Taylor v. State

• Decision Date: 20 March 2008
• Docket Number: No. 20A03-0707-PC-331.,20A03-0707-PC-331.
• Citation: 882 N.E.2d 777
• Parties: Kevin TAYLOR, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

882 N.E.2d 777

Kevin TAYLOR, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 20A03-0707-PC-331.

Court of Appeals of Indiana.

March 20, 2008.

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

After this Court reversed Kevin Taylor's co-defendant Kelly Scott Thomas's conviction for felony murder, Taylor, whose direct appeal of his own conviction for felony murder had not been successful, petitioned for post-conviction relief. At the hearing on his petition, Taylor's post-conviction counsel presented only a copy of Thomas's Court of Appeals decision, declining to present other evidence or the testimony of any witnesses. The post-conviction court denied Taylor's petition, and he now appeals. On appeal, he argues that the trial court committed fundamental error in instructing the jury, that he received ineffective assistance of trial and appellate counsel, and that he was deprived of a fair post-conviction hearing. Taylor's claim of fundamental error is not cognizable on post-conviction review, and no evidence was presented to meet his burden of showing ineffective assistance of trial or appellate counsel. We conclude, however, that Taylor was not represented at his postconviction hearing in a procedurally fair setting. Therefore, we reverse and remand for a new post-conviction hearing.

Facts and Procedural History

On the evening of May 19, 2003, Taylor, 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 drags 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).

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 robberythe 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. Appellant's App. p. 16-19. 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 postconviction 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. Id. at 31. 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)." Id. at 32. 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." Id. The postconviction court denied Taylor's petition, and he now appeals.

Discussion and Decision

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,¹ and (4) whether he was deprived of a procedurally fair post-conviction hearing.²

Taylor appeals the denial of postconviction relief. The petitioner in a postconviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment, Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004), and we will not reverse the judgment unless the evidence unerringly and unmistakably leads to the opposite conclusion, Patton v. State, 810 N.E.2d 690, 697 (Ind.2004). We also note that the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). Such deference is not given to conclusions of law, which we review de novo. Chism v. State, 807 N.E.2d 798, 801 (Ind.Ct.App.2004).

We begin by noting that Taylor raises a freestanding claim of fundamental error. The Indiana Supreme Court has expressly held that fundamental error claims are not available in post-conviction proceedings. Sanders v. State, 765 N.E.2d 591, 591 (Ind.2002). In post-conviction proceedings, claims that are known and available at the time of direct appeal, but are not argued, are waived. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001), reh'g denied. They cannot be subsequently raised in the post-conviction setting. Reed v. State, 856 N.E.2d 1189, 1193-94 (Ind. 2006). Despite Taylor's argument that we should entertain his freestanding claim for the purpose of judicial economy, the law is clear that we may not do so. His freestanding claim of jury instruction error is waived.

An exception to the waiver rule, however, is the argument that a defendant was deprived of the right to effective counsel as guaranteed by the Sixth Amendment to the United States Constitution. See Sanders, 765 N.E.2d at 592. This claim may be raised for the first time in a petition for post-conviction relief. Woods v. State, 701 N.E.2d 1208, 1210 (Ind.1998), reh'g denied. We therefore proceed to address Taylor's arguments regarding the performance of his trial and appellate counsel. We review the effectiveness of trial and appellate counsel under the two-part test provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind.1997), reh'g denied. A claimant must demonstrate that counsel's performance fell below an objective level of reasonableness based upon prevailing professional norms and that the deficient performance resulted in prejudice. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. "Prejudice occurs when the defendant demonstrates that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

I. Ineffectiveness of Trial Counsel

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. Specifically, Taylor contends in his brief that "his counsel's failure to object to the lack of a jury instruction on the offense of robbery created a reasonable probability that the results of the guilt phase would have been different." Appellant's Br. p. 8.

At the post-conviction hearing, Taylor's counsel offered into evidence this Court's memorandum decision in Thomas, which reversed Taylor's co-defendant's identical conviction based upon fundamental error. When defense counsel offered the opinion into evidence, the State objected, arguing that the offer was untimely, that the foundation was improperly laid, and that the evidence was irrelevant. Post-Conviction Hrg. Tr. p. 11. The post-conviction court declined to rule upon the offer of admission, explaining:

Well, you know, whether Exhibit A is admitted or not, I've read the opinion. I know what it says.... I'll give it to ...