Gray v. State
| Decision Date | 10 February 2006 |
| Docket Number | No. 49A05-0505-PC-272.,49A05-0505-PC-272. |
| Citation | 841 N.E.2d 1210 |
| Parties | Kunta K. GRAY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Anne Murray Burgess, Deputy Public Defender, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, for Appellee.
Kunta K. Gray appeals the denial of his petition for post-conviction relief. Under the circumstances presented, we reverse the denial of Gray's petition for post-conviction relief and remand this case for a new trial.
Gray raises three arguments, all of which involve the trial court's denial of the defense's motion to sever/bifurcate1 a charge of unlawful possession of a firearm by a serious violent felon ("SVF") from the charges of murder, attempted murder, and robbery. Regarding this central issue, Gray asserts ineffective assistance of both appellate and trial counsel as well as a violation of his state and federal rights to fundamental due process. Finding the appellate ineffective assistance claim dispositive, we need not reach the other issues.
We reiterate the facts as previously set forth in Gray's direct appeal.
[O]n November 16, 2000, Gray arranged to purchase a large quantity of marijuana from Greg Jones at an Indianapolis residence. Jones's friend, Avant, was at the house when Gray and an unidentified man arrived to buy the drugs. Jones retrieved a brown trash bag from his vehicle parked outside and then escorted Gray and the other man to the rear of the house, while Avant remained in the front living room area. A few minutes later, the unidentified man returned to the living room, hit Avant in the head with a handgun, and told him to get on the floor, stating, "[T]his is a robbery." Transcript at 56. Avant heard a number of gunshots from the back area of the home. Upon hearing the shots, the unidentified man stood and ran out of the house. Avant saw Gray stumble from the rear of the house and out the door. As Avant stood in or near the doorway, Gray pointed and fired his handgun at Avant, but missed. Gray and the other man sped away in a vehicle. Jones, who had suffered a number of gunshot wounds, staggered to the front door. Avant called 911 and waited with Jones until emergency personnel arrived. Jones underwent surgery, but died twelve days later from the injuries.
The State charged Gray with felony murder, murder, robbery, attempted murder, unlawful possession of a firearm by a serious violent felon [], and carrying a handgun without a license as a C felony. The possession by a SVF count alleged as the prior violent felony a February 1997 B felony dealing in cocaine conviction. During trial, Gray stipulated that he had been convicted of a serious violent felony within the meaning of IC 35-47-4-5. [On March 5, 2002, the jury] convicted Gray as charged.
The State also charged Gray with being an habitual offender and alleged as the predicate offenses: (1) the aforementioned February 1997 dealing in cocaine conviction, and (2) a December 1998 C felony carrying a handgun without a license conviction. Gray waived a jury trial on the habitual offender phase, and, after a hearing, the trial court adjudged Gray an habitual offender.
At [Gray's April 12, 2002] sentencing, the trial court merged the murder and robbery convictions with the felony murder conviction, and merged the felony handgun conviction with the possession by a SVF conviction. It sentenced Gray to sixty years for the felony murder, enhanced by thirty years for the habitual offender status, forty years for the attempted murder conviction, and twenty years for the possession by a SVF conviction. The trial court ordered the sentences to run concurrently, for a total executed sentence of ninety years.
Gray v. State, 786 N.E.2d 804, 805-06 (Ind.Ct.App.2003) (), trans. denied. A panel of this court affirmed his convictions and sentence. Id. at 808.
On November 19, 2003, Gray filed a pro se petition for post-conviction relief. PC-App. at 31.2 Almost one year later, Gray filed an amended petition for post-conviction relief, this one with counsel. Id. at 48. Following a post-conviction hearing, Gray's petition was denied in an order containing findings and conclusions. Id. at 94-108. Further facts shall be provided as necessary.
The well-settled standard for reviewing the denial of post-conviction relief follows.
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). "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)] (quotation omitted). In this review, findings of fact are accepted unless clearly erroneous, but no deference is accorded conclusions of law. Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) (some citations omitted). Moreover,
Post-conviction procedures do not afford a petitioner with a "super-appeal." See, e.g., Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001). Rather, subsequent collateral challenges must be based on grounds enumerated in Post-Conviction Rule 1. If an issue was known and available on direct appeal, but not raised, it is procedurally defaulted as a basis for relief in subsequent proceedings. See, e.g., Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). If an issue was raised on appeal, but decided adversely, it is res judicata. Id. If the issue is not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a post-conviction proceeding, but as a general rule, "most free-standing claims of error are not available in a postconviction proceeding because of the doctrines of waiver and res judicata."
Gray first contends that his appellate counsel rendered deficient performance when she failed to raise the denial of the motion to sever a charge of unlawful possession of a firearm by a SVF from the charges of murder, attempted murder, and robbery. Gray asserts that appellate counsel erroneously concluded that the issue was not preserved. Gray further claims that the severance issue was "clearly stronger" than the issues raised and would likely have led to a reversal. Appellant's Br. at 9.
To prevail on a claim of ineffective assistance of appellate counsel, the defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice. Ben-Yisrayl, 729 N.E.2d at 106. Prejudice will be found to exist when "there is a reasonable probability that the result of the proceeding would have been different but for defense counsel's inadequate representation." Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). Ineffective assistance claims at the appellate level of proceedings generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind.1997).
Gray's claim of appellate counsel's ineffectiveness is based on the second category. Hence, we employ the following two-part test: (1) whether the unraised issues are significant and obvious from the face of the record; and (2) whether the unraised issues are "clearly stronger" than the raised issues. Timberlake, 753 N.E.2d at 605-06. As the reviewing court, we must be "particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made." Id. at 605. "Moreover, appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law." Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind.1999).
Thus, we analyze whether Gray has demonstrated that appellate counsel's failure to raise the severance issue was "unquestionably unreasonable" in light of the facts of the case and the precedent available when the decision not to raise the issue was made. See Concepcion v. State, 796 N.E.2d 1256, 1259 (Ind.Ct.App.2003), trans. denied. Stated slightly differently, has Gray established that his appellate counsel's performance was deficient where counsel failed to present a significant and obvious issue for reasons that cannot be explained by any strategic decision? See Imel v. State, 830 N.E.2d 913, 917-18 (Ind. Ct.App.2005), trans. denied.
On March 4, 2002, prior to voir dire, Gray's counsel moved to sever the possession by a SVF count from the four other counts, noting that the court had discretion3 to do so where concerns of fairness and undue prejudice arise. PC-Ex. 5 at 4 (). Defense counsel was concerned about the ability of a defendant to receive a fair trial on the murder and attempted murder charges if the jury was...
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