State v. Miller, 49A05-0201-PC-40.

• Decision Date: 30 July 2002
• Docket Number: No. 49A05-0201-PC-40.,49A05-0201-PC-40.
• Citation: 771 N.E.2d 1284
• Parties: STATE of Indiana, Appellant-Respondent, v. Keith MILLER, Appellee-Petitioner.
• Court: Indiana Appellate Court

771 N.E.2d 1284

STATE of Indiana, Appellant-Respondent, v. Keith MILLER, Appellee-Petitioner.

No. 49A05-0201-PC-40.

Court of Appeals of Indiana.

July 30, 2002.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Don A. Tabbert, Chad T. Walker, Tabbert Hahn Ernest & Weddle, LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

The State of Indiana appeals the granting of a petition for post-conviction relief filed by Keith Miller, challenging the correctness of that ruling as the sole issue upon appeal.

We reverse. The facts underlying the conviction were set out as follows by this court in Miller's direct appeal:

In 1983 Miller and Bernie Custer operated a business called Hospitality Guides Systems, Inc. (hereinafter "HGS") from an office in Indianapolis. They directed their accountant, Greg Wertz, to incorporate a new company to be known as Advertising Guides of America, Inc., (hereinafter "AGA") and they hired an electrician to produce a prototype electronic advertising board upon which the new corporation's business would be based. In early January of 1984, Miller and Custer contacted Gerald Shouse and told him that they had a functioning prototype of the advertising board. They also told him that they had already sold the idea to some investors in Lake County. Shouse agreed to help them find additional investors in his area in exchange for a share in the business.

Miller and Custer held a dinner meeting for Shouse and the potential investors at the Executive Inn in Vincennes on January 14, 1984. Prior to this meeting, Miller had not registered any stock in the advertising board business with the Indiana Securities Division, nor had he registered with the division as an agent for sale of any stock. The division twice had ordered Miller, who had a prior felony conviction and a prior conviction for conversion arising out of the sale of securities, to stop selling unregistered securities. At this meeting Miller and Custer showed the potential investors an operating prototype of the sales board, photographs of the corporate office, their resumes, and a prospectus. Miller told the investors that he intended to form a limited partnership, Advertising Guide Partners, Ltd. (hereinafter "AGP"), to market the board. He further told them that the business would be financed by only a limited number of investors, and that each investor had to purchase a minimum of two shares at a price of $2,375.00 per share. The money generated was to be used to produce the boards. The investors would serve as limited partners, while he and Custer would be general partners and would run the business. Miller told the potential investors that they could expect a 75% return on their investment in the first year.

Several of the potential investors decided to purchase shares in the partnership. Over the course of the next several days, these investors paid to Custer and Miller sums of money ranging from $1,000.00 to $9,500.00. Miller and Custer cashed the investors' checks.

Miller and Custer hired a salesman to sell advertising space on the boards in the Lake County area. The salesman made sales of over $30,000.00, but none of the boards were ever installed. None of the investors in AGP ever received a return on their investment, and none of them ever heard from Miller or Custer after giving them the money.

Miller v. State, 593 N.E.2d 1247, 1248-49 (Ind.Ct.App. 1992), trans. denied.

As a result of the activities set out above, Miller was charged with eighteen counts of securities violations. When Miller failed to appear on the morning trial was to commence, the trial court conducted a hearing to determine whether Miller knew that his trial was to start that morning. At the hearing, Miller's counsel testified that he had "no doubt" that Miller knew of the trial date. Id. at 1250. At the conclusion of the hearing, the trial court determined that trial should proceed in Miller's absence. Miller was convicted on all eighteen counts.

After trial concluded, Miller retained new counsel, Kevin McShane, to represent him at the sentencing hearing. After reviewing the record, McShane became convinced that the court had contravened Indiana law by trying Miller in absentia. Accordingly, he instructed Miller to remain silent at the sentencing hearing, fearing that Miller might divulge something indicating that he had actual knowledge of the trial date. McShane informed the court prior to the commencement of the sentencing hearing that he, too, would stand mute, and would offer no argument or present any evidence or testimony at the hearing. The sentencing hearing proceeded without input from Miller or McShane, after which Miller received a forty-eight-year executed sentence.

Miller retained different counsel to represent him in his direct appeal. Appellate counsel presented four issues, including the decision to try Miller in absentia. We concluded that the trial court did not err in conducting trial in his absence, summarizing our holding on that point as follows:

To conclude on this point, Miller has correctly observed that [Ellis v. State, 525 N.E.2d 610 (Ind.Ct.App.1987)

], supra, requires that he be given an opportunity to explain his absence from trial and that the court consider that explanation in determining whether Miller waived the right to be present by voluntarily absenting himself, knowing that the trial was set. Miller chose silence at the sentencing hearing and offered nothing to the trial court at that time to suggest that his absence was anything other than knowing and voluntary. He petitioned this court for a remand to the trial court for a hearing "affording appellant an opportunity to explain his absence." (Petition for Remand). Remand was ordered for such a hearing and it was held. Again, Miller chose silence and offered not one word of explanation of his absence. The trial court's proceeding with the trial on the conclusion that Miller had knowingly and voluntarily absented himself was soundly based and Miller has offered nothing to suggest the trial court's conclusion was incorrect.

Miller v. State, 593 N.E.2d at 1252. The Indiana Supreme Court denied Miller's petition to transfer on September 15, 1992.

Miller, acting pro se, filed his petition for post-conviction relief (PCR) on May 8, 1995. In the lengthy PCR petition, Miller asserted nine separate grounds for relief, two of which included allegations of ineffective assistance of trial, sentencing, and appellate counsel. Miller cited fifteen instances of ineffective assistance of trial counsel and nine instances of ineffective assistance of sentencing counsel, all of which are attributable to counsel's decision to stand mute at sentencing. (E.g., "Neglected to object when the sentencing court erred in not finding any mitigating circumstances.") Appellant's Appendix at 87. Finally, Miller alleged thirteen instances of ineffective assistance of appellate counsel, with one of those allegations containing sixteen sub-parts. One of the latter allegations centered upon appellate counsel's failure to appeal sentencing counsel's allegedly defective performance. The post-conviction court rejected Miller's claims that his sentence was manifestly unreasonable and that appellate counsel rendered ineffective assistance. The court concluded, however, that Miller was entitled to a new sentencing hearing because sentencing counsel rendered ineffective assistance, as reflected in the following findings and conclusions:

5. Keith Miller's counsel's performance at sentencing was deficient and contained sufficient egregious errors, that, when viewed in their entirety, constitute ineffective assistance of counsel. Evidence of egregious errors may provide grounds for reversal. Furthermore, when counsel's performance at the Sentencing Hearing is below the prevailing professional norms, a court should find ineffective assistance of counsel.

6. Keith Miller was prejudiced at sentencing by the deficient performance of his attorney. "Prejudice exists when there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." [Conrad v. State, 747 N.E.2d 575, 586 (Ind.Ct.App.2001)

.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Sic.] The deficient performance of Miller's attorney and the substantial factual errors contained in Miller's Pre-Sentence Report rendered the outcome of the sentencing proceedings fundamentally unfair.

Appellant's Appendix at 117 (some citations omitted). It may be inferred from the foregoing that the post-conviction court granted the PCR petition upon its finding that Miller was prejudiced by sentencing counsel's decision to stand mute, most notably with respect to the presentence report and alleged errors contained therein.¹ The State appeals that ruling.

Our supreme court recently observed that the completion of the direct appeal process in Indiana largely closes the door to a criminal defendant's claims of error in conviction or sentencing. See Allen v. State, 749 N.E.2d 1158 (Ind.2001),

cert. denied, ___ U.S.___, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002). Nevertheless, our post-conviction procedures permit defendants to present a narrow set of claims. See Ind. Post-Conviction Rule 1(1). "The scope of the relief provided for in these procedures is limited to `issues that were not known at the time of the original trial or that were not available on direct appeal.' "Allen v. State, 749 N.E.2d at 1164 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000),

cert. denied, ___ U.S. ____, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002)). Issues that were available but not presented upon direct appeal are waived, and issues that were litigated adversely to the defendant are res judicata. Allen v. State, 749 N.E.2d 1158.

When ruling upon a PCR...