Reed v. State

• Citation: 866 N.E.2d 767
• Decision Date: 22 May 2007
• Docket Number: No. 49S04-0705-PC-209.,49S04-0705-PC-209.
• Parties: Adrian REED, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

866 N.E.2d 767

Adrian REED, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 49S04-0705-PC-209.

Supreme Court of Indiana.

May 22, 2007.

Susan K. Carpenter, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0601-PC-31

SHEPARD, Chief Justice.

Appellant Adrian Reed sought post-conviction relief, claiming as freestanding issues two contentions about his sentence. The Court of Appeals addressed both claims on the merits. Reed's lawyers and the court thus converted the post-conviction process into a "super appeal." We grant transfer.

Reed was convicted in 2002 of murder, possession of a firearm by a serious violent felon, and possession of a handgun without a license. The sentence was eighty-five years. On direct appeal, the Court of Appeals set aside the conviction for possession without a license, but otherwise affirmed. Reed v. State, No. 49A04-0205-CR-233, slip op., 787 N.E.2d 519 (Ind.Ct. App. April 17, 2003).

A year later, Reed petitioned for post-conviction relief, alleging that his sentence was improper and that his trial and appellate lawyers were ineffective. The court denied Reed's petition, and Reed appealed. Tracking Reed's brief, the Court of Appeals took up each of Reed's sentencing contentions. Reed v. State, 857 N.E.2d 19, 23-26 (Ind.Ct.App.2006), vacated. The propriety of a defendant's sentence, however, is not properly questioned through collateral proceedings. See, e.g., Collins v. State, 817 N.E.2d 230, 232-33 (Ind.2004); Allen v. State, 749 N.E.2d 1158, 1163 (Ind.2001). Only issues "not known at the time of the original trial" or issues "not available on direct appeal" may be properly raised through post-conviction proceedings. See Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000).

Thus, the only remaining issue properly considered through post-conviction proceedings is the effectiveness of Reed's counsel. Reed argued his trial counsel was ineffective because (1) counsel failed to object to an alleged improper aggravator, and (2) counsel failed to object to the imposition of consecutive sentences for Reed's serious violent felon convictions. (App. Pet. to Transfer at 9-11.) Reed argued his appellate counsel was ineffective because counsel failed to raise these arguments on direct appeal. (Id.) As the Court of Appeals properly concluded, these arguments fail. Reed, 857 N.E.2d at 26.

A successful claim for ineffective assistance of counsel must satisfy two components:

First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.

McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

When considering the first prong of the Strickland test, deficient performance, the question is not whether the attorney could—or even should—have done something more. Rather, the question is whether the attorney's performance amounted to a reasonably competent defense or did not. As a result, the inquiry must focus on what the attorney actually did, and "[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001). Moreover, because "[c]ounsel is afforded considerable discretion in choosing strategy and tactics, ... [a] strong presumption arises that counsel rendered adequate assistance." Id.

The post-conviction court was right to conclude that Reed has not overcome the strong presumption that his counsel provided adequate assistance. The two failures Reed sees in the work of his lawyers do not demonstrate unreasonable performance.

First, Reed says his trial and appellate lawyers failed him when they did not attack enhancement of his sentence on grounds that among the prior convictions the sentencing judge noted was the conviction that rendered him a serious violent felon.¹ Reed's criminal history is substantial, as the trial court's summary demonstrates:

I find as aggravating circumstances the criminal history, fourteen juvenile arrests, nineteen adult arrests. True findings include theft on February 23rd of '88, criminal trespass April 2nd of '90, burglary as a B Felony March 2nd of '90, escape as a C Felony July 30th of '90, and criminal trespass October 30th of '92, criminal mischief September 20th of '91. As an adult you've received convictions for carrying a handgun without a license on June 29th of '95, dealing cocaine as a Class B Felony May 9th of '96, and on that case your probation was revoked for violating terms...