Johnson v. State

• Decision Date: 16 April 2013
• Docket Number: No. 49A02–1207–PC–606.,49A02–1207–PC–606.
• Citation: 985 N.E.2d 1149
• Parties: Herman P. JOHNSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

985 N.E.2d 1149

Herman P. JOHNSON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1207–PC–606.

Court of Appeals of Indiana.

April 16, 2013.

Appeal from the Marion Superior Court; The Honorable Mark D. Stoner, Judge; The Honorable Jeffrey L. Marchal, Master Commissioner; Cause No. 49G06–0903–FA–34012.

Herman P. Johnson, Pendleton, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Herman P. Johnson, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Johnson raises ten issues, which we revise and restate as whether the court erred in denying Johnson's petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as discussed in Johnson's direct appeal follow:

Johnson was forty-five years old and lived in Indianapolis. One day he went to the movies with his ten-year-old niece E.B. and his girlfriend Wanda. Afterward the three returned to Johnson's house. E.B. and Johnson began playing chess. Wanda left after ten or fifteen minutes. E.B. and Johnson then decided to play a card game. E.B. went to the back room to look for a deck of cards, and Johnson followed her.

While they were in the back room, Johnson lifted E.B. from behind, pulled up her shirt and bra, and touched her breast. Wanda soon returned. Johnson instructed E.B. not to tell anyone that he had picked her up. E.B. came to the front of the house to see Wanda. E.B. did not tell her what had happened. Wanda left again five minutes later.

E.B. continued to look for cards. She could not find any and returned to the back room. Johnson picked E.B. up again and touched her vagina over her clothing. E.B. then went to another room to resume her search. She again found no cards and returned to the back room. Johnson came in and placed E.B. on the bed. Johnson pulled down her pants and underwear, inserted his finger into her vagina, and moved his finger “[i]n and out.” Tr. p. 26. E.B. told Johnson that he was hurting her, but Johnson said he did not care. E .B. started kicking. Johnson pinned her down and began licking the inside of her vagina.

Soon E.B.'s mom called, and E.B. spoke to her briefly on the phone. At some point E.B. and Johnson left and went to Safeway. They also stopped at a laundromat so E.B. could go to the bathroom. Johnson gave E.B. his cell phone before she went in. E.B. called her mom while in the restroom and told her what Johnson had done. E .B. and Johnson then returned to the house, and E.B.'s mother was there when they arrived. E.B. left with her mother. They picked up E.B.'s father, and E.B. explained to her parents what had happened. Authorities were ultimately notified.

Johnson v. State, No. 49A02–0908–CR–819, slip op. at 2–3 (Ind. Ct.App. April 23, 2010).

The State charged Johnson with child molesting as a class A felony, child molesting as a class C felony, and criminal confinement as a class C felony. Id. at 3. On May 26, 2009, Johnson's counsel requested a speedy trial. The court held a jury trial on July 22, 2009. A jury found Johnson guilty of child molesting as a class A felony and as a class C felony and not guilty of criminal confinement. Id. at 6. The court sentenced Johnson to forty-five years for child molesting as a class A felony and eight years for child molesting as a class C felony and ordered the sentences to be served concurrent with each other.

On direct appeal, Johnson argued that the trial court erred in denying his Batson challenge and that the evidence was insufficient to sustain his convictions. Id. This court affirmed. Id. at 11.

On July 31, 2010, Johnson filed a petition for post-conviction relief. ¹ In February and March 2012, the court granted Johnson's motions for leave to amend his petition.² On April 12, 2012, the court held a hearing on Johnson's petition. At the hearing, Johnson's trial counsel testified. On July 16, 2012, the court denied Johnson's petition.

DISCUSSION

Before discussing Johnson's allegations of error, we note that although Johnson is proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App.2004), trans. denied. We also note the general standard under which we review a postconviction court's denial of a petition for post-conviction relief. The petitioner in a postconviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004); Ind. Post–Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post–Conviction Rule 1(6). Id. “A post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

Johnson raises a number of issues on appeal. To the extent that Johnson fails to put forth a cogent argument and cite to authority, we conclude that Johnson's arguments are waived.³See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n. 1 (Ind.2006) (holding that the defendant's contention was waived because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n. 3 (Ind.1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument).

To the extent that Johnson raises the issues of whether the evidence was sufficient and whether the post-conviction court reached the wrong conclusion that the State's race neutral justification for its strikes of the only two African American panelists passed the third Batson step, his arguments fail. On direct appeal, Johnson raised the issues of sufficiency of the evidence and whether the trial court erred in denying his Batson challenge. This court concluded that the evidence was sufficient and that the trial court did not err by accepting the State's explanations, finding no purposeful discrimination, and denying Johnson's Batson challenge. Consequently, these issues are barred by the doctrine of res judicata.⁴ See Ward v. State, 969 N.E.2d 46, 51 (Ind.2012) (“Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.”), reh'g denied. To the extent that Johnson raises other freestanding claims of error, these claims also fail. See Reed v. State, 866 N.E.2d 767, 768 (Ind.2007) (holding that the propriety of a defendant's sentence is not properly questioned through collateral proceedings and that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through postconviction proceedings); Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002) (holding that in “post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal” and that it is wrong to review the petitioner's fundamental error claim in a post-conviction proceeding); Lambert v. State, 743 N.E.2d 719, 726 (Ind.2001) (holding that post-conviction procedures do not provide a petitioner with a “super-appeal” or opportunity to consider freestanding claims that the original trial court committed error and that such claims are available only on direct appeal), reh'g denied, cert. denied,534 U.S. 1136, 122 S.Ct. 1082 (2002). We will address Johnson's arguments to the extent that he raises issues within the context of his claim of ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), reh'g denied ), reh'g denied, cert. denied,534 U.S. 830, 122 S.Ct. 73 (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001). “[L]ogic dictates that ‘a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.’ “ Hilliard v. State, 609 N.E.2d 1167, 1169–1170 (Ind.Ct.App.1993) (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069)). Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

When considering a claim of ineffective assistance of counsel, a “strong presumption arises that couns...