Singleton v. State, No. 45A03-0712-PC-551.

Docket NºNo. 45A03-0712-PC-551.
Citation889 N.E.2d 35
Case DateJune 26, 2008
CourtCourt of Appeals of Indiana
889 N.E.2d 35
Donald SINGLETON, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 45A03-0712-PC-551.
Court of Appeals of Indiana.
June 26, 2008.

[889 N.E.2d 36]

Donald Singleton, Michigan City, IN, Pro Se Appellant.

Steve Carter, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.


Case Summary

Donald E. Singleton was charged with two counts of attempted murder for events that took place in October 1988. Eighteen months after Singleton's omnibus date, the State amended the charging information to include the charge that Singleton was a habitual offender. Singleton's trial counsel did not object to this amendment, and, after a jury trial, Singleton was convicted as charged. On direct appeal, Singleton's appellate counsel did not raise any issues pertaining to the propriety of the habitual offender charge, and we affirmed his convictions and sentence. Singleton later filed a petition for post-conviction relief, which was denied. On appeal of the denial of his petition for post-conviction relief, Singleton contends that his trial counsel was ineffective for failing to object to the State's late filing of the habitual offender count and that his appellate counsel was ineffective for failing to raise this issue on direct appeal. Concluding that trial counsel's performance was not deficient in failing to challenge the late amendment and that appellate counsel also did not perform deficiently in failing to raise this issue, we affirm.

Facts and Procedural History

The facts as reported in Singleton's direct appeal are as follows:

On October 7, 1988, Sheila Calmese lived with her then ten-year-old daughter, Telethia Jones, at 405 Progress Court in Gary. Around 5:30 p.m. that day, Calmese got a ride from Tracy Wilson to a liquor store so that Calmese could buy cigarettes. After Wilson drove Calmese home, the two were seated in Wilson's car in the parking lot in front of Calmese's residence when Singleton and Felicia Washington pulled up

889 N.E.2d 37

and also stopped in the parking lot. Singleton then got out of his car, began to beat on Wilson's car with a wooden bat, yelled that Calmese was a "bitch" and ordered her to exit the vehicle. Transcript at 41. Wilson exited his car and locked Calmese inside. Then, Jones came out from her and Calmese's residence and told Singleton to leave her mother alone. Singleton pushed Jones away, and Calmese told her to go back inside the house. Singleton then ran up to Jones and hit her in the head with the bat. After Jones had fallen to the ground and was not moving, he hit her a few more times.

As Singleton beat Jones, Calmese exited the car and approached Singleton. He then turned and beat Calmese with the bat. He struck her on the head and arms approximately fifteen times. At some point, Calmese told Washington that she would pay for bringing Singleton to her house. Singleton stated, "What did you say?" and then struck Calmese in the mouth with the bat.

When Singleton left, both Calmese and Jones were transported to the hospital by ambulance. Calmese suffered multiple scalp lacerations and lacerations to her lower lip and thumb. Jones suffered a brain contusion, a left shoulder contusion, a possible left frontal shoulder fracture, and multiple somatic contusions.

Singleton v. State, 45A03-0307-CR-250, slip op. at 2-3, 801 N.E.2d 212 (Ind.Ct. App. Dec. 17, 2003).

The State initially charged Singleton with two counts of attempted murder. Appellant's App. p. 54. At an initial hearing, the trial court set the omnibus date1 for January 26, 1989. Id. at 11. Several continuances were subsequently sought and granted for the omnibus hearing, resulting in the omnibus date eventually being reset for January 25, 1990. Id. at 9.2 On July 18, 1990, two things happened. First, the parties informed the court that they had not been able to reach an agreement regarding a proposed plea agreement. Id. at 8. Then, the State filed an additional charge, alleging that Singleton was a habitual offender for having committed two prior unrelated felonies.3 Id. at 55. Singleton's attorney did not object to this amendment of the charging information.4 The case proceeded to a jury trial,

889 N.E.2d 38

for which Singleton did not appear.5 Id. at 8. The jury found Singleton guilty as charged on all three counts. Id. He was sentenced to an aggregate term of seventy-four years.

Singleton appealed, making no argument regarding the amendment of the charging information, and we affirmed his convictions in an unpublished memorandum decision. Singleton, 45A03-0307-CR-250. Singleton later filed a pro se petition for post-conviction relief, alleging, among other things, that he was denied the effective assistance of trial counsel because his trial attorney did not object to the late filing of the habitual offender count and that he was denied the effective assistance of appellate counsel because his appellate attorney did not raise this issue on direct appeal. Appellant's App. p. 22. The Public Defender of Indiana filed a notice of non-representation, id. at 30-31, and Singleton proceeded to a hearing on his petition pro se. After a hearing, the post-conviction court denied the petition. Id. at 53. Singleton now appeals.

Discussion and Decision

Singleton appeals the denial of post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment, Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004), and we will not reverse the judgment unless the evidence unerringly and unmistakably leads to the opposite conclusion, Patton v. State, 810 N.E.2d 690, 697 (Ind.2004). We also note that the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). Such deference is not given to conclusions of law, which we review de novo. Taylor v. State, 882 N.E.2d 777, 781 (Ind.Ct.App.2008).

In post-conviction proceedings, claims that are known and available at the time of direct appeal, but are not argued, are waived. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), reh'g denied. They cannot be subsequently raised in the post-conviction setting. Reed v. State, 856 N.E.2d 1189, 1193-94 (Ind.2006). An exception to the waiver rule, however, is the argument that a defendant was deprived of the right to effective counsel as guaranteed by the Sixth Amendment to the United States Constitution. See Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002). This claim may be raised for the first time in a petition for post-conviction relief. Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998), reh'g denied. We therefore proceed to address Singleton's arguments regarding the performance of his trial and appellate counsel. We review the effectiveness of trial and appellate counsel under the two-part test provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind. 1997), reh'g denied. A claimant must demonstrate that counsel's performance fell below an objective level of reasonableness based upon prevailing professional norms and that the deficient performance resulted

889 N.E.2d 39

in prejudice. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. "Prejudice occurs when the defendant demonstrates that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

On appeal, Singleton makes two arguments pertaining to ineffective assistance of counsel. First, he argues that he was denied the effective assistance of trial counsel because his trial attorney failed to object to the late filing of the habitual offender count and, second, he argues that he was denied the effective assistance of appellate counsel because his appellate attorney did not raise this issue on direct appeal.

I. Trial Counsel

Singleton contends that he received ineffective assistance of trial counsel because his trial attorney did not object to the late filing of the habitual offender charge. In support of this allegation, Singleton argues that the statute in effect at the time of his trial "categorically prohibited `any...

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5 practice notes
  • Deckard v. State, No. 53A01–1405–PC–222.
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Febrero 2015
    ...cannot be based upon counsel's failure to argue legal reasoning of cases not yet decided at the time of appeal); Singleton v. State, 889 N.E.2d 35, 41 (Ind.Ct.App.2008) (holding that the relevant inquiry when determining whether an attorney rendered deficient performance is whether his or h......
  • Vazquez v. State, No. 79A02–1207–PC–545.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Septiembre 2013
    ...attorney that the untimeliness of an amendment would not necessarily render the amendment impermissible. See Singleton v. State, 889 N.E.2d 35, 41 (Ind.Ct.App.2008) (rejecting a claim of ineffectiveness of trial counsel premised upon counsel's failure to object to the amendment of an inform......
  • Shaw v. State, No. 02A03-0804-PC-202.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Diciembre 2008
    ...for failing to argue in 2003 that the court erred in allowing an amendment of substance after the omnibus date. Singleton v. State, 889 N.E.2d 35, 41-42 The post-conviction court found appellate counsel was not ineffective for failing to foresee future decisions. Four years after Shaw's app......
  • Rostochak v. State, No. 92A05-1112-CR-688
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Diciembre 2012
    ...date for the case until final disposition, unless specific statutory factors are met. Ind. Code § 35-36-8-1(d); Singleton v. State, 889 N.E.2d 35, 37 n. 2 (Ind. Ct. App. 2008). Here, the court held an initial hearing on November 9, 2009, and properly scheduled an omnibus date of January 25,......
  • Request a trial to view additional results
5 cases
  • Deckard v. State, No. 53A01–1405–PC–222.
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Febrero 2015
    ...cannot be based upon counsel's failure to argue legal reasoning of cases not yet decided at the time of appeal); Singleton v. State, 889 N.E.2d 35, 41 (Ind.Ct.App.2008) (holding that the relevant inquiry when determining whether an attorney rendered deficient performance is whether his or h......
  • Vazquez v. State, No. 79A02–1207–PC–545.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Septiembre 2013
    ...attorney that the untimeliness of an amendment would not necessarily render the amendment impermissible. See Singleton v. State, 889 N.E.2d 35, 41 (Ind.Ct.App.2008) (rejecting a claim of ineffectiveness of trial counsel premised upon counsel's failure to object to the amendment of an inform......
  • Shaw v. State, No. 02A03-0804-PC-202.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Diciembre 2008
    ...for failing to argue in 2003 that the court erred in allowing an amendment of substance after the omnibus date. Singleton v. State, 889 N.E.2d 35, 41-42 The post-conviction court found appellate counsel was not ineffective for failing to foresee future decisions. Four years after Shaw's app......
  • Rostochak v. State, No. 92A05-1112-CR-688
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Diciembre 2012
    ...date for the case until final disposition, unless specific statutory factors are met. Ind. Code § 35-36-8-1(d); Singleton v. State, 889 N.E.2d 35, 37 n. 2 (Ind. Ct. App. 2008). Here, the court held an initial hearing on November 9, 2009, and properly scheduled an omnibus date of January 25,......
  • Request a trial to view additional results

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