Smith v. State

Citation655 N.E.2d 532
Decision Date31 August 1995
Docket NumberNo. 49A02-9407-PC-426,49A02-9407-PC-426
PartiesCarol J. SMITH, Appellant (Petitioner), v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court
OPINION

SULLIVAN, Judge.

Carol J. Smith (Smith) appeals the denial of her petition for post-conviction relief following convictions for conspiracy to commit murder, 1 a class A felony, and murder. 2

We affirm the trial court's determinations, and conclude that the post-conviction court did not err in refusing to grant Smith's petition.

Smith presents three issues for our review, which we restate as follows:

(1) whether the trial court improperly sentenced her;

(2) whether she was denied effective trial and appellate counsel;

(3) whether her convictions for murder and conspiracy to commit murder violate federal and state constitutional double jeopardy provisions.

A jury convicted Smith of murder and conspiracy to commit murder, and the trial court sentenced her to forty years upon each count to be served consecutively. Our Supreme Court affirmed both convictions on direct appeal, Smith v. State (1983) Ind., 455 N.E.2d 346, 3 setting forth the following facts most favorable to the verdict:

"[D]uring February of 1980, [Smith] made plans to kill the man she was living with, James Furnish [ (Furnish) ]. She discussed these plans with her daughter's boyfriend, Willie Keown [ (Keown) ]. She told Keown that she wanted to kill Furnish because he was beating up on her and one daughter, Candy, and that he had threatened to kill her. She also told Keown that Furnish had raped her other daughter, Dove Annette Smith [ (Dove Annette) ], whom Keown was dating at that time. [Smith] promised Keown a place to live, a car, and some of the insurance money if he helped her kill Furnish.

On February 24, 1980, there was an argument between [Smith] and Furnish. Furnish threatened to kill [Smith] and her daughters, and the police were eventually called. After this, [Smith] and her daughters temporarily moved out of Furnish's house. There were further discussions between [Smith] and Keown about the planned murder, and [Smith] gave Keown some money to purchase a gun. Keown bought a rifle from a friend and, eventually, the night of March 14, 1980, was chosen to commit the crime.

On that night, [Smith] led Keown to the bar where Furnish was employed. She told Keown to wait outside until she came out with Furnish for she would keep Furnish in the bar until after it was closed and everyone else was gone. This plan was carried out as Keown shot Furnish when he and [Smith] later came out of the bar. Furnish died from the single gunshot wound. [Smith] helped Keown obtain a job after the shooting. Other evidence showed that [Smith] had attempted to procure aid in killing Furnish on two prior occasions and that she had obtained a fraudulent marriage certificate and used it in an attempt to obtain Furnish's workmen's compensation benefits. In July of 1980, Keown told police of the murder while he was in jail on another charge. Both Keown and [Smith's] daughter, Dove Annette, testified at [Smith's] trial pursuant to plea bargains. Several months after the trial, Keown signed an affidavit recanting his trial testimony.

[Smith] denied any involvement in either the conspiracy or the murder and said she did not discuss any plans with anyone. She said that she went to the bar on the night of the murder to help Furnish and did not know she was followed. She testified that the fraudulent marriage certificate was obtained to keep Furnish's ex-wife from taking all his property. [Smith's] daughter, Candy Smith, testified that she heard Keown and Dove Annette planning to kill Furnish. She said Keown threatened to kill her if she told anyone." Smith, supra at 348-49.

Smith was charged with murder pursuant to I.C. 35-41-2-4 4 because, inter alia, she gave Keown money to buy a rifle. 5 The State also charged the fact that Smith gave Keown money to buy the rifle as the overt act required for the conspiracy conviction.

On April 12, 1989, Smith, pro se, petitioned for post-conviction relief. The State Public Defender appeared on behalf of Smith, filing an Amended Petition for Post-Conviction Relief on November 5, 1993. After a hearing, the post-conviction court denied Smith's petition. Smith now appeals that denial. We set forth additional facts where deemed appropriate or necessary.

Smith first alleges that the trial court erred when it enhanced her sentence for conspiracy to commit murder and when it imposed consecutive sentences. She next asserts four reasons why her trial counsel was ineffective, one of which is the fact that trial counsel failed to raise the alleged sentencing errors in a Motion to Correct Errors. Smith next contends that the trial court's imposition of multiple sentences for conspiracy to commit murder and for murder violates state and federal constitutional prohibitions against double jeopardy. In addition, Smith argues that her appellate counsel was ineffective because he did not raise ineffective assistance of trial counsel and the above sentencing errors during her direct appeal. To facilitate an orderly disposition, we address each of Smith's ineffective assistance of appellate counsel claims in relationship to the other specific issues presented.

I. ALLEGED SENTENCING ERRORS

The trial court sentenced Smith to the presumptive forty years for murder. 6 The court then enhanced her thirty-year presumptive sentence for conspiracy 7 by ten years, and ordered her to serve both sentences consecutively. Smith claims that the trial court erred in imposing such a sentence. The State contends that any claimed sentencing errors were available to Smith at the time of her direct appeal, and that, therefore, she has waived them. 8 Smith responds that she did not present the above arguments upon direct appeal because her trial and appellate counsel rendered ineffective assistance by failing to preserve the alleged sentencing errors in a Motion to Correct Errors, and by not asserting them upon direct appeal. In denying Smith's petition, the post-conviction court agreed with the State that Smith had waived any such argument.

Waiver may be a valid defense to a post-conviction petition where, as here, the State properly raises it as a defense. Robinson v. State (1981) Ind., 424 N.E.2d 119, 121; Langley v. State (1971) 256 Ind. 199, 267 N.E.2d 538, 542; Kirby v. State (1990) 4th Dist.Ind.App., 550 N.E.2d 1343, 1345, trans. denied. Once the State asserts waiver, the petitioner in a post-conviction action must show a substantial basis which satisfactorily mitigates his or her failure to pursue the issue through normal procedure. Langley, supra at 542; Kirby, supra at 1345. One such substantial basis is the ineffective assistance of trial or appellate counsel. Langley, supra at 542; Kirby, supra at 1345. Regardless, if the appeal would have been futile with respect to those alleged errors, the petitioner is not entitled to relief. Robinson, supra at 121.

Thus, notwithstanding waiver, we address the merits of Smith's assertions. We do so for two reasons. First, in reviewing Smith's ineffective assistance claim, we must determine whether errors which counsel may have committed prejudiced her defense, an examination which itself requires us to determine whether her claims of improper sentencing are meritorious. Second, because Smith has claimed interference with fundamental constitutional rights, we examine the merits of her contentions to determine whether the record discloses fundamental sentencing errors. 9

The trial court's sentencing statement reads as follows:

"I found no mitigating circumstances here. I find aggravating circumstances here. The aggravating circumstances are the extended period of time that this conspiracy lasted, the aggravating circumstances are also that I see no effort to--and no interest in admitting guilt. You may be innocent, I realize that, but in all probability the Jury having found you guilty beyond a reasonable doubt, you are not innocent. I also consider it an aggravating circumstance that your conspiracy with others did result in the death of another person. The Court will impose a sentence on you for the crime of conspiracy to commit murder of forty (40) years. The Court will impose a sentence upon you for the crime of murder for forty (40) years. These two sentences will be served consecutively." Trial Record at 1008-09.

Smith lodged no objection when the court announced its reasons for the sentence, nor did she request a more detailed statement.

Smith first argues that the trial court relied upon improper factors to justify enhanced and consecutive sentences. Smith also claims that the trial judge's sentencing statement is insufficient to justify imposition of enhanced or consecutive sentences. We disagree with each of Smith's contentions.

It is within the trial court's discretion to determine whether it will increase or decrease a crime's presumptive sentence because of aggravating or mitigating circumstances. Boyd v. State (1991) Ind., 564 N.E.2d 519, 524; Brown v. State (1987) Ind., 512 N.E.2d 173; Fuller v. State (1994) 2d Dist.Ind.App., 639 N.E.2d 344, 349. The criteria listed in I.C. 35-38-1-7.1(b) and (c) merely illustrate the facts which, if found to exist, either mitigate or aggravate an offense. I.C. 35-38-1-7.1(d) authorizes a trial judge to consider factors not specifically enumerated in sections (b) and (c) when determining a sentence. See, e.g., Wethington v. State (1990) Ind., 560 N.E.2d 496, 509. We will not revise or reverse a statutorily authorized sentence unless it is "manifestly unreasonable in light of the nature of the offense and the...

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