Myers v. State Of Ind.

• Decision Date: 10 November 2010
• Docket Number: No. 49A02-1001-PC-154,49A02-1001-PC-154
• Parties: DAMON A. MYERS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

DAMON A. MYERS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A02-1001-PC-154

COURT OF APPEALS OF INDIANA

November 10, 2010

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE:

DAMON A. MYERS

New Castle, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

JOBY D. JERRELLS

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Judge

Cause No. 49G02-0510-FC-186328

Cause No. 49G02-0510-FC-186329

MEMORANDUM DECISION-NOT FOR PUBLICATION

FRIEDLANDER, Judge Damon A. Myers, pro se, appeals the denial of his petition for post-conviction relief (PCR), by which he challenged his conviction of two counts of class C felony child molesting. Myers presents the following restated issues for review:

1. Did Myers receive ineffective assistance of trial counsel?

2. Did Myers receive ineffective assistance of appellate counsel?

We affirm.

This appeal involved two separate criminal cases against Myers, which were consolidated upon direct appeal. See Myers v. State, Nos. 49A05-0610-CR-616 and 49A04-0612-CR-690 (Ind. Ct. App. July 23, 2007). At the trial court level, under cause number 49G02-0510-FC-20-186328 (Case 328), Myers was alleged to have molested J.C. and D.P. Under cause number 49G02-0510-FC-20-186329 (Case 329), Myers was alleged to have molested A.E. Myers was represented in Case 328 by attorney Karen Brogan. He was represented in Case 329 by attorney Richard Bucheri. The underlying facts were set out as follows in the unpublished opinion affirming Myers's convictions upon direct appeal:

On a Saturday or Sunday in October of 2005, Myers babysat Elizabeth Coleman's (Coleman) four children, including her two daughters, J.C. and D.P., who were respectively eleven years old and six years old at the time. Myers and Coleman are cousins. While under Myers' supervision, J.C. and D.P. called Coleman at work and reported that Myers had inappropriately touched them. On October 21, 2005, Coleman brought J.C. and D.P. to the Child Advocacy Center in Marion County where child interviewer, Diane Bowers (Bowers), met with the girls. J.C. reported that Myers squeezed her buttocks several times, grabbed her by the arm, and tried to put his hand down the front of her shirt and jumper. J.C. also reported that Myers came up behind her and touched his private area to her buttocks. D.P. reported that Myers touched her breasts under her clothing, and rubbed her buttocks and vagina on the outside of her clothes.

Previously, in July of 2005, Myers lived with and was romantically involved with the grandmother of nine-year-old, A.E. On October 18, 2005, Kara Casaban (Casaban) of the Indianapolis Police Department conducted a Body Safety Program at A.E.'s elementary school, after which A.E. reported to her that Myers had reached around him and touched his penis several times while A.E. sat at the computer at his grandmother's house.

On October 28, 2005, the State filed an Information charging Myers with two Counts of child molesting, one as to J.C. and one as to D.P., as Class C felonies under I.C. § 35-42-4-3 (First Cause). On the same date, and under a different Cause Number, the State filed a separate Information charging Meyers with child molesting, as a Class C felony, for the molestation of A.E. (Second Cause). On August 28 through 29, 2006, a jury trial was held on the First Cause. Myers was found guilty of both Counts of child molesting. On September 27, 2006, the trial court held a sentencing hearing and sentenced Myers to four years on each Count, with the sentences to run consecutive to the sentence imposed in the Second Cause.

Myers v. State, Nos. 49A05-0610-CR-616 and 49A04-0612-CR-690, slip op. at 1-2 (footnotes omitted). On August 30, 2007, Myers filed his PCR petition. After amendments to his petition, on September 2, 2009, a hearing was conducted. On January 13, 2010, the trial court denied the petition and this appeal ensued.

We note at the outset that in a post-conviction proceeding, the petitioner bears the burden of establishing his claims for relief by a preponderance of the evidence. Overstreet v. State, 877 N.E.2d 144 (Ind. 2007), cert. denied, 129 S.Ct. 458 (2008). When appealing from the denial of a PCR petition, the petitioner stands in the position of one appealing from a negative judgment and therefore must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. We further observe that the post-conviction court is the sole judge of the weight of the evidence and credibility of witnesses. J.J. v. State, 858 N.E.2d 244 (Ind. Ct. App. 2006).

In order to prevail on his claims that trial and appellate counsel rendered ineffective assistance, Myers must demonstrate the existence of the two components of that claim, asestablished in Strickland v. Washington, 466 U.S. 668 (1984). Creekmore v. State, 853 N.E.2d 523 (Ind. Ct. App. 2006), clarified on reh'g, 858 N.E.2d 230. He must first establish that counsel's performance was deficient, i.e., fell below an objective standard of reasonableness, and that the errors in representation were so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment. Id. A showing of deficient performance alone is not enough, however, to prevail on a claim of ineffective assistance of counsel. The petitioner must also show that the deficient performance prejudiced the defense. Id. Because a petitioner must prove both elements, the failure to prove either element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001) (holding that because the two elements of Strickland are separate and independent inquiries, the court may dispose of the claim on the ground of lack of sufficient prejudice if it is easier).

We note that, with respect to several of his claims, Myers iterates and reiterates the same claim of error multiple times throughout his appellate brief. This appears to be attributable to arranging claims variously by counsel, stage of the proceedings, and in some cases in ways we cannot discern. Rather than address Myers's claims in the fashion he presents them, we will group them generally into claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel.

1.

Myers contends he received ineffective assistance of trial counsel in at least twenty-six separate respects. In presenting many of these claims, Myers has neglected to identify the prejudice flowing therefrom. The following claims fail on this basis: (1) "Karen Brogan and Richard Bucheri were ineffective for failing to lay the proper foundations for inherentlycontradictory testimony, possibly exculpatory evidence, and inconsistent statements, to impeach the State's witnesses", Appellant's Brief at 8 (after listing fourteen separate instances where trial counsel failed to take action, followed by a confusing amalgam of vague assertions, Myers ultimately identifies the prejudice for this claim thus: "Given the significant incompetence of counsel, there is a reasonable probability that the outcome of trial would have been different[;]" id. at 13; in "identifying" the prejudice in this manner, Myers merely begs the question); (2) "Bucheri was ineffective for failing to move for continuance due to surprise witnesses;" id. at 14 (Myers claims that the disputed evidence was "not merely cumulative", id. at 16); (3) "Failing to object to the State of Indiana violation of Indiana Trial Rule 5(A)(6);" id. at 16; (4) "Bucheri was ineffective for failing to object to the State of Indiana's violation of the rules set forth in Modesitt v. State, 578 N.E.2d 649, (1991) and Lambert v. State, 534 N.E.2d 235, (Ind. 1989)", id. at 17; (5) "Karen Brogan and Richard Bucheri were incompetent for failing to research a critical legal issue", id. at 20 (he merely offers the unexplained and unsupported assertion that further investigation "would have provided evidence favorable to the defendant", id.); (6) "Bucheri was ineffective for failing to object to the trial judge's abandonment of the position of neutrality", id. at 21 (he claims the trial court intervened and "elicited important details counsel had not yet had the chance to bring out", id., but does not specify what those details were and how such prejudiced his case); (7) "Bucheri was ineffective for failing to investigate and present mitigation evidence or testimony from the accused's parents or siblings", id. at 23; (8) "Richard Bucheri was ineffective for failing to conduct a pretrial investigation", id. at 24 (Myers lists four "facts" such an investigation would have revealed, all of which are toovaguely described to permit an evaluation of the actual prejudice suffered, if any); (9) "Bucheri was ineffective for failing to object to inadmissible expert opinion testimony", id. at 42 (in arguing this issue, Myers concedes there was no prejudice, viz., "[h]er testimony adds an imponderable to an already imponderable prosecution decision and does not make Myers's guilt any more or less likely", id. at 43 (emphasis supplied); (10) "Bucheri was ineffective for failing to object to the State of Indiana violation of Indiana Rule of Trial Procedure 6(D)", id. at 46; and, for a second time (see (7) above), (11) "Bucheri was ineffective for failing to investigate or present mitigation evidence or present mitigation testimony from Myers's siblings or parents", id. at 55. These claims are unavailing. See Young v. State, 746 N.E.2d 920.

Myers contends trial counsel rendered ineffective assistance of counsel "for failing to object to the absence of a finding of necessity for the accused's participation in the trial wearing jail garb." Appellant's Appendix at 6....