Smith v. State

Decision Date09 February 2005
Docket NumberNo. 79A02-0408-PC-649.,79A02-0408-PC-649.
Citation822 N.E.2d 193
PartiesErnest T. SMITH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court

Ernest T. Smith, Carlisle, IN, Appellant Pro Se.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In 1996, a jury found Ernest T. Smith guilty of Murder and Robbery, as a Class B felony, and the trial court sentenced him to a total of sixty years. Our supreme court affirmed Smith's convictions on direct appeal. See Smith v. State, 702 N.E.2d 668 (Ind.1998)

. In September 1999, Smith filed his Petition for Post-Conviction Relief. In October 1999, the post-conviction relief ("PCR") court ordered the parties to present evidence by way of affidavits under Indiana Post-Conviction Rule 1(9)(b). In July 2003, Smith filed his amended PCR petition and moved for an evidentiary hearing, and in September 2003, the PCR court issued a general denial of Smith's petition without a hearing.

Smith appealed, and this court remanded the case to the PCR court for entry of findings of fact and conclusions of law as required under Indiana Post-Conviction Rule 1(6). See Smith v. State, 79A02-0310-PC-898, 810 N.E.2d 782 (Ind.Ct.App. May 17, 2004)

. In July 2004, the PCR court entered findings and conclusions denying Smith relief. Smith now appeals and presents two issues for review:

1. Whether the PCR court erred when it did not hold an evidentiary hearing before denying Smith's petition.
2. Whether the PCR court's conclusion that Smith's trial counsel was not ineffective is clearly erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY

Our supreme court set forth the relevant facts in Smith, 702 N.E.2d at 670, as follows:

At approximately 2:00 p.m. on the afternoon of April 7, 1995, defendant was in a tavern named Mom's Place in Lafayette, Indiana. Defendant had been in Mom's Place before and knew, as he told a one-time cell-mate, that the owner, Barbara "Mom" Nobile, would be alone in the tavern at that time, that she often did not pay attention while she was in the tavern, and that she kept money in a cigar box at the bar. Defendant told his previous cell-mate that Nobile "would be easy to knock off." (R. at 3882.)
J.C. Dallas Long and his son David arrived at Mom's at approximately 2:00 that afternoon. They saw both Nobile and defendant in the bar. When the Longs left sometime between 2:30 and 3:00 p.m., defendant was still in Mom's Place. Around 3:15 or 3:20, Richard Barrett walked into Mom's Place. After a few minutes, during which time he did not see Nobile, Barrett became suspicious and looked around. He found Nobile in the utility room of the building. Her throat was slit and she had bled to death through a wound to her jugular vein. Nobile had also been stabbed on her palms, arms, chest, and back. Several hundred dollars [were] missing from the bar.
At some point during the afternoon of April 7, defendant's girlfriend saw him near her home. She observed what appeared to be blood on his pants leg between his knee and ankle. He told her that he had fallen and cut himself. Defendant was also seen later on April 7 at several bars where he spent money freely, though he had needed to borrow money the previous night. He also stayed in a hotel room that night, though he had stayed on a cousin's porch the night before.
The police arrested defendant on April 9, 1995. When photographed by police on April 12, defendant had no marks on his legs but did have scratch marks on his hands and neck. Defendant, while in jail, told his cell-mate that he and another man were drinking in Mom's Place on April 7 and that they talked of robbing and killing Nobile. Defendant also told his cell-mate that he must have blacked out and, when he awoke, he was covered in so much blood that he figured Nobile's throat had probably been cut. Defendant further confided that, if the police found his hunting knife, then he "figured he would be screwed." (R. at 3891.) Finally, defendant admitted that he had gotten blood on his pants and went to see his girlfriend.
At trial, the State introduced DNA evidence based upon two pieces of evidence: a towel found near the rear entrance to Mom's and the shoes that defendant was wearing when arrested. Testing determined that blood was on the towel and on defendant's right tennis shoe. The State then conducted DNA testing on the towel and the shoe. The results indicated that Nobile's DNA profile was consistent with that found in the blood on the shoe. The results also indicated that defendant's DNA profile was consistent with that found in the blood on the towel.

Following conviction and sentence, Smith raised five issues on direct appeal: (1) whether the trial court erred in admitting DNA evidence; (2) whether the trial court erred in admitting evidence obtained in violation of a court order; (3) whether the trial court erred in admitting into evidence a deposition from an unavailable witness; (4) whether the State's comments during closing argument required reversal; and (5) whether the State presented insufficient evidence to sustain Smith's convictions. Our supreme court affirmed the trial court. See id. at 677.

Thereafter, Smith filed his pro se PCR petition alleging that his trial counsel was ineffective. The State responded to Smith's petition, and eventually, the PCR court directed the parties to submit affidavits in support of and in opposition to the petition.1 Thereafter, Smith filed a pro se amended PCR petition, in which he, again, raised the sole claim that his trial counsel was ineffective. At the same time he filed his amended petition, Smith also asked the PCR court to set a hearing date on his petition. Smith then filed his own affidavit in support of his petition, and the State submitted affidavits of Smith's three trial attorneys. Following the PCR court's general denial of Smith's petition and this court's decision remanding for entry of findings, the PCR court entered findings of fact and conclusions of law denying Smith relief. This appeal ensued.

DISCUSSION AND DECISION
Standard of Review

Defendants who have exhausted the direct appeal process may challenge the correctness of their convictions and sentences by filing a post-conviction petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied. Post-conviction proceedings are civil proceedings, and a defendant must establish his claims by a preponderance of the evidence. Id. Because the defendant is now appealing from a negative judgment, to the extent his appeal turns on factual issues, he must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the PCR court. Id. In other words, the defendant must convince this court that there is no way within the law that the court below could have reached the decision it did. Id. (emphasis original). We do not defer to the PCR court's legal conclusions, but do accept its factual findings unless they are "clearly erroneous." Id.

Issue One: Evidentiary Hearing

Smith first asserts that the PCR court erred when it failed to hold an evidentiary hearing on his petition. In particular, he claims that while the PCR court acted within its discretion to order that the case be submitted upon affidavit under Post-Conviction Rule 1(9), those affidavits presented factual issues regarding whether his trial counsel rendered ineffective assistance which required a hearing under Post-Conviction Rule 1(4)(g). The State responds that Smith has confused the two rules and that the PCR court afforded Smith with an adequate opportunity to present evidence on his petition.

Indiana Post-Conviction Rule 1(4)(g)2 addresses summary disposition and provides:

The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

Rule 1(5), entitled "Hearing" provides:

The petition shall be heard without a jury. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except as provided above in Section 4(b). The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.

(Emphasis added). And Rule 1(9)(b)3 provides in relevant part:

In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.

That rule goes on to explain, among other things, the procedure that a pro se petitioner must follow if he wishes to subpoena witnesses at an evidentiary hearing.

This court has had few occasions to address Rule 1(9)(b). In Fuquay v. State, 689 N.E.2d 484, 486 (Ind.Ct.App.1997), trans. denied, we established that the decision to "order the cause submitted upon affidavit" is committed to the PCR court's discretion and will be reversed only when the court abuses that discretion. In that case, the petitioner claimed in his pro se PCR petition that his trial counsel was ineffective, and the PCR court granted the State's request to have...

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