Dowdell v. State
| Decision Date | 24 February 2017 |
| Docket Number | Court of Appeals Case No. 49A02-1604-PC-878 |
| Citation | 70 N.E.3d 884 |
| Parties | Michael DOWDELL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Mark Small, Indianapolis, Indiana.
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.
[1] Michael Dowdell appeals the post-conviction court's denial of his successive petition for post-conviction relief. Dowdell raises one issue for our review, which we restate as whether the post-conviction court erred when it concluded, on the merits of Dowdell's petition, that Dowdell did not receive ineffective assistance from his appellate counsel. We affirm.
[2] The facts underlying Dowdell's convictions and the procedural history immediately following those convictions were stated by the Indiana Supreme Court as follows:
. Pack survived.
Dowdell was arrested and charged with two counts of felony murder, one count of attempted murder, one count of robbery, and three counts of criminal confinement. The State's primary witness at trial was Pack. In addition, the State called Anthony Ross who testified that, while he was waiting in a holding cell to appear in court in August of 1995, Dowdell told him that he and another man had gone to Pack's house and shot the people inside because Dowdell and a friend "had got beat out [of] some drugs." A jury found Dowdell guilty on all counts and the trial court sentenced him to an aggregate term of 160 years imprisonment. Dowdell initiated a direct appeal of his convictions but then sought leave to pursue postconviction relief in the trial court. Leave was granted, and Dowdell filed a petition for postconviction relief in the trial court, which was denied. The direct appeal was then reinstated and consolidated with the appeal from the denial of postconviction relief.
Dowdell v. State , 720 N.E.2d 1146, 1149 (Ind. 1999) (" Dowdell I ").
[3] On the direct appeal issues raised in Dowdell I , the Indiana Supreme Court held that the trial court abused its discretion in sentencing Dowdell because the court had "fail[ed] to find and balance" the "significant mitigating circumstance" of Dowdell's lack of criminal history. Id. at 1154. As such, our supreme court remanded to the trial court for resentencing. On the post-conviction issues, our supreme court held that Dowdell did not receive constitutionally effective assistance from his trial counsel. Id. at 1151. The court then remanded for the post-conviction court to consider whether that deficient performance resulted in prejudice to Dowdell. Id. at 1152.
[4] Thereafter, the trial court resentenced Dowdell. In particular, the trial court sentenced him as follows:
The Court resentenced Defendant to a total executed term of 100 years, with [below-presumptive1 ] terms of 50 years on each of the murders, and [the presumptive term2 of] 30 years on the attempted murders. The [C]ourt also entered [presumptive3 ] sentences of 10 years on each of the robbery and criminal confinement counts. The Court then determined that the murder convictions would run consecutive to each other and the other sentences would run concurrently with the murders. As mitigating factors[,] the [C]ourt found the defendant's limited criminal history, the fact that he was not the actual shooter, that he was helping to raise a child[,] and that incarceration would be a hardship on the child. As aggravating circumstances, the [C]ourt found that the defendant had a relationship with one of the victims which he exploited to gain access, the victims recommended an aggravated sentence, and the severe injuries suffered by the victims.
Appellant's App. Vol. 2 at 34-35. The court then found that those aggravating and mitigating circumstances "balance[d]." Dowdell v. State , No. 49A05-0008-CR-353, R. at 83 (Ind. Ct. App. Aug. 24, 2000). Nonetheless, the trial court imposed consecutive sentences "based upon the violent nature of those convictions." Id. at 84.4 As the post-conviction court in the instant matter found, "[t]he [trial c]ourt [in resentencing] ... determined that the consecutive sentences were justified by the separate, additional aggravating circumstance regarding the violent nature of the crimes." Appellant's App. Vol. 2 at 35 (emphasis added).
[5] Dowdell appealed his revised sentence. In relevant part, he argued that the trial court abused its discretion when it ordered his sentences for murder to run consecutively based on "the violent nature of the crimes" because "murder is always violent." Dowdell v. State , No. 49A05-0008-CR-353, slip op. at 9, 747 N.E.2d 81 (Ind. Ct. App. Apr. 26, 2001) (" Dowdell II "). We rejected that argument and affirmed his revised sentence. Id.
[6] In 2005, Dowdell filed a motion to correct erroneous sentence with the trial court, which the court denied. On appeal from that judgment, Dowdell argued that "the trial court could not impose consecutive sentences after imposing reduced and presumptive sentences on the individual convictions." Dowdell v. State , No. 49A02-0511-PC-1101, slip op. at 5, 853 N.E.2d 185 (Ind. Ct. App. Aug. 9, 2006) (" Dowdell III "). But we did not consider the merits of Dowdell's argument on appeal. Instead, we held that Dowdell's alleged error was not obvious on the face of the judgment, and, therefore, we affirmed the trial court's denial of his motion to correct erroneous sentence. Id. at 10 (citing Jackson v. State , 806 N.E.2d 773, 774 (Ind. 2004) ). We also noted that Dowdell had not perfected a successive petition for post-conviction relief and, accordingly, that the trial court "had no jurisdiction" to entertain his motion to correct error as such a petition. Id.
[7] In February of 2013, we granted Dowdell's motion for leave to file a successive petition for post-conviction relief. In his successive petition, Dowdell argued, in relevant part, that his appellate counsel in Dowdell II had rendered ineffective assistance of counsel when she did not rely on Marcum v. State , 725 N.E.2d 852 (Ind. 2000), and argue, as Dowdell had attempted to do in Dowdell III , that the trial court erred when it ordered consecutive sentences after having imposed presumptive or below-presumptive sentences on each of Dowdell's convictions. Following an evidentiary hearing, the post-conviction court found that Dowdell did not receive ineffective assistance from his appellate counsel in Dowdell II .5 This appeal ensued.
[8] Dowdell appeals the post-conviction court's denial of his successive petition for post-conviction relief. Our standard of review is clear:
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State , 810 N.E.2d 674, 679 (Ind. 2004) (citations omitted). When appealing the denial of postconviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State , 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the postconviction court's legal conclusions, "[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State , 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State , 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to Campbell ).
[9] In particular, Dowdell argues that he received ineffective assistance from his appellate counsel in Dowdell II :
When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Helton v. State , 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first prong, "the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment." McCary v. State , 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland , 466 U.S. at 687-88, 104 S.Ct. 2052 ). To satisfy the second prong, "the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine...
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