Davidson v. State

• Decision Date: 19 February 2002
• Docket Number: No. 22S01-0101-PC-42.,22S01-0101-PC-42.
• Parties: Johnie E. DAVIDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

763 N.E.2d 441

Johnie E. DAVIDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 22S01-0101-PC-42.

Supreme Court of Indiana.

February 19, 2002.

Susan K. Carpenter, Public Defender of Indiana, C. Brent Martin, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

Johnie E. Davidson was tried in a single proceeding for several different crimes occurring in four separate instances at four different locations. After being found guilty of all charges except one, he was given consecutive sentences totaling 81 years. On appeal from the denial of postconviction relief, the Court of Appeals found Davidson's trial counsel ineffective for failing to move for separate trials that, if granted, would have prevented the imposition of consecutive sentences. Davidson v. State, 735 N.E.2d 325, 329 (Ind.Ct.App. 2000). Although we agree with the Court of Appeals that a severance could have precluded consecutive sentences under the then-governing law, we believe Davidson's counsel's failure to seek a severance was not substandard performance under the circumstances.

Factual and Procedural Background

In January 1989, Davidson was charged with committing a variety of crimes against four different victims on four separate occasions at four different locations. Davidson was accused of the following:

(1) On December 4, 1988, Davidson entered Ace Food Mart in New Albany, Indiana and demanded money from cashier Hope Stephens. After Stephens gave Davidson approximately $350-400, Davidson fled. Davidson was charged with robbery.

(2) On December 22, 1988, Davidson entered Swifty Food Mart in New Albany, placed a pistol on the counter, and demanded money from cashier Sandra Casey. Casey gave him money and Davidson left the store. Davidson was charged with robbery.

(3) On January 1, 1989, at approximately 3:00 a.m., Davidson approached Dr. George Raque in the parking lot of a hospital in Louisville, Kentucky. Davidson ordered Raque at gunpoint to get in his car and drive. After the car crossed over the Ohio River into Indiana, Davidson demanded money, but Raque had only $10 or $12. Davidson then ordered Raque out of the car in a dead-end alley in New Albany. Raque tried to escape, Davidson hit him in the head with his gun, and the two returned to the car.

As Davidson was entering, Raque drove off. Davidson was charged with attempted robbery, criminal confinement, and battery.

(4) On January 1, 1989, at about 4:00 or 5:00 a.m., Edwin McClure had just left Moore's Supermarket in New Albany and was placing his groceries on the seat of his vehicle when Davidson approached him with a gun in his hand and ordered him to get in the car. McClure fled as Davidson was getting into the car. Davidson was charged with attempted robbery.

In March 1989, Davidson was tried on all these charges in a single proceeding. Davidson's attorney attempted to show that the victims gave substantially different descriptions of the perpetrator and that the police rushed to judgment in order to solve this string of robberies. One victim reported the perpetrator was 5'4" to 5'6" with "dark black" skin, while another victim described the perpetrator as 5'9" to 5'10" with "medium black" skin. One victim told the police the perpetrator had the gun in his left hand while another victim described the perpetrator as right-handed. Dr. Raque reported the perpetrator had some facial hair, like a goatee or a "little mustache [that] go[es] around the mouth," a dark colored jacket, and a hat. On the other hand, McClure, who was allegedly approached by the perpetrator within hours of Raque, described the perpetrator as having no facial hair, a light blue dress jacket or suit coat, and no hat.

Davidson was found guilty of all counts except the robbery at the Ace Food Mart. He was sentenced to the maximum sentence on each count with all time to be served consecutively—a collective sentence of 81 years. The Court of Appeals affirmed the convictions. Davidson v. State, 557 N.E.2d 8 (Ind.Ct.App.1990).

Davidson sought postconviction relief contending: (1) his trial counsel was ineffective for failing to move for separate trials which, if granted, would have prevented the imposition of consecutive sentences; (2) his trial counsel was ineffective for failing to object to the trial court's use of impermissible aggravators to impose the maximum possible sentence; and (3) his appellate counsel was ineffective for failing to raise these two issues on direct appeal. The postconviction court denied relief.

On appeal, the Court of Appeals concluded that Davidson's counsel's failure to move for a severance was substandard performance and resulted in consecutive sentences that could not have been imposed in separate trials. Davidson, 735 N.E.2d at 329. The Court of Appeals reversed and remanded the case to the trial court with instructions to vacate the order directing Davidson to serve consecutive sentences. Id. at 329-30. We granted the State's petition to transfer to address the severance issue.

Standard of Review

A postconviction relief proceeding "is not a substitute for trial and appeal, but is a process for raising issues which were unknown or not available at trial." State v. Hollon, 494 N.E.2d 280, 282 (Ind. 1986). Davidson bore the burden in the postconviction court of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because Davidson appeals from a negative judgment delivered by the postconviction court, this Court will reverse the denial of postconviction relief only if the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995). In this review, findings of fact are accepted unless "clearly erroneous," Ind. Trial Rule 52(A), but no deference is accorded conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996). The postconviction court is the sole judge of the weight of the evidence and the credibility of witnesses. See, e.g., Stewart v. State, 517 N.E.2d 1230, 1231 (Ind.1988)

.

I. Ineffective Assistance of Trial Counsel

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a claim of ineffective assistance of counsel requires a showing that: (1) counsel's performance was deficient by falling below an objective standard of reasonableness based on prevailing professional norms; and (2) counsel's performance prejudiced the defendant so much that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694, 104 S.Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.1994).

Davidson contends that both prongs of the Strickland test are met. First, he argues that his counsel's performance was below an objective level of reasonableness because his counsel did not seek separate trials on the four sets of charges. Second, Davidson contends that the result of the proceeding would have been different because if he had been granted separate trials and found guilty at all four trials, the sentence he would have received would not have exceeded 41 years. At the time of Davidson's trial, this Court had held that a trial court could order sentences to be served consecutively only if the court was contemporaneously imposing two or more sentences. Kendrick v. State, 529 N.E.2d 1311, 1312 (Ind.1988). In Kendrick, the defendant pleaded guilty to one of several counts pending in a single case in the Marion County Superior Court, Division One. In exchange for this plea, the other charges in this single cause were dropped. At the same time, there were other charges pending against the defendant in another division of the Marion County Superior Court, but those charges were not mentioned in the plea agreement or at the plea proceeding in Division One. The court accepted the plea without fulfilling its statutory duty of advising the defendant of the possibility of consecutive sentences. Following the imposition of the sentence in Division One, the defendant entered another guilty plea to the other pending charges and received two sentences to run consecutive to one another and consecutive to the sentence given by the Division One Court. The defendant sought to withdraw his guilty plea in Division One because he had not been advised that he could receive later sentences that could be ordered to run consecutively to the one he would then be serving. Id. at 1311.

At the time Kendrick was decided, an Indiana statute provided, "[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively." Ind.Code § 35-50-1-2(a) (1988). This Court in Kendrick held that the trial court's authority to impose consecutive sentences arises only (1) when it has a mandatory duty to do so under section 35-50-1-2(b) or (2) "when a court is meting out two or more terms of imprisonment." Kendrick, 529 N.E.2d at 1312. Accordingly, in Kendrick, the Division One Court had no authority to impose consecutive sentences because it was not meting out two or more terms of imprisonment. Id.

The Kendrick rule was bolstered by another case involving two trials for four separate sales of controlled substances. Seay v. State, 550 N.E.2d 1284 (Ind.1990). In Seay, the defendant made four separate sales to a police informant and an undercover police officer. The defendant was charged with two counts of dealing in a controlled substance based on sales made on July 14, 1986 and August 4, 1986. He was tried and convicted of those charges in February 1987. While the jury was deliberating his case, the State filed charges on the other two sales of controlled substances,...