Gallagher v. State, 15A05–1301–PC–12.
| Decision Date | 30 June 2014 |
| Docket Number | No. 15A05–1301–PC–12.,15A05–1301–PC–12. |
| Parties | Stephan GALLAGHER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Stephan Gallagher, Aurora, IN, pro se.
Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
CRONE
, Judge.
Stephan Gallagher, pro se, appeals the denial of his petition for post-conviction relief.
We affirm.
Our supreme court recited the following relevant facts in Gallagher's direct appeal:
[I]n the summer of 2005, Dearborn County Sheriff Department Detective Shane McHenry began having conversations with Danny Goodpaster, an acquaintance from high school and prior employment, regarding the selling of illegal drugs in the area. Goodpaster eventually agreed to attempt a drug buy from the defendant, and on November 29, 2005, he called the defendant and inquired about purchasing drugs. The defendant and Goodpaster agreed to meet behind a particular pharmacy in Aurora, Indiana, where the defendant would be in a green Ford Thunderbird with two females [Lisa Johns and Jennifer Carlton]. Goodpaster then called Detective McHenry, who picked up Goodpaster, equipped him with a recording device and money, searched him, and then drove him to the vicinity of the pharmacy. Goodpaster exited and walked to the Thunderbird parked behind the pharmacy and got into the back seat with the defendant. Goodpaster gave the money to the defendant, and the defendant handed the money to one of the women who left the car and walked to some nearby apartments. After a lapse of time, she returned and displayed ten [oxycodone
] pills in cellophane wrapping. After a discussion of how the pills were to be divided, the woman kept four pills and handed six pills to the defendant, who handed them to Goodpaster. Goodpaster then exited the car and rejoined Detective McHenry.... The Thunderbird was located 230 feet from St. John's Lutheran School when the drugs were exchanged.
Gallagher v. State, 925 N.E.2d 350, 353–54 (Ind.2010)
.
The State charged Gallagher with class A felony dealing in a schedule II controlled substance and class A felony conspiracy to commit dealing in a schedule II controlled substance. A jury found him guilty as charged. The trial court vacated the conspiracy conviction on double jeopardy grounds.
On appeal, Gallagher raised the following issues: (1) whetherthe State failed to rebut his statutory defense that he was within 1000 feet of the school for only a brief period of time while no children were present; (2) whether the trial court erred in admitting an audiorecording of the drug deal because Gallagher believed that the State had committed a discovery violation by providing him a less audible copy of the recording; and (3) whether the trial court erred in giving a jury instruction on accomplice liability that was allegedly incomplete and confusing. Regarding issue (1), another panel of this Court found that the State had failed to rebut Gallagher's defense, reversed his class A felony dealing conviction, and remanded with instructions to reduce the conviction to a class B felony. Gallagher v. State, 906 N.E.2d 272 (Ind.Ct.App.2009)
(“Gallagher I ”), trans. granted. As for issue (2), the panel found that Gallagher had waived the issue because he had failed to request a continuance, but it nevertheless addressed the issue and found no error. And as for issue (3), the panel found the issue waived because Gallagher had objected to the instruction on a different basis at trial. Our supreme court granted transfer and affirmed the trial court. 925 N.E.2d 350 (“Gallagher II ”).
Gallagher filed a petition for postconviction relief (“PCR”). He requested representation by the Indiana Public Defender, which the postconviction court granted, but later decided to proceed pro se. After an evidentiary hearing, the postconviction court issued an order denying Gallagher's petition. This appeal ensued.
Gallagher contends that the postconviction court erred in denying his petition. PCR “proceedings do not grant a petitioner a ‘super-appeal’ but are limited to those issues available under the Indiana Post–Conviction Rules.” Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App.2010)
, trans. denied.
Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5)
. A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the postconviction court. The appellate court must accept the post-conviction court's findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.
Id. (some citations omitted). “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002)
, cert. denied (2003). Gallagher's claims involve either ineffective assistance of trial counsel or ineffective assistance of appellate counsel.
Our standard of review is as follows:
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), reh'g denied ), reh'g denied, cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001). Failure to satisfy either prong will cause the claim to fail. French, 778 N .E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
When considering a claim of ineffective assistance of counsel, a “strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1072 (Ind.2001)
. “[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind.2002). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), reh'g denied, cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind.1986).
Pryor v. State, 973 N.E.2d 629, 631–32 (Ind.Ct.App.2012)
.
Gallagher first contends that trial counsel was ineffective in failing to make a proper objection to the trial court's instruction on accomplice liability and in failing to tender a more complete instruction. To establish that trial counsel's failure to make a proper objection to the jury instruction was ineffective assistance of counsel, Gallagher would first have to prove that a proper objection would have been sustained. Dawson v. State, 810 N.E.2d 1165, 1177 (Ind.Ct.App.2004)
, trans. denied. He would also have to prove that trial counsel's failure to object was unreasonable and resulted in sufficient prejudice such that there is a reasonable probability that the outcome would have been different. Id.
The trial court gave the jury the following instruction on accomplice liability:
A person who knowingly or intentionally:
Appellant's Appeal App. at 208. At trial, Gallagher's counsel unsuccessfully objected to the instruction on the basis that accomplice liability had not been mentioned “throughout the entire proceeding” and thus it was “going to cause confusion[.]” Trial Tr. at 314. Gallagher acknowledges that the instruction tracks the accomplice liability statute, Indiana Code Section 35–41–2–4
, but he asserts that “[t]he jury should have been told that they had to find that [he] committed certain actions to be found guilty.” Appellant's Br. at 11.1 Gallagher cites no authority for this assertion. In fact, Indiana courts “have ‘long disapproved’ instructions that unduly ‘emphasize one particular evidentiary fact, witness, or phase of the case.’ “ Fowler v. State, 900 N.E.2d 770, 773 (Ind.Ct.App.2009) (quoting Ham v. State, 826 N.E.2d 640, 641–42 (Ind.2005) ). “ ‘An instruction as to what evidence warrants an inference of guilt clearly invades the jury's province.’ “ Id. (quoting Crawford v. State, 550 N.E.2d 759, 761 (Ind.1990) ).2
Gallagher also argues that the instruction “wholly failed to instruct that [he] must have engaged in some affirmative conduct in aiding or inducing the offense.” Appellant's Br. at 10. We disagre...
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