction determined that Crittenden had “failed to show how the requested discovery [wa]s necessary to support his pending post-conviction relief claims, and he ha[d] not shown that he ha[d] made any effort to obtain such evidence from his trial counsel's file or his previously-appointed State Public Defender.” (P–CR App. 134, 144).
[12] Prior to the post-conviction...
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