Rowley v. State
| Decision Date | 20 April 2015 |
| Docket Number | No. 49A05–1408–PC–413.,49A05–1408–PC–413. |
| Citation | 32 N.E.3d 281 (Table) |
| Parties | Joel ROWLEY, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Joel Rowley, Michigan City, IN, Appellant Pro Se.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
SHARPNACK
, Senior Judge.
[1] Joel Rowley appeals from a negative judgment entered when the postconviction court denied his petition for post-conviction relief. A jury convict Rowley of murder and Rowley pleaded guilty to the habitual offender enhancement. He argues that he received ineffective assistance of trial counsel and direct appeal counsel. We affirm.
[2] Rowley presents several issues for our review, which we restate as the following broader issues, addressed with more specificity below:
[3] The facts supporting Rowley's conviction for murder were set forth in our memorandum decision on direct appeal. See Rowley v. State, 49A04–1102–CR34, 952 N.E.2d 889 (Ind.Ct.App. August 26, 2011)
, trans. denied. Those facts are as follows:
In the early morning hours of March 5, 2010, Rowley and some of his acquaintances were involved in a bar fight in Indianapolis. Rowley left the altercation and went to his van, but instead of entering his van he went back into the fray and shot Leon Pepper in the back. Rowley then walked back to his van and drove away. Pepper died before emergency personnel could arrive.
[4] At trial, Rowley tendered a self defense instruction as noted in our opinion on his direct appeal.
[5] On direct appeal, Rowley challenged the adequacy of the self defense instruction. Id. We affirmed Rowley's conviction after concluding that the error, if any, was invited error because Rowley's counsel had tendered the challenged instruction. Id.
[6] Rowley filed a petition for post-conviction relief raising claims of ineffective assistance of trial counsel. With respect to trial counsel, Rowley alleged that his counsel was ineffective for failing to include in the self defense instruction “standpoint of the defendant” language and for failing to incorporate that in the closing argument at trial. He also alleged trial counsel was ineffective for failing to interview a witness, Officer Derrick Hannon, and failing to call him as a witness as trial. He also claimed that trial counsel was ineffective for failing to advise him or his friends to surrender the gun used in the shooting to the police department or the prosecutor's office.
[7] With respect to appellate counsel, Rowley alleged ineffective assistance for failing to include a challenge to the trial court's ruling precluding Rowley from presenting testimony about the victim's reputation for carrying a gun.
[8] Evidentiary hearings were held on May 22, 2013, October 23, 2013, and November 6, 2013. The post-conviction court issued an order including findings of fact and conclusions of law ultimately denying Rowley's petition for post-conviction relief on July 10, 2014. Rowley now appeals.
[9] “The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.” Campbell v. State, 19 N.E.3d 271, 273–74 (Ind.2014)
. “When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. at 274. “To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Id. “Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6).” Id. “Although we do not defer to the post-conviction court's legal conclusions, ‘[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” ’ Id. (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (internal quotation omitted)).
[10] Rowley raises issues involving the assistance of both trial and appellate counsel. “The standard of review for claims of ineffective assistance of appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind.2014)
. “When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) .” Id. “To satisfy the first prong, ‘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.' “ Id. (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) (citing Strickland, 466 U.S. at 687–88 )). “To satisfy the second prong, ‘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.” ’ Id. (quoting McCary, 761 N.E.2d at 392 (citing Strickland, 466 U .S. at 694 )). If our review can dispose of an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.2009). “There is a strong presumption that counsel rendered adequate service.” Bethea v. State, 983 N.E.2d 1134, 1139 (Ind.2013).
[11] Rowley claims that the post-conviction court failed to address an issue raised by Rowley in his petition for post-conviction relief. He alleged ineffective assistance of trial counsel for failing to interview Officer Derrick Hannon and for failing to call Officer Hannon as a witness at trial.
[12] Indiana Post–Conviction Rule 1(6)
explicitly requires that post-conviction courts make “specific findings of fact and conclusions of law on all issues presented....” Where the post-conviction court fails to enter findings of fact and conclusions of law on an issue presented in a petition for post-conviction relief, remand for the entry of findings and conclusions on that issue is appropriate. Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind.1999). This is so, because “[t]he principal purpose of findings of fact ‘is to have the record show the basis of the trial court's decision so that on review the appellate court may more readily understand the former's view of the controversy.’ “ Id. (quoting Love v. State, 257 Ind. 57, 59, 272 N.E.2d 456, 272 N.E. ?.2d 456, 458 (1971) (quoting 3 William F. Harvey, Indiana Practice 426 (1970))). “Findings of fact must be ‘sufficient to enable this Court to dispose of the issues upon appeal.’ “ Id. (quoting Taylor v. State, 472 N.E.2d 891, 892 (Ind.1985) ).
[13] Here, the post-conviction court failed to address the issue in its order. Rowley correctly notes this error in his statement of the issues, but fails to present any argument on the topic in his brief. “Failure to present a cogent argument for such an issue operates as a waiver of that issue on appeal.” Bieghler v. State, 481 N.E.2d 78, 89 (Ind.1985)
. “Errors alleged by defendant but not presented and argued in the argument section of [the] defendant's brief are waived.” Guardiola v. State, 268 Ind. 404, 406, 375 N.E.2d 1105, 1107 (1978). Bieghler, 481 N.E.2d at 89.
[14] “Nevertheless, an appellate court may affirm a trial court's judgment on any theory supported by the evidence.” Dowde...
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