Reed v. State
| Decision Date | 20 November 2006 |
| Docket Number | No. 49A04-0601-PC-31.,49A04-0601-PC-31. |
| Citation | 857 N.E.2d 19 |
| Parties | Adrian REED, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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.
Adrian Reed appeals the denial of his petition for post-conviction relief (PCR), by which he challenged the sentence imposed upon his conviction of murder, possession of a firearm by serious violent felon (SVF), a class B felony, and carrying a handgun without a license, a class C felony. Reed presents the following restated issues for review:
1. Did the post-conviction court err in denying Reed's claim that his sentence was improper?
2. Did Reed receive ineffective assistance of trial and appellate counsel?
We affirm.
On May 8, 2002, Reed was convicted of murder, possession of a firearm by a serious violent felon, and possession of a handgun without a license. Those convictions were affirmed by this court on direct appeal in a memorandum decision. The facts underlying the convictions were set out therein as follows:
Around noon on June 24, 2000, Reed and Charles Lambert stopped by Douglas Hart's house in Indianapolis to inquire whether Hart had a scale for weighing drugs. Hart did not have a scale and Reed and Lambert left Hart's house. Later that afternoon, while Hart was sitting on his porch, he saw Reed and Lambert drive by in Lambert's van. Hart then saw the van go down a nearby alley. Twenty to thirty minutes later, Hart heard gunshots and then saw Reed run through a neighbor's yard and across the street.
From inside her house, Lambert's mother, Elizabeth Lambert, heard gunshots and then heard Lambert yelling for her. Lambert's mother ran outside to the alley where Lambert was lying on the ground near his van. Lambert had been shot multiple times in his abdomen and chest. Lambert's mother asked Lambert who shot him, and he replied that Little Doug would know. Hart is also known as Little Doug.
Approximately a half-hour after Lambert was shot, Detective Marcus Kennedy spoke with Lambert in the hospital emergency room. Doctors and nurses were treating Lambert, but during a lull in the action, Detective Kennedy was able to speak with Lambert as Lambert was about to be taken into surgery. Lambert was bleeding and moaning off and on, but was alert and able to answer Detective Kennedy's questions.
Lambert told Detective Kennedy that someone to whom he had given a ride pulled out a gun in an attempt to rob Lambert and then shot him. When asked if he knew who shot him, Lambert replied that he did not know the person's name, but that Little Doug knew. Lambert also gave Detective Kennedy a description of the person who shot him. He told Detective Kennedy that either the shooter or Little Doug drove or hung around a burgundy Monte Carlo in the area.
Later that night Lambert died as a result of the gunshot wounds. Also later that night, Reed told Hart that Reed had pulled out a gun to try to rob Lambert and when Lambert grabbed for the gun, Reed started shooting Lambert. Subsequently, Reed told Karmen Parrish that he had killed someone.
On May 30, 2001, Reed was charged with murder, unlawful possession of a firearm by a serious violent felon, and carrying a handgun without a license as a Class A misdemeanor. In a separate information as part II of the carrying a handgun without a license offense, Reed was charged with the offense as a Class C felony because he had been convicted of a felony within the fifteen years preceding the date of the present offense.
Reed's brother, Jonal Reed ("Jonal"), was charged with assisting a criminal, a Class C felony, for concealing and carrying away the handgun used in the commission of the murder. He was also charged with carrying a handgun without a license, a Class A misdemeanor. Reed's charges of murder and carrying a handgun without a license as a Class A misdemeanor and Jonal's charges of assisting a criminal and carrying a handgun without a license as a Class A misdemeanor were tried together in front of a jury.
At trial, Parrish testified that soon after the shooting, Reed offered to give Parrish his burgundy Monte Carlo if Parrish would say that he had purchased the car from Reed a month previously. Additionally, Parrish testified that either Reed or Jonal told Parrish that a detective would be contacting Parrish about the car. When questioned, Parrish told the detective that he had purchased the car a month before with a two hundred dollar down payment and that he still owed four hundred dollars.
The jury found Reed guilty of murder and carrying a handgun without a license as a Class A misdemeanor. Part II of the carrying a handgun without a license charge and the possession of a firearm by a serious violent felon charge were tried by the court after Reed waived his right to a jury trial on those charges. Based upon Reed's stipulation that he had previously been convicted of dealing in cocaine, a Class B felony, the trial court found Reed guilty of possession of a firearm by a serious violent felon and enhanced the carrying a handgun without a license conviction to a Class C felony. Reed was sentenced to an aggregate term of eighty-five years.
Reed v. State, No. 49A04-0205-CR-233, 787 N.E.2d 519 (Ind. Ct.App., 2003) slip op. at 2-5 (footnotes omitted).
On April 15, 2004, Reed, pro se, filed a PCR petition. An attorney for the State Public Defender's Office filed an appearance on Reed's behalf and assumed representation in Reed's PCR action. On December 15, 2005, following a hearing, the court denied Reed's PCR petition. This appeal ensued.
We note at the outset that this is a post-conviction proceeding. Our Supreme Court has observed that the completion of the direct appeal process largely closes the door to a criminal defendant's claims of error in conviction or sentencing. See Allen v. State, 749 N.E.2d 1158 (Ind. 2001), cert. denied, 535 U.S. 1061, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002). Post-conviction procedures, however, permit defendants to present a narrow set of claims. See Ind. Post-Conviction Rule 1(1). "The scope of the relief provided for in these procedures is limited to `issues that were not known at the time of the original trial or that were not available on direct appeal.'" Allen v. State, 749 N.E.2d at 1164 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000), cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002)). Issues that were available but not presented upon direct appeal are waived, and issues that were litigated adversely to the defendant are res judicata. Allen v. State, 749 N.E.2d 1158.
Our standard of review when evaluating claims of ineffective assistance of counsel is well settled. To prevail, a defendant must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must first show that counsel's performance was deficient. Id. To establish this element, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness and that the errors were so serious they resulted in a denial of the Sixth Amendment right to counsel. Id. Second, the petitioner must demonstrate that the deficient performance prejudiced the defense. Id. Prejudice may be established by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Finally, our supreme court has held, in "post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal." Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). Thus, freestanding claims of error that were available at the time but not raised upon direct appeal are waived for purposes of post-conviction relief. Sanders v. State, 765 N.E.2d 591.
Reed contends the PCR court erred in denying his claim that his sentence was improper. Specifically, he contends the trial court erred in two respects in enhancing his sentence. We note that both contentions were available at the time of Reed's direct appeal but were not presented therein. Thus, they are waived. Id. Even were they not waived, they do not warrant reversal on the merits.
Reed's first contention with respect to sentencing is that the court improperly based the enhancement, at least in part, upon a prior conviction that was also used to qualify Reed as a serious violent felon with respect to the SVF conviction. According to Reed, this violated his "rights to due process, due course of law, equal protection and privileges, the prohibition against double jeopardy and cruel and unusual punishment secured by Article One, Sections Twelve, Fourteen, Eighteen and Twenty-Three of the Indiana Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution." Appellant's Appendix at 1.
In support of this argument, Reed cites Hatchett v. State, 740 N.E.2d 920 (Ind.Ct.App.2000), trans. denied. Hatchett does indeed stand for the proposition that the predicate felony supporting an SVF conviction may not also be used as part of the criminal history cited to justify an enhanced sentence for that same offense. Hatchett also teaches, however, that the improper use of that predicate offense does not automatically render the original sentence unsustainable. In that case, the trial court imposed an enhanced sentence for Hatchett's SVF conviction. The court cited Hatchett's extensive...
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Reed v. State
...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......