Roche v. State

Decision Date30 December 1997
Docket NumberNo. 45S00-9305-PD-588,45S00-9305-PD-588
PartiesCharles E. ROCHE, Jr., Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Kenneth L. Bird, Marie F. Donnelly, John S. Sommer, Deputy Public Defenders, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Petitioner Charles E. Roche, Jr., appeals the denial of post-conviction relief with respect to his convictions for Murder 1 and his sentence of death. 2 We earlier affirmed Roche's direct appeal of these convictions and sentence. Roche v. State, 596 N.E.2d 896 (Ind.1992). We now affirm the denial of post-conviction relief.


Our earlier opinion contains a description of the crimes of which Roche was convicted. Id. In brief, Roche and co-defendant Edward John Niksich were tried and convicted of the murder, Felony Murder and Robbery of Ernest Graves and Daniel Brown in the basement of Roche's home. Roche's father was also a participant in the crimes. Id. at 897. Roche and Niksich had lured the victims to the basement by a "phony drug deal" after Roche had concluded that Graves had stolen $120 worth of food stamps from a companion of Niksich. Id. Roche took the stand at trial and asserted a defense of self-defense. Id. at 898. Following conviction, the jury recommended that Niksich not be sentenced to death. Id. at 897. The jury was unable to reach a recommendation on whether Roche should be sentenced to death. Id. The trial court sentenced Niksich to a term of years, id. at 899, and sentenced Roche to death, id. at 897.

Although not recited in our opinion on direct appeal, there was evidence at trial that the defendants had transported the victims' bodies to a remote location and that certain evidence of the crime was destroyed. (T.R. at 229; 2234.) 3 Roche's father was convicted of the same murders in a separate proceeding and sentenced to a term of years. Br. of Pet'r-Appellant at 8.

Following the conclusion of the post-conviction proceeding that is the subject of this appeal, this Court received a series of communications from Roche pro se seeking to waive his right to this appeal. His post-conviction counsel opposed these requests, arguing that Roche was not mentally competent to make these requests. We remanded the matter to the post-conviction court for the limited purpose of conducting a competency hearing. The post-conviction court complied and found Roche to be competent and otherwise capable of making such a request. At approximately the same time, Roche was convicted of another offense in LaPorte Superior Court arising from an unsuccessful prison escape attempt. After appealing that conviction to the Court of Appeals, Roche filed a similar pro se request to waive his right to appeal. As we had done in this post-conviction case, the Court of Appeals remanded for the purpose of a competency hearing. The LaPorte court, unlike the post-conviction court, did not find Roche competent to waive his right to appeal. 4 Under these circumstances, we elect to address Roche's appeal from the denial of post-conviction relief on the merits.


A person convicted of, or sentenced for, a crime by a court of this state has a constitutional right to appeal that conviction or sentence directly to either this Court or the Indiana Court of Appeals. Ind. Const. art. VII, §§ 5 & 6. As noted, Roche exercised his right to a direct appeal and his convictions and sentence were both affirmed. Roche, 596 N.E.2d at 896. After a convicted or sentenced person's appeal, Indiana law permits such a person to seek "post-conviction relief" through a special, quasi-civil action in certain circumstances and under certain conditions. Ind.Post-Conviction Rule 1(1); see Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) (the post-conviction remedy is not a substitute for an appeal), cert. denied 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995); Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993) (post-conviction procedures do not provide a "super appeal").

To the extent that a person seeking post-conviction relief (usually referred to as the "petitioner") has been denied post-conviction relief by the post-conviction court, the petitioner appeals from a negative judgment. 5 This is Roche's situation here. When an appeal is from a negative judgment, the petitioner must convince the appeals court that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995) (citing Williams v. State, 508 N.E.2d 1264, 1265 (Ind.1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983)). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994)).


Roche presented the post-conviction court with an extensive list of alleged errors committed by his trial counsel the effect of which he claims deprived him of his constitutional right to the effective assistance of counsel. U.S. Const. amend. VI; Ind. Const. art. I, § 13. This constitutional right, which requires the effective assistance of both trial and appellate counsel, has been firmly recognized by the United States Supreme Court and this Court. United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2043-44, 80 L.Ed.2d 657 (1984); King v. State, 467 N.E.2d 726, 728-29 (Ind.1984). The post-conviction court refused to consider these claims on grounds that they were waived for failure to have been presented on direct appeal. In reaching that conclusion, the post-conviction court cited our general rule that issues not raised on direct appeal are not available for collateral review. In this appeal, Roche argues that if we find the claims of ineffective assistance of trial counsel waived, we should address them as issues of ineffective assistance of appellate counsel. Without expressing any opinion as to whether the claims were in fact waived, we elect to address these claims on this basis in this case.

We analyze claims of both ineffective assistance of trial counsel and ineffective assistance of appellate counsel according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Lowery, 640 N.E.2d at 1048 (standard of review for a claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel). First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. at 1041 (citing Turner v. State, 580 N.E.2d 665, 668 (Ind.1991)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. Lowery, 640 N.E.2d at 1048. We will find prejudice when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Id. (citing Best v. State, 566 N.E.2d 1027 (Ind.1991)).

A petitioner claiming ineffective assistance of appellate counsel or ineffective assistance of trial counsel must show both deficient performance and resulting prejudice. The failure to establish either prong will cause the claim to fail. And where the claim is that appellate counsel was ineffective for failing to claim on direct appeal the ineffective assistance of trial counsel, the petitioner must establish both deficient performance and resulting prejudice on the part of both trial counsel and appellate counsel. Conversely, the failure to establish either prong with respect to either trial or appellate counsel will cause the entire claim to fail.

Roche contends that he was denied the effective assistance of appellate counsel because appellate counsel failed to raise on direct appeal claims that Roche was denied the effective assistance of trial counsel when trial counsel (a) during pre-trial proceedings (1) failed to obtain the severance of Roche's trial from that of co-defendant Niksich; (2) failed to secure co-counsel; and (3) failed to attend certain pre-trial hearings; (b) permitted Roche to be tried while wearing ankle restraints; (c) failed to object to jury instructions on (1) robbery and (2) self-defense; (d) during the guilt phase (1) failed to make an opening statement; (2) permitted Roche to testify in support of a defense of self-defense; and (3) did not investigate Roche's use of alcohol immediately prior to the crimes; (e) during the penalty phase failed to establish mitigating evidence with respect to Roche's (1) childhood; (2) father's influence at the time of the crimes; (3) relative culpability to that of his co-defendants; and (4) mental health; (f) failed to object to certain penalty-phase instructions; (g) permitted the trial court to dismiss the jury without making a recommendation as to Roche's sentence; and (h) rendered deficient performance during the judicial sentencing. 6

Because the post-conviction court found claims of ineffective assistance of trial counsel waived, it did not address many of the specific items listed in the preceding paragraph. However, the post-conviction court did make certain findings from which it concluded that Roche was not denied the effective assistance of appellate counsel. Our review of the record indicates that there was evidence to support the post-conviction court's...

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