Kendall v. State

• Decision Date: 09 May 2008
• Docket Number: No. 49A05-0707-PC-391.,49A05-0707-PC-391.
• Parties: Steven KENDALL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

886 N.E.2d 48

Steven KENDALL, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A05-0707-PC-391.

Court of Appeals of Indiana.

May 9, 2008.

Susan K. Carpenter, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Steven Kendall appeals the post-conviction court's denial of his Petition for Post-Conviction Relief. Kendall raises one issue on appeal, which we restate as follows: whether Kendall received ineffective assistance of appellate counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 16, 2001, the State charged Kendall with attempted murder, aggravated battery, and two counts of unlawful possession of a firearm by a serious violent felon. On February 25 through 27, 2002, a jury trial was held, and on February 27, the jury found Kendall guilty of attempted murder¹ as a Class A felony and aggravated battery² as a Class B felony. At the sentencing hearing, the trial court merged the aggravated battery conviction with the attempted murder conviction and sentenced Kendall to thirty years.

Kendall appealed his conviction, and on June 17, 2003, this court affirmed Kendall's aggravated battery conviction, vacated the attempted murder conviction, and remanded this cause to the trial court for resentencing on Count II, aggravated battery, a Class B felony. Kendall v. State, 790 N.E.2d 122 (Ind.Ct.App.2003), trans. denied. On December 3, 2003, a sentencing hearing was held. The trial court noted the following aggravating factors: (1) Kendall was released on bond at the time he committed the instant offense; (2) the nature and circumstances of the crime were heinous; (3) Kendall was in need of correctional treatment best provided by commitment to a penal facility; and (4) a reduced sentence would depreciate the seriousness of the offense. The trial court did not identify any mitigating factors. The trial court then sentenced Kendall to twenty years in the Department of Correction, the maximum sentence for a Class B felony.

On December 29, 2003, Kendall appealed his sentence pursuant to Indiana Appellate Rule 7(B). Kendall filed his brief on April 28, 2004, and the State filed its brief on May 26, 2004. On June 24, 2004, the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Approximately six weeks later on August 3, 2004, we affirmed Kendall's sentence. Kendall v. State, 813 N.E.2d 449 (Ind.Ct. App.2004). Kendall did not file a petition for rehearing with our court, nor did he file a petition for transfer to the Indiana Supreme Court. This failure, Kendall claims, is where his appellant counsel was ineffective.

On February 10, 2005, Kendall filed a Petition for Post-Conviction Relief. On August 7, 2006, Kendall filed an Amended Petition for Post-Conviction Relief. On October 18, 2006, and March 14, 2007, the post-conviction court held hearings on Kendall's Petition. On May 21, 2007, the post-conviction court issued its conclusions, which state in pertinent part:

Specifically, [Kendall] claims that his appellate counsel was ineffective in failing to present an argument that [Kendall's] sentence violated the [United States] Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004).

[Kendall] raises a fairly narrow issue of law, wherein it is very important to be aware of the exact sequence of events in the process of [Kendall's] appeal, and in the development of Indiana case law surrounding Blakely. [Kendall] filed his Notice of Appeal with the Indiana Court of Appeals on December 29, 2003. [Kendall] filed his appellant's brief on April 28, 2004, and the State filed its appellee's brief on May 26, 2004. The Court of Appeals decided [Kendall's] direct appeal on August 3, 2004. Less than six weeks prior to the Court of Appeals['] decision, on June 24, 2004, the United States Supreme Court issued Blakely. Seven months after the Court of Appeals decision on his appeal, on March 9, 2005, the Indiana Supreme Court decided Smylie v. State, 823 N.E.2d 679 (Ind.2005), which applied Blakely and held that portions of Indiana's sentencing scheme violated a defendant's right to trial by jury.

The Smylie court concluded it would be "appropriate to be rather liberal in approaching whether an appellant and his lawyer have adequately preserved and raised a Blakely issue." [Smylie,] 823 N.E.2d at 690. Subsequently, [our] Supreme Court explained it had:

[R]elaxed the rule that a particular sentencing claim must be raised in an appellant's initial brief on direct appeal in order to receive review on the merits. For cases in which the appellant's initial brief on direct appeal was filed prior to the date of the Smylie decision (March 9, 2005), an appellant who had contested his or her sentence in some respect in the appellant's initial brief on direct appeal is entitled to review on the merits of a subsequently-raised Blakely [sic] claim. (The keys here are that (1) some sentencing claim must have been raised in the appellant's initial brief on direct appeal and (2) the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.)

Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005) (internal citations and footnote omitted).

Under the liberal approach set forth by our Indiana Supreme Court, seven months after the appellate decision herein, it appears [Kendall] could have added a Blakely claim in an amendment to his [Appellant's] brief, or in a petition for rehearing or petition to transfer. However, [Kendall] filed no amendments, and requested neither rehearing nor transfer, to add a Blakely claim. Accordingly, applying the inescapable logic of Smylie and its progeny, [Kendall] has forfeited his challenge under Blakely. ("The keys here are that . . . the appellant must have added a Blakely claim by amendment, on petition for rehearing, or on petition to transfer.").

Stemming from this waiver of a potential Blakely issue, [Kendall] argues he was denied effective assistance of counsel. When analyzing claims based on a failure to raise issues on appeal, courts must be especially deferential to counsel's decision, because deciding which issues to raise "is one of the most important strategic decisions to be made by appellate counsel." Bieghler v. State[,] 690 N.E.2d 188, 193 (Ind.[] 1997). [Kendall] must demonstrate "from the information available in the trial record or otherwise known to appellate counsel that appellate counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy." Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind.2000), cert. denied[,] 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002) (internal citations omitted). In addition to being significant and obvious, the unraised issues must be "clearly stronger" than the issues counsel raised. Bieghler, 690 N.E.2d at 194.

Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Fisher v. State, 810 N.E.2d 674, 677 (Ind.2004); Bieghler, 690 N.E.2d at 193-95. The failure to amend, or seek rehearing or transfer in this case resulted in forfeiture of [Kendall's] Blakely claim and, accordingly, the claim should be evaluated as a waiver of issues. Specifically, this [c]ourt must determine whether challenging [Kendall's] sentence under Blakely was a significant and obvious issue at the time. Under the facts of this case, this court concludes that it was not.

In deciding what is sufficient to preserve a Blakely claim, our Indiana Supreme Court has stated:

Because Blakely represents a new rule that was sufficiently novel that it would not have been generally predicted, much less envisioned to invalidate part of Indiana's sentencing structure, requiring a defendant or counsel to have prognosticated the outcome of Blakely or of today's decision would be unjust . . . [. A] trial lawyer or an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided.

Smylie, 823 N.E.2d at 689, 690.

An attorney is not required to anticipate changes in the law and object accordingly in order to be effective. Id. at 690. Issues raised for the first time on rehearing or transfer are usually considered waived. Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind.Ct.App.2004). Applying this to the case at bar, based on long standing appellate precedent, it was reasonable for counsel to presume a claim raised for the first time on rehearing or transfer would be waived. Particularly in the case of Blakely, great confusion reigned for some time following the opinion. The Smylie court recognized the confusion that ensued in Footnote 12, stating, in part: "That so many states are wrestling with the meaning of Blakely is further evidence of its unpredictability and a further indication that reasonable lawyers would not have known of the outcome." [Smylie, 823 N.E.2d at 687.] Consequently, appellate counsel was not ineffective for failing to anticipate our Indiana Supreme Court's decision in Smylie and its course of liberal Blakely-claim preservation, and therefore [Kendall] has not met his burden on this issue.

Appellant's Br. at 15-20.

Kendall now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Kendall claims he was denied effective assistance of appellate counsel in violation of his rights under the United States Constitution and the Indiana Constitution. In particular, he contends his appellate counsel was deficient for failing to file an amended brief, a ...