Powers v. State, No. 23A01-9212-PC-406

• Docket Nº: No. 23A01-9212-PC-406
• Citation: 611 N.E.2d 172
• Case Date: March 30, 1993
• Court: Court of Appeals of Indiana

Page 172

611 N.E.2d 172 Roger W. POWERS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 23A01-9212-PC-406. Court of Appeals of Indiana,
First District. March 30, 1993.

Page 173

Roger W. Powers, pro se, Pendleton, Indiana.

Linley E. Pearson, Attorney General of Indiana, Suzann Weber Lupton, Deputy Attorney General, Office of Attorney General, Indianapolis, Indiana. for Appellee-Plaintiff.

ROBERTSON, Judge.

Roger W. Powers, pro se, appeals the denial of his petition for post-conviction relief. Powers raises four (4) issues, but, because one requires reversal, we address it only. It is:

Whether Powers received ineffective assistance of appellate counsel for his counsel's failure to challenge the sufficiency of Powers' habitual offender adjudication on direct appeal?¹

Page 174

FACTS

On July 6, 1985, Powers escaped from jail while awaiting sentencing on a Burglary conviction. Powers was later captured, tried, and convicted of Escape as a Class D felony. He was also adjudicated an habitual offender. He received a two (2) year sentence for the Escape conviction enhanced by thirty (30) years for being an habitual offender for a total sentence of thirty-two (32) years.

During the habitual phase of Powers' trial, the State introduced docket sheets which indicated that Powers had been convicted and sentenced for a felony in 1977 and again for three (3) felonies in 1980. Probation officer, Ruth White, testified regarding the dates that these offenses had been committed. Powers took a direct appeal but his appellate counsel did not challenge the sufficiency of the habitual offender adjudication. The appeal was rejected by our supreme court in Powers v. State (1989), Ind., 539 N.E.2d 950. Powers was sentenced to twenty (20) years imprisonment for the Burglary for which he had been incarcerated when he escaped from jail in 1985. This sentence was enhanced by thirty (30) years for an habitual offender adjudication based on the 1977 and 1980 felony convictions which were used as the basis of the habitual offender adjudication in the present case. On direct appeal, our supreme court held that the State failed to carry its burden of proof in establishing Powers' habitual offender status, holding:

The State did call Ruth White, a probation officer, who testified she prepared the presentence investigation report for appellant's 1977 and 1980 convictions, and she testified the convictions were two prior unrelated convictions. However, she furnished no information concerning when either offense was committed. Even had the probation officer so testified, such evidence would not be sufficient unless there were a showing that written records were unavailable. Washington v. State (1982), Ind., 441 N.E.2d 1355; Morgan v. State (1982), Ind., 440 N.E.2d 1087.

Powers v. State (1989), Ind., 540 N.E.2d 1225, 1227 (Emphasis added).

DECISION

Initially, we note that in a post-conviction relief proceeding, the defendant has the burden of proving his grounds of relief by a preponderance of the evidence. Murphy v. State (1985), Ind., 477 N.E.2d 266. The post-conviction court is the sole Judge of the weight of the evidence and the credibility of the witnesses. Stewart v. State (1988), Ind., 517 N.E.2d 1230. When reviewing the denial of post-conviction relief, we will reverse only when the evidence is without conflict and leads solely to a result different from that reached by the trial court. Daniels v. State (1988), Ind., 531 N.E.2d 1173.

In post-conviction proceedings, an issue which could have been but was not raised in the defendant's direct appeal is waived. McFarland v. State (1991), Ind., 579 N.E.2d 610. When the defense of waiver is asserted by the State, a post-conviction petitioner must present some substantial basis or circumstance which will satisfactorily mitigate his failure to pursue or perfect a remedy through the normal procedural channels. Davis v. State (1975), 164 Ind. 331, 328 N.E.2d 768. One method of overcoming a defense of waiver is to demonstrate an ineffective assistance of appellate counsel. Id ; McFarland, 579 N.E.2d 610. One method of demonstrating incompetent appellate counsel is by showing the counsel's failure to raise a meritorious issue on appeal. Davis, 328 N.E.2d 768.

In reviewing the competency of counsel, there is a presumption that counsel is competent and strong and convincing evidence is required to rebut the presumption. Howell v. State (1983), Ind., 453 N.E.2d 241.

Page 175

Whether counsel was incompetent revolves around the particular facts of each case. Id. The reviewing court will not speculate as to what may have been the most advantageous strategy in a particular case. Id. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffective counsel. Id. The proper standard for attorney performance is that of reasonably effective assistance. Cobb v. State (1987), Ind., 505 N.E.2d 51. A successful claim of an ineffective assistance of appellate counsel has two components. Ingram v. State (1987), Ind., 508 N.E.2d 805. The post-conviction petitioner must demonstrate 1) deficient performance by counsel and 2) resulting prejudice so serious as to deprive him of an effective appeal. Id ; Strickland v. Washington (1984), 466 U.S. 668. In other words, the petitioner must show that the error or omission by counsel was outside the wide range of professionally competent assistance and that there is a reasonable probability but for counsel's unprofessional error, the result of the proceeding would have been different. Id ; Ingram, 508 N.E.2d 805.

In the present case, under the first component of the Strickland test, we hold that Powers' appellate counsel's failure to challenge the sufficiency of the habitual offender adjudication falls outside the wide range of professionally competent assistance. The reasonably effective assistance of counsel would require that the sufficiency of the habitual offender adjudication be carefully scrutinized because the enhancement of thirty (30) years tacked on for Powers' status as an habitual offender is fifteen times (15x) longer that the two (2) year sentence Powers received for the Escape conviction. Moreover, the sufficiency of habitual offender adjudications is a matter often raised successfully on appeal. Waye v. State (1991), Ind., 583 N.E.2d 733; Lee v. State (1990), Ind., 550 N.E.2d 304; Nash v. State (1989), Ind., 545 N.E.2d 566; Powers, 540 N.E.2d 1225; McCombs v. State (1989), Ind., 536 N.E.2d 277; Henderson v. State (1989), Ind., 534 N.E.2d 1105; Caldwell v. State (1988), Ind., 527 N.E.2d 711; Williams v. State (1988), Ind., 525 N.E.2d 1238; Fozzard v. State (1988), Ind., 518 N.E.2d 789; Zavesky v. State (1987), Ind., 515 N.E.2d 530; Smith v. State (1987), Ind., 514 N.E.2d 1254; Jordan v. State (1987), Ind., 510 N.E.2d 655; Coble v. State (1986), Ind., 500 N.E.2d 1221; Steelman v. State (1985), Ind., 486 N.E.2d 523; Washington v. State (1982), Ind., 441 N.E.2d 1355; Morgan v. State (1982), Ind., 440 N.E.2d 1087; Graham v. State (1982), Ind., 435 N.E.2d 560; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Cooper v. State...