Powers v. State

• Decision Date: 20 July 1993
• Docket Number: No. 23S01-9307-PC-766,23S01-9307-PC-766
• Citation: 617 N.E.2d 545
• Parties: Roger W. POWERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 545

617 N.E.2d 545

Roger W. POWERS, Appellant, v. STATE of Indiana, Appellee.

No. 23S01-9307-PC-766.

Supreme Court of Indiana.

July 20, 1993.

Rehearing Denied Oct. 12, 1993.

Roger W. Powers, pro se.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., for appellee.

ON CRIMINAL PETITION TO TRANSFER

GIVAN, Justice.

In an opinion published at 611 N.E.2d 172, the Court of Appeals reversed the trial court's denial of appellant's petition for post-conviction relief. They held that appellant carried his burden of proof in the trial court to demonstrate that his appellate counsel had not afforded effective assistance in that he did not challenge the sufficiency of the evidence establishing appellant's status as a habitual offender.

Judge Chezem wrote a dissenting opinion in which she observed that trial counsel had testified at the post-conviction relief hearing that he did not object to any deficiency in the State's evidence because he was well aware that the necessary information was readily available to the State and his objection would gain him nothing in the long run. He chose to follow the strategy of remaining silent in hopes that the State's evidence would be insufficient to establish the habitual status.

Some confusion arises in this case due to the fact that while awaiting sentencing on a burglary charge, appellant escaped from jail. He was tried separately for the escape and found guilty and it is that case in which the present post-conviction relief petition was filed.

Even assuming for the sake of argument that there are deficiencies in the habitual offender evidence, the trial court was correct in its observation that the testimony of trial counsel established that it was his strategy not to object to any deficiency in the State's evidence and to proceed in hopes that they would not present sufficient evidence.

In fact, the majority opinion recognizes that this conduct on the part of trial counsel in fact was "very effective assistance of counsel." See Id. at 173-74, n. 1. As noted by Judge Chezem, we have held that appellate counsel need not raise an issue that in his professional judgment appears to be frivolous or unavailing. Schiro v. State (1989), Ind., 533 N.E.2d 1201, cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218. We also have held that if deficient performance is shown, a defendant must further show a reasonable probability that it altered the outcome of the case. Mftari v. State (1989), Ind., 537 N.E.2d 469.

This being a post-conviction case, appellant had the burden to establish the grounds for relief by a preponderance of the evidence. Grey v. State (1990), Ind., 553 N.E.2d 1196. The question is then, did appellant present evidence to demonstrate that but for the action of his appellate counsel, the outcome of his appeal would have been different? It is true that as this Court observed in Phillips v. State (1989), Ind., 541 N.E.2d 925, where there has been a lack of proof of two prior unrelated felonies, the habitual offender finding must be set aside. Phillips cites Henderson v. State (1989), Ind., 534 N.E.2d 1105.

However, in the case at bar, the existence of the prior felony convictions was proven by certified records and only the commission dates were supplied by oral testimony. There is no allegation here that the prior felonies did not exist or that they did not comply with the statute as to proper sequence. It becomes obvious from the record that had trial counsel objected to the oral testimony, the State could undoubtedly have established the supporting evidence by presenting documentary proof. The Court of Appeals cites Powers v. State (1989), Ind., 540 N.E.2d 1225; however, in that case there was no evidence of the former conviction other than oral testimony of the probation officers. We hold that in a situation such as the case at bar where there was documentary proof of the existence of the prior convictions, the identity and the sequence of events may be established by parol evidence. State v. Brooke (1991), Ind., 565 N.E.2d 754.

This case does not come within the purview of Henderson, supra, in that there is no showing of a failure of evidence to support the habitual offender finding. Thus, even had appellate counsel raised the issue regarding trial counsel's effectiveness, such claim would fail because, even with a timely objection, parol evidence of commission dates would be admissible.

Appellant did not sustain his burden of proof to show that had appellate counsel raised the issue the ultimate result would have been different.

The Court of Appeals opinion is set aside. The trial court is affirmed.

SHEPARD, C.J., and DeBRULER, DICKSON and KRAHULIK, JJ., concur.

DICKSON, J., concurs with separate opinion in which SHEPARD, C.J. and KRAHULIK, J., concur.

DICKSON, Justice, concurring.

In the habitual offender proceedings in both Washington v. State (1982), Ind., 441 N.E.2d 1355, and Morgan v. State ...