OBERST v. State of Ind.

• Decision Date: 14 January 2011
• Docket Number: No. 14A05-103-PC-157.,14A05-103-PC-157.
• Citation: 935 N.E.2d 1250
• Parties: James K. OBERST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

935 N.E.2d 1250

James K. OBERST, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 14A05-103-PC-157.

Court of Appeals of Indiana.

Nov. 3, 2010.
Transfer Denied Jan. 14, 2011.

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COPYRIGHT MATERIAL OMITTED.

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Dale P. Webster, Webster & Webster, Vincennes, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION VAIDIK, Judge. Case Summary

James K. Oberst appeals the post-conviction court's denial of his petition for post-conviction relief. He contends that his trial counsel was ineffective on several grounds, including allowing him to give a statement that he had sexual intercourse with the victim to police in counsel's presence. Because Oberst gave this statement to police in counsel's presence before adversary

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criminal proceedings had been initiated, Oberst had no Sixth Amendment right to counsel and therefore no right to the effective assistance of counsel. Finding no other instances of ineffective assistance of counsel, we affirm the post-conviction court.

Facts and Procedural History

The underlying facts of this case, taken from this Court's opinion in Oberst's direct appeal, are as follows:

On December 30, 1998, Oberst was charged with two counts of sexual misconduct with a minor, both class B felonies. The informations alleged that Oberst had sexual intercourse with fourteen-year-old P.G. on two separate occasions in July 1998. At Oberst's trial, P.G. testified that while at an auction one evening in July 1998, Oberst took her behind some hay bales and told her to bend over and pull her pants down. Oberst attempted to insert his penis into P.G.'s rectum. When that was unsuccessful, “the next thing [P.G.] knew [they] were over at [Oberst's] truck” where Oberst inserted his penis into P.G.'s vagina. Following the completion of P.G.'s testimony, the State called Detective Ron Morgan to the stand. Detective Morgan testified that Oberst, along with his attorney, came to the Sheriffs Department on December 2, 1998, and gave a tape recorded statement after being advised of his Miranda rights and signing a waiver of rights form. In the statement, Oberst admitted to having sexual intercourse with P.G. on two separate occasions: once behind some hay bales and once in the bed of his truck.

Oberst v. State, 748 N.E.2d 870, 873-74 (Ind.Ct.App.2001) (citation omitted), trans. denied. The jury found Oberst guilty of both counts of sexual misconduct with a minor. The trial court sentenced him to twenty years on each count, to be served consecutively, for an aggregate term of forty years.

On direct appeal, this Court held that the admission of Oberst's confession constituted fundamental error because the State did not establish the corpus delicti for one of the counts of sexual misconduct with a minor as the victim testified to only one act of sexual intercourse. Id. at 874-77. We therefore reversed and vacated one of Oberst's convictions. Id. at 877. Upon resentencing for the remaining count of Class B felony sexual misconduct with a minor, the trial court sentenced Oberst to ten years. Appellant's App. p. 116.

In August 2008 Oberst filed a petition for post-conviction relief, which was later amended. Oberst alleged that his trial counsel was ineffective on several grounds.

Oberst testified at the post-conviction hearing that on December 2, 1998, he remembered going to the Sheriffs Department for an interview with Detective Morgan. Trial counsel happened to be there seeing another client, so he assisted Oberst. Oberst testified that he was taking prescription medications on December 2 (but he could no longer remember the name of the medications), and as a result of the medications, he did not recall talking to Detective Morgan. P-C Tr. p. 7. When asked if he recalled talking to trial counsel on that day as well, he said, “No, not really. I mean, it's just blank.” Id. Oberst did not call his trial counsel in support of his petition. However, he did call Donita Farr, a Vincennes, Indiana, attorney who was qualified as a skilled witness, to testify regarding the applicable standards for defending clients in Indiana. The post-conviction court denied relief, concluding that “[t]here is no evidence presented which was sufficient to establish that as a reasonable probability but for trial counsel's alleged failures, the result of

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the proceedings would have been any different.” Appellant's App. p. 22. Oberst now appeals.

Discussion and Decision

[1] [2] [3] [4] [5] Oberst appeals the post-conviction court's denial of his petition for post-conviction relief. In a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will not reverse the judgment unless the petitioner shows that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643-44. Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Id. at 644. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). We accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id.

[6] [7] [8] [9] Oberst contends that his trial counsel was ineffective. A claim of ineffective assistance of counsel involves two components. First, the petitioner must establish that counsel's performance was deficient, in that counsel's representation fell below an objective standard of reasonableness. Wrinkles v. State, 915 N.E.2d 963, 965 (Ind.2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Second, the petitioner must establish that the deficient performance prejudiced his defense. Id. In other words, the petitioner must show that but for counsel's errors, the result of the proceeding would have been different. Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Reed v. State, 866 N.E.2d 767, 769 (Ind.2007). Moreover, because counsel is afforded considerable discretion in choosing strategy and tactics, a strong presumption arises that counsel rendered adequate assistance. Id. If we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.2009).

[10] Oberst argues that his trial counsel was ineffective for multiple reasons. Before addressing these reasons, we note that Oberst did not present testimony from his trial counsel at the post-conviction hearing. When counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations. Culvahouse v. State, 819 N.E.2d 857, 863 (Ind.Ct.App.2004) (citing Dickson v. State, 533 N.E.2d 586, 589 (Ind.1989)), trans. denied. The post-conviction court made such an inference here. See Appellant's App. p. 21.

I. Claims of Pretrial Ineffectiveness

[11] Oberst first argues that his trial counsel was ineffective for allowing him to be questioned by police at the Sheriffs Department on December 2, 1998. Trial counsel happened to be at the Sheriff's Department on December 2, 1998, seeing

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another client and agreed to assist Oberst. Trial counsel was representing Oberst in an unrelated criminal matter. Oberst consulted with trial counsel and then signed a waiver of rights. In fact, trial counsel signed as a witness on Oberst's waiver of rights form. Trial counsel was present during the entire interview between Detective Morgan and Oberst, during which Oberst admitted to having sexual intercourse with the victim. Charges were not filed against Oberst until December 30, 1998. After charges were filed, trial counsel was appointed Oberst's attorney in this matter. Oberst asserts that trial counsel was ineffective because counsel should have somehow stopped him from confessing during the December 2, 1998, interview.

[12] [13] The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings. ¹ Sweeney v. State, 886 N.E.2d 1, 8 (Ind.Ct.App.2008) (citing Davis v. United States, 512 U.S. 452, 456, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)), reh'g denied, trans....