SE v. State

• Decision Date: 26 February 2001
• Docket Number: No. 49A04-0009-JV-391.,49A04-0009-JV-391.
• Citation: 744 N.E.2d 536
• Parties: S.E., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

744 N.E.2d 536

S.E., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0009-JV-391.

Court of Appeals of Indiana.

February 26, 2001.

Janice L. Stevens, Indianapolis, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge

S.E., a juvenile adjudicated to be a delinquent, appeals the trial court's denial of his motion for relief from judgment. He raises two issues, which we consolidate and restate as whether the trial court abused its discretion when it denied his motion for relief from judgment. We reverse.

The facts most favorable to the true finding follow. On May 26, 1999, Deputy Christopher W. Cooper of the Marion County Sheriff's Department was dispatched to investigate a domestic dispute. Upon arriving at the scene, he and two other deputies met Christy Eilert, S.E.'s stepmother, in front of a house. Eilert knocked on the house's front door, and when sixteen-year-old S.E. opened the door, Eilert said, "let me in my house."¹ Exhibit 1, p. 43.² S.E. told her, "this is not your house. This is my father's house. You can't come in." Exhibit 1, p. 43. S.E. then tried to shut the door, but the deputies forced the door open. The deputies entered the house and tried to place S.E. under arrest. After a short struggle, the police subdued and handcuffed S.E.

S.E. was charged with resisting law enforcement, an offense that would be a class A misdemeanor if committed by an adult.³ After a hearing, the trial court found the allegation to be true and adjudicated S.E. to be a delinquent. S.E. subsequently appealed the trial court's judgment, but we dismissed the appeal because the praecipe had not been timely filed. Next, S.E. filed a motion for relief from judgment with the trial court. Following a hearing, the trial court denied the motion.

Motions for relief from judgment are governed by Indiana Trial Rule 60(B), which provides, in relevant part:

On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

* * * * * *

(8) any reason justifying relief from the operation of the judgment,. . . .

Ind. Trial Rule 60(B). A motion for relief from judgment is within the equitable discretion of the court, and appellate review of the grant or denial thereof is limited to whether the trial court abused its discretion. D.D.J. v. State, 640 N.E.2d 768, 769 (Ind.Ct.App.1994), trans. denied. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it, or the reasonable inferences to be drawn therefrom. Id.

Although Ind. Trial Rule 60(B) is available to challenge an adjudication of delinquency, it is firmly established that a motion for relief under T.R. 60(B) cannot be used as a substitute for a direct appeal, nor can it be used to revive an expired attempt to appeal. Perkins v. State, 718 N.E.2d 790, 792 (Ind.Ct.App.1999). In this case, S.E.'s first claim is that the evidence is insufficient to sustain the trial court's finding. S.E. could have raised this claim on direct appeal but did not, and he cannot revive it now. See id. Thus, the trial court did not abuse its discretion by denying his motion for relief on this ground. See id.

Next, S.E. claims that his trial counsel rendered ineffective assistance by failing to timely file a praecipe, thereby causing his first appeal to be dismissed and requiring him to file a motion for relief from judgment in order to preserve his challenge to the sufficiency of the evidence. Like adult defendants, respondents in juvenile delinquency proceedings have a Sixth Amendment right to the effective assistance of counsel. Id. at 793. A juvenile may raise an ineffective assistance of counsel claim in a T.R. 60(B) motion. Id.

In reviewing a claim of ineffective assistance of counsel, we initially presume that counsel's representation was within the wide range of reasonable professional assistance. In re J.L.T., 712 N.E.2d 7, 11 (Ind.Ct.App.1999), reh'g denied, trans. denied. The defendant has the burden to rebut the presumption of competence with strong and convincing evidence. Id. In order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that: 1) counsel's representation was deficient; and 2) the deficient performance so prejudiced the defendant as to deprive him or her of a fair proceeding. Id. Isolated poor strategy, inexperience, or bad tactics do not necessarily constitute ineffective assistance of counsel. Thornton v. State, 570 N.E.2d 35, 37 (Ind.1991). To establish prejudice, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Meredith v. State, 679 N.E.2d 1309, 1312 (Ind.1997), reh'g denied.

Here, S.E.'s trial counsel's failure to timely file a praecipe is an obvious mistake; it cannot be attributed to strategy or tactics. Furthermore, it is a serious mistake because a party that fails to timely file a praecipe forfeits the right to appeal. See Moran v. Cook, 644 N.E.2d 179, 180 (Ind.Ct.App.1994)

. Thus, counsel's representation of S.E. was deficient and fell below the range of professionally competent representation. See, e.g., Stevens v. State, 689 N.E.2d 487, 490 (Ind.Ct.App. 1997) (determining that a counsel's performance was deficient when he failed to timely file a defendant's request for a jury trial, resulting in the forfeiture of that right).

Next, we must determine whether S.E. was prejudiced by the failure. S.E. must demonstrate that had his counsel timely filed a praecipe, and had we heard the appeal, we would have reversed the trial court's finding. In order to determine whether S.E. was prejudiced, it is necessary to address his challenge to the sufficiency of the evidence on the merits.⁴

When reviewing a claim that the evidence is insufficient to support a criminal conviction, we look to the evidence most favorable to the judgment and to any reasonable inferences that may be drawn therefrom. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995),reh'g denied. We consider only whether there is substantial evidence of probative value that would permit a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. We neither reweigh the evidence nor judge the credibility of the witnesses. Id.

The offense of resisting law enforcement is governed by Ind.Code § 35-44-3-3, which provides, in relevant part:

A person who knowingly or intentionally:

(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;

* * * * * *

commits resisting law enforcement, a Class A misdemeanor.

Thus, in order to obtain a conviction, the State was required to prove that S.E. forcibly resisted, obstructed, or interfered with Deputy Cooper and his fellow officers while they were lawfully engaged in the execution of their duties. See Ind.Code § 35-44-3-3.

S.E. claims that the evidence is insufficient to sustain the trial court's finding because Deputy Cooper and his fellow officers were not lawfully engaged in the execution of their duties. Specifically, S.E. argues that the deputies' forcible entry into the house was not lawful.

We find this court's opinion in Casselman to be instructive here. Casselman v. State, 472 N.E.2d 1310 (Ind.Ct.App.1985). In that case, a deputy sheriff drove to Casselman's house to serve a writ of attachment of the body on Casselman. Id. at 1311. The deputy knocked on the front door, and when he received no response, he went around to the side of the house to a sliding glass door. Id. He knocked on that door and Casselman came to the door. Id. The deputy told Casselman that he was serving a writ of attachment upon him. Id. at 1312. Casselman became verbally abusive, told the deputy to contact his lawyer, and tried to close the door. Id. The deputy struggled to keep the door open, and after "a shoving and grabbing match," Casselman retreated into his house. Id. The deputy entered the house and subdued Casselman. Id. Casselman was convicted of resisting law enforcement, but we reversed his conviction. Id. at 1318. We noted that "Casselman had the right to close the door; he engaged in no resistance, obstruction or interference other than to attempt to assert that right. The scuffle between Casselman and [the deputy] arose only after [the deputy] unlawfully entered Casselman's doorway to prevent Casselman from closing the door." Id. at 1314. Once the deputy entered the threshold of the house to prevent Casselman from closing the door, he was no longer engaged in the lawful execution of his duties, and the evidence was insufficient to sustain the conviction. See id.

We also find this court's opinion in Adkisson applicable. Adkisson v. State, 728 N.E.2d 175 (Ind.Ct.App.2000). In Adkisson, sheriff's deputies knocked on Adkisson's door and asked to talk to her because her neighbors had told the officers that she had battered them. Id. at 176. She refused to allow the officers into her home, but she spoke to them in her doorway. Id. At some point, Adkisson tried to shut the door, but a deputy prevented her from doing so by putting his foot in the doorway. Id. at 177. The deputy told her she was under arrest as he entered the apartment, where he subdued Adkisson after a struggle. Id. Adkisson was convicted of resisting law enforcement, but we reversed the conviction. Id. at 178. We noted that the deputies had probable cause to arrest Adkisson because other persons had told them that she had battered them, but they still were not constitutionally permitted...