Ross v. State
| Decision Date | 11 December 2007 |
| Docket Number | No. 48A04-0611-PC-675.,48A04-0611-PC-675. |
| Citation | 877 N.E.2d 829 |
| Parties | William Wesley ROSS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
William Wesley Ross, Carlisle, IN, Appellant pro se.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
William Wesley Ross appeals the denial of his petition for post-conviction relief ("PCR petition"), which challenged his conviction for Class A felony voluntary manslaughter. We affirm.
Ross raises a number of issues in this appeal, most of which are either waived or not appropriate PCR arguments. The only issue we address in detail is whether Ross received ineffective assistance of trial counsel.
We previously described the facts of this case as follows:
Ross was a friend of Eddie White and Gordon Armour. The three men had an ongoing disagreement with another group of friends, which included Charlie Jordan, Tony McClendon, and Kenneth Buckley. The disagreement between the groups had, on a couple of occasions, resulted in fights at nightclubs. On one such occasion, Jordan and Buckley beat up White.
On March 23, 2001, Jordan, McClendon, Buckley, and others were at a cookout at the corner of 22nd Street and Arrow Avenue in Anderson, Indiana. At some point during the cookout, Ross, White, and Armour drove by the cookout and decided to stop. The three men exited their car, and White and Ross approached Jordan. An argument erupted between the two groups. Jordan and Ross began firing handguns at one another. Jordan attempted to run away, but Ross ran after him and continued shooting.
A shot fired by Jordan hit Ross in the chest. Ross drove himself to the hospital in White's car. Ross and Armour agreed to tell the police that Armour had flagged down a passerby to take them to the hospital. The police questioned Ross in the emergency room, and he claimed that he was the victim of a drive-by shooting. The next day, police again questioned Ross and he gave an audio-taped statement in which he denied being in a car at 22nd and Arrow, having a gun, or shooting anyone.
Jordan died from bullet wounds to the chest and the abdomen. An autopsy revealed that Jordan was shot from behind. Ballistics tests revealed that Jordan was shot with a gun that had Ross's fingerprints on it.
The State charged Ross with murder, a felony, carrying a handgun without a license, a Class A misdemeanor, and carrying a handgun without a license, a Class C felony. A jury found Ross guilty of voluntary manslaughter and carrying a handgun without a license, a Class A misdemeanor. At the sentencing hearing, Ross pled guilty to having a prior felony conviction, which enhanced his conviction of carrying a handgun without a license to a Class C felony. The trial court sentenced Ross to fifty years imprisonment for the voluntary manslaughter conviction and to eight years imprisonment for the handgun conviction, with the two terms to be served concurrently.
Ross v. State, No. 48A02-0201-CR-73, slip. op. pp. 2-3, 783 N.E.2d 806 (Ind.Ct.App., Jan. 29, 2003), trans. denied.
On direct appeal, Ross challenged only his voluntary manslaughter conviction. Appellate counsel asserted there was insufficient evidence to support the conviction. Also, counsel claimed that the taped statement to police Ross gave at the hospital should not have been admitted because he was under the influence of heavy medication at the time, rendering the statement involuntary. We rejected both claims and affirmed. On April 3, 2003, our supreme court denied Ross's petition to transfer.
On October 24, 2003, Ross filed a PCR petition, which subsequently was amended twice. The State Public Defender declined to represent Ross in this matter, and he proceeded (and continues to proceed) pro se. On October 19, 2006, the post-conviction court denied Ross's petition. He now appeals.
A PCR petitioner must establish grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ivy v. State, 861 N.E.2d 1242, 1244 (Ind.Ct.App.2007), trans. denied. When a post-conviction court denies relief, the petitioner appeals from a negative judgment and must demonstrate on appeal that the evidence unerringly and unmistakably leads to a conclusion opposite that reached by the court. Ivy, 861 N.E.2d at 1244. We may reverse the post-conviction court's decision only if the evidence is without conflict and leads to the conclusion opposite that reached by the court. Id.
Post-conviction proceedings are not intended to be a "super-appeal"; rather, they provide a narrow remedy for collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Kien v. State, 866 N.E.2d 377, 380-81 (Ind.Ct.App.2007), trans. denied. Specifically, "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). Claims of regular or fundamental trial error are not reviewable in a post-conviction proceeding. See id. Ross raises six issues on appeal that he frames as fundamental error or an abuse of trial court discretion. Per Sanders, we will not address those issues.
Ross does list as a separate argument that he received ineffective assistance of trial and appellate counsel, which are proper post-conviction issues. However, we find Ross's appellate counsel argument to be waived for lack of cogency. The entirety of his argument on this point is, "Appellate council [sic] failed to raise the substantive issues discussed in summary of arguments section constitutes effective assistance of council [sic]." Appellant's Br. p. 14. Although Ross is proceeding pro se and lacks legal training, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App. 2004), trans. denied. Ross's argument regarding appellate counsel fails to meet a minimum standard of cogency and we decline to address it further. See Ind. Appellate Rule 46(A)(8); Lyles v. State, 834 N.E.2d 1035, 1050 (Ind.Ct.App.2005), trans. denied ( that failure to develop cogent argument waives the issue for appellate review).
Ross's argument regarding his trial counsel also is very sparse. However, he at least identifies two issues he believes warrant a finding of ineffectiveness. We will address these ineffective assistance of counsel arguments. A claim of ineffective assistance of counsel requires the defendant to show by a preponderance of the evidence that (1) counsel's performance was below the objective standard of reasonableness based on prevailing professional norms and (2) the defendant was prejudiced by counsel's substandard performance, i.e. there is a reasonable probability that, but for counsel's errors or omissions, the outcome of the trial would have been different. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind.2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)). Counsel's performance is presumed effective. Id. "The purpose of an ineffective assistance of counsel claim is not to critique counsel's performance, and isolated omissions or errors and bad tactics do not necessarily mean that representation was ineffective." Grinstead v. State, 845 N.E.2d 1027, 1036 (Ind. 2006).
The first issue Ross raises is that trial counsel should have objected to the jury being given an instruction that it could find him guilty of Class A felony voluntary manslaughter as a lesser included offense of murder. Specifically, Ross seems to contend that the only proper voluntary manslaughter instruction that could have been given in this case was for Class B felony voluntary manslaughter. The base offense of voluntary manslaughter is a Class B felony, but it is a Class A felony if it is committed by means of a deadly weapon. See Ind.Code § 35-42-1-3(a). The charging information against Ross did not specify that he committed murder by means of a deadly weapon.
The State concedes that there is precedent to the effect that it is erroneous, even fundamentally erroneous, to give a jury instruction for a lesser-included offense, where the lesser-included offense contains an element not present or charged in the original, greater offense. See Correll v. State, 639 N.E.2d 677, 679-80 (Ind.Ct.App. 1994) (citing Yarbrough v. State, 497 N.E.2d 206, 208-09 (Ind.1986)). In Yarbrough, the defendant was charged with Class D felony battery resulting in bodily injury. At trial, defense counsel submitted an instruction stating that the jury could instead find the defendant guilty of criminal recklessness, including Class D felony criminal recklessness, which requires a finding of serious bodily injury. The trial court gave the instruction and the jury found the defendant guilty of Class D felony criminal recklessness. On appeal, our supreme court reversed and reduced the conviction to Class B misdemeanor criminal recklessness, despite the fact that defense counsel had tendered the instruction on Class D felony criminal recklessness. It held that because there was no allegation in the charging information that the defendant had caused serious bodily injury, it was fundamental error to convict him of Class D felony criminal recklessness. Yarbrough, 497 N.E.2d at 209.
In Correll, the defendant was charged with Class A felony kidnapping. At trial, defense counsel tendered and the trial court gave an instruction for the offense of criminal confinement. The instruction informed the jury that instead of Class A felony kidnapping, it could find the defendant guilty of either Class D felony or Class B felony criminal confinement. However,...
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