Trueblood v. State, 79S00-9211-PD-887.

• Decision Date: 09 September 1999
• Docket Number: No. 79S00-9211-PD-887.,79S00-9211-PD-887.
• Parties: Joseph L. TRUEBLOOD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

715 N.E.2d 1242

Joseph L. TRUEBLOOD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 79S00-9211-PD-887.

Supreme Court of Indiana.

September 9, 1999.

Susan K. Carpenter, Public Defender of Indiana, John S. Sommer, Kathleen Cleary, Chris Hitz-Bradley, Deputy Public Defenders, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.

Joseph L. Trueblood pleaded guilty to the murders of Susan Bowsher and her two children. He was sentenced to death for each of the three murders. He appeals the denial of his petition for postconviction relief and raises eight issues, which we restate as four: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) the postconviction court's summary disposition of claims and exclusion of evidence at the postconviction hearing; and (4) the voluntariness and intelligence of the guilty pleas.

Factual and Procedural Background

On August 15, 1988, Trueblood picked up his ex-girlfriend Susan Bowsher and her two children and, while they were in his automobile, shot each of them in the head. After borrowing a shovel from his brother's home, Trueblood took the bodies to a secluded area and buried them in a shallow grave. Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992).

Trueblood pleaded guilty to the murder of Susan on October 6, 1988. More than a year later he sought to withdraw that guilty plea, but his request was denied. In February of 1990, a jury trial commenced for the murders of the two children. After two days of trial, Trueblood pleaded guilty to both murders and the trial court accepted those guilty pleas. A few days later, Trueblood sought leave to withdraw the last two guilty pleas and that leave was also denied by the trial court. Trueblood was sentenced to death on each of the three counts. On direct appeal this Court affirmed the trial court's denials of the motions to withdraw his guilty pleas. The death sentences were also affirmed. See id. at 110-11.

Trueblood then filed a petition for postconviction relief. Both parties moved for summary judgment as to some issues, and the trial court denied Trueblood's motion, granted the State's, and sua sponte dismissed some of Trueblood's other claims. After an evidentiary hearing that spanned five days, the postconviction court denied Trueblood's remaining claims. This appeal ensued.

Standard and Extent of Review

Trueblood bore the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because he is now appealing from a negative judgment, to the extent his appeal turns on factual issues Trueblood must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Harrison v. State, 707 N.E.2d 767, 773 (Ind.1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995)). We will disturb the decision only if the evidence is without conflict and leads only to a conclusion contrary to the result of the postconviction court. Id. at 774.

Postconviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). Rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the postconviction rules. Id.; P-C.R. 1(1). If an issue was known and available but not raised on direct appeal, it is waived. Rouster, 705 N.E.2d at 1003. If it was raised on appeal but decided adversely, it is res judicata. Id. (citing Lowery v. State, 640 N.E.2d 1031, 1037 (Ind.1994)).¹ If not raised on direct appeal, a claim of ineffective assistance of trial counsel is properly presented in a postconviction proceeding. Woods v. State, 701 N.E.2d 1208 (Ind.1998). A claim of ineffective assistance of appellate counsel is also an appropriate issue for postconviction. As a general rule, however, most free-standing claims of error are not available as such in a postconviction proceeding because of the doctrines of waiver and res judicata. Some of the same contentions, to varying degrees, may be properly presented in support of a claim of ineffective assistance of trial or appellate counsel. However, postconviction counsel run the risk of waiving available claims of ineffectiveness by presenting them as free-standing claims.² We address the issues Trueblood raises in this appeal primarily as claims of ineffective assistance of counsel, but also address those free-standing claims that are not barred by res judicata or waiver.

I. Ineffective Assistance of Trial Counsel

Trueblood's primary claim in this appeal is ineffective assistance of trial counsel in both his guilty pleas and his sentencing hearing. To establish a violation of the Sixth Amendment right to effective assistance of counsel, the defendant must show that (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. More recently, the Supreme Court of the United States held that prejudice resulting from ineffective assistance is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

A. Guilty Pleas

Six weeks after being charged with the three murders, Trueblood pleaded guilty without a plea agreement to Susan's murder (Count III). His counsel at that time was Tippecanoe County Public Defender George Wilder. Wilder's appearance was withdrawn almost a year later when he left the public defender's office. Wilder was replaced by Thomas O'Brien and Michael O'Reilly, and a motion to withdraw the guilty plea was filed a few months later. The trial court denied the motion, and two months later a jury trial began for the murders of the children (Counts I and II). After jury selection had been completed and several witnesses had testified, Trueblood pleaded guilty, again without a plea agreement, to the murders of the children.

A few days later Trueblood denied the factual bases of these pleas in a presentence investigation interview with a probation officer. Defense counsel moved for a competency evaluation, and Trueblood was evaluated by a court-appointed psychologist and a psychiatrist, both of whom concluded that he was competent to stand trial, make judgments about a guilty plea, and assist in his defense. Trueblood then moved to withdraw the second guilty plea. Both of his counsel also filed a notice of perjured testimony and sought to withdraw their appearances on the basis that Trueblood had used them "as part of a scheme to submit to the Court perjured testimony," which broke down the attorney-client relationship. The trial court denied the motion to withdraw the guilty plea and the motion to withdraw as counsel.

Trueblood argues that he was denied effective assistance of counsel in each of his three guilty pleas. Trueblood contends that "[c]ounsel should not have allowed Trueblood to plead guilty to [Susan's murder] prior to an adequate mental health evaluation, including neuropsychological testing." He makes no further suggestion what "an adequate mental health evaluation" would have entailed or how its results would have altered the decision to plead guilty. Defense counsel hired a licensed psychiatrist to examine Trueblood within days of his arrest. The psychiatrist's report concluded that "Trueblood was fully sane at the time of my interview with him and I have the evidence to suggest that he was also sane at the time of the offense. He is competent to stand trial...." In the face of this report, counsel's advice to plead guilty cannot be regarded as below acceptable performance.³

Trueblood also argues that he had other "potential defenses" to Susan's murder, specifically that (1) he fired a mercy shot at Susan only after she attempted to kill herself and (2) that he was upset from a lover's split and was acting under sudden heat when he killed her. These "potential defenses" are problematic at best. It is unlikely that a jury would have bought the mercy killing story, especially in light of Trueblood's brother's trial testimony that Trueblood confessed to the killings and asked for a shovel with which to bury the bodies. Moreover, pursuing a voluntary manslaughter defense would almost certainly have required Trueblood to testify. Although the State has the burden of disproving sudden heat beyond a reasonable doubt, in order to inject that issue at all, the defendant must point to some evidence supporting sudden heat. See Wolfe v. State, 426 N.E.2d 647, 652 (Ind.1981)

. Because Trueblood was the only surviving occupant of the car at the time of the killings, evidence of sudden heat could have come only from him. The risk of a devastating cross-examination was obvious, and the judgment not to expose Trueblood to this cannot be the basis of ineffective assistance of counsel.

Wilder did not testify at the postconviction hearing, but both Trueblood and the State submitted affidavits from him. The affidavit submitted by Trueblood indicated that the decision to plead guilty was designed to (1) demonstrate Trueblood's cooperativeness and (2) possibly "anchor the case before Judge Thayer," whom Wilder believed to be "the least likely Judge to sentence Mr. Trueblood to death."⁴ The affidavit submitted by the State noted that

[e]arly on and after a considerable amount of time advising Mr. Trueblood,

...