Sada v. State
| Decision Date | 17 February 1999 |
| Docket Number | No. 49A02-9802-PC-163,49A02-9802-PC-163 |
| Citation | 706 N.E.2d 192 |
| Parties | Jose SADA, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Jose Sada appeals the denial of his petition for post-conviction relief challenging his conviction of Dealing in Cocaine and Conspiracy to Deal in Cocaine and the resulting sentence of thirty years. We affirm.
Sada presents for our review the following restated issues:
1. Whether his constitutional rights were violated when the trial court limited his counsel's cross-examination of an accomplice;
2. Whether he was denied the effective assistance of trial counsel; and
3. Whether he was denied the effective assistance of appellate counsel in his direct appeal.
The facts, as set forth by our supreme court in Sada's direct appeal, are as follows:
On October 1, 1985, an Indianapolis police detective, pursuant to a warrant, searched the motel room of John Wheelington. Upon discovering assorted narcotics and paraphernalia, the detective arrested Wheelington. While in police custody, Wheelington described a pending drug transaction between himself and two Hispanic men who were returning from Florida with high-grade cocaine. In exchange for some cocaine for his personal use, Wheelington was to "cut" the cocaine and assist the two men in its sale. Wheelington stated that the delivery was to occur within a day or two. "Mexico Joe" and "Max" were to call Wheelington on his pager, whereupon he was to call them and give them his number so they could call again and arrange the meeting.
On October 2, at about 6:00 a.m. the detective and other officers took Wheelington to the motel room and waited for the phone call from the two men. At 9:00 p.m., "Mexico Joe" called Wheelington's pager. Returning the call, Wheelington gave "Mexico Joe" the motel room and phone numbers. "Mexico Joe" responded that he and "Max" would reach the room in about ten minutes. About ten or fifteen minutes later, the defendants, both Hispanic, and a woman arrived by car at the motel. When the three came to Wheelington's room, knocked and entered, they were placed under arrest while a police officer searched a grocery sack Enamorado had carried in. The police officer unwrapped a smaller brown bag within the sack and found a clear plastic bag with a white powder in it. A lab analysis revealed the white powder was cocaine, 272 grams at 92.9% purity. Witnesses for the State testified that the amount and purity of the cocaine indicated that it was to be "cut" or "stepped on" to form smaller, less potent units for sale. The arresting officers also found in each defendant's jacket a small bag of cocaine.
Enamorado v. State, 534 N.E.2d 740, 742 (Ind.1989). Additional facts relevant to this appeal will be supplied as necessary.
Sada was tried by a jury and convicted of Dealing in Cocaine and Conspiracy to Commit Dealing in Cocaine, both Class A felonies, and Violation of Indiana's Uniform Controlled Substances Act, a Class C felony. He was sentenced to thirty years imprisonment. On direct appeal, our supreme court affirmed Sada's convictions.
In 1990, Sada filed a pro se petition for post-conviction relief. The State Public Defender entered an appearance for Sada and filed an amended petition for post-conviction relief in 1997. The petition alleged that Sada was deprived of his right to confront and cross-examine a State's witness, was denied the effective assistance of trial and appellate counsel, and was subjected to double jeopardy by being convicted of both dealing in cocaine and possession of cocaine. After a hearing, the post-conviction court entered the following findings of fact and conclusions of law denying Sada's petition:
FINDINGS OF FACT
1. The petitioner was convicted of Dealing Cocaine, Conspiracy to Deal Cocaine and Violation of the Controlled Substances Act, and was sentenced to thirty (30) years imprisonment. He appealed.
2. The petitioner filed a petition for post-conviction relief, which was answered by the State of Indiana on March 12, 1991. The petition was amended on July 3, 1997.
3. On September 15, 1997 the Court conducted a hearing on the petition, at which it heard testimony from A. Luis Ortiz and the petitioner. Additionally, the Court received in evidence the Record of Proceedings from the petitioner's appeal, copies of the appellate briefs, an affidavit of Craig Turner and an affidavit of Maximo Enamorado. The Court also took Judicial Notice of its file and record in this cause. From the evidence considered, the Court finds:
A. At trial, the petitioner was represented by A. Luis Ortiz, an attorney of the petitioner's own choosing.
B. On appeal, the petitioner was represented by attorney Craig Turner.
1. Because the petitioner was convicted at trial and appealed, and because the State asserted defenses of res judicata and waiver, this Court cannot address any issue that was previously decided, or any issue that was available to the petitioner on appeal, but which was not raised therein. The Court concludes that of the issues presented in the instant petition, only one was not available to the petitioner on appeal, to-wit: the allegation that appellate counsel rendered ineffective assistance. The petitioner suggests that appellate counsel's alleged ineffectiveness caused the remaining issues to be waived. Thus, this Court must make a preliminary determination regarding appellate counsel's effectiveness; and only if that determination is made in the petitioner's favor can the Court address the merits of the otherwise-waived issues.
2. The petitioner was not denied the effective assistance of appellate counsel. The evidence indicates that counsel prepared and filed the Record of Proceedings, and that he researched, prepared and filed the appellate brief. The Court cannot presume that counsel was ineffective merely because the appeal was not successful. The evidence herein shows that counsel raised and argued those viable issues that had been properly preserved at trial or in the Motion to Correct Errors. This Court concludes that appellate counsel's performance herein was not deficient, thus precluding a determination of his ineffectiveness. Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Because the Court concludes that the petitioner was not denied the effective assistance of appellate counsel, the Court cannot address the remaining issues presented in the instant petition for post-conviction relief.
3. The petitioner argues that one issue deserves consideration because it involves "fundamental" error. Specifically, he argues that the conviction and sentence for both dealing cocaine (Count I) and possession of cocaine (Count III) violate the protection against double jeopardy. The Court notes that the sentences for the two offenses were ordered to be served concurrently. The Court further notes that these two convictions would not--in the future--meet the test for prior unrelated felony convictions. It would appear then, that the petitioner has suffered no prejudice as a result of the imposition of these convictions and sentences. It is difficult to comprehend how the imposition of these convictions and sentences--if error at all--could be deemed fundamental in nature. Further, it must be presumed that if error of fundamental dimension existed herein, such error would have been detected by the Supreme Court of Indiana in its review of this record. Nonetheless, the Court--by separate entry--will vacate the conviction and sentence for possession of cocaine. In all other respects, the petition for post-conviction relief shall be denied.
P-C.R. R. 68-70. 1 Sada now appeals.
The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind.Ct.App.1997), trans. denied. Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993). When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Montano v. State, 649 N.E.2d 1053, 1056 (Ind.Ct.App.1995), trans. denied. Thus, in general, if an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995), trans. denied. But see Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998) ().
The petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano, 649 N.E.2d at 1056. To prevail on appeal from the denial of a petition for post-conviction relief, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995). 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. Id. at 1120.
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