Graham v. State
| Decision Date | 07 February 2011 |
| Docket Number | No. 22A01–1008–PC–392.,22A01–1008–PC–392. |
| Citation | 941 N.E.2d 1091 |
| Parties | Ricky E. GRAHAM, Appellant–Petitioner,v.STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Rickey E. Graham, Branchville, IN, Appellant Pro Se.Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Ricky 1 Graham appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his conviction for Class B felony dealing in a narcotic drug. We affirm in part and remand in part.
The issues before us are:
I. whether there was a sufficient factual basis for Graham's guilty plea; II. whether Graham received effective assistance of appellate counsel; and
III. whether the PCR court's conclusion that Graham's guilty plea was not illusory or involuntary is supported by its findings.
We related the underlying facts in this case in Graham's direct appeal as follows:
On July 13, 2006, officers with the New Albany Police Department, acting on a “narcotics tip,” arrived at 711 West Market Street in New Albany and spoke with Mark Leone, who was an occupant of the residence. The officers had observed a truck owned by Michael Landrum parked behind the house, and they asked Leone whether Landrum was inside. Leone stated that there were three others inside, but he did not identify the other occupants. The officers asked Leone to bring the other occupants to the front door to talk, but Leone only brought Landrum back with him. Landrum stated that he did not know who else was in the house.
When the officers asked Leone whether Graham was inside the house, he said “no,” but became “extremely nervous.” Leone then went inside the house and came back to the front door with Jessica Hill, who was a known girlfriend of Graham's. The officers knew that there was an outstanding warrant for Graham's arrest. The officers then received consent to enter the house, and they found Graham lying in a bathtub at the back of the house. They arrested Graham on the warrant. And after they obtained written consent from Leone to search the house, officers found “a glass jar of what [was] believed to be part of a methamphetamine lab.” Officers then obtained a search warrant to conduct a more thorough search of the house, and they found more evidence that methamphetamine was being manufactured in the house.
The State charged Graham with dealing in a narcotic drug, as a Class B felony, and being an habitual offender. After the first day of trial, Graham pleaded guilty to the dealing charge, and, in exchange for that plea, the State dismissed the habitual offender charge. The plea agreement left sentencing open to the trial court's discretion. At sentencing, the trial court identified the following aggravators: Graham's criminal history; the risk that he will commit another crime; the nature and circumstances of the crime, namely, that Graham participated in manufacturing methamphetamine in a crowded neighborhood; a warrant in 2005 for a probation violation; and that Graham is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility. In addition, the trial court found aggravating that this was not the first time Graham had been arrested “for methamphetamine labs,” and that Graham had not taken advantage of previous opportunities for drug treatment. The trial court did not identify any mitigators and sentenced Graham to twenty years.
Graham v. State, No. 22A04–0612–CR–757, slip op. at 2–3, 2007 WL 2811089 (Ind.Ct.App. Sept. 28, 2007) (citations omitted).
Graham's trial attorney made an oral motion to withdraw the guilty plea at Graham's sentencing hearing, which the trial court denied. On direct appeal, Graham's appellate attorney challenged only the appropriateness of his sentence under Indiana Appellate Rule 7(B). We affirmed. Id. at 6.
On November 15, 2007, Graham, acting pro se, filed a PCR petition. The petition alleged, among other matters, that Graham received ineffective assistance of both trial and appellate counsel, and that his guilty plea was illusory and compelled by the improper threat of an habitual offender enhancement. On May 14, 2009, Graham filed with the PCR court a request that his trial attorney be subpoenaed to appear at the PCR hearing. The PCR court never responded to this request. The PCR hearing was held on September 3, 2009; Graham's trial attorney was not in attendance. On July 14, 2010, the PCR court issued its findings and conclusions denying relief to Graham. Graham now appeals, continuing to represent himself.
Post-conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind.2007), cert. denied. “In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence.” Id. We review factual findings of a post-conviction court under a “clearly erroneous” standard but do not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Id. Additionally, the PCR court here entered findings of fact and conclusions thereon, as required by Indiana Post–Conviction Rule 1(6). We cannot affirm the judgment on any legal basis, but rather, must determine if the court's findings are sufficient to support the judgment. Lile v. State, 671 N.E.2d 1190, 1192 (Ind.Ct.App.1996).
Before turning to the merits, we address some procedural issues. First, as noted, Graham alleges in part that he received ineffective assistance of trial counsel. He specifically alleges that trial counsel failed to adequately prepare for trial, provided incorrect advice as to the validity of the habitual offender allegation filed by the State, and acted improperly in allegedly advising Graham in the middle of his trial that “the jury has you already convicted.” Appellant's Br. p. 7. Repeatedly throughout the PCR court's findings and the State's brief on appeal, it is stated that Graham failed to support his ineffective assistance of trial counsel claim because he did not attempt to procure his trial attorney's attendance at the PCR hearing. See Dickson v. State, 533 N.E.2d 586, 589 (Ind.1989) ().
Those statements by the PCR court and State are not supported by the record. The record before us indicates that Graham did expressly request the PCR court to issue a subpoena to secure his trial attorney's presence at the PCR hearing. As a pro se PCR petitioner, Graham was required to request the PCR court to issue any subpoenas on his behalf. See Ind. Post–Conviction R. 1(9)(b). If a PCR court does not believe a proposed witness's expected testimony would be relevant and probative, it must make a finding on the record to that effect before refusing to issue a subpoena. Id. Otherwise, the PCR court “shall order that the subpoena be issued.” Id. It is unclear why the PCR court did not act upon Graham's request to subpoena his trial attorney. It appears that the failure of Graham's trial attorney to testify at the PCR hearing was not Graham's fault. Because, ultimately, we will be remanding for further proceedings in this action, we will not at this time address Graham's claim of ineffective assistance of trial counsel. Instead, that claim may be considered anew if Graham again files a request with the PCR court to subpoena his trial attorney. If Graham files such a request, the PCR court either must grant it, or make a finding on the record explaining why the subpoena should not be issued.
We also observe that the State faults Graham for not introducing evidence at the PCR hearing in support of his claims, including the record related to his trial and guilty plea. It is true that there is longstanding precedent holding that the record of proceedings from the original trial must be admitted into evidence at a PCR hearing, just like any other exhibit, and a PCR court may not take judicial notice of that record.2 Douglas v. State, 800 N.E.2d 599, 605 n. 4 (Ind.Ct.App.2003), trans. denied. Here, at the beginning of the PCR hearing, Graham informed the court, Tr. p. 5. Graham also apparently brought other paperwork in the form of an appendix he had compiled. There followed some discussion with the trial court regarding what parts of the trial record Graham was going to rely upon. With respect to portions of the transcript that Graham was going to rely upon, the PCR court stated, “I believe we can probably get that ... from the Superior Court records.” Id. at 7.
Unfortunately, precisely what Graham brought to the PCR hearing is unclear, and it was not introduced into evidence and it has not been transmitted to this court in this appeal, nor were any superior court records made part of the record in the PCR proceeding. The PCR court seemed to indicate that, essentially, it could take judicial notice of the trial court record, but as we have indicated that was an improper course of action. It is true that Graham did not insist that the materials he brought to the hearing be introduced into evidence. Still, if a party in a PCR proceeding provides the original trial record (or a part thereof) to the PCR court, the PCR court should proactively ensure that the record is officially entered into evidence as an exhibit, so that the trial record is transmitted to this court in the event of an appeal and to avoid claims of...
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