Douglas v. State
| Decision Date | 31 May 1994 |
| Docket Number | No. 45A05-9212-PC-439,45A05-9212-PC-439 |
| Citation | 634 N.E.2d 811 |
| Parties | Mark Steven DOUGLAS 1 , Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Craig Jago Beauchamp, Chicago, IL, John G. Warne, Indianapolis, for appellant.
Pamela Carter, Atty. Gen. of Indiana, Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Mark Douglas appeals the denial of his petition for post conviction relief, raising the following issues:
1. Whether the post-conviction relief court erred in finding Douglas's petition barred by laches;
2. Whether the post-conviction relief court erred in finding that the trial court sufficiently instructed the jury on the element of intent;
3. Whether the post-conviction relief court erred in finding that the trial court's failure to properly instruct the jury on the defense of voluntary intoxication was harmless;
4. Whether the post-conviction relief court erred in finding that the trial court properly admitted evidence of Douglas's prior incarceration at Boy's School;
5. Whether the post-conviction relief court erred in finding that the trial court properly instructed the jury on the State's burden of proof and the presumption of innocence;
6. Whether the post-conviction relief court erred in finding that Douglas received effective assistance of trial and appellate counsel; and
7. Whether Douglas received ineffective assistance of counsel at the hearing on his post-conviction relief petition.
We affirm the denial of Douglas's petition for post-conviction relief.
The facts were succinctly stated by the supreme court in Douglas's direct appeal:
On November 13, 1982, appellant and an accomplice went to Lowell Fitch's home and asked to see Chris Hych, the son of Fitch's cohabitating fiancee. When Fitch responded that Chris did not live there anymore, appellant pulled out a sawed-off shotgun. Even though Fitch tried to slam the door shut, appellant managed to fire two shots. Fitch received injuries to his right hand and left shoulder.
Douglas v. State (1985), Ind., 481 N.E.2d 107, 109. Douglas and co-defendant Kevin Morrison had discussed a plan to take things from the Fitch home because Morrison, a friend of Chris Hych, knew Fitch had some "nice things." Douglas's conviction of attempted robbery was affirmed on August 6, 1985.
Douglas filed his petition for post-conviction relief in September, 1986. After several amendments, a hearing was held on the petition on May 13, 1992. The post-conviction relief court ("PCR court") denied the petition on August 24, 1992, adopting the State's proposed findings of fact and conclusions of law. Douglas appealed and this court heard oral argument on March 23, 1994.
Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, Section 5; St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Pursuant to P-C.R. 1, Section 6, the PCR court entered findings of fact and conclusions of law. Thus, we cannot affirm the judgment on any legal basis; rather, we must determine whether the PCR court's findings are sufficient to support the judgment. Vanderburgh County Board of Commissioners v. Rittenhouse (1991), Ind.App., 575 N.E.2d 663, 665, trans. denied. In reviewing the judgment, we must first determine whether the evidence supports the findings and second, whether the findings support the judgment. Id. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions of law entered on the findings. DeHaan v. DeHaan (1991), Ind.App., 572 N.E.2d 1315, 1320, trans. denied. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. Id. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility. Id.
Douglas first raises the issue whether the PCR court erred in finding that his petition for relief was barred by laches. The PCR court found that Douglas was aware of post-conviction relief and the Public Defender's Office in 1985, because Douglas wrote a letter to the trial court requesting a copy of his transcript on September 19, 1985, so that he could begin "preparing adequate post-conviction action." The PCR court also found that Douglas filed his petition on September 25, 1986, and that Douglas's attorney filed three amendments and substituted every issue alleged in the original petition. "Thus, the delay in filing a petition has been from petitioner's conviction in 1983 until 1992." R. 99-100. The PCR court found the delay unreasonable. The PCR court also found that the State had been prejudiced by the delay because the State was not able to locate Donna Evans and because Lowell Fitch had died.
"For laches to bar relief, the State must prove by a preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and second, that the State has been prejudiced by the delay." Holland v. State (1993), Ind.App., 609 N.E.2d 429, 430-431 (quoting Perry v. State (1987), Ind., 512 N.E.2d 841, 843, reh'g denied).
[Laches] is the neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the other party and thus acting as a bar in a court of equity.
Twyman v. State (1984), Ind., 459 N.E.2d 705, 712 (quoting Frazier v. State (1975), 263 Ind. 614, 616-617, 335 N.E.2d 623, 624-625).
The PCR court erred in concluding that laches barred relief on Douglas's petition. Within one month of the supreme court's decision affirming Douglas's direct appeal, Douglas requested a transcript so that he could begin preparing a PCR petition. It took several months for him to finally receive the transcript and he still filed his petition a mere one year after his conviction had been affirmed. The PCR court appeared to find relevant, and the State at oral argument focused on, the delay between the filing of the petition and the hearing on the petition. We have found no cases, and The PCR court found that Douglas was aware of his right to post-conviction relief in 1985 when he requested his transcript. Less than a year after receiving the transcript Douglas filed his PCR petition. From that time until 1991, Douglas was represented by the State Public Defender's Office. After waiting more than four years for action on his petition, Douglas hired private counsel to proceed with his petition. We refuse to penalize Douglas for the delays caused by the Public Defender's Office. One arm of the State (the Prosecutor) may not take advantage of a delay created by another arm of the State (the Public Defender) to the detriment of the defendant. While we recognize the burdensome caseload of the Public Defender's Office and the high turnover of attorneys resulting in delays, as between a defendant and the State, the defendant will not be penalized for the delays. The PCR court's findings do not support the conclusion that Douglas unreasonably delayed seeking relief. Because we determine that the PCR court erred in finding laches on the basis of an unreasonable delay, we need not discuss whether the PCR court correctly found that the State was prejudiced by the delay.
the State directs us to none, that consider the delay between the filing of the petition and the hearing on the petition as the relevant time period for purposes of laches.
Douglas next argues that the PCR court erred in finding that the trial court adequately instructed the jury on the element of intent. At trial, the jury was given the following instructions:
Robbery is defined in Indiana by statute as follows:
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person;
(2) by putting any person in fear commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person.
A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscience objective to do so. A person engages in that conduct "knowingly" if, when he engages in that conduct, he is aware of a high probability that he is doing so.
Trial R. 55-57. Douglas argues that the jury was not instructed that in order to convict him of attempted robbery, he must have acted with the specific intent to rob Fitch. To avoid waiver because no objection was made and no alternative instructions were tendered at trial, Douglas argues that the error is fundamental and also argues that his trial and appellate counsel were ineffective for failing to preserve the issue.
Specifically, Douglas argues: "Since the term 'culpability' used in Instruction No. 5 does not require 'specific intent' but allows a conviction based upon acts knowingly committed, the court failed to instruct the jury on an essential element of...
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