Danks v. State, No. 46A03-9908-PC-330.

Docket NºNo. 46A03-9908-PC-330.
Citation733 N.E.2d 474
Case DateAugust 03, 2000
CourtCourt of Appeals of Indiana

733 N.E.2d 474

Larry K. DANKS Appellant-Petitioner
v.
STATE of Indiana, Appellee-Respondent

No. 46A03-9908-PC-330.

Court of Appeals of Indiana.

August 3, 2000.

Transfer Denied September 29, 2000.


733 N.E.2d 478
Linda M. Wagoner, Indianapolis, Indiana, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

733 N.E.2d 475
733 N.E.2d 476

733 N.E.2d 477
OPINION

BARNES, Judge.

Case Summary

Larry K. Danks appeals the denial of his post-conviction petition that sought relief from his conviction for felony murder entered pursuant to a plea of guilty but mentally ill. We affirm.

Issues

Danks presents two issues for our review, which we restate as follows:

1. whether a delay of nearly six and one-half years between his purported arrest for murder and robbery and the filing of charges for those offenses constituted a denial of Danks' Sixth Amendment right to a speedy trial;

733 N.E.2d 479
2. whether Danks received ineffective assistance of counsel.1

Facts

The facts relevant to this petition, as found by the post-conviction court, are as follows. On May 11, 1978, a robbery occurred at a gas station in LaPorte County, during which the attendant, Gary Adkins, was shot and killed. On May 19, 1978, another robbery took place at the same gas station and another attendant, Kenneth Thomas, was also murdered.2 The LaPorte County Sheriff's Department apprehended Danks as a suspect in the May 19 incident on May 20, 1978, and detained him in the LaPorte County jail. After being advised of his rights Danks gave a statement to a police detective in which he implicated himself in both the May 11 and May 19 incidents. A warrant for Danks' arrest was issued on May 23, 1978, based on the police detective's probable cause affidavit stating that Danks had implicated himself in the May 11 and May 19 incidents. The LaPorte County Prosecutor's Office also filed charges related to the May 19 incident on May 23, 1978, though it did not file charges for the May 11 incident. In September, the LaPorte County Prosecutor's Office formally suspended further investigation into the May 11 incident, though charges were still not filed.

The trial court subsequently found Danks incompetent to stand trial on February 23, 1979, and he was transferred to the Logansport State Hospital following his involuntary civil commitment. The Prosecutor's Office received periodic reports related to Danks' competency during his commitment. On March 21, 1984, Danks was determined to have regained his competency. After a transfer of venue from LaPorte to Porter County, a jury found Danks guilty of the May 19 incident on November 30, 1984, and it recommended a sentence of death. The trial court rejected the recommendation and sentenced Danks to serve 46 years in prison.

Meanwhile, on October 2, 1984, LaPorte County Chief Deputy Prosecutor Craig Braje ("deputy prosecutor") filed an information against Danks related to the May 11 incident that included a death penalty request. The trial court appointed Gregory Hofer ("defense counsel") to represent Danks in this new proceeding. Aside from a notice of intention to interpose an insanity defense, defense counsel filed no other motions on Danks' behalf, although he had considered filing a motion to dismiss based on the State's delay in the filing the charges. Danks himself approached the deputy prosecutor at a court hearing and requested a plea in exchange for the dropping of the death penalty.

At Danks' sentencing hearing in 1986 on his plea of guilty but mentally ill to the felony murder count of the State's information, defense counsel spoke of the "strategic decisions" he had made in handling Danks' case and indicated that he had not filed a motion to dismiss or any other motions because of his reluctance to sour potential negotiations with the deputy prosecutor. The trial court sentenced Danks to 60 years imprisonment on the May 11 incident charges to be served consecutively with the already imposed 46-year sentence. The State agreed to give Danks credit for nearly eight years time served, dating back to May 20, 1978, the date of his initial confinement in the LaPorte County Jail. The trial court later corrected the sentence, pursuant to a motion to correct error, and ordered that the terms be served concurrently.

733 N.E.2d 480
In 1986, only a few months after his judgment of conviction was entered for the May 11 incident, Danks filed a pro-se petition for post-conviction relief (PCR). Little or no action was taken on this petition until 1996, when counsel filed another PCR petition on Danks' behalf that was deemed to be an amendment to the 1986 pro-se petition. Both petitions sought relief only from the conviction for the May 11 incident; Danks has never challenged the conviction for the May 19 incident. The post-conviction court conducted a hearing on the petition in December 1998 and denied relief in July 1999. This appeal followed

Analysis

I. Post-Conviction Relief Standard

Post-conviction proceedings do not provide a petitioner with a "super-appeal," and do not substitute for direct appeal. Ind. Post-Conviction Rule 1(1)(b); Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999). Instead, the post-conviction rules create a narrow remedy for subsequent collateral challenges to convictions. Id.

The challenger of the denial of post-conviction relief must demonstrate that the evidence, taken as a whole, is without conflict and that it "leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court." Id. at 912. The post-conviction petitioner bears the burden of establishing his grounds for relief by a preponderance of evidence. P-C.R. 1(5). On review, the appellate courts may consider only the evidence and reasonable inferences supporting the judgment of the post-conviction court, which is the sole judge of the evidence and the credibility of the witnesses. Blunt-Keene v. State, 708 N.E.2d 17, 19 (Ind.Ct.App.1999).

II. Prejudicial Delay

Danks claims that he was prejudiced by the State's delay from May 1978 to October 1984 in filing charges against him for the May 11 incident.3 Initially, we note that Danks claims the delay in charging him with the May 11 incident violated his constitutional rights to due process and to a speedy trial. However, the question of whether a delay in prosecution has violated a defendant's due process rights under the Fifth Amendment is a separate and distinct question from whether his or her Sixth Amendment speedy trial right has been violated. Compare Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (Sixth Amendment speedy trial right applies only within confines of a formal criminal prosecution) with United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (Due Process Clause of the Fifth Amendment may require dismissal if pre-accusation delay by government causes substantial prejudice to a defendant's right to a fair trial and delay was an intentional device to gain tactical advantage over the accused). The analysis in Danks' brief regarding prejudicial delay is confined to the Sixth Amendment question, as the only cases cited in support of his argument (Doggett v. United States; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Harrell v. State, 614 N.E.2d 959 (Ind.Ct.App.1993)) are Sixth Amendment cases and Danks asserts that he was "officially accused" as of May 1978. Therefore, pursuant to Ind. Appellate Rule 8.3(A)(7) we consider any argument with respect to an unconstitutional delay under the Fifth Amendment to be waived. See Sturma v. State, 683 N.E.2d 606, 610-11 (Ind.Ct.App.1997).

When considering the issue of whether a defendant's right to a speedy

733 N.E.2d 481
trial under the Sixth Amendment has been violated, courts should consider the length of delay, the reason for the delay, the defendant's assertion of his or her right to a speedy trial, and prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192 (1972). None of these four factors is either a necessary or sufficient condition to finding a deprivation of the speedy trial right. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. Id. at 533, 92 S.Ct. at 2193. The question of prejudice must be assessed in light of the interests of defendants that the speedy trial right was designed to protect: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) most importantly, to limit the possibility that the defense will be impaired. Id. at 532, 92 S.Ct. at 2193

The Supreme Court revisited the question of speedy trial claims under the Sixth Amendment in Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). There, the Court emphasized the importance of the reason behind a delay and its relation to the defendant's need to demonstrate actual, particularized prejudice caused by the delay. Specifically, in between delay caused by bad faith, which weighs heavily against the government, and delay that results even though the government has diligently pursued prosecution, lies delay caused by official negligence. Such delay is weighed more lightly than deliberate delay but it still is an unacceptable reason for delaying a prosecution. Id. at 656-57, 112 S.Ct. at 2693.

"[A]ffirmative proof of particularized prejudice is not essential to every speedy trial claim," Id. at 655, 112 S.Ct. at 2692, but "to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice." Id. at 657, 112 S.Ct. at 2694. In other words, up to a certain, unspecified point in time a defendant must demonstrate that a delay in being brought to trial has caused particularized prejudice, even...

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33 practice notes
  • State v. Burney
    • United States
    • Court of Appeals of Oregon
    • December 17, 2003
    ...P.2d 32, 56 (1997) (a defendant who is charged as a principal may be found guilty upon proof that he aided and abetted); Danks v. State, 733 N.E.2d 474, 484 (Ind.App.2000) (a defendant may be charged as a principal and found guilty upon proof that he aided and abetted); State v. Satern, 516......
  • Sickels v. State , No. 20A03–1102–CR–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2012
    ...definitive, relatively simply calculated deadlines, based upon whether any delays are attributable to a defendant....Danks v. State, 733 N.E.2d 474, 490 (Ind.Ct.App.2000), trans. denied. Under the Sixth Amendment: When a defendant's speedy trial rights have been implicated, we undertake a b......
  • Olsen v. State, No. 20140009.
    • United States
    • United States State Supreme Court of North Dakota
    • August 28, 2014
    ...an ineffective assistance of counsel claim. State v. Jackson, 333 Wis.2d 665, 799 N.W.2d 461, 466 (Ct.App.2011); see also Danks v. State, 733 N.E.2d 474, 487 (Ind.Ct.App.2000) (“because the law was (and is) unsettled on this issue, it was not ineffective assistance to not” raise it); Ross v......
  • Sickels v. State, No. 20A03-1102-CR-66
    • United States
    • January 6, 2012
    ...definitive, relatively simply calculated deadlines, based upon whether any delays are attributable to a defendant . . . .Danks v. State, 733 N.E.2d 474, 490 (Ind. Ct. App. 2000), trans. denied. Under the Sixth Amendment:Page 21When a defendant's speedy trial rights have been implicated, we ......
  • Request a trial to view additional results
33 cases
  • State v. Burney
    • United States
    • Court of Appeals of Oregon
    • December 17, 2003
    ...P.2d 32, 56 (1997) (a defendant who is charged as a principal may be found guilty upon proof that he aided and abetted); Danks v. State, 733 N.E.2d 474, 484 (Ind.App.2000) (a defendant may be charged as a principal and found guilty upon proof that he aided and abetted); State v. Satern, 516......
  • Sickels v. State , No. 20A03–1102–CR–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2012
    ...definitive, relatively simply calculated deadlines, based upon whether any delays are attributable to a defendant....Danks v. State, 733 N.E.2d 474, 490 (Ind.Ct.App.2000), trans. denied. Under the Sixth Amendment: When a defendant's speedy trial rights have been implicated, we undertake a b......
  • Olsen v. State, No. 20140009.
    • United States
    • United States State Supreme Court of North Dakota
    • August 28, 2014
    ...an ineffective assistance of counsel claim. State v. Jackson, 333 Wis.2d 665, 799 N.W.2d 461, 466 (Ct.App.2011); see also Danks v. State, 733 N.E.2d 474, 487 (Ind.Ct.App.2000) (“because the law was (and is) unsettled on this issue, it was not ineffective assistance to not” raise it); Ross v......
  • Sickels v. State, No. 20A03-1102-CR-66
    • United States
    • January 6, 2012
    ...definitive, relatively simply calculated deadlines, based upon whether any delays are attributable to a defendant . . . .Danks v. State, 733 N.E.2d 474, 490 (Ind. Ct. App. 2000), trans. denied. Under the Sixth Amendment:Page 21When a defendant's speedy trial rights have been implicated, we ......
  • Request a trial to view additional results

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