Ford v. State

• Decision Date: 26 September 2001
• Docket Number: No. 45A04-0010-PC-454.,45A04-0010-PC-454.
• Citation: Ford v. State, 755 N.E.2d 1138 (Ind. App. 2001)
• Parties: Andrew FORD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

755 N.E.2d 1138

Andrew FORD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 45A04-0010-PC-454.

Court of Appeals of Indiana.

September 26, 2001.

Andrew Ford, Carlisle, Indiana, Attorney pro se.

Karen Freeman-Wilson, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge,

STATEMENT OF THE CASE

Petitioner-Appellant Andrew Ford ("Petitioner") appeals from the post-conviction court's order denying his petition for post-conviction relief.

We affirm.

ISSUES

We restate the following issues raised by Petitioner:

I. Whether the post-conviction court erred by denying Petitioner's motion to withdraw his petition for post-conviction relief.

II. Whether the post-conviction court erred by finding and concluding that the trial court correctly sentenced Petitioner.

III. Whether the post-conviction court erred by finding and concluding that the trial court did not err by failing to hold an expanded hearing on Petitioner's motion to correct error based upon a juror's comments.

IV. Whether the post-conviction court erred by finding and concluding that trial and appellate counsel for Petitioner rendered effective assistance.

FACTS AND PROCEDURAL HISTORY

We refer to our opinion in Petitioner's direct appeal for the underlying facts of this case:

The facts favorable to the judgment are that sometime early in April 1993, Terry Hodge had purchased a VCR from a woman in front of a liquor store about ten days before. Just before he bought it, Hodge saw the woman talking to Kevin Miller. Hodge apparently assumed that Miller knew the woman. In fact, the woman had attempted to sell the VCR to Miller, but Miller declined and walked away as Hodge approached. On April 13, 1993, Miller was driving a car in which Patrick Carter, the murder victim, was a passenger. The other car pulled up to Miller's car and Hodge got out and walked up to Miller seated in his car and demanded to know if Miller had the remote control that went with the VCR he had previously purchased. The two began to argue and Hodge said to Miller, "I should take your car." Hodge struck Miller and Miller struck back. Miller told Carter to retrieve Miller's gun from the glove box and shoot Hodge. Hodge jumped on Miller and said something to Ford, who got out of the other car, approached Miller's vehicle, and started shooting. Miller suffered three gunshot wounds, one in the chest and two in the abdomen, and was rendered paraplegic. Carter was shot twice and died on the scene.

Ford v. State, 706 N.E.2d 265, 267 (Ind.Ct. App.1999) (citations omitted).

Petitioner was convicted of the murder of Carter and the attempted murder of Miller. Weeks after the trial, Petitioner learned that a juror on his case made a comment at work, while no other jurors were present, about the fact that she was serving on a jury where a victim was in a wheelchair. The juror also indicated that "he's guilty and we're going to find him guilty because of the man in the wheelchair." (R. 84-85). After learning that new information, Petitioner filed a motion to correct error. The trial court denied Petitioner's motion after holding an evidentiary hearing on the matter.

On direct appeal of his conviction, Petitioner raised four issues. First, he argued that the trial court improperly overruled Petitioner's objection to setting his trial date outside the statutory limit. Second, he argued that the trial court improperly denied his motion to correct error. Next, he argued that the trial court improperly permitted a witness to testify that he answered untruthfully in his deposition. Last, he argued that the trial court improperly admitted hearsay evidence. A panel of this court affirmed Petitioner's conviction. Id. at 266.

Petitioner filed his petition for post-conviction relief on January 25, 2000. Petitioner raised the following issues in his petition: 1) that fundamental error occurred when the trial court sentenced Petitioner to consecutive sentences for murder and attempted murder; 2) that fundamental error occurred when the trial court failed to conduct a more extensive hearing regarding the juror's comment; 3) that trial counsel was ineffective for failing to object to consecutive sentences and failing to request a more extensive hearing on the juror's comment; 4) that appellate counsel was ineffective for failing to raise the alleged sentencing error on direct appeal, failing to raise the juror's comment as error, and failing to argue that trial counsel was ineffective for failing to object to the sentencing and the juror's comment.

Prior to the hearing on Petitioner's petition, appointed counsel for Petitioner withdrew her appearance because she concluded that Petitioner's claims were without merit. Counsel advised Petitioner of the hearing date and indicated that he might request a continuance of the hearing. Petitioner filed a motion for continuance on the day of the hearing. The post-conviction court denied that motion. Petitioner then moved to withdraw his petition. That motion also was denied. At the conclusion of the hearing, the post-conviction court denied the petition. Ultimately, the post-conviction court found that the trial court did not commit fundamental error in sentencing Petitioner to consecutive sentences for murder and attempted murder, and that the trial court did not commit fundamental error by failing to hold a more extensive hearing on the issue of the juror's comment. Because the post-conviction court found that fundamental error did not occur, the post-conviction court further found that trial and appellate counsel were not ineffective for failing to object or raise these issues below. This appeal ensued.

DISCUSSION AND DECISION

STANDARD OF REVIEW FOR POSTCONVICTION RELIEF

Post-conviction procedures do not afford the convicted an opportunity for a "super-appeal." See Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind.2000), reh'g denied. Post-conviction procedures create a narrow remedy for a subsequent collateral challenge to convictions that must be based on grounds enumerated in the post-conviction rules. Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000). Petitioners must establish their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

A petitioner who has been denied post-conviction relief appeals from a negative judgment. Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001). Therefore, the petitioner must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Ben-Yisrayl, 729 N.E.2d at 106. Since the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we will reverse those findings and that judgment only upon a showing of clear error, or that which leaves us with a definite and firm conviction that a mistake has been made. See Prowell, 741 N.E.2d at 708; Ben-Yisrayl, 729 N.E.2d at 106.

I. WITHDRAWAL OF PETITION

Petitioner contends that the post-conviction court erred by denying Petitioner's oral motion to withdraw his petition for post-conviction relief. In his brief, Petitioner relies upon Tapia v. State, 734 N.E.2d 307, 309 (Ind.Ct.App.2000) to support his position that absent substantial prejudice to the State, the post-conviction trial court should grant a petitioner's motion to withdraw his petition for post-conviction relief without prejudice. However, transfer was granted in that case, and the opinion upon which he relies has been vacated. See Ind. Appellate Rule 58.

In Tapia v. State, 753 N.E.2d 581 (Ind. 2001), the supreme court held that consistent with the rules of post-conviction procedure, appellate courts should review the post-conviction trial court's actions regarding motions to withdraw petitions without prejudice under an abuse of discretion standard. Tapia, 753 N.E.2d at 584; Indiana Post-Conviction Rule 1(4)(c). Prejudice to the non-moving party is one indicia of an abuse of discretion, but the standard of review remains an abuse of discretion. Id. at 585-86.

Petitioner's counsel withdrew once she made the determination that there was no merit to Petitioner's claims. We note that this was the proper procedure pursuant to Ind. Post-Conviction Rule 1(9)(c). See Lott v. State, 724 N.E.2d 1118, 1119-20 (Ind.Ct.App.2000). In that situation it is appropriate to allow a petitioner to proceed pro se should he or she so desire.

After the post-conviction court denied Petitioner's motion for continuance, he moved to withdraw his petition in order to employ counsel to represent him. The post-conviction court denied the motion. As we have previously stated, a post-conviction court has discretion to grant a Petitioner leave to withdraw his petition for post-conviction relief. Ind. Post-Conviction Rule 1(4)(c). In fact, at any time prior to the entry of judgment the post-conviction court may grant the petitioner leave to withdraw his petition. Id.

In the present case, the post-conviction court had before it argument that the State would be prejudiced by the delay if the continuance were granted. Furthermore, the post-conviction magistrate stated that a hearing on the petition was being held primarily to allow the Petitioner to witness that his petition received careful consideration by the post-conviction court. The post-conviction magistrate also indicated that it was his opinion that the allegations in the petition could have been addressed without a hearing. In other words, the magistrate indicated that Petitioner's petition could have been summarily denied because the allegations presented could have been resolved by reviewing the petition. See Ind. Post-Conviction Rule 1(4)(f).

As in Tapia, Petitioner has done little to explain what he would gain by delaying the proceedings. Petitioner asserted that the public...