Hill v. State

• Decision Date: 24 January 2012
• Docket Number: No. 45S03–1105–PC–283.,45S03–1105–PC–283.
• Citation: Hill v. State , 960 N.E.2d 141 (Ind. 2012)
• Parties: Antoine HILL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

960 N.E.2d 141

Antoine HILL, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 45S03–1105–PC–283.

Supreme Court of Indiana.

Jan. 24, 2012.

Cara Schaefer Wieneke, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03–1008–PC–410

DAVID, Justice.

The present case involves several petitions under Indiana's Post–Conviction Rules.Indiana Post–Conviction Rule 1 permits, among other things, a defendant to file a petition challenging the performance of his trial, appellate, or post-conviction counsel.Indiana Post–Conviction Rule 2 permits, among other things, a defendant to petition the trial court for permission to pursue a belated direct appeal.

Here, the defendant's counsel filed a Post–Conviction Rule 2 petition, seeking permission to file a belated notice of appeal.The trial court denied permission, and counsel did not timely appeal this denial.Subsequently, defendant, through different counsel, filed a Post–Conviction Rule 1 petition, alleging that his Post–Conviction Rule 2counsel was ineffective for failing to timely appeal the trial court's denial of permission to file a belated notice of appeal.

We hold that the appropriate standard for judging the performance of Post–Conviction Rule 2counsel is the standard set forth in Baum v. State,533 N.E.2d 1200(Ind.1989).We further hold that Post–Conviction Rule 2counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court.

Facts and Procedural History

In May 2003, Gary police officers approached Antoine Hill, who was in a parked vehicle, to conduct an investigation.Hill drove away; the officers pursued him; and Hill came to an abrupt stop.After exiting the vehicle, Hill fired his handgun in the direction of two of the officers and ran away.A third officer confronted Hill, and Hill then shot his gun in the direction of that officer.

In June 2004, pursuant to a plea agreement, Hill pleaded guilty to one count of Class A felony attempted murder and two counts of Class C felony attempted battery.In August 2004, the trial court sentenced Hill to forty years' imprisonment on the attempted murder conviction and six years' imprisonment for each attempted battery conviction.The trial court ordered the sentences to be served consecutively, resulting in an aggregate sentence of fifty-two years.

Hill did not file a timely appeal, and a series of petitions under Indiana's Post–Conviction Rules followed.

In April 2005, Hill filed a pro se petition for post-conviction relief under Post–Conviction Rule 1, challenging, among other things, his sentence.In January 2006, Hill, acting through attorney Tasha Reed from the State Public Defender's Office, withdrew that petition without prejudice.

In July 2006, Attorney Reed filed a petition for permission to file a belated notice of appeal under Post–Conviction Rule 2.In September 2006, after a hearing, the trial court denied the Post–Conviction Rule 2 petition.It found the following: (1) Hill's claim that he was unaware of his direct appeal right was not credible and (2) Hill had not shown that he lacked fault in the failure to file a timely notice of appeal.

Attorney Reed did not file a timely notice of appeal from the court's denial of Hill's Post–Conviction Rule 2 petition.Attorney Reed then filed a second Post–Conviction Rule 2 petition, seeking permission to file a belated notice of appeal from the court's denial of Hill's first Post–Conviction Rule 2 petition.The trial court denied that petition, and the Court of Appeals affirmed, stating that Post–Conviction Rule 2“does not permit belated consideration of appeals of other post-judgment petitions.”Hill v. State( Hill I ), No. 45A05–0612–CR–748, slip op. at 4, 2007 WL 2245722(Ind.Ct.App.Aug. 7, 2007), trans. denied.The Court of Appeals further noted that Hill was not necessarily without a remedy because he could “seek post-conviction relief for ineffective assistance of counsel under Indiana Post–ConvictionRule 1(a)(1).”Id. at 5 n. 3.

In September 2009, Hill, again pro se, filed a petition for post-conviction relief under Post–Conviction Rule 1, claiming he received ineffective assistance of trial counsel.The trial court treated that petition as an amendment and reactivation of Hill's April 2005 Post–Conviction Rule 1 petition.

In February 2010, Hill, through current counsel, amended the September 2009 Post–Conviction Rule 1 petition, now alleging that Attorney Reed was ineffective for failing to timely appeal the court's denial of Hill's first Post–Conviction Rule 2 petition.After a hearing, the court denied the petition, concluding that Hill could not satisfy the ineffective-assistance-of-counsel test set forth in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).

The Court of Appeals reversed and ordered the trial court to grant the Post–Conviction Rule 1 petition so that Hill could appeal the denial of his first Post–Conviction Rule 2 petition.Hill v. State( Hill II ), No. 45A03–1008–PC–410, slip op. at 8, 2011 WL 553571(Ind. Ct.App.Feb 17, 2011).Using the standard enunciated in Baum v. State,533 N.E.2d 1200(Ind.1989), and not the Strickland standard, the Court of Appeals held that Attorney Reed's performance prevented Hill from appealing the first Post–Conviction Rule 2 petition denial and thus denied Hill of a “procedurally fair setting for pursuit of post-conviction relief.”Hill II, slip op.at 7.

We granted transfer.

I.Overview of Post–Conviction Rule 2

Indiana Post–Conviction Rule 2(P–C.R.2) applies to criminal defendants who did not meet the time requirements for noticing and perfecting an appeal.SeeGutermuth v. State,868 N.E.2d 427, 429(Ind.2007).The rule authorizes a defendant to petition the court for permission to pursue a “belated” appeal.Id.Section 1 of P–C.R. 2 is relevant to this case, and it states as follows:¹

Section 1.Belated Notice of Appeal

(a)Required Showings.An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;

(1)the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and

(3)the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

(b)Form of petition.There is no prescribed form of petition for permission to file a belated notice of appeal.

The petitioner's proposed notice of appeal may be filed as an Exhibit to the petition.

(c)Factors in granting or denying permission.If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal.Otherwise, it shall deny permission.

(d)Hearing.If a hearing is held on a petition for permission to file a belated notice of appeal, it shall be conducted according to Ind. Post–Conviction Rule 1(5).

(e)Appealability.An order granting or denying permission to file a belated notice of appeal is a Final Judgment for purposes of Ind. Appellate Rule 5.

(f)Time and procedure for initiating appeal.If the court grants permission to file a belated notice of appeal, the time and procedure for filing such notice of appeal is governed by App. R. 9(A).

Thus, when a defendant has failed to file a timely notice of appeal, the trial court must conclude that the defendant meets the lack-of-fault and diligence requirements set forth in subsection (a) before granting a defendant's P–C.R. 2 petition.Gutermuth,868 N.E.2d at 429.If the trial court denies the defendant's P–C.R. 2 petition, the rule explicitly permits a defendant to appeal the denial.Ind. Post–ConvictionRule 2(1)(e).

II.Standard GoverningP–C.R. 2Counsel's Performance

This Court has set out different standards for evaluating the performance of appellate counsel and for evaluating the performance of post-conviction counsel.

Appellate counsel's performance, like trial counsel's performance, is governed by the two-part test enunciated in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).E.g., Miller v. State,702 N.E.2d 1053, 1058(Ind.1998).To prevail on a claim of ineffective assistance of appellate counsel, a defendant must show (1) that appellate counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms and (2) there is a reasonable probability that, but for appellate counsel's errors, the result of the proceeding would have been different.Id. at 1058–59.Effective assistance of appellate counsel is a right rooted in both the federal and state constitutions.Seeid. at 1058(citingU.S. Const. amend. VI;Ind. Const. art. 1, § 13).

On the other hand, there is no constitutional right to counsel in post-conviction, or collateral review, proceedings under either the federal or the stateconstitution.Graves v. State,823 N.E.2d 1193, 1196(Ind.2005).Accordingly, this Court has “explicitly declined to apply the well-known standard for trial and appellate counsel.”Id.Thus, instead of using the “rigorous standard set forth in Strickland,”courts instead judge post-conviction counsel by a “lesser standard” based on due-course-of-law principles.Baum v. State,533 N.E.2d 1200, 1201(Ind.1989).When evaluating post-conviction counsel, courts inquire whether “counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.”Id.This standard for judging post-conviction counsel, commonly referred to as the “ Baum standard,” has been applied routinely in the context of counsel's...