Law v. State

• Decision Date: 22 October 2003
• Docket Number: No. 49A02-0302-PC-100.,49A02-0302-PC-100.
• Citation: 797 N.E.2d 1157
• Parties: Stephen LAW, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

797 N.E.2d 1157

Stephen LAW, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-0302-PC-100.

Court of Appeals of Indiana.

October 22, 2003.

Susan K. Carpenter, Public Defender of Indiana, Ruth Johnson, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Stephen R. Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Petitioner-Appellant Stephen Law ("Petitioner") appeals from the post-conviction trial court's denial of his petition for post-conviction relief.

We affirm in part, and reverse and remand in part.

ISSUES

Petitioner claims that he is entitled to post-conviction relief by raising these restated issues for our review:

I. Whether Petitioner received effective assistance of counsel at both the trial level and upon direct appeal; and

II. Whether his convictions for child molesting were supported by sufficient evidence of the victim's age.

FACTS AND PROCEDURAL HISTORY

The relevant facts supporting Petitioner's convictions were outlined in his direct appeal as follows:

In February of 1992, [Petitioner's] ten-year-old niece, D.W., began living with [Petitioner] and his wife. Several weeks later, D.W. awoke to discover [Petitioner] fondling her "private parts." When D.W. asked [Petitioner] what he was doing, he responded "nothing" and left her alone. [Petitioner] fondled her again the following night. Shortly thereafter, [Petitioner] informed his wife that he was taking D.W. on a trip to the store. Instead, [Petitioner] drove to a parking lot where he ordered D.W. into the back of his van and forcibly engaged in sexual intercourse with her. [Petitioner] later showed D.W. a bullet and warned her that the bullet "would be [hers]" if she told anyone what had happened. [Petitioner] then began having sexual intercourse with D.W. almost everyday.

D.W. eventually discovered that she was pregnant. After learning of the pregnancy, [Petitioner] took his family on a trip to Las Vegas. When they returned, [Petitioner] instructed D.W. to tell his wife that someone in Las Vegas had impregnated her. [Petitioner] manufactured a fake identification which indicated that D.W. was his daughter and then took her to an out-of-state clinic, where she received an abortion.

In May of 1992, [Petitioner] moved his family to a new address, and [Petitioner] persisted to engage in sex with D.W. on a daily basis. Several months later, the family again relocated, and [Petitioner] continued to engage in sex with eleven-year-old D.W. The family's third move occurred approximately one year later. [Petitioner] removed D.W. from school, continued engaging in sex with her once or twice a day, and threatened to harm her and her grandmother if she told anyone of his advances.

[Petitioner] and his family relocated a fourth time when D.W. was 14 years old. [Petitioner] continued to engage regularly in sex with D.W., who ultimately described the events of the past several years to her aunt and her grandmother. Subsequently, [Petitioner] was arrested and charged with two counts of child molesting as Class C felonies, three counts of child molesting as Class B felonies, and two counts of sexual misconduct with a minor as Class C felonies.

Law v. State, No. 49A04-9709-CR-366, slip op. at 2-4, 699 N.E.2d 799 (Ind.Ct. App. July 24, 1998); App. at 279-81.

Petitioner was tried and convicted of two counts of child molesting, as Class C felonies, three counts of child molesting as Class B felonies, and two counts of sexual misconduct with a minor as Class C felonies. The trial court sentenced Petitioner to a term of eighty-four years. On direct appeal this court upheld Petitioner's convictions except for one count of sexual misconduct with a minor that was vacated. On September 2, 1998, the trial court resentenced Petitioner in accordance with our decision.

On April 27, 2001, Petitioner filed a pro se petition for post-conviction relief. The State Public Defender entered its appearance for Petitioner and filed an amended petition on behalf of Petitioner. An evidentiary hearing was held on the issues raised in the amended petition on November 4, 2002. On December 19, 2002, the post-conviction trial court issued its findings of fact and conclusions of law denying Petitioner's request for post-conviction relief. This appeal ensued.

STANDARD OF REVIEW

The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Capps v. State, 709 N.E.2d 24, 25 (Ind.Ct.App.1999). When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Id. Petitioners must establish their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

A petitioner who has been denied post-conviction relief appeals from a negative judgment. Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001). Therefore, the petitioner must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), reh'g denied.

Since the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we will reverse those findings and that judgment only upon a showing of clear error, or that which leaves us with a definite and firm conviction that a mistake has been made. See Prowell, 741 N.E.2d at 708

; Ben-Yisrayl, 729 N.E.2d at 106.

I. INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

STANDARD OF REVIEW

We analyze claims of both ineffective assistance of trial counsel and ineffective assistance of appellate counsel according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Sada v. State, 706 N.E.2d 192, 198 (Ind.Ct. App.1999)

. First, we require the petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. Second, we require the petitioner to show adverse prejudice as a result of the deficient performance, that is, that but for counsel's deficient performance, the result of the proceedings would have been different. Id. We will find prejudice when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unjust or unreliable. Id. It is not necessary to determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Id.

There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the petitioner to overcome that presumption. Id. A petitioner must show more than isolated poor strategy, bad tactics, a mistake, carelessness or inexperience; the defense as a whole must be inadequate. Id. at 199. Further, when a claim of ineffective assistance of trial counsel is brought on direct appeal, the defendant is foreclosed from subsequently relitigating that claim. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002).

The Sixth Amendment entitles a criminal defendant to the effective assistance of counsel not only at trial, but during his first appeal as of right. Seeley v. State, 782 N.E.2d 1052, 1059 (Ind.Ct.App. 2003). Although this court and the supreme court have generally considered claims of ineffective assistance of trial and appellate counsel as analogous, there are significant differences between the roles of appellate and trial counsel. Id. Our supreme court has recognized three categories of alleged appellate counsel ineffectiveness: (1) denying access to an appeal, (2) failing to raise issues, and (3) failing to present issues competently. See Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)

.

When reviewing a claim of ineffective assistance of appellate counsel regarding the selection and presentation of issues, the defendant must overcome the strongest presumption of adequate assistance. Seeley, 782 N.E.2d at 1059. In determining whether appellate counsel's performance was deficient, we consider the information available in the trial record or otherwise known to appellate counsel. Id. The role of appellate counsel should not be measured by information unknown to appellate counsel but later developed after the appeal by post-conviction counsel. Id. To prevail upon the claim of ineffective assistance of appellate counsel, the petitioner must show 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. Id.

When the issue of ineffective assistance of appellate counsel is based upon appellate counsel's failure to properly raise and support a claim of ineffective assistance of trial counsel, the petitioner faces a compound burden. Id. Petitioner must demonstrate that appellate counsel's performance was deficient and that, but for the deficiency of appellate counsel, trial counsel's performance would have been found deficient and prejudicial. Id. The petitioner must establish the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel. Id.

A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner alleges that his trial counsel provided ineffective assistance by failing to introduce evidence to rebut the State's evidence on the issue of the victim's age at...