Henley v. State
| Citation | 855 N.E.2d 1018 |
| Decision Date | 30 October 2006 |
| Docket Number | No. 82A05-0508-PC-480.,82A05-0508-PC-480. |
| Parties | Antwain HENLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Antwain Henley appeals the denial of his petition for post-conviction relief ("PCR"). One of the issues he raises is dispositive.1 Henley asserts his direct appeal counsel provided ineffective assistance by failing to challenge the trial court's summary denial of Henley's request that standby counsel deliver closing arguments. In light of the precedent available to counsel at the time of the appeal, this issue was significant, obvious, and stronger than the other issues raised on appeal, and appellate counsel did not have a reasonable strategic explanation for failing to raise the issue. Thus, appellate counsel's performance was deficient. In addition, there is a reasonable probability the result of Henley's direct appeal would have been different, i.e., Henley's conviction would have been reversed and the case remanded for a new trial, such that Henley demonstrated he was prejudiced by counsel's deficiency. Accordingly, appellate counsel was ineffective, and we reverse and remand for a new trial.2
In the early morning hours of August 8, 1998, Tiffany Moorman and Tashieka Douglas were driving in Evansville and asked Henley and Kenya Swanigan for directions to Walnut Street. Henley and Swanigan offered to show them the way and climbed into the girls' car. Henley then pulled a gun and demanded money. He shot out the back window of the car and ordered the driver to park behind a building. Henley and Swanigan ordered the women out of the car, made them remove their clothing, took their jewelry, and forced them into the trunk of the car. Henley warned them to be quiet. Henley and Swanigan got back into the girls' car and drove away.
When police stopped the vehicle, Henley fled on foot. Officer David Molinet began tracking Henley with his canine partner Derrek. Derrek, who was on a fifteen-foot tracking lead, jumped into the back of a white van where Henley was hiding.4 Henley fired four or five shots at Derrek and Officer Molinet before surrendering.
The State charged Henley with the attempted murder of Officer Molinet, a Class A felony,5 two counts of kidnapping as Class A felonies,6 two counts of robbery as Class B felonies,7 carjacking as a Class B felony,8 and criminal mischief as a Class D felony.9
The trial court appointed Dennis Vowels as Henley's public defender. Two weeks before trial, Henley requested new counsel. The trial court denied his request and Henley elected to proceed pro se. Vowels continued to serve as standby counsel.
During trial, Henley made various requests regarding standby counsel.10 The following exchange occurred at the end of the final instruction conference:
[Court:] Are we ready for the jury?
[State:] Yes sir.
[Vowels:] Yes sir. You're going to have to tell the Judge before he brings the jury in. You will have to understand that I decide the content, not you.
[Court:] Mr. Henley.
[Henley:] You decide the content?
[Vowels:] I decide the content, not you. If you want me to do it, I'll be happy to do it, but you need to tell the Judge what you want.
[Henley:] Go ahead, Your Honor. Go ahead and proceed.
(R. at 816.)11 Later, immediately before the jury returned to the courtroom for final arguments, the following exchange took place:
[Court:] Anything further before we bring the jury in?
[State:] No, Your Honor.
[Henley:] Your Honor, me and my lay counsel, Mr. Vowels, I'm going to let him close for [me].
[State:] I'm going to object.
[Court:] That's denied.
[Henley:] That's all right. I'll close. I'll close.
(Id. at 827.) However, Henley began his closing argument by stating, "Mr. Vowels asked to share some of my time, I just want to make brief statement." (Id. at 854.) The trial court responded, "No, you're representing yourself, sir." (Id.)
The jury convicted Henley on all seven charges. The trial court sentenced him to a combined term of eighty years.
A different attorney represented Henley on appeal. Appellate counsel raised ten issues, which we restated as nine; we deemed four of those issues waived for failure to provide argument and legal authority. We affirmed Henley's convictions in Henley v. State, No. 82A01-9904-CR-141, 727 N.E.2d 39 (Ind.Ct.App. April 11, 2000).
Henley filed a pro se PCR petition in December 2000, which was amended by appointed counsel in June 2004. After a hearing, the post-conviction court denied Henley's petition on June 28, 2005. The relevant conclusions of law follow:
7. Henley claims he is entitled to relief because appellate counsel was ineffective because of the failure to raise the issue of Henley's mid-trial request to have standby counsel assume the defense. Henley did not make a mid-trial request to ask for standby counsel to take over. "There is no right to hybrid representation." Coonan v. State , 382 N.E.2d 157, 161 (Ind.1978). Accordingly, the trial court informed Henley that he may either proceed pro se and have standby counsel or ask for standby counsel to take over. Henley elected to proceed pro se with standby counsel. Therefore, appellate counsel was not ineffective for the failure to raise the issue of Henley's request to have standby counsel assume the defense. Therefore, the court finds that he is not entitled to relief on this claim.
* * * * *
13. Henley claims he is entitled to post-conviction relief on the claim of ineffective assistance of trial counsel because the waiver of counsel was not knowing and voluntary and because the trial court refused to allow standby counsel to assume co-representation mid-trial. In a memorandum decision, the Indiana Court of Appeals held ... "that Henley's waiver of his right to counsel was knowing, intelligent and voluntary."
The court finds that the issue of waiver of counsel in this cause is res judicata and, therefore, Henley is not entitled to relief on this claim. In addition, Henley was not entitled to hybrid representation. Therefore, the court finds that Henley is not entitled to relief on his claim that trial counsel was ineffective when the trial court denied his request for mid-trial co-representation.
Post-conviction proceedings are not "super appeals" through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002), reh'g denied. Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002), reh'g denied, cert. denied 537 U.S. 1122, 123 S.Ct. 857, 154 L.Ed.2d 803 (2003); see also Ind. Post-Conviction Rule 1(1)(a). Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. P-C.R. 1(5).
When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment. Curry v. State, 674 N.E.2d 160, 161 (Ind.1996). Consequently, we may not reverse unless the petitioner demonstrates the evidence "as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Id.
We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not give deference to the post-conviction court's conclusions of law. Davidson, 763 N.E.2d at 443-44. On appeal, we examine only the probative evidence and reasonable inferences that support the post-conviction court's determination. Conner v. State, 711 N.E.2d 1238, 1245 (Ind.1999), reh'g denied, cert. denied 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000). We do not reweigh the evidence or judge the credibility of the witnesses. Id.
To establish a violation of the Sixth Amendment right to effective assistance of trial counsel, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.2003), reh'g denied. First, a defendant must show defense counsel's performance was deficient. Id. This requires showing counsel's representation fell below an objective standard of reasonableness and counsel made errors so serious that he was not functioning as "counsel" guaranteed to the defendant by the Sixth Amendment. Id. The objective standard of reasonableness is based on "prevailing professional norms." Id.
Second, a defendant must show the deficient performance prejudiced the defense. Id. This requires showing counsel's errors were so serious as to deprive the defendant of a fair trial, e.g., a trial whose result is reliable. Id. To establish prejudice, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. However, "there are occasions when it is appropriate to resolve a post-conviction case by a straightforward assessment of whether the lawyer performed within the wide range of competent effort that Strickland contemplates." Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006).
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Henley v. State
...the Court of Appeals reversed the judgment of the post-conviction court and remanded this cause for a new trial. Henley v. State, 855 N.E.2d 1018 (Ind.Ct.App.2006). Having previously granted the State's petition to transfer, we now affirm in part and reverse in part the judgment of the post......
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