Parker v. State, 48A02-9502-PC-74

• Decision Date: 30 October 1995
• Docket Number: No. 48A02-9502-PC-74,48A02-9502-PC-74
• Citation: 660 N.E.2d 1025
• Parties: Jeffery PARKER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1025

660 N.E.2d 1025

Jeffery PARKER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 48A02-9502-PC-74.

Court of Appeals of Indiana.

Oct. 30, 1995.

Rehearing Denied Feb. 19, 1996.

Transfer Denied April 30, 1996.

Susan K. Carpenter, Public Defender, Ruth Johnson, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for appellee.

OPINION

FRIEDLANDER, Judge.

Jeffery Parker appeals the denial of his petition for post-conviction relief, claiming that double jeopardy principles were violated when he was convicted of Criminal Confinement, ¹ a class B felony, and Conspiracy to Commit Criminal Confinement, ² a class B felony.

We affirm.

As reported in Parker's direct appeal, the facts most favorable to the judgment are as follows:

"On February 1, 1985, a riot occurred at the Indiana Reformatory at Pendleton. The incident broke out when a handful of inmates were involved in the stabbing of one of the guards. As events progressed, a group of inmates, led by John Cole, took Officer Gorsuch hostage at knifepoint and forced him to open one of the cellhouses. Once inside, Cole's group also took Officers Millstead and Ingalls and Counselor Weist hostage. Cole forced the hostages to open the switches controlling the doors to the prisoners' cells, releasing most of the prisoners in the cellhouse. Parker was one of the first released and joined Cole's group in forcing the hostages to open the many remaining switches.

Officers Millstead, Ingalls, and Counselor Weist were confined to a cell and used as bargaining chips in Cole's negotiations with prison authorities. Parker, who by this time was armed with a knife, guarded the hostages. When Parker arrived at the cell where the hostages were being held, his knife appeared to be bloodstained, and he made statements 'to the effect of we ... just stabbed officers outside and we're going to come in and get you [hostages] too.' Record at 1249. At one point during the crisis, a rumor flashed through the cellhouse that the authorities were going to storm the cellhouse to regain control, and Parker responded by holding his knife to Officer Ingalls's throat. At another point, Parker slapped Officer Ingalls across the back of the head when Ingalls refused to tell authorities by radio that he was alive and unharmed."

Parker v. State (1991), Ind.App., 567 N.E.2d 105, 108.

Following this incident, Parker was charged with two counts of criminal confinement and one count of conspiracy to commit that offense. The charging informations provided in relevant part as follows:

"On or about the 1st day of February, 1985, in Madison County, State of Indiana, JOHN CHARLES COLE, CHRISTOPHER TROTTER, THOMAS JOHNSON, JEFFERY L. PARKER and CHARLES MURPHY did knowingly confine John Weist without his consent, by holding John Weist in 'J' cellhouse at the Indiana Reformatory located in Madison County, Indiana, and at said time the defendants, JOHN CHARLES COLE, CHRISTOPHER TROTTER, THOMAS JOHNSON, JEFFERY L. PARKER and CHARLES MURPHY were armed with deadly weapons, to-wit: sharpened metal objects which were shaped in the form of stabbing and/or cutting weapons.

. . . . .

On or about the 1st day of February, 1985, in Madison County, State of Indiana, JOHN CHARLES COLE, CHRISTOPHER TROTTER, THOMAS JOHNSON, JEFFERY L. PARKER and CHARLES MURPHY did knowingly confine Carl Ingalls without his consent, by holding Carl Ingalls in 'J' Cellhouse at the Indiana Reformatory located in Madison County, Indiana, and at said time the defendants, JOHN CHARLES COLE, CHRISTOPHER TROTTER, THOMAS JOHNSON, JEFFERY L. PARKER and CHARLES MURPHY were armed with deadly weapons, to-wit: sharpened metal objects which were shaped in the form of stabbing and/or cutting weapons."

Record at 69-70.

Parker was convicted of these offenses and directly appealed to this court. We affirmed the judgment in all respects. On October 24, 1991, Parker filed a pro se petition for post-conviction relief which was subsequently amended by counsel on July 14, 1994. The petition alleged that Parker was subjected to double jeopardy when he was "convicted of Conspiracy to Commit Criminal Confinement in addition to two counts of Confinement where the overt act element of the conspiracy charge is the Confinement." Record at 44. Following a hearing on the petition, the post-conviction court entered an order denying Parker's claim for relief. In issuing the order, the trial court adopted the State's brief as its findings of fact and conclusions of law which provided in relevant part as follows:

"The Petitioner in his Amended Petition for Post-Conviction Relief cites the case of Buie v. State (1994) Ind. 633 N.E.2d 250 as being dispositive of the issue in this case. It is the contention of the State that the Buie Case is not precedence for the immediate case. In order to determine whether or not the Buie Case is precedent, the reviewing Judge in this case must look at the wording of the charging information as well as the wording of the Conspiracy instructions given in this case and the Buie Case.

In the recent case of Derado v. State (1993) Ind. 622 N.E.2d 181 Justice Krahulik addressed the matter at issue in this case. The facts of the Derado Case are:

Joseph Wayne Derado was charged in the Vanderburgh Circuit Court with five counts of Dealing in Cocaine and one (1) count of Conspiracy to Deliver Cocaine; each of the said counts being a Class A Felony. As overt acts in furtherance of the agreement in the Conspiracy count, the State alleged the facts set forth in each of the first five (5) counts of the charging information.

Justice Krahulik acknowledged that it is not enough on appeal to view the Charging Information or Indictment. He emphasized that applicable conspiracy constructions [sic] given by the Court should also be reviewed.

In considering the second step, of reviewing the the [sic] instruction by the Court, it is noted in Derado that the Court's Final Instruction 2 specifically sets out overt acts, as elements of the crime of conspiracy the five (5) counts (acts of delivery of Cocaine) [sic] as set out in counts one (1) through five (5) of the information as substantive charges.

A copy of the instruction given in Derado by the Honorable Richard Young, Judge of the Vanderburgh Circuit Court, is marked 'Exhibit 1' attached hereto and made a part of this response. Also, attached is a copy of Final Instruction # 2, setting out the elements of the crime of Conspiracy in the Derado Case given by Judge Young, that document is marked 'Exhibit 2' and made a part of this response.

Justice Krahulik stated in his opinion that the holding in Derado was not meant to affect the case law that holds that a Defendant may be convicted of both Conspiracy to Commit a Felony and of the underlying felony. The Justice continues in his opinion as follows:

'---, the holding of this case is limited to those instances where the charging document and the jury instructions rely on the same facts to prove both accomplice liability for the commission of the underlying crime as well as the overt act committed in furtherance of the Conspiracy.'

In Buie we have the same situation as with Derado, in that the Defendant, Jason R. Buie, was charged by Amended Information for Count I, Murder, Count II, Conspiracy to Commit Murder and Count III, Arson; in the Conspiracy count the overt act as set out was to [sic] extensive with the allegations made in the Murder count. A copy of the Amended Information is marked 'Exhibit 3' attached hereto and made a part of this response. Further, a copy of the Final Instructions numbered 8 and 9 regarding the elements of Conspiracy in the Buie Case as given by Judge Stohler, is marked 'Exhibit 4' attached hereto and made a part of this response. Final instruction # 9 specifically narrows the overt act to the killing of the victim which were the same allegations as made in Count I of the Amended Information for Murder.

The Charging Information in this case is marked 'Exhibit 5' attached hereto and made a part of this response. A copy of the final instruction setting forth the elements of Conspiracy in this case is marked 'Exhibit 6' attached hereto and made a part of this response.

Buie and Derado can be distinguished from the instant case in that in the final instruction 'Exhibit 6' it is stated as follows:

'Third; That an act in furtherance of the agreement was performed by any party to the agreement.' In this instruction, the jury was not instructed that the overt act was limited to the Confinement of the person listed in the Confinement counts.

The State proved many overt acts other than the Confinement of the Reformatory Officer such as:

1. A conspirator's acquired 'shanks' to be used as a weapon;

2. Forcing an officer to open the door from the Guard Hall to 'J' Cell House;

3. Forcing [an] officer to open doors to the hall of the offenders housed in the 'J' Cell House including the Defendant and his accomplices.

4. Negotiating with the Department of Corrections [sic] officers;

5. As well as many other overt acts listed in the transcript of the evidence contained in the record of proceedings.

CONCLUSION

The Petitioner was not subjected to double jeopardy in this case when convicted of and sentenced for Confinement and Conspiracy to Commit Confinement."

Record at 52-73.

Parker appeals and presents the following issues:

1. Was Parker subjected to double jeopardy when he was convicted of two counts of confinement and one count of conspiracy to commit criminal confinement?

2. Did Parker receive ineffective assistance of counsel?

1.

In post-conviction proceedings, a petitioner must establish grounds for relief by a preponderance of the evidence. Powers v. State (1991), Ind.App., 579 N.E.2d 81, trans. denied; Ind.Rules of Procedure, Post-Conviction Rule 1. To prevail on appeal from the denial of his...