Taylor v. State
| Decision Date | 11 March 2010 |
| Docket Number | No. 20A04-0909-PC-511.,20A04-0909-PC-511. |
| Parties | Kevin TAYLOR, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
v.
STATE of Indiana, Appellee-Respondent.
[922 N.E.2d 711]
Kenneth R. Martin, Goshen, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
NAJAM, Judge.
Kevin Taylor appeals the post-conviction court's denial of his petition for post-conviction relief. Taylor raises two issues for our review, one of which is dispositive: whether the post-conviction court erred when it found that Taylor had not received ineffective assistance of trial counsel.1
We reverse and remand for a new trial.
This court recently reviewed the facts and procedural history of Taylor's case:
On the evening of May 19, 2003, Taylor, [co-defendant Kelly Scott] Thomas, and Stacy Lynn Orue went to Gwen Hunt's apartment in Elkhart, Indiana, to obtain crack cocaine. Orue had previously used drugs in Hunt's residence and knew that she kept drugs and money in her home. At some point, the trio decided to rob Hunt. When they arrived at her apartment, Thomas forced his way through the door and hit Hunt in the head with a pipe. Either Thomas or Taylor then shot Hunt in the back of her head at close range, an injury from which Hunt died the next day. The
group stole jewelry, crack cocaine, and money.
Taylor, Thomas, and Orue were all charged with felony murder and tried together during a five-day jury trial spanning January 31 through February 4, 2005. The jury found all three defendants guilty of felony murder. After a sentencing hearing on March 3, 2005, the trial court sentenced Taylor to sixty-five years. On direct appeal, Taylor's counsel raised one issue: whether the trial court erred in denying his motion for a mistrial based upon alleged prosecutorial misconduct. In a unanimous unpublished memorandum decision, we affirmed Taylor's conviction. Taylor v. State, No. 20A03-0507-CR-319, 835 N.E.2d 233 (Ind.Ct.App. Sept.29, 2005) ["Taylor I"].
However, when co-defendant Thomas appealed his conviction on direct appeal, he raised the issue of whether his conviction should be reversed because the jury was not instructed on the elements of robbery. Concluding that the trial court committed fundamental error by not instructing the jury on the elements of robbery—the underlying felony for Thomas's felony murder conviction—we reversed and remanded for a new trial. Thomas v. State, No. 20A03-0503-CR-138, slip op. at 5, 844 N.E.2d 229 (Ind.Ct.App. Feb.3, 2006).
After we issued our opinion on Taylor's direct appeal, he filed a pro se Verified Petition for Post-Conviction Relief. In his petition, Taylor argued that he received ineffective assistance of trial counsel because of counsel's failure to object to the trial court's final instructions[,] which failed to instruct the jury as to the elements of robbery. A hearing was held on Taylor's petition for post-conviction relief on December 22, 2006. At the hearing, Taylor's counsel did not present any testimonial or documentary evidence in support of Taylor's claim but argued solely that the Thomas decision was binding upon the post-conviction court and dispositive of the issue. Defense counsel later requested leave to file a brief in support of the petition, which the post-conviction court granted. In his brief, submitted March 1, 2007, Taylor argued that he also received ineffective assistance of appellate counsel for appellate counsel's failure to raise this issue on direct appeal. With the brief, he submitted a copy of the Thomas decision, the chronological case summary from Taylor's underlying criminal case, and our decision on Taylor's direct appeal, and posited that the "Thomas case is controlling; that is the law of the case, and therefore applicable and binding on this Court pursuant to Appellate Rule 65(D). Furthermore, this Court must take judicial notice of the Court of Appeals' decision in the Thomas case pursuant to Indiana Rules of Evidence, Rule 201(b) and (d)." He contended, "Since the Court of Appeals found there was fundamental error in Thomas' case, then this court must likewise find that there was fundamental error in Kevin Taylor's trial because Taylor and [Thomas] were tried together and Thomas' case is the rule of the case." The post-conviction court denied Taylor's petition....
On appeal, Taylor raises four issues, which we rephrase as: (1) whether the trial court committed fundamental error in failing to instruct the jury regarding the elements of robbery, (2) whether the post-conviction court erred in finding that he did not receive ineffective assistance of trial counsel, (3) whether the post-conviction court erred in finding that he did not receive ineffective assistance of appellate counsel, and (4)
whether he was deprived of a procedurally fair post-conviction hearing.
* * * We begin by noting that Taylor raises a freestanding claim of fundamental error.... Despite Taylor's argument that we should entertain his freestanding claim ..., the law is clear that we may not do so [in the post-conviction process]. His freestanding claim of jury instruction error is waived.
* * * Taylor argues that he received ineffective assistance of trial counsel because his attorney did not object to the trial court's failure to instruct the jury regarding the elements of robbery....
* * * ... At the post-conviction hearing, Taylor's counsel contended that the Thomas decision proved that the trial court committed fundamental error in instructing the jury during the co-defendants' joint trial.
We disagree. The record evidences only that the trial court failed to instruct the jury on the elements of robbery in regard to Thomas. We are presented with no verification that the jury did not, in fact, receive a robbery instruction as to Taylor. Undoubtedly, if the trial transcript were presented and reflected that no robbery instruction was given pertaining to Taylor, this would prove error. However, this is simply something that we cannot presume.
* * * Taylor next argues that he received ineffective assistance of appellate counsel because of his appellate attorney's failure to raise the issue of whether the trial court's failure to instruct the jury on the elements of robbery constituted fundamental error....
Here, Taylor failed to prove that he received ineffective assistance of trial counsel. Likewise, he has failed to show ineffective assistance of appellate counsel for failing to raise the claim on appeal....
Finally, Taylor argues that he was deprived of a procedurally fair post-conviction hearing....
* * * In a case almost identical to the one before us today ..., this Court determined that post-conviction counsel's performance denied the petitioner a fair hearing. As in [Waters v. State, 574 N.E.2d 911, 912 (Ind.1991)], wherein counsel presented no evidence in support of his client's claim, in [Bahm v. State, 789 N.E.2d 50, 61-62 (Ind.Ct.App.2003), clarified on reh'g on other grounds, 794 N.E.2d 444 (Ind.Ct.App.2003), trans. denied,] ... counsel appeared at the post-conviction hearing and presented no evidence in support of his client's claim. "While Bahm's counsel appeared at the post-conviction hearing and made legal arguments," we observed that "[c]ounsel presented no evidence at the post-conviction hearing to support Bahm's petition—he did not call any witnesses, submit any affidavits, or even submit the direct appeal record." Noting that counsel should have known the necessity of presenting the trial record to the post-conviction court, we found that "[c]ounsel's failure to present any evidence deprived Bahm of a fair hearing."
In this case, counsel appeared at the post-conviction hearing and argued only that the appellate decision in Taylor's co-defendant's case warranted relief for Taylor. However, precisely as in Bahm,
counsel called no witnesses, presented no affidavits, and did not submit the trial record. Such sparse information rendered it impossible for the post-conviction court to conduct the necessary Strickland analysis. We find that counsel effectively abandoned Taylor at the post-conviction hearing by failing to present evidence in support of his claim. See Waters, 574 N.E.2d at 912. Therefore, we conclude that Taylor was deprived of a procedurally fair hearing and that he is entitled to a new post-conviction hearing. Id. Because the deprivation of a procedurally fair hearing undermined the process by which the post-conviction court evaluated Taylor's ineffective assistance of counsel claims, he is entitled to raise these claims again during his new hearing and to receive a ruling on their merits.
* * * ... Therefore, we reverse and remand for a new post-conviction hearing.
Taylor v. State, 882 N.E.2d 777, 779-84 (Ind.Ct.App.2008) (emphases added; footnotes and some citations omitted; some alterations original) ("Taylor II").
On March 19, 2009, the post-conviction court held an evidentiary hearing on remand. At that hearing, Taylor's post-conviction counsel submitted the trial transcript and record, which reflected both that the trial court did not instruct the jury on the elements of robbery as pertaining to Taylor and that Taylor's trial counsel did not object to that error. See Transcript at 1481-97; Taylor I App. at 124-47.2 Nonetheless, on July 13, the post-conviction court entered findings of fact and conclusions of law denying Taylor's petition for relief. In particular, the court stated as follows:
17. ... In this case, Taylor claims he is entitled to a new trial based upon ineffective assistance of trial counsel as the jury was not instructed on the elements of robbery....
18. ... At the second hearing in these proceedings, Taylor's trial counsel, Neil Holbook ("Holbrook"), testified that he focused on the murder and...
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