Holleman v. State
| Citation | 641 N.E.2d 638 |
| Decision Date | 17 October 1994 |
| Docket Number | No. 45A03-9308-PC-284,45A03-9308-PC-284 |
| Parties | Robert Lee HOLLEMAN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Court of Appeals of Indiana |
Appellant-petitioner Robert Lee Holleman appeals from the denial of his petition for post-conviction relief. The facts relevant to the proceedings are summarized below.
In May 1977, Holleman was convicted of murder in the perpetration of a robbery. Holleman was sentenced to life imprisonment. Holleman's conviction was affirmed on appeal in March 1980. Holleman v. State (1980), 272 Ind. 534, 400 N.E.2d 123.
Holleman filed a pro se petition for post-conviction relief in October 1981. In October 1990, counsel for Holleman filed a first motion to amend the petition. The State filed its answer to the petition in December 1990. Counsel for Holleman then filed a series of motions to amend the petition, culminating in the correction to the third amendment in March 1992.
The post-conviction court held an evidentiary hearing on February 12, 1992. The court entered findings of fact and conclusions of law denying post-conviction relief on May 21, 1993. This appeal ensued. Other facts relevant to the issues appear below.
As consolidated, the issues for review are:
(1) whether the failure to preserve error regarding admission of Holleman's confessions denied Holleman effective assistance of counsel and his right to a fair trial;
(2) whether trial counsel's conflict of interest denied Holleman effective assistance of counsel and his right to a fair trial; and
(3) whether trial counsel was ineffective and whether appellate counsel was ineffective for failing to raise on appeal the ineffective assistance of trial counsel.
First, Holleman contends that trial counsel failed to preserve error as to the admission of his confessions. The admissibility of the confessions was raised by Holleman and determined adversely to him on direct appeal. Holleman, 400 N.E.2d at 125-127.
A petitioner bears the burden of establishing grounds for post-conviction relief by a preponderance of the evidence. Weatherford v. State (1993), Ind., 619 N.E.2d 915, 916. A court on review will consider only the evidence and reasonable inferences supporting the judgment of the post-conviction court. Id. The post-conviction court acts as the sole judge of the evidence and the credibility of the witnesses. Id. Accordingly, to prevail on appeal from the denial of post-conviction relief, a petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Id.
As consistently noted, post-conviction procedures do not afford the convicted an opportunity for a "super appeal." Id. Instead, post-conviction remedies are reserved for subsequent collateral challenges to convictions based upon grounds enumerated in the post-conviction rules. Id. at 916-917. "Issues which were or could have been raised on direct appeal are not available for review in post-conviction." Id. at 917.
Thus the concepts of waiver, for failure to raise issues available, and res judicata, barring relitigation of issues previously adjudicated, are fully applicable to post-conviction proceedings. Maxey v. State (1992), Ind.App., 596 N.E.2d 908, 910-911. The grounds for relief raised in Holleman's first issue were fully litigated in his direct appeal. Review of those grounds are barred by res judicata.
Next, Holleman contends that he received ineffective assistance of trial counsel. Counsel who was appointed to represent Holleman had represented a co-defendant in the action. Counsel testified at post-conviction proceedings that he was unable to cross-examine a witness on behalf of Holleman because the witness was instrumental in establishing an alibi defense for the co-defendant which had resulted in dismissal of the charges against the co-defendant. While not every case of dual or, as here, successive representation creates a conflict of interest, any divergence of interests between the defendants requires separate counsel. See Williams v. State (1988), Ind.App., 529 N.E.2d 1313, 1316.
Holleman directs this Court to decisions in which such breaches of assistance resulted in a determination that actual prejudice would be presumed. Despite the conflict of interest and any presumed prejudice, Holleman is not entitled to relief. Because the error was not raised on direct appeal, it is not eligible for review unless it was fundamental. Capps v. State (1992), Ind.App., 598 N.E.2d 574,...
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