Douglas v. State

• Decision Date: 18 December 2003
• Docket Number: No. 49A02-0211-PC-956.,49A02-0211-PC-956.
• Citation: 800 N.E.2d 599
• Parties: Carrie DOUGLAS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

800 N.E.2d 599

Carrie DOUGLAS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-0211-PC-956.

Court of Appeals of Indiana.

December 18, 2003.

Rehearing Denied March 19, 2004.

Carrie Douglas, Appellant Pro Se.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Carrie Douglas appeals the denial of his petition for post-conviction relief. We consolidate and restate his twelve issues as whether the court erred when it denied his petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

On direct appeal, we summarized the facts underlying Douglas' conviction:

The evidence reveals that Douglas persuaded the victim to drive with him on an errand. He eventually drove her to a park and smoked marijuana and drank wine coolers with her. Douglas then asked the victim to have sexual intercourse with him, which she refused. In response, Douglas locked the car door, retrieved a knife from the glove compartment, and held it to her throat as he threatened to kill her. He then forced the victim to disrobe and engage in sexual intercourse with him in the car.

Douglas v. State, No. 49A02-8906-CR-300, mem. op. at 2, 567 N.E.2d 1206 (Ind.Ct. App., Mar. 5, 1991), trans. denied. A jury convicted Douglas of rape as a Class A felony¹ and confinement as a Class B felony² and found him to be an habitual offender.³ The trial court sentenced Douglas to forty years for rape, twenty years for confinement, and thirty years for being an habitual offender, with the sentences to be served consecutively.

On direct appeal, Douglas questioned the sufficiency of the evidence, the trial court's denial of his motion for a new trial based on newly discovered evidence, the trial court's admission of evidence, and the effectiveness of assistance from trial counsel. We held that all of Douglas' claims failed. See id.

On September 15, 1992, Douglas filed a pro se petition for post-conviction relief. The public defender's office filed an appearance on Douglas' behalf. On July 12, 1995, Douglas filed a motion to stay the proceedings. On August 5, 1998, the trial court granted the public defender's motion to withdraw. On February 26, 2002, Douglas filed an amended petition for post-conviction relief. On June 27, 2002, the court held a hearing on his petition. Douglas presented evidence at the hearing, but he did not submit the record of proceedings from his direct appeal. The court denied his petition.

DISCUSSION AND DECISION

Post-conviction proceedings are not "super appeals" through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002), reh'g denied. Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002), reh'g denied, cert. denied 537 U.S. 1122, 123 S.Ct. 857, 154 L.Ed.2d 803 (2003); see also Ind. Post-Conviction Rule 1(1)(a). Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. P-C.R. 1(5).

When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment. Curry v. State, 674 N.E.2d 160, 161 (Ind.1996). Consequently, we may not reverse the post-conviction court's judgment unless the petitioner demonstrates that the evidence "as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Id. We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not have to give deference to the post-conviction court's conclusions of law. Davidson, 763 N.E.2d at 443-44. On appeal, we may not reweigh the evidence or reassess the credibility of the witnesses. Id. at 444.

1. Issues PCR Court Found Waived

Issues seven, eight, and nine in Douglas' brief are: 7) whether Douglas' trial judge was biased; 8) whether the sentencing judge followed the correct procedure; and 9) whether jury instruction seventeen prejudiced Douglas. The post-conviction court found those three issues waived because they were available on direct appeal.

As the entire argument regarding these issues in his brief, Douglas provides the following statement:

Appellant, [sic] contends that if the Court finds that the three issues above is [sic] not in fact waived, then he reserve [sic] the right to present argument in their support. If the Court find [sic] that they are waived, then the waiver must be contributed [sic] to ineffective assistance of appellate counsel.

(Br. of Appellant at 34) (emphasis in original).

Contrary to Douglas' assertion, appellants are not permitted to "reserve the right to present argument" at a later point; rather, they are obliged to present all their arguments in their initial briefs to this court. See Ind. Appellate R. 46(A)(8) ("This [argument] section shall contain the appellant's contentions why the trial court... committed reversible error."); Ind. App. R. 46(C) ("No new issues shall be raised in the reply brief."). Because he did not present arguments, the issues are waived for appellate review.

Moreover, we agree with the post-conviction court's decision that these issues were available at the time of Douglas' direct appeal and, therefore, were waived for post-conviction review. See Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999) (waiving as free-standing claims any issues available on direct appeal), reh'g denied, cert. denied 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

Finally, to the extent Douglas invites us to consider these issues as examples of ineffective assistance of appellate counsel, we cannot. Because Douglas did not provide arguments regarding these issues, we are unable to evaluate whether Douglas' counsel committed error or whether Douglas was prejudiced thereby. See id. at 911, n. 2 (holding a single sentence declaring counsel was ineffective for raising issues on direct appeal is insufficient to avoid waiver of the issue; rather, to avoid waiver, appellant must provide argument regarding why his counsel was ineffective). Accordingly, Douglas waived his claim of ineffective assistance of counsel as to these issues.

2. Issues PCR Court Found Res Judicata

Douglas also raised: 10) whether the trial court sentenced Douglas in violation of double jeopardy principles; 11) whether the trial court erred by refusing to accept Douglas' "motion to prohibit the State to file their motion in limine," (Appellant's Br. at 34); and 12) whether Douglas was denied effective assistance of trial counsel. The post-conviction court found these three issues were res judicata. On appeal, Douglas agrees the ineffective assistance of trial counsel issue is res judicata, but then says:

however, issues [ten] and [eleven], if the Court find [sic] that they are not res-judicate [sic], then [sic] reserve the right to argue the other issues, if this Court find [sic] that they are, these issues must also be constributed [sic] to appellate counsel for improper [sic] raising them in the original brief.

(Id. at 34.)

As with the previous three issues, Douglas' failure to include any argument in his appellate brief regarding these issues has resulted in waiver of those issues for appellate review. Moreover, our review of this court's opinion from Douglas' direct appeal informed us that we did, in fact, address these issues on direct appeal. Because each of these issues failed on its merits on direct appeal, these issues could not have provided a basis for a claim of ineffective assistance of appellate counsel, even if Douglas had properly argued it.

3. Biased Jury

Douglas' fifth issue is whether the jury that tried him was biased because it was not from a cross-section of the community. This issue was available on direct appeal and is therefore waived for post-conviction proceedings. See Benefiel, 716 N.E.2d at 911.

Moreover, the post-conviction court concluded "[Douglas] has not shown that his jury panel was white, let alone that he preserved any error in the selection of his jury." (Appellant's App. at 75.) Because Douglas failed to provide the post-conviction court with a record of the proceedings from his trial,⁴ we cannot say the post-conviction court's conclusion that Douglas failed to support this claim was contrary to law.

4. Pre-Trial Suppression of Evidence

The first issue Douglas raised is whether the State withheld exculpatory evidence from him prior to his original trial. Specifically, Douglas claims the State improperly withheld information about the victim's criminal history, the victim's juvenile record, serological and other medical reports, and witness statements.

To establish this claim, Douglas had to demonstrate: 1) the prosecutor suppressed evidence; 2) the evidence was favorable to the defense; and 3) the suppressed evidence was material. Ben-Yisrayl v. State, 738 N.E.2d 253, 268 (Ind. 2000), reh'g denied, cert. denied 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002). We may reverse a defendant's conviction for suppression of evidence by the prosecutor only if the undisclosed evidence leads us to believe the result of the trial would have been different if the evidence had been disclosed. Id. The post-conviction court found that Douglas failed to prove this claim. Our review of the record indicates the post-conviction court did not err.

The evidence indicates Douglas' counsel knew before trial about the victim's criminal history and juvenile detention record. The evidence Douglas presented to the post-conviction court did not demonstrate that the State and victim had an agreement regarding her testimony; therefore there is no evidence the State improperly withheld such information from Douglas.

The evidence indicates...