Spranger v. State

Decision Date22 May 1995
Docket NumberNo. 89S00-9008-PD-540,89S00-9008-PD-540
Citation650 N.E.2d 1117
PartiesWilliam J. SPRANGER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, John Pinnow, Sp. Asst., Joseph M. Cleary, J. Jeffreys Merryman, Jr., Deputy Public Defenders, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.

DICKSON, Justice.

This appeal is from a judgment granting and denying post-conviction relief. The defendant, William J. Spranger, was convicted of the murder of a law enforcement officer and sentenced to death. We affirmed on direct appeal. Spranger v. State (1986), Ind., 498 N.E.2d 931, reh'g denied, Ind., 500 N.E.2d 1170, cert. denied (1987), 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536. The defendant then sought post-conviction relief. After proceedings including an evidentiary hearing, the post-conviction court denied the defendant's request to vacate the murder conviction, but the court set aside the death sentence, with new sentencing proceedings to follow the conclusion of this appeal. Both the defendant and the State now appeal: the defendant appeals the post-conviction court's refusal to vacate his conviction, and the State appeals the order setting aside the death sentence.

Indiana Post-Conviction Rule 1(7) authorizes an appeal to be taken by either the defendant-petitioner or the State. However, the applicable standard of review is not identical for both parties. While both are governed by Indiana Trial Rule 52(A), Indiana courts have historically articulated a distinctly formulated standard for appeals from negative judgments. See State v. Clanton (1982), Ind.App., 443 N.E.2d 1204, 1205. In this post-conviction proceeding, the defendant-petitioner had the burden of establishing his grounds for relief. Ind.Post-Conviction Relief Rule 1(5). Therefore, to the extent that he is now appealing from a denial of relief, he is appealing from a negative judgment. In contrast, in the State's appeal, it claims that the post-conviction court erred in concluding that the defendant established one of his claims sufficiently to be entitled to relief. Thus the judgment from which the State appeals is not a negative judgment.

When an appeal after a non-jury trial is not challenging a negative judgment, the applicable standard is simply that prescribed by Indiana Trial Rule 52(A):

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

This "clearly erroneous" standard is a review for sufficiency of evidence. Estate of Reasor v. Putnam County (1994), Ind., 635 N.E.2d 153, 158. In determining whether a judgment is clearly erroneous, we do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Id.; Chidester v. City of Hobart (1994), Ind., 631 N.E.2d 908, 910; Indianapolis Convention and Visitors Ass'n., Inc. v. Indianapolis Newspapers, Inc. (1991), Ind., 577 N.E.2d 208, 211. We reverse only upon a showing of "clear error"--that which leaves us with a definite and firm conviction that a mistake has been made. Egly v. Blackford County Dep't of Pub. Welfare (1992), Ind., 592 N.E.2d 1232, 1235.

However, when the appeal is from a negative judgment, the standard of review is phrased differently. The appellate tribunal must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the trial court. Williams v. State (1987), Ind., 508 N.E.2d 1264, 1265; Lowe v. State (1983), Ind., 455 N.E.2d 1126, 1128.

On appeal [from the denial of post-conviction relief], petitioner stands in the position of one appealing from a negative judgment.

In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law.

Fleenor v. State (1993), Ind., 622 N.E.2d 140, 142, cert. denied (1994), 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415.

Employing differing formulations, each of these two standards of review directs the way appellate tribunals are to look at trial court decisions. In one, the inquiry is essentially whether there is any way the trial court could have reached its decision. In the other, it is whether there is no way the court could have reached its decision. Arguably, this is a distinction without a difference. 1 However, since neither party to this appeal urges that we reconsider existing law or consolidate these two standards, we will separately apply each, consistent with precedent.

The Defendant's Appeal

The defendant contends that the post-conviction court erred in its denial of his claims of ineffective assistance of counsel before trial, during the trial's guilt phase, and in his direct appeal. 2 The defendant identifies the following areas of ineffective assistance of counsel during the investigation and the trial's guilt phase: (a) tardy retention of investigators, (b) untimely appointment of co-counsel, (c) erroneous choice of defense theory, (d) failure to object to prosecutorial misconduct and instructions, and (e) conflict of interest. He asserts that these claims are not barred by res judicata because they are based on facts outside the direct appeal record and were unavailable for direct appellate review. He contends they were not waived on direct appeal because one of his trial counsel also represented him as appellate counsel. With respect to his direct appeal, the defendant alleges the following additional instances of ineffective assistance of counsel: (f) failure to support the Motion to Correct Errors, (g) failure to claim prosecutorial misconduct as fundamental error, and (h) failure to claim fundamental error regarding erroneous instructions.

In its Findings of Fact and Conclusions of Law, the post-conviction court disposed of the defendant's claims (other than those relating to the penalty phase) upon alternative grounds. Not only did it find all such issues barred by res judicata and waiver, but it also found on the merits that these claims "are not supported by the evidence"; that the defendant "received a vigorous and competent defense at trial during the guilt phase"; and that, on appeal, "counsel did not fail to raise any appropriate issues." Record at 448.

We agree with the defendant that res judicata is not generally applicable here to bar all of the defendant's claims of ineffective assistance of counsel. On direct appeal, we rejected the defendant's claim that the trial court's refusal of his requests for continuances operated to deny him effective assistance of counsel, noting that "our review of the record fails to disclose any abuse of discretion or resulting inadequacy of representation." Spranger, 498 N.E.2d at 934. In concluding observations regarding the propriety of the conviction and death sentence, we generally noted that the defendant was "provided with a vigorous defense." Id. at 949. We now recognize, however, that the defendant's direct appeal did not present, nor did our opinion intend to address, any claim of defense counsel deficiency as constituting constitutionally ineffective assistance of counsel.

The defendant is likewise correct in arguing that the failure to raise trial counsel ineffectiveness in his direct appeal does not constitute a waiver of this issue. Ordinarily, the failure to raise this issue in a direct appeal will constitute a waiver resulting in procedural default. Hollonquest v. State (1982), Ind., 432 N.E.2d 37, 39. The remedy of post-conviction relief is not a substitute for a direct appeal. Ind.Post-Conviction Rule 1(1)(b). However, when the same attorney represents a defendant both at trial and on appeal and does not raise on appeal the issue of trial counsel ineffectiveness, we have been reluctant to apply waiver "and thus forever foreclose appellant from raising the question of the competency of his trial counsel." Majors v. State (1982), Ind., 441 N.E.2d 1375, 1376. See also Askew v. State (1986), Ind., 500 N.E.2d 1219, 1220. Attorney Robert Way was appointed to represent the defendant following his arrest in June, 1983, and continued to do so through the trial, which began October 31, 1983. Three weeks before trial began, the trial court appointed attorney Terry Richmond as co-counsel. Richmond actively participated in the guilt phase of the trial, questioning most of the witnesses and making most of the objections. Pursuant to an appointment by the trial court, Richmond represented the defendant on direct appeal. Under these circumstances, we choose to address the claim of trial counsel ineffectiveness rather than to find procedural default due to waiver.

The defendant acknowledges that the claim of ineffective assistance of counsel is governed by Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. As largely recognized by previous opinions of this Court, 3 Strickland embodies the following principles. Reversal for ineffective assistance of counsel may be appropriate in cases where a defendant shows both (a) that counsel's performance failed to meet an objective standard of reasonableness as measured by predominate professional norms, and (b) that such deficient performance so prejudiced the defendant as to deprive him of a fair trial. It shall be strongly presumed that counsel assisted the defendant adequately and exercised reasonable professional judgment in making all significant decisions. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through...

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