Poling v. State
| Decision Date | 12 December 2000 |
| Docket Number | No. 14A01-9910-PC-342.,14A01-9910-PC-342. |
| Citation | 740 N.E.2d 872 |
| Parties | Michael W. POLING, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Michael W. Poling, Pro Se, Pendleton, Indiana.
Karen Freeman-Wilson, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Michael W. Poling appeals from the post-conviction court's grant of the State's motion for summary disposition without hearing. Poling presents eight issues, which we consolidate and restate as whether the post-conviction court erred in granting the State's motion for summary disposition without hearing. We affirm.
Because Poling appeals from a summary disposition entered against him, the facts most favorable to Poling follow. See State v. Daniels, 680 N.E.2d 829, 835 (Ind.1997). Poling was convicted of murder while in the perpetration of rape1 and given a sentence of sixty years. See Poling v. State, 515 N.E.2d 1074, 1076 (Ind.1987). The Indiana Supreme Court affirmed Poling's conviction on direct appeal. See id. at 1081. Thereafter, Poling filed a pro-se petition for post-conviction relief, which was denied without a hearing. Poling hired an attorney to appeal the denial of his petition for post-conviction relief. Poling timely filed the praecipe for the appeal; however, his attorney did not timely file the record, which resulted in the dismissal of Poling's appeal. We denied counsel's motion to file a belated appeal, and the Indiana Supreme Court denied Poling's petition for transfer.
Subsequently, Poling filed a pro-se request with this court to allow him to file a second petition for post-conviction relief, which we granted. Poling v. State, 14A01-9602-SP-54 (Ind.Ct.App. July 29, 1997). Poling filed his second pro-se petition with the post-conviction court. Poling filed two motions with the second post-conviction court: (1) a motion to compel the State to turn over items for DNA testing and (2) a motion for DNA testing at public expense. Following hearings on the DNA motions, the post-conviction court denied both motions and, pursuant to Poling's request, certified the decision for interlocutory appeal. We accepted the interlocutory appeal and affirmed the post-conviction court's decision to deny DNA testing. Poling v. State, No. 14A01-9808-PC-304, 708 N.E.2d 925 (Ind.Ct.App. Feb. 16, 1999).
Then, before the post-conviction court had the hearing on the remainder of Poling's second petition for post-conviction relief, the State filed a motion for summary disposition without a hearing. The post-conviction court granted the State's motion. In response, Poling filed a motion to correct errors. Because the post-conviction court did not rule on Poling's motion within 45 days, it was deemed denied. See Ind. Trial Rule 53.3(A).
The sole issue is whether the post-conviction court erred in granting the State's motion for summary disposition without hearing. Generally, the trial court has discretion about whether to grant a summary disposition, and we will only reverse the trial court's decision for an abuse of that discretion. Daniels, 680 N.E.2d at 835. The trial court does not abuse its discretion in granting a summary disposition when "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 831; see also Ind. Post-Conviction Rule 1(4)(g). We face the same issues that were before the trial court and follow the same process. Daniels, 680 N.E.2d at 832. While any doubts about facts, or the inferences to be drawn therefrom, must be resolved in favor of the appellant, the appellant still has the burden of persuading us that the post-conviction court erred. Id.
Poling asserts that, pursuant to case law, the post-conviction court was required to have a hearing regarding his second petition for post-conviction relief. See Everroad v. State, 678 N.E.2d 1136 (Ind.Ct.App.1997), reh'g denied, trans. denied, 690 N.E.2d 1179 (Ind.1997). The State asserts that the holding in Everroad is no longer good law because the Indiana Supreme Court has modified Post-Conviction Rule 1, section 12 to eliminate the language that we relied upon for our holding in Everroad. See Ind. Post-Conviction Rule 1, § 12. While the State is correct that our supreme court has amended section 12 to eliminate the wording relied upon for our holding in Everroad, the fact remains that Poling was granted permission to file his subsequent petition for post-conviction relief before section 12 was amended and when Everroad was still the law. Consequently, the trial court erred by not holding a hearing regarding Poling's second petition for post-conviction relief. See Everroad, 678 N.E.2d at 1137.
However, if there is no genuine issue of material fact and if the State was entitled to judgment as a matter of law, then Poling was not prejudiced by the post-conviction court's failure to have a hearing. See, e.g., Toan v. State, 691 N.E.2d 477, 480 (Ind.Ct.App.1998). Therefore, we address each of the nine errors raised in Poling's second petition for post-conviction relief to determine whether the post-conviction court's error requires reversal.
The first issue Poling raised in his second petition for post-conviction relief was whether he received effective assistance of counsel from the attorney who agreed to represent him in the appeal of the denial of his first petition for post-conviction relief. Under Indiana law, the standard for ineffective assistance of post-conviction counsel is more lenient than the ineffective assistance of counsel standard outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Baum v. State, 533 N.E.2d 1200, 1201 (Ind.1989). Because post-conviction proceedings are not considered criminal proceedings, petitioners are not protected by the guarantees of the Sixth Amendment of the United States Constitution2 or article 1, section 13 of the Indiana Constitution.3 Id. Effective counsel is not guaranteed, and constitutional standards are not used to judge counsel's performance. Id. "[I]f counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not necessary to judge his performance by the rigorous standard set forth in Strickland ...." Id.
In this case, Poling's post-conviction appellate counsel miscalculated the date that the record was due and therefore failed to timely file the record, which resulted in the dismissal of Poling's appeal of the post-conviction court's denial of his first petition for post-conviction relief. We assume arguendo that Poling's counsel's failure to perfect an appeal was below the standard expected of post-conviction counsel because his counsel neither "appeared" nor represented Poling at a "procedurally fair setting." Id. Therefore, we return to the standard outlined in Strickland to determine whether counsel's error constituted "ineffective assistance." Id.
Under the Strickland test, Poling would have to demonstrate that he was prejudiced by his counsel's actions before we could find that his counsel was ineffective. Strickland, 466 U.S. at 686,104 S.Ct. at 2064. To demonstrate prejudice, Poling must show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Therefore, if we would have affirmed the post-conviction court's denial of Poling's first petition for post-conviction relief, then Poling was not prejudiced by his counsel's mistake.
In his first petition for post-conviction relief, Poling asserted fifteen errors that he claimed warranted post-conviction relief. We address each of these claims to determine whether we would have reversed the post-conviction court's denial of Poling's first petition for post-conviction relief, and, by doing so, we will determine whether Poling was prejudiced by his counsel's error.
A-1
The first issue raised by Poling in his first petition for post-conviction relief was whether DNA tests should be conducted on evidence collected at the crime scene. Poling raised this issue in his successive petition for post-conviction relief, and both the post-conviction court and we addressed the issue on the merits. See Poling v. State, No. 14A01-9808-PC-304, 708 N.E.2d 925 (Ind.Ct.App. Feb.16, 1999). As Poling was ultimately denied relief on this claim, there is no reason to assume that we would have granted relief on this basis pursuant to an earlier appeal. Consequently, because Poling was not prejudiced by his counsel's failure to appeal the post-conviction court's denial of his first petition for post-conviction relief, his ineffective assistance of counsel claim fails on this issue. See, e.g., Toan, 691 N.E.2d at 480.
A-2
The next seven issues raised by Poling in his first petition for post-conviction relief, revised and restated, are:
(2) whether the trial court erred in failing to conduct an in camera hearing to decide whether Poling could question a witness about his current address because, in his opinion, being prevented from asking the question denied him his Sixth Amendment right to confront witnesses.4
To continue reading
Request your trial
-
Owens v. State
...doctrine of fundamental error is only available in very narrow circumstances. Taylor v. State, 717 N.E.2d at 94; Poling v. State, 740 N.E.2d 872, 880 n. 5 (Ind.Ct. App.2000). Even the denial of specific constitutional rights does not always prevent waiver. Poling, 740 N.E.2d at 880 n. In po......
-
BUDD v. State of Ind.
...to receive credit time; therefore, a rational basis test is used to assess the constitutionality of the statute. Poling v. State, 740 N.E.2d 872, 885 (Ind.Ct.App.2000), overruled on other grounds by Graves v. State, 823 N.E.2d 1193 (Ind.2005). Under a rational basis test, the question is wh......
-
Graves v. State
...Baum standard, infra, it would use Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Poling v. State, 740 N.E.2d 872, 878-79 (Ind.Ct.App.2000). Poling is 2. Ind.Code § 35-35-1-2(a) (1986 Supp.) required a trial judge to inform the defendant of enumerated rights ......
-
Annes v. State, 49A04-0109-PC-410.
...addressed the standard for allegations of ineffectiveness of counsel in initial post-conviction proceedings in Poling v. State, 740 N.E.2d 872, 878-79 (Ind. Ct.App.2000). Poling raised in his second petition for post-conviction relief the assertion that he received ineffective assistance of......