J.A. v. State

• Decision Date: 07 April 2009
• Docket Number: No. 49A02-0807-JV-612.,49A02-0807-JV-612.
• Citation: 904 N.E.2d 250
• Parties: J.A., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

904 N.E.2d 250

J.A., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0807-JV-612.

Court of Appeals of Indiana.

April 7, 2009.

Ruth Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

The Marion Superior Court found J.A. to be a delinquent child for committing two acts of child molesting which, if committed by an adult, would be Class B and Class C felonies. The trial court subsequently denied J.A.'s motion for relief from judgment, which alleged ineffective assistance of trial counsel. J.A. now appeals and argues that the trial court erred in concluding that he was not denied the effective assistance of trial counsel. We affirm.

Facts and Procedural History

In 2004, J.A., who was born in June 1991, molested his then seven-year-old half brother Je.A. On several different occasions, J.A. grabbed Je.A.'s penis and inserted his penis into Je.A.'s anus. J.A. threatened to beat up Je.A. if he told anyone what happened. Je.A.'s mother, who is not J.A.'s mother, thought that Je.A. was acting "weird" and asked him if anyone had been "messing" with him. Tr. p. 43. Je.A. told his mother that J.A. had grabbed his penis and that J.A. had placed his penis in Je.A.'s mouth, but did not tell her about the anal intercourse. Je.A.'s mother initially tried to discuss these incidents with J.A.'s mother, but when J.A.'s mother proved to be unwilling to do so, Je.A.'s mother reported J.A.'s behavior to Child Protective Services ("CPS"). Lucita Pope, a CPS investigator, conducted a videotaped interview of Je.A.

On April 4, 2005, the State filed a petition alleging that J.A. was a delinquent child for committing two acts of child molesting that would be felonies if committed by an adult. J.A., represented by counsel, denied these allegations. On May 12, 2005, the State filed a notice of its intention to introduce into evidence at trial Je. A.'s out-of-court statement and requested that the trial court hold a "child hearsay" hearing to determine the admissibility of this statement. The State intended to introduce the statements Je.A. made to his mother and Ms. Pope.

At a hearing held on February 21, 2006, the parties first addressed the issue of the admissibility of Je.A.'s out-of-court statements. After questioning Je.A., the trial court found him competent to testify. Je.A. then testified as to what J.A. had done to him and was cross-examined by J.A.'s counsel. Je.A.'s mother then testified regarding what her son had told her, followed by Ms. Pope. The videotape of Ms. Pope's interview with Je.A. was also played. A.S., Je.A.'s brother, also testified. The State then asked the trial court to find that Je.A.'s out-of-court statements were admissible, and J.A.'s counsel argued that such should not be deemed admissible. The trial court found that there was no evidence of coaching, that Je.A. used age-appropriate language to describe what happened, and that, despite some minor inconsistencies, Je.A.'s out-of-court statements were reliable and admissible. Tr. pp. 96-98.

The State then moved to "incorporate the hearsay statements that were made before this Court, as well as the testimony of the individuals who testified during the child hearsay portion of this hearing, into the State's case in chief at this time." Id. at 98. J.A.'s counsel did not object but instead made a separate motion to incorporate the testimony already heard. Id. The State then rested its case. In his case-in-chief, J.A. presented the testimony of his sister, V.H., J.A. also testified on his own behalf, denying the allegations against him. The trial court ultimately found that the State had met its burden of proof with regard to both counts and entered true findings thereon. At a dispositional hearing held on April 11, 2006, the trial court placed J.A. on probation. The terms of this probation included sex offender counseling and having no contact with Je.A. unless approved by Je.A.'s therapist.

On May 5, 2006, J.A.'s trial counsel moved to withdraw his appearance and asked the trial court to appoint counsel to represent J.A. on appeal. The trial court appointed the Marion County Public Defender to represent J.A. on appeal. On November 14, 2006, J.A.'s appellate counsel filed a praecipe for the record of proceedings. On March 27, 2007, J.A. filed a verified motion for relief from judgment, claiming ineffective assistance of counsel. On April 16, 2007, before the State filed its response to J.A.'s motion for relief from judgment, the trial court discharged J.A. from further obligation under the dispositional decree and ordered the case closed. The State then filed its response to J.A.'s motion on April 27, 2007.

On June 8, 2007, the parties held a pre-hearing conference and stipulated that the transcripts of the fact-finding hearing and dispositional hearing were evidence in the case, and requested the trial court to take judicial notice of its file in the case. On September 11, 2007, J.A. waived any right to a hearing on his motion. On December 28, 2007, J.A. filed a notice of additional authority in support of his motion for relief from judgment, arguing for the first time that his trial counsel had been ineffective for moving to incorporate the testimony from the child hearsay hearing. The trial court denied J.A.'s motion for relief from judgment on July 1, 2008. J.A. filed his notice of appeal on July 9, 2008.

Discussion and Decision

J.A. argues that the trial court erred in denying his motion for relief from judgment wherein he claimed that he was denied the effective assistance of trial counsel. A juvenile may use a Trial Rule 60(B) motion for relief from judgment to challenge an adjudication of delinquency. S.E. v. State, 744 N.E.2d 536, 538-39 (Ind. Ct.App.2001) (citing Perkins v. State, 718 N.E.2d 790, 792 (Ind.Ct.App.1999)). A Trial Rule 60(B) motion cannot be used as a substitute for a direct appeal, nor can it be used to revive an expired attempt to appeal, but such a motion is an appropriate way for a juvenile to present a claim of ineffective assistance of counsel in a delinquency proceeding. Id. at 539 (citing Perkins, 718 N.E.2d at 792-93).¹

Indiana Trial Rule 60(B) (2008)² provides in relevant part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, ...

* * *

(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).³

The decision to grant or deny a motion for relief from judgment is within the equitable discretion of the court, and appellate review of the grant or denial thereof is limited to whether the trial court abused this discretion. S.E., 744 N.E.2d at 538.

In reviewing a claim of ineffective assistance of counsel, we initially presume that counsel's representation was within the wide range of reasonable professional assistance. S.E., 744 N.E.2d at 539. The defendant has the burden to rebut the presumption of competence with strong and convincing evidence. Id. In order to prevail on a claim of ineffective assistance of counsel, the defendant must prove both that counsel's representation was deficient and that this deficient performance so prejudiced the defendant as to deprive him or her of a fair proceeding. Id. Isolated poor strategy, inexperience, or bad tactics do not necessarily constitute ineffective assistance of counsel. Id. Counsel's conduct is assessed by the facts known at the time, not by later information or hindsight. State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997).

To establish prejudice, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. S.E., 744 N.E.2d at 539. If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice, that course should be followed. Woods, 701 N.E.2d at 1224.

In the present case, J.A. first claims that his trial counsel was ineffective for failing to file a notice of appeal. J.A. argues that the failure to file a notice of appeal constituted deficient performance. See S.E., 744 N.E.2d at 539 (concluding that counsel's failure to file a timely appeal of juvenile delinquency adjudication constituted deficient performance because such was an obvious, serious mistake which could not be attributed to strategy or tactics and resulted in the forfeiture of the right to appeal). J.A.'s argument, however, presumes that J.A. or his parents instructed his counsel to appeal his juvenile delinquency adjudication. J.A. did not aver in his verified motion for relief from judgment that he or his parents did instruct his counsel to appeal. It could very well be that J.A. and his parents were not unhappy with the outcome of his juvenile delinquency proceeding—probation and sex offender counseling. We cannot say that the failure to timely appeal is per se deficient performance in every case. Regardless, even if we presume that J.A.'s counsel's performance was deficient, J.A. must establish that he was prejudiced by counsel's errors.

J.A. claims that, had his counsel timely initiated an appeal, he would have presented three successful arguments. The first of the arguments which J.A. claims should have been presented on direct appeal is that his trial counsel was ineffective. We are unable to see how J.A. was prejudiced by the failure to bring an ineffective assistance claim on direct appeal, because J.A. was able to present this claim in his motion for relief from judgment. Indeed, a motion for relief from judgment, not a direct appeal, is...