Montano v. State
| Decision Date | 27 April 1995 |
| Docket Number | No. 45A04-9408-PC-335,45A04-9408-PC-335 |
| Citation | 649 N.E.2d 1053 |
| Parties | Bruno MONTANO, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Petitioner-Appellant Bruno Montano appeals from the denial of his Ind.Post-Conviction Rule 1 Petition for Post-Conviction Relief.
We affirm.
Montano presents five issues for our review which we consolidate and rephrase as:
1. Did the post-conviction court err when it denied Montano relief based on fundamental error and ineffective assistance of counsel?
2. Did the trial court err when it sentenced Montano?
On June 22, 1982, Montano killed his mother and six-year-old niece by striking them with a heavy metal wrench. A jury found him guilty but mentally ill of voluntary manslaughter for the death of his mother, and guilty but mentally ill of murder for the death of his niece. He was sentenced to 20 years for the voluntary manslaughter conviction and 45 years for the murder conviction. This decision was affirmed by our supreme court in Montano v. State (1984), Ind., 468 N.E.2d 1042.
On August 8, 1986, Montano filed a pro se petition for post-conviction relief which was amended on March 12, 1992, and December 21, 1992. A hearing was held on May 14, 1993, and on May 6, 1994, the trial court issued findings of fact and conclusions of law denying relief from which Montano now appeals.
Generally, the petitioner in a post-conviction relief proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied (citations omitted). On appeal from a denial of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876 (citations omitted). To prevail on appeal, the petitioner must satisfy the reviewing court that the evidence, without conflict, leads inevitably to a conclusion opposite of the trial court. Babbs, 621 N.E.2d at 329.
A post-conviction proceeding is not a "super-appeal" and when a petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Id. Error available on direct appeal is usually waived for purposes of post-conviction relief, Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied.; however, a small exception to this rule exists. An error cannot be waived by a previous appeal if the error is fundamental in nature.
To rise to the level of fundamental error, an error "must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm must be substantial and appear clearly and prospectively." Ried v. State (1993), Ind.App., 610 N.E.2d 275, 281, aff'd, Ind., 615 N.E.2d 893. To fall within this exception, error must be such that if not rectified it would deny the defendant fundamental due process. Id.
A petitioner for post-conviction relief may also, in some circumstances, raise the issue of ineffective assistance of counsel. As a general rule, ineffective assistance of counsel is an issue known and available at the time of the direct appeal. Burris v. State (1992), Ind.App., 590 N.E.2d 576, 578, trans. denied. If trial counsel and appellate counsel are different, as in this case, appellate counsel has the first opportunity to present the issues, and failure to do so will generally be held a waiver of the issue. Id. To avoid waiver, a petitioner must argue that appellate counsel was ineffective in that he failed to raise ineffective assistance of trial counsel. This is the narrow category into which Montano's ineffective assistance argument must fall in order to succeed.
Initially, Montano asserts that the "attempt to reach a decision concerning [a defendant's] competency to stand trial without either an assigned burden of proof or a standard of proof is constitutionally inadequate to assure a defendant the level of due process required by the Fourteenth Amendment." Appellant's Brief at 22. He contends that "there has never been an appellate reversal in this state finding a trial judge has abused his discretion in finding a defendant competent to stand trial." Id. at 25. Montano argues, without reference to authority, that "to assure due process fundamental fairness in criminal competency proceedings, the burden of proof must be assigned to one party or the other to show that the defendant either is or is not competent to stand trial." Id. at 26. We do not agree.
Montano's argument merely revisits an issue addressed by both this court and our supreme court in Wallace v. State (1985), Ind., 486 N.E.2d 445, reh'g denied, cert. denied, (1986), 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723, and Hensley v. State (1991), Ind.App., 575 N.E.2d 1053, trans. denied. In Hensley, the defendant challenged the discretionary function of the trial court in determining a defendant's competency. He contended that the State should be charged with the burden of proving, by clear and convincing evidence, that the defendant is competent to stand trial. In that case, Judge Sullivan stated:
Our [s]upreme [c]ourt in Wallace held that the failure to allocate the burden of proving competency to stand trial under our current statutory scheme to stand trial does not offend due process. Hensley argues that the court in Wallace held only that the statute was not unconstitutional because it did not allocate the burden of proving incompetency to the defendant. He contends that the court did not address the failure to place the burden on the State and therefore the issue is still ripe for our determination. We disagree with Hensley's narrow interpretation of the Wallace decision.
The clear implication of Wallace is that the court may have considered the competency statute to be unconstitutional if it had required the defendant to prove his own incompetency. Because our statute does not allocate the burden to the defendant, it does not violate due process. The fact that the statute does not allocate the burden of proving competency to the state is of no moment.
Further, Montano's argument which purports to rely on Medina v. California (1992), 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353, reh'g denied, 505 U.S. 1244, 113 S.Ct. 19, 120 L.Ed.2d 946, a recent U.S. Supreme Court decision, is of no merit because that case does little more than strengthen our existing precedent. The Supreme Court re-asserted that the analysis to be used in analyzing due process challenges to state criminal procedure was indeed a narrow one:
[W]e should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Id. at ----, 112 S.Ct. at 2577 (quoting Patterson v. New York (1977), 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 23, 53 L.Ed.2d 281) (citations and quotations omitted). The Supreme Court concluded that due process is satisfied when a State provides a defendant access to procedures for making a competency evaluation.
The Due Process Clause does not, however, require a state to adopt one procedure over another on the basis that it may produce results more favorable to the accused. Consistent with our precedent, it is enough that the State affords the criminal defendant on whose behalf a plea of incompetency is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial.
Medina, 505 U.S. at ----, 112 S.Ct. at 2580.
Ind.Code 35-36-3-1 et seq. (1993) which governs competence to stand trial survives the analysis espoused by the Supreme Court. We find no error, fundamental or otherwise, here. 1
Montano next seeks relief on the grounds that the trial court erred when it instructed the jury on two issues. Like the previous issue, Montano's trial counsel failed to tender proper instructions and failed to object to the instructions as given, thus the present issue would have only been available to Montano's appellate counsel if the failure of the trial court rose to fundamental error. Because we find that it does not, appellate counsel was not ineffective when he failed to raise this issue on appeal.
Montano contends that Final Instruction No. 6 fails to state that the State bore the burden of rebutting sudden heat beyond a reasonable doubt. This argument can only be applied to Montano's conviction of guilty but mentally ill of murder for the death of his niece, because the jury found him guilty but mentally ill of voluntary manslaughter for the death of his mother. Montano argues that once sudden heat is raised, the burden is on the State to rebut it beyond a reasonable doubt, and that failure to instruct the jury properly is both fundamental error and ineffective assistance, relying on Palmer v. State (1991), Ind., 573 N.E.2d 880.
In our review of the propriety of a trial court's decision to give an instruction, we look to see whether the instruction correctly states the law; whether the record contains evidence to support the giving of the instruction; and whether the substance of the tendered instruction is covered by other instructions which were...
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