Martin v. State
Decision Date | 20 March 2001 |
Docket Number | No. 45A05-0009-PC-379.,45A05-0009-PC-379. |
Citation | 744 N.E.2d 574 |
Parties | Orlando MARTIN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Cynthia Maricle Russell, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Orlando Martin appeals his conviction for murder, a felony, following a jury trial and subsequent direct appeal. We reverse.
Martin raises two issues for our review which we restate as:
The facts, as stated in Martin's direct appeal, are as follows:
Martin v. State, 636 N.E.2d 1268, 1270 (Ind.Ct.App.1994).
Martin was charged with murder, a felony. After the conclusion of evidence at his jury trial, the State requested that the trial court give an instruction on aiding and abetting, but the trial court refused, stating "that would be too confusing to the jury." R. 963.1 During deliberations, the jury sent a note to the court, asking, R. 81. In response, and over Martin's objection, the trial court gave a supplemental jury instruction on aiding and abetting to the jury.2 Martin was found guilty as charged and filed a direct appeal wherein we affirmed his conviction. Id. at 1273. He sought post-conviction relief which was denied. He now appeals.
Martin raises an issue in this appeal regarding a supplemental instruction given to the jury, an issue which was available to him on his direct appeal. Post-conviction relief is not a substitute for a direct appeal. Ind. Post-Conviction Rule 1, § 1(b). "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), trans. denied. Post-conviction relief contemplates a rather small window for review, particularly when the petitioner has been afforded the benefit of a direct appeal. Id. Thus, if issues were available at the time of the trial or on direct appeal, and were not raised, then the issues are waived. Nuckles v. State, 691 N.E.2d 211, 213 (Ind.Ct.App.1998).
In order to avoid waiver, Martin argues that the trial court committed fundamental error when it gave an instruction to the jury, after deliberations had begun, in direct response to the jury's question, and in isolation from the other instructions. He further asserts that the instruction should not have been given because it was not supported by the evidence.
The fundamental error doctrine permits review of an improperly raised error if the reviewing court finds that the error was so prejudicial to the rights of the petitioner that he or she could not have had a fair trial. Nuckles, 691 N.E.2d at 213. However, our Supreme Court has stated that the fundamental error exception is an extremely narrow one, and in post-conviction proceedings, is generally limited to the "right to effective assistance of counsel, or . . . an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal." Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998) (quoting Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985)). Therefore, if the issue was available at the time of direct appeal, we may address the issue in the context of an ineffective assistance of counsel claim. Hubbard v. State, 696 N.E.2d 72, 74 (Ind. Ct.App.1998).
Here, the issue Martin raises with respect to the supplemental jury instruction was available to him on direct appeal; therefore, we will address the merits of his argument within our discussion of his claim of ineffective assistance of counsel.
Martin argues that he was denied effective assistance of his appellate counsel. He asserts that because his appellate counsel failed to argue, on direct appeal, that the trial court erroneously gave the supplemental instruction in the middle of deliberations, he was not afforded effective assistance of counsel. Thus, Martin alleges that his petition for post-conviction relief should be granted and that his conviction and sentence should be vacated. We agree. A successful claim of ineffective assistance of counsel has two components. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lawrence v. State, 464 N.E.2d 1291, 1294 (Ind.1984). First, the defendant must show that his counsel's performance was deficient, that is, that counsel's performance fell below an objective standard of reasonableness. Taylor v. State, 659 N.E.2d 1054, 1061 (Ind.Ct.App.1995),trans. denied. Second, the defendant must show that the deficient performance prejudiced the defense, that is, that but for counsel's deficient performance, the result of the proceedings would have been different. Id.
In reviewing the competency of counsel, there is a presumption that counsel is competent. Howell v. State, 453 N.E.2d 241, 242 (Ind.1983). Strong and convincing evidence is required to rebut this presumption. Id. Whether counsel was incompetent revolves around the facts of each case. Id. The reviewing court will not speculate as to what may have been the most advantageous strategy in a particular case. Id. at 242-43. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffective assistance of counsel. Id. at 243. The judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Slaton v. State, 510 N.E.2d 1343, 1345 (Ind. 1987), cert. denied, 506 U.S. 921, 113 S.Ct. 337, 121 L.Ed.2d 254 (1992).
With respect to arguments of ineffective assistance of appellate counsel, the claims generally fall into three basic categories: 1.) denying access to appeal, 2.) waiver of issues, and 3). failure to present issues well. Harrison v. State, 707 N.E.2d 767, 786 (Ind.1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000). Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Further, even when counsel's performance has been found deficient under this analysis, the appellant still must show "a reasonable probability that, because of counsel's deficiencies, the convictions are fundamentally unfair or unreliable." Id.
Martin claims that at trial his appellate counsel failed to "argue in the direct appeal that the trial court erroneously gave the aiding and abetting instructions in the middle of deliberations." Brief of Petitioner-Appellant at 18. He claims that such a failure constituted deficient performance; that had the issue been raised, he would have been granted a new trial; and that he was therefore prejudiced.
Upon review of the opinion in Martin's direct appeal, we find that Martin's appellate counsel ...
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Martin v. State
...court's denial of the petition, holding that Martin's appellate representation was both deficient and prejudicial. Martin v. State, 744 N.E.2d 574, 579 (Ind.Ct.App.2001). We accepted transfer and now affirm the post-conviction court's denial of I. Fundamental Error Rightly Held Unavailable ......