Harris v. State

• Decision Date: 27 February 2007
• Docket Number: No. 48S04-0702-PC-72.,48S04-0702-PC-72.
• Citation: 861 N.E.2d 1182
• Parties: Robert E. HARRIS, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

861 N.E.2d 1182

Robert E. HARRIS, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 48S04-0702-PC-72.

Supreme Court of Indiana.

February 27, 2007.

Susan K. Carpenter, Public Defender of Indiana, Kevin R. Hewlate, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 48A04-0601-PC-38

BOEHM, J.

We hold that appellate counsel is ineffective if counsel fails to provide the trial record establishing facts that support a valid claim raised in the appeal but unsupported by the record provided.

Factual and Procedural Background

On October 9, 1999 at approximately 11 or 11:30 pm, Robert "Kwan" Harris, age 32, and his friend James Common were outside their Anderson, Indiana apartment when they met two girls, "A" and "B," who were walking home from a mall. Harris and Common invited the girls to talk with them, and the girls walked over to the two men. The girls told Harris and Common that they were both fifteen years old and attended Anderson High School. Harris and Common invited the girls to their apartment, and the girls agreed, thinking the men were seventeen or eighteen years old. Once in the apartment, Harris and Common told the girls that if the girls "wanted to stay there [the girls] had to have sex with them or [they] had to leave." The girls testified that they consented to the sex because it was too far to walk to A's house and they "would of got in trouble" had they returned to B's grandmother's house that late at night.

A and Harris first went to Harris's bedroom. Shortly after they had begun sexual intercourse, Common and B joined them and had sex on the same bed.] When the four had finished, all returned to the living room, but after "about five minutes," the foursome "switched," and Harris took B back to his bed and had intercourse with her while Common and A remained in the living room to have sex.

The girls spent the night at the apartment and left the next morning. A's mother and B's grandmother found the girls at the mall that morning. The girls eventually confessed that they had been "at two guy's house" the night before. B's grandmother called the police, and both girls went to Saint John's Hospital where rape kit samples were taken. Both girls identified Harris's photo to Detective Benson of the Anderson Police Department as one of the men with whom they had had sex. On January 28, 2000, Harris was charged with two counts of class B felony Sexual Misconduct with a Minor. Ind. Code § 35-42-4-9(a)(1). Harris's trial began on July 26, 2000. Harris initially pleaded not guilty and presented his own testimony and the testimony of his girlfriend, Maribeth Coats, and her twin sister, Marianne Coats, all of whom claimed Harris was with his girlfriend after leaving A and B at approximately 11:00 pm on the night in question. After this testimony the prosecutor located the sexual assault kit for B at the hospital and arranged for analysis by the Indiana State Police Laboratory. Harris was notified that the laboratory would work overnight to do a comparison of his and Common's DNA with semen samples taken from B. DNA analysis determined that that there was a one in 6.6 billion chance that the semen found in B's sample was not from Harris. A's sample revealed no DNA match for Harris, but A testified that Harris wore a condom when he had sex with her. When the DNA results became known, Harris changed his pleas to guilty on both counts. After accepting Harris's guilty pleas, the court sentenced Harris to the maximum sentence of twenty years on each count and ordered the sentences to be served consecutively for a total sentence of forty years.

At the time of Harris's trial, Indiana Code section 35-50-1-2(c) provided that

the total of the consecutive terms of imprisonment . . . to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive [now advisory] sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

Subsection (b) defines an "episode of criminal conduct" as "offenses or a connected series of offenses that are closely related in time, place, and circumstance." This limitation does not prohibit consecutive sentences, but it does limit the length of the sum of the consecutive sentences. Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006).

On direct appeal Harris challenged only the length of his aggregate sentence.¹ Harris argued that the trial court's sentence of forty years violated Indiana Code section 35-50-1-2(c) because his two Class B felonies did not involve "crimes of violence"² and took place in a single "episode of criminal conduct" for which the presumptive (now advisory) thirty years sentence for a Class A felony was the maximum allowed by the episode statute. Harris v. State, 749 N.E.2d 57, 59-60 (Ind. Ct.App.2001), trans denied. Appellate counsel submitted a record consisting of the chronological case summary, information, pre-sentence report, abstract of judgment, and the transcripts of the guilty plea and sentencing hearings. The trial transcript was not included as part of the appellate record. The Court of Appeals affirmed the trial court's sentence of forty years, finding that "neither of Harris's acts of sexual misconduct was a necessary prerequisite for the other" and that "there was no other connection between the events such that a complete account of one cannot be given without referring to the details of the other." Id. at 61.

On October 3, 2001, Harris filed a pro se petition for post-conviction relief. On April 18, 2005, Harris, through appointed counsel, filed a petition for post-conviction relief, alleging that appellate counsel rendered ineffective assistance when he did not include the trial transcript as part of the appellate record. Harris pointed out that only the trial transcript included the testimony of the two victims. That testimony was the only source of the facts that only five minutes passed between the two encounters, both took place in the same bed in the same apartment, and both were enticed by the same dialogue. Harris contended that the victims' testimony established that two crimes took place in a single "episode of criminal conduct" and his counsel was ineffective for failing to establish the facts necessary to reach this conclusion. After a hearing the post-conviction court denied relief, and Harris appealed. The Court of Appeals affirmed the post-conviction court's finding that counsel was not ineffective. Harris v. State, 851 N.E.2d 1075, No. 4804-0601-PC38, slip op. at 5 (Ind.Ct.App. July 7, 2006).

I. Res Judicata

The State first contends that because Harris's sentence was reviewed on direct appeal and his crimes were held to be lawful under the episode statute the issue is res judicata. We do not agree. In Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997), we observed that one form of appellate ineffectiveness occurs when "appellate counsel's work is so deficient that an issue, though technically raised, is deemed waived for failure to present cogent argument and/or cite facts in the record supporting the claim." (citing Goliday v. State, 526 N.E.2d 1174, 1175 (Ind.1988); Ashford v. State, 464 N.E.2d 1298, 1302 (Ind.1984); Burton v. State, 455 N.E.2d 938, 940 (Ind. 1983)). These claims of inadequate presentation of an issue—as opposed to failing to raise the issue at all—are generally "the most difficult" to pursue successfully. Id. However, such a claim is possible, and this case is an example. As we observed in Bieghler, a claim that counsel ineffectively presented a claim on appeal requires that the underlying issue be re-adjudicated. Id. But this does not suggest, as the State contends, that the claim is barred by res judicata. If appellate counsel's performance was so inadequate that the appellate court addressed the issue but could not properly decide it on direct appeal, res judicata cannot bar the Sixth Amendment claim. To the contrary, a conviction established by denial of the Sixth Amendment rights is void. Burgett v. Texas, 389 U.S. 109, 114-115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). A claim of ineffective assistance always involves revisiting the underlying contention that is alleged to have been botched. If we were to accept the State's claim of res judicata, a claim for ineffective assistance of appellate counsel could never be brought because the resulting appellate decision upon which the prejudice prong is founded would always be final. In short, the Sixth Amendment right to counsel trumps the state law res judicata doctrine.

II. Ineffective Assistance of Appellate Counsel

In reviewing claims of ineffective assistance of appellate counsel, we use the same standard applied to ineffective assistance of trial counsel claims. Taylor v. State, 717 N.E.2d 90, 94 (Ind.1999). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established that the defendant must prove (1) counsel's performance is below the objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's failure to meet prevailing professional norms, the result would have been different. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference." Id. Thus, there is a strong presumption that counsel rendered adequate assistance and used professional judgment. Id. Because all criminal defense attorneys will not agree on the most effective way to represent a client, "isolated mistakes, poor strategy, inexperience, and instances of bad...