Nuckles v. State, No. 49A02-9705-PC-279

Docket NºNo. 49A02-9705-PC-279
Citation691 N.E.2d 211
Case DateFebruary 09, 1998
CourtCourt of Appeals of Indiana

Page 211

691 N.E.2d 211
Michael NUCKLES, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 49A02-9705-PC-279.
Court of Appeals of Indiana.
Feb. 9, 1998.

Page 212

Concurring Opinion

Susan K. Carpenter, Public Defender, Suzan Felten Jones, Deputy Public Defender, Indianapolis, for Appellant-Petitioner.

Jeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee-Respondent.

OPINION

FRIEDLANDER, Judge.

Michael Nuckles appeals the denial of his petition for post-conviction relief, challenging his conviction of Attempted Murder, 1 a class A felony, and Theft, 2 a class D felony, and the determination that Nuckles was an habitual offender. Terry presents the following restated issues for review:

1. Did the trial court commit reversible error in instructing the jury regarding the intent element of attempted murder?

2. Did the trial court err in ordering that the sentence for the instant conviction be served consecutive to a sentence imposed in an earlier, separate conviction?

3. Did the trial court err in responding to a request made by the jury during deliberations?

4. Did Nuckles receive ineffective assistance of appellate counsel?

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

Page 213

In affirming Nuckles's convictions on direct appeal, see Nuckles v. State, 560 N.E.2d 660 (Ind.1990), our supreme court set forth the facts as follows:

At approximately 11:00 p.m. on November 2, 1987, David Clark answered a knock on his door. He opened the security window on the door and saw a stranger, who he later identified as appellant. The man asked to use Clark's telephone. When Clark refused him entrance, appellant punched his arm through the security window. Clark ran to his bedroom and obtained a gun. When Clark reappeared in the hall with his gun, appellant was standing in the hall holding a gun. Clark fired a shot, which grazed appellant's chest. Appellant knocked Clark against a mirror, and in the ensuing struggle, Clark again managed to fire a shot which passed through appellant's finger. Nevertheless, appellant was able to disarm Clark. As Clark sat on the floor, appellant pointed his gun at him, threatened to kill him, and then fired a shot which struck Clark in the head. Appellant then fled.

Id. at 661.

Our supreme court recently set forth the standard of review for the denial of a petition for post-conviction relief:

Post-conviction procedures do not afford the convicted an opportunity for a "super appeal." Rather, they create a narrower remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Petitioners bear the burden of establishing their grounds by a preponderance of the evidence. When appealing the negative judgment of a post-conviction court, petitioners must show that the evidence, when taken as a whole, "leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court." If the evidence does not unswervingly point in that direction, the decision of the post-conviction court will stand.

Matheney v. State, 688 N.E.2d 883, 890-91 (Ind.1997) (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)) (citations omitted).

We note that three of the issues presented by Nuckles, i.e., the attempted murder instruction, the imposition of consecutive sentences, and the trial court's ex parte communication with the jury, are subject to waiver. Nuckles seeks to escape waiver by invoking the fundamental error doctrine, which permits review of an improperly raised error if the reviewing court finds that the error was so prejudicial to the rights of the defendant that he could not have had a fair trial. Cossel v. State, 675 N.E.2d 355 (Ind.Ct.App.1996). However, our supreme court recently observed that the fundamental error exception is "an extremely narrow one." Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997). The court further clarified that, in the post-conviction setting, the exception is generally limited to "[D]eprivation of the Sixth Amendment 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." Id. at 236 n. 6 (quoting Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985)). Therefore, if the issues in question were available at the time of trial or direct appeal, we may address them only in the context of claims of ineffective assistance of counsel.

1.

Nuckles contends that the court erred in instructing the jury regarding the intent element of the offense of attempted murder.

This issue was available at the time of trial and direct appeal and therefore is waived. Canaan v. State, 683 N.E.2d 227. We will address the merits of Nuckles's argument upon this issue in considering his claim of ineffective assistance of appellate counsel.

2.

Nuckles contends that the trial court erred in ordering that the sentences imposed for the instant offenses be served consecutively to a sentence imposed for a prior, unrelated criminal conviction.

As with the first issue, this issue was available to trial and appellate counsel but was not preserved. Therefore, the argument is waived. Canaan v. State, 683 N.E.2d 227. We will address the merits of Nuckles's argument

Page 214

upon this issue in considering his claim of ineffective assistance of appellate counsel.

3.

Nuckles contends that the trial court erred in responding to a jury request, made during deliberations, to hear again portions of the trial testimony of two witnesses.

This issue was available to trial and appellate counsel and therefore is waived. Id. We will address the merits of Nuckles's argument upon this issue in considering his claim of ineffective assistance of appellate counsel.

4.

Nuckles contends that he received ineffective assistance of appellate counsel in the following respects: (a) failure to present the issue of the defective attempted murder jury instruction; (b) failure to appeal the imposition of consecutive sentences; and (c) failure to present the issue of the ex parte communication with the jury.

Our supreme court recently reiterated the standard of review for claims of ineffective assistance of counsel:

We evaluate claims concerning denial of the Sixth Amendment right to effective assistance of counsel using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a convict must show that his attorney's performance fell below an objective standard of reasonableness, and that the deficiencies in the attorney's performance were prejudicial to the defense. Prejudice exists when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result of the proceeding fundamentally unfair or unreliable.

Cooper v. State, 687 N.E.2d 350, 353 (Ind.1997).

a.

Nuckles contends that appellate counsel rendered ineffective assistance of counsel in failing to argue the issue of the erroneous attempted murder instruction.

The State correctly concedes that the trial court erred in failing to advise the jury that in order to find a defendant guilty of attempted murder, they must find that the defendant acted with the specific intent to kill. See Swallows v. State, 674 N.E.2d 1317 (Ind.1996). However, at the time of Nuckles's direct appeal, our supreme court had not yet decided Spradlin v. State, 569 N.E.2d 948 (Ind.1991), the case that established the principle that renders the instant murder instruction erroneous. In fact, at the time of the direct appeal, there arguably was authority to support the giving of the instruction. See, e.g., Worley v. State, 501 N.E.2d 406 (Ind.1986). "[A]n ineffective assistance claim cannot be based on counsel's failure to argue the legal reasoning of cases not yet decided at the time...." Shaffer v. State, 674 N.E.2d 1, 7 (Ind.Ct.App.1996), trans. denied. Appellate counsel's failure to anticipate the change announced in Spradlin does not constitute ineffective assistance of counsel. 3

Page 215

b.

Nuckles contends that appellate counsel's failure to challenge the imposition of consecutive sentences constituted ineffective assistance of counsel.

Trial courts may not order that sentences be served consecutively without express statutory authority. Harris v. State, 671 N.E.2d 864 (Ind.Ct.App.1996), trans. denied. The version of the consecutive sentencing statute in force at the time the defendant was sentenced, rather than a version enacted after sentencing, controls the defendant's...

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3 practice notes
  • Leer v. State, No. 20A04–1204–PC–185.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 2012
    ...? We conclude that he did, based primarily upon a case even more closely analogous to the present case than Stites. In Nuckles v. State, 691 N.E.2d 211 (Ind.Ct.App.1998), the defendant was convicted of attempted murder and theft, and determined to be a habitual offender. The court ordered t......
  • Martin v. State, No. 45A05-0009-PC-379.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 20, 2001
    ...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 In order to avoid waiver, Martin argues that the trial court committed fundamental error when it gave an instruction to the jury, aft......
  • Hubbard v. State, No. 16A01-9712-PC-405
    • United States
    • Indiana Court of Appeals of Indiana
    • June 16, 1998
    ...court finds that the error was so prejudicial to the rights of the defendant that he could not have had a fair trial. Nuckles v. State, 691 N.E.2d 211, 213 However, our supreme court has recently observed that the fundamental error exception is "an extremely narrow one." Canaan, 6......
3 cases
  • Leer v. State, No. 20A04–1204–PC–185.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 2012
    ...? We conclude that he did, based primarily upon a case even more closely analogous to the present case than Stites. In Nuckles v. State, 691 N.E.2d 211 (Ind.Ct.App.1998), the defendant was convicted of attempted murder and theft, and determined to be a habitual offender. The court ordered t......
  • Martin v. State, No. 45A05-0009-PC-379.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 20, 2001
    ...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 In order to avoid waiver, Martin argues that the trial court committed fundamental error when it gave an instruction to the jury, aft......
  • Hubbard v. State, No. 16A01-9712-PC-405
    • United States
    • Indiana Court of Appeals of Indiana
    • June 16, 1998
    ...court finds that the error was so prejudicial to the rights of the defendant that he could not have had a fair trial. Nuckles v. State, 691 N.E.2d 211, 213 However, our supreme court has recently observed that the fundamental error exception is "an extremely narrow one." Canaan, 6......

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