Reed v. State

• Decision Date: 15 November 2006
• Docket Number: No. 49S04-0506-PC-293.,49S04-0506-PC-293.
• Citation: 856 N.E.2d 1189
• Parties: Gerald REED, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 1189

856 N.E.2d 1189

Gerald REED, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 49S04-0506-PC-293.

Supreme Court of Indiana.

November 15, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Susan K. Carpenter, Public Defender of Indiana, Cassandra J. Wright, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0408-PC-444.

RUCKER, Justice.

Case Summary

The question we address is whether the failure to raise on appeal the aggregate length of a defendant's consecutive sentences for two counts of attempted murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude it does.

Facts and Procedural History

In November 1995 then twenty-four-year-old Gerald Reed was charged with two counts of attempted murder for firing a weapon at police officers during a car chase. He was also charged with carrying a handgun without a license. The essential facts are these. In the early evening hours of November 1, 1995 Indianapolis police officer Marlene Neitzel was investigating a domestic disturbance on the northeast side of the city. Officers Michael Roach and William Beachum arrived on the scene to serve as back up. Reed appeared in the area and attempted to drive his car between Officer Neitzel's and Officer Roach's parked police cruisers. His car got stuck. An accident officer called to investigate this rather minor matter instructed Reed to back his car out of the jam. He did so, but then fled the area with several marked squad cars in pursuit. After about two minutes, Reed stopped his car, opened the car door, and fired a single gunshot at Officers Roach and Beachum who were in close proximity to each other. He then closed the door and began driving away. A few seconds later, Reed slowed down and fired two additional shots in the direction of Officer Beachum. Ultimately the pursuing officers disabled Reed's car with "stop sticks" and Reed was apprehended. The entire pursuit lasted about ten minutes, and none of the officers was injured.

On November 2, 1995, the State charged Reed with the attempted murder of Officer Roach and carrying a handgun without a license as a Class A misdemeanor. The handgun charge was enhanced to a Class D felony because Reed had acquired a prior felony conviction. At Officer Beachum's request, the State filed an amended information on January 16, 1996 adding a charge of attempted murder of Officer Beachum. Reed waived his right to trial by jury and, after a bench trial, was convicted as charged. The trial court sentenced Reed to consecutive forty-year terms for the two attempted murder convictions and four years for the handgun conviction, to be served concurrently, for a total executed term of eighty years. He appealed. In an unpublished memorandum decision the Court of Appeals affirmed the trial court's judgment. Reed v. State, No. 49A05-9610-CR-438, 688 N.E.2d 436 (Ind.Ct.App. Dec. 22, 1997), trans. denied.

On September 14, 2000 Reed filed a pro se petition for post-conviction relief that was amended by counsel on February 23, 2004. The petition alleged the trial court erred in imposing consecutive sentences because they exceeded the limitation for a single episode of criminal conduct under Indiana Code section 35-50-1-2(c) (1995 Supp.). The petition also alleged that both trial and appellate counsel rendered ineffective assistance for failing to raise this issue at trial or on appeal respectively. Entering findings of fact and conclusions of law, the post-conviction court denied Reed relief and rejected his claims on the following grounds: (1) sentencing errors cannot be raised as freestanding claims — Reed thus waived this claim for review; (2) that even if waiver does not apply, the issue of consecutive sentencing was raised on direct appeal and decided against Reed and therefore is now res judicata; (3) trial counsel did not render ineffective assistance because counsel is not required to object to the trial court's sentencing determination in order to preserve the issue for review; and (4) appellate counsel did not render ineffective assistance because Reed did not demonstrate that counsel failed to present a significant and obvious issue for review. The post-conviction court also concluded that the two attempted murders were not a part of a single episode of criminal conduct. On review the Court of Appeals affirmed the judgment of the post-conviction court. Reed v. State, 825 N.E.2d 911 (Ind.Ct.App.2005). In so doing the court agreed that Reed waived his freestanding sentencing claim and did not receive ineffective assistance of trial or appellate counsel. Because of its holding concerning waiver, the Court of Appeals did not address the post-conviction court's res judicata determination. Having previously granted transfer, we now reverse the judgment of the post-conviction court.

Discussion

I.

In his petition to transfer, Reed focuses upon whether his actions in firing at two police officers constituted a single episode of criminal conduct. Reed does not address the Court of Appeals' determination that there was no ineffective assistance of trial or appellate counsel. And he devotes only one paragraph on the last page of his brief to complain that he did not waive his freestanding claim of sentencing error.

We agree that Reed may not raise a freestanding claim of sentencing error. The law in this jurisdiction is settled that sentencing issues which are known or available at the time of direct appeal but are not raised are waived for post-conviction review. Collins v. State, 817 N.E.2d 230, 232 (Ind.2004); Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). We also agree that trial counsel did not render ineffective assistance for failing to object to the trial court's imposition of consecutive sentences based upon Indiana Code section 35-50-1-2(c) (1995 Supp.). Counsel need not object to preserve a sentencing error for review. See Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.2005) (observing that "this Court and the Court of Appeals review many claims of sentencing error . . . without insisting that the claim first be presented to the trial judge"). On these two points we summarily affirm the Court of Appeals' opinion. However, we disagree with the Court of Appeals on the question of whether appellate counsel rendered ineffective assistance. We will address this issue in more detail momentarily. Before doing so, however, we must explore whether Reed is foreclosed by the doctrine of res judicata from advancing his sentencing error claim, even through the lens of ineffective assistance of counsel.

The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006); Grey v. State, 553 N.E.2d 1196, 1197 (Ind.1990). A post-conviction petition is not a substitute for an appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). Further, post-conviction proceedings do not afford a petitioner a "super-appeal." Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). Our post-conviction rules contemplate a narrow remedy for subsequent collateral challenges to convictions. Williams v. State, 706 N.E.2d 149, 153 (Ind.1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). If an issue was known and available but not raised on appeal, it is waived. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). If an issue was raised on direct appeal, but decided adversely to the petitioner, it is res judicata. Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999), cert. denied, 531 U.S. 858, 121 S.Ct. 143, 148 L.Ed.2d 94 (2000).

The doctrine of res judicata bars a later suit when an earlier suit resulted in a final judgment on the merits, was based on proper jurisdiction, and involved the same cause of action and the same parties as the later suit. Annes v. State, 789 N.E.2d 953, 954 (Ind.2003). As a general rule, when a reviewing court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind.1998). And, a petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. State v. Holmes, 728 N.E.2d 164, 168 (Ind.2000). "[W]here an issue, although differently designated, was previously considered and determined upon a criminal defendant's direct appeal, the State may defend against defendant's post-conviction relief petition on grounds of prior adjudication or res judicata." Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind.1984) (emphasis in original).

On direct appeal counsel for Reed phrased the sentencing claim as follows: "Whether the trial court failed to adequately articulate the reasons for enhancing Mr. Reed's sentences as well as running them consecutively." Pet. Exh. 2 at 1. In addressing this issue the Court of Appeals examined the trial court's sentencing statement and relevant case authority identifying the factors that a court may consider when enhancing a sentence or ordering consecutive sentences. The court determined, "Although here the trial court's sentencing explanation is not ideal, it does meet the minimum requirements necessary to be adequate. The record indicates that the trial court engaged in an evaluative process. The trial court identified the aggravating and mitigating factors."...