Shepherd v. State Of Ind.
Decision Date | 24 June 2010 |
Docket Number | No. 70A01-0908-PC-388.,70A01-0908-PC-388. |
Citation | 924 N.E.2d 1274 |
Parties | Michael SHEPHERD, Appellant-Petitioner,v.STATE of Indiana, Appellee-Respondent. |
Court | Indiana Appellate Court |
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Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Shepherd appeals the denial of his petition for post-conviction relief (“PCR”). We affirm in part, reverse in part, and remand with instructions to vacate Shepherd's conviction for possession of cocaine.
We address the following three issues:
The facts as reported in this Court's memorandum decision on direct appeal are as follows:
Shepherd v. State, No. 70A01-0504-CR-166, slip op. at 2-3, 842 N.E.2d 896 (Ind.Ct.App. Jan.20, 2006) (citations and footnote omitted) trans. denied.
The State charged Shepherd with class A felony dealing in cocaine within 1000 feet of a public park 1 and class B felony possession of cocaine within 1000 feet of a public park 2 and separately alleged that he was a habitual offender based on the following two prior felony convictions: a 1977 Louisiana conviction for attempted armed robbery and a 1997 Louisiana conviction for possession of cocaine. A jury found Shepherd guilty as charged, and the trial court sentenced him to concurrent terms of forty years for dealing in cocaine and fifteen years for possession of cocaine, with a thirty-year habitual offender enhancement. Id., slip op. at 3.
In his direct appeal, Shepherd presented three arguments: (1) his class A felony conviction must be reduced to a class B felony conviction and his class B felony conviction must be reduced to a class D felony conviction because, pursuant to Indiana Code Section 35-48-4-16 (), his proximity to the park was brief and no one under eighteen was in the area and he was in the proximity of the park at the request of a law enforcement officer; (2) the State failed to prove that he was the person convicted of the prior felonies supporting the habitual offender allegation; and (3) his prior Louisiana conviction for possession of cocaine was improperly relied upon as a prior unrelated felony conviction for purposes of the habitual offender statute. This Court concluded that Shepherd waived the first issue because it had not been raised at trial; the evidence was sufficient to connect Shepherd to the two prior unrelated felony convictions; and his Louisiana conviction was properly relied upon as a prior unrelated felony conviction. Id., slip op. at 10.
Shepherd then filed a petition for PCR, asserting that he received ineffective assistance of trial and appellate counsel. Specifically, Shepherd contended that his trial counsel was ineffective in that he (1) failed to argue that Shepherd was within 1000 feet of a park at the request of a law enforcement officer and failed to tender an instruction on the relevant statute; (2) failed, due to a conflict of interest, to cross-examine Bobbie Smiley, Mary Jane's daughter, about a recently dismissed criminal charge and pending criminal charges on which trial counsel also represented her just before and during Shepherd's trial; and (3) failed to argue at sentencing that Shepherd's habitual offender enhancement should attach to the class B felony rather than the class A felony conviction. Appellant's App. at 24-25. Shepherd argued that his appellate counsel was ineffective in that he failed to argue that (1) the trial court erred in ordering his habitual offender enhancement to be served consecutive to the sentence for his class A felony conviction without specific reference as to which sentence was being enhanced; and (2) Shepherd's sentence was inappropriate.
Following a hearing, the post-conviction court issued findings of fact and conclusions of law, granting Shepherd's petition in part. The post-conviction court found that Shepherd's trial counsel provided ineffective assistance by failing to assert that Shepherd was within 1000 feet of a park at the suggestion of a law enforcement officer. Therefore, the post-conviction court reduced Shepherd's class A felony conviction to a class B felony and his class B felony conviction to a class D felony and remanded for resentencing. 3 The post-conviction court otherwise denied Shepherd's petition in relevant part as follows:
CONCLUSIONS OF LAW
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Appellant's Br. at 34-38. Shepherd appeals.
We observe that post-conviction proceedings do not grant a...
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