Smith v. State Of Ind.

• Decision Date: 23 July 2010
• Docket Number: Cause No. 55D01-0512-PC-384,No. 55A01-0909-PC-440,55A01-0909-PC-440
• Parties: WESLEY SMITH, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
• Court: Indiana Appellate Court

WESLEY SMITH, Appellant-Petitioner,

v.STATE OF INDIANA, Appellee-Respondent.

No. 55A01-0909-PC-440

Cause No. 55D01-0512-PC-384

Court Of Appeals Of Indiana

July 23, 2010

ATTORNEY FOR APPELLANT: SARAH L. NAGY Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana IAN McCLEAN Deputy Attorney General Indianapolis, Indiana

APPEAL FROM THE MORGAN SUPERIOR COURT

The Honorable Douglas R. Bridges, Special Judge

MEMORANDUM DECISION-NOT FOR PUBLICATION

CRONE, Judge.

Case Summary

Wesley Smith appeals the post-conviction court's denial of his petition for postconviction relief. We affirm.

Issues

Smith presents several issues for our review, which we consolidate and restate as:

I. Whether the post-conviction court clearly erred when it determined that Smith did not receive ineffective assistance of trial and appellate counsel; and

II. Whether the post-conviction court clearly erred when it determined that Smith was not entitled to a new trial based upon alleged newly discovered evidence.

Facts and Procedural History

In 1986, the State charged Smith with multiple counts of possession of cocaine and marijuana and multiple counts of dealing in cocaine and marijuana revolving around five separate drug-dealing transactions between Smith, confidential informant Mark Stroud ("CI Stroud"), and undercover Indiana State Police Detectives Rick Lang and John Mishler. Four of the transactions occurred in Morgan County on September 2, 11, 19, and 29, 1986. One of the transactions occurred in Hendricks County on September 24, 1986. Smith was first tried in Hendricks County, and the jury acquitted Smith. Smith was then tried by jury in Morgan County and was convicted. Smith, who maintained that he was entrapped by police withrespect to all of the transactions, appealed his Morgan County convictions to this Court. We outlined the basic facts and procedural history on direct appeal as follows: ¹

On June 5, 1986, Mark Stroud agreed to become a confidential informant for the Indiana State Police to avoid prosecution for selling cocaine. Thereafter, Stroud contacted Smith, with whom he had previously used drugs, to arrange to purchase drugs. In September 1986, Stroud and two undercover police officers purchased marijuana and cocaine from Smith on five separate occasions. One of the cocaine purchases took place in Hendricks County while the remaining four occurred in Morgan County. As a result of these transactions, Smith was charged with various offenses in Hendricks and Morgan Counties.

In February 1987, Smith was tried in Hendricks County for possession and dealing cocaine. Smith raised entrapment as his sole defense. Following trial, the jury acquitted Smith of all charges. Thereafter, the State sought to try Smith in Morgan County for the sale of marijuana and cocaine. Smith moved to dismiss those charges on the basis that by acquitting him, the Hendricks County jury had necessarily found that he had been entrapped and, therefore, that the State was collaterally estopped from prosecuting him in Morgan County for charges which resulted from the same drug sting operation. The trial court denied Smith's motion. Following trial, the Morgan County jury convicted Smith of three counts of dealing in cocaine, all class A felonies, dealing in marijuana, a class D felony, and dealing in marijuana, a class A misdemeanor.

Smith v. State, 670 N.E.2d 360, 361-62 (Ind. Ct. App. 1996), trans. denied.²

In his direct appeal, Smith maintained that the trial court erred when it failed to dismiss the charges against him because his prosecution in Morgan County was barred by the doctrine of collateral estoppel due to his acquittal in Hendricks County on charges relating to the same drug sting operation. Id. Specifically, Smith asserted that the State was estopped from contending that he had not been entrapped while selling cocaine and marijuana in Morgan County because the Hendricks County jury had already determined that Smith was entrapped into selling drugs. Id. We disagreed with Smith and concluded that there was no evidence that the Hendricks County jury necessarily determined that Smith was entrapped during the entire drug sting operation and that although Smith may have been entrapped in Hendricks County, he may not have been entrapped in Morgan County. Id. Thus, we affirmed Smith's Morgan County convictions, holding that the doctrine of collateral estoppel did not bar Smith's prosecution in Morgan County. Id.

Smith subsequently sought post-conviction relief on the Morgan County convictions. Evidentiary hearings were held on September 28, 2006, and May 24, 2007. On February 20, 2009, the post-conviction court entered its findings of fact and conclusions of law denying Smith's petition. This appeal followed.

Discussion and Decision

Smith appeals the denial of post-conviction relief. Post-conviction proceedings are not "super appeals" through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Rather, postconviction proceedings provide defendants the opportunity to present issues which were not known at the time of the original trial or that were not available upon direct appeal. BenYisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied (2002). Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment. Douglas v. State, 800 N.E.2d 599, 604 (Ind. Ct. App. 2003), trans. denied. Thus, we may not reverse the post-conviction court's judgment unless the petitioner demonstrates that the evidence "as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.'" Id. (quoting Curry v. State, 674 N.E.2d 160, 161 (Ind. 1996)).

The post-conviction court here entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1 (6). "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004) (citation omitted). We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not have to give deference to its conclusions of law. Rowe v. State, 915 N.E.2d 561, 563 (Ind. Ct. App. 2009), opinion on reh'g. The post-conviction court is the sole judge of the weight of the evidence and credibility of witnesses and therefore, on appeal, we may not reweigh the evidence or reassess witness credibility. Id.; Fisher, 810 N.E.2d at 679.

I. Effective Assistance of Counsel

Smith contends that the post-conviction court clearly erred when it determined that he did not receive ineffective assistance of both trial and appellate counsel. Claims of ineffective assistance of trial and appellate counsel are appropriate issues for post-conviction review. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). We evaluate claims pertaining to the denial of the Sixth Amendment right to effective assistance of counsel using the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a defendant must show both that his attorney's performance fell below an objective standard of reasonableness and that the deficiencies in the attorney's performance were prejudicial to the defense. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002). In order to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied, cert. denied. An inability to satisfy either prong of this test is fatal to an ineffective assistance claim. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999). The same standard is applicable to claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Wieland, 848 N.E.2d at 81-82. We address each of Smith's contentions in turn.

A. Destruction of Evidence

Smith first contends that his trial counsel was ineffective in failing to move for dismissal of the charges by claiming that the State had intentionally destroyed and/or failed to preserve evidence that was "potentially" exculpatory in nature. Appellant's Br. at 8. Specifically, Smith asserts that the record indicates that the State destroyed or at least failed to properly preserve a tape recording of Smith's September 19, 1986, drug sale. We disagree with Smith.

To establish that counsel was deficient in failing to file a motion to dismiss, the defendant must show that the motion would have been granted. Sauerheber v. State, 698 N.E.2d 796, 807 (Ind. 1998). When determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence, a determination must be made as to whether the evidence is "potentially useful evidence" or "material exculpatory evidence." State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010); Land v. State, 802 N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied. Here, Smith concedes that the allegedly destroyed tape recording was merely potentially useful evidence rather than material exculpatory evidence. Evidence is potentially useful if "no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.'" Blanchardv. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)). The State's failure to preserve potentially useful evidence does not violate a defendant's due process rights unless the defendant shows bad faith on the part of the police. Id. Bad faith is not simply bad...