Thomas v. State
| Decision Date | 28 October 2002 |
| Docket Number | No. 49A04-0202-PC-76.,49A04-0202-PC-76. |
| Citation | 776 N.E.2d 1227 |
| Parties | Mark THOMAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Robert S. Rifkin, Maurer Rifkin & Hill, Carmel, for Appellant.
Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, for Appellee.
Mark Thomas was convicted following a jury trial of Rape, as a Class A felony, Robbery, as a Class B felony, and Criminal Confinement, as a Class B felony. On direct appeal, this court affirmed his convictions. See Thomas v. State, No. 49A02-9710-CR-662, 700 N.E.2d 513 (Ind.Ct. App. Aug.13, 1998) ("Thomas I"). Thomas subsequently petitioned for post-conviction relief, which the court denied. He now appeals,1 presenting the following consolidated issues for our review:
1. Whether he was denied the effective assistance of trial counsel.
2. Whether he was denied the effective assistance of appellate counsel.
We reverse and remand for a new trial on the rape charge.
The facts and procedural history as stated by this court in Thomas's direct appeal are as follows:
Thomas I, at 2-3. At trial, Thomas's counsel did not introduce into evidence a report regarding L.H.'s medical treatment and a forensic examination report which Thomas claims were exculpatory.2 On direct appeal, Thomas's appellate counsel argued that Thomas's trial counsel was ineffective for failing to introduce the reports into evidence, but his appellate counsel failed to make the reports a part of the appellate record. Accordingly, we held that "Thomas [had] not provided this court with a basis upon which to evaluate [trial] counsel's alleged errors" and that he was not denied the effective assistance of trial counsel. Id. at 6.
Thomas filed a petition for post-conviction relief. He alleged that he had been denied the effective assistance of trial and appellate counsel. Following a hearing, the post-conviction court denied his petition.
cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind.2000).
A court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented in the petition. Allen v. State, 749 N.E.2d 1158, 1164 (Ind.2001). The findings must be supported by facts and the conclusions must be supported by the law. Id. Our review on appeal is limited to these findings and conclusions. Id.
Thomas first contends that he was denied the effective assistance of trial counsel. The State responds that this issue is barred by the doctrine of res judicata. We agree with the State.
The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Williams v. State, 748 N.E.2d 887, 890 (Ind.Ct.App.2001). A post-conviction petition is not a substitute for an appeal. Id. Moreover, post-conviction proceedings do not afford a petitioner a "super-appeal." Id. Our post-conviction rules contemplate a narrow remedy for subsequent collateral challenges to convictions. Id. at 890-91. If an issue was known and available but not raised on appeal, it is waived. Id. at 891. If an issue was raised on direct appeal, but decided adversely to the petitioner, it is res judicata. Id.
In his direct appeal, Thomas raised the issue of ineffective assistance of trial counsel. This court stated that "Thomas has not provided us with cogent argument as to the specific errors he claims that counsel made at trial[,]" and we held that "[u]nder the circumstances, we cannot say counsel's performance was ineffective." Thomas I, at 6-7. In his petition for post-conviction relief, Thomas maintains that res judicata does not bar his claim because it "was never considered by this Court on its merits." But Thomas does not cite any authority to support this contention. Thomas raised this issue on direct appeal, and we decided it adversely to Thomas. See Williams, 748 N.E.2d at 891
. Thus, we conclude that the issue of ineffective assistance of trial counsel is barred by the doctrine of res judicata and decline to address it here.
Thomas next contends that his appellate counsel was ineffective for having waived the issue of ineffective assistance of trial counsel on appeal. Specifically, Thomas maintains that his appellate counsel failed to make the medical and forensic reports part of the appellate record, which, Thomas alleges, were necessary to preserve his ineffective assistance of trial counsel claim. Again, on direct appeal, we found that counsel had failed to present cogent argument regarding the alleged ineffective assistance claim and that the record did not include copies of the allegedly exculpatory reports, so we held the issue waived.
The standard for determining the effective assistance of appellate counsel is the same as for allegations of ineffective assistance of trial counsel. Gann v. State, 570 N.E.2d 976, 977-78 (Ind.Ct.App.1991), trans. denied. There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the defendant to overcome that presumption. Gibson v. State, 709 N.E.2d 11, 13 (Ind.Ct. App.1999), trans. denied. To make a successful ineffective assistance claim, a defendant must show that: (1) his attorney's performance fell below an objective standard of reasonableness as determined by prevailing professional norms; and (2) the lack of reasonable representation prejudiced him. Mays v. State, 719 N.E.2d 1263, 1265 (Ind.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), trans. denied. Even if a defendant establishes that his attorney's acts or omissions were outside the wide range of competent professional assistance, he must also establish that but for counsel's errors, the result of the proceeding would have been different. Andrews v. State, 588 N.E.2d 1298, 1302 (Ind.Ct.App.1992).
When counsel's presentation of a claim on appeal is so deficient the reviewing court deems it waived, the appellant is in little better position than if counsel had failed to raise the issue in the first place. Bieghler v. State, 690 N.E.2d 188, 195 (Ind.1997),cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Counsel's representation in its entirety is nevertheless still the touchstone of determining whether counsel's performance fell below an objective standard of reasonableness. Id. Even when counsel's performance is found constitutionally deficient, appellant must still show a reasonable probability that, because of counsel's deficiencies, the convictions are fundamentally unfair or unreliable. Id. If the claimed issues were presented by appellate counsel and analyzed by an appellate court, relief will only be afforded when the "appellate court is confident it would have ruled differently." Stevens v. State, 770 N.E.2d 739, 760 (Ind.2002) (quoting Bieghler, 690 N.E.2d at 196).
Thomas argued to the post-conviction court that if his appellate counsel had properly presented the issue of ineffective assistance of trial counsel, this court would have reversed his rape conviction. We must agree. The physician's report that Thomas contends his trial counsel should have introduced into evidence contained the following relevant statements by Dr. Beata Weiermiller, the emergency room physician who examined L.H.:
[The assailant] essentially had his penis out of his pants, just out of the zipper, layed [sic] himself on top of the patient and started fondling her after she took off...
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